Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, July 27, 2007

Prudence, Proportionality, and Giuliani

In response to my post that the prudential status of an issue does not alone entail that it's less important than an issue on which the Church clearly speaks, Rob Driscoll at Notre Dame writes:

Is that then an argument for why Catholics who are pro-life could vote for Rudy Giuliani and not be violating Church teaching?  That, in addition to, what Professor Garnett referred to as the prudential decision regarding electability?  In other words, a Catholic who really believes that Giuliani’s leadership will save millions of American lives could vote for him despite his pro-abortion positions (and disregarding his promise to point originalist judges who likely would uphold restrictions on abortion “rights”)?

Yes in theory, although I don't buy it empirically.  If one believes -- and, I would add, has good reason to believe -- that Giuliani's approach to homeland security would be that much better than the pro-life candidate at protecting America from catastrophic likely losses of life, then the simple fact that the Church does take a position on abortion but doesn't take a position on the details of homeland security policy shouldn't logically preclude someone from finding the reasons to vote for Giuliani proportionate.  I seriously doubt as a matter of fact that Giuliani is that much better, and moreover he's endorsed waterboarding and other interrogation tactics that are deeply problematic morally and also, I think, of little value compared with the serious wound they inflict on America's standing in the world (a crucial part of reducing the appeal of terrorism).

Someone certainly should weigh Giuliani's promise to appoint strict constructionists to the Court, which points toward appointments who are more likely to limit or overrule Roe, although that prediction should be tempered by his own pro-choice views (which make him less likely to expend political capital for an anti-Roe nominee) and by his statement that being a strict constructionist does not necessarily mean overturning Roe.  The other consideration for me, though, is that because of the very difficult situations that many pregnant women face, I believe the provision of stronger social supports for them and their children is both (i) called for morally to accompany criminal abortion restrictions and (ii) crucial in strategic terms if such restrictions are to maintain public support in the long run.  Republicans tend to oppose those supports (often for far less than proportionate reasons, in my view), while Democrats tend to back them.  This is why, although I regard the overturning of Roe as very important, I cannot give Republicans -- including Giuliani -- the total nod with respect to abortion policy.  I participate in pro-life organizations that call for such supports (Democrats for Life) and also those that don't (the Christian Legal Society); but as a matter of my own voting I weigh such safety-net policies as an important consideration.

But all of this goes beyond the modest point of my first post, which was not about how to answer these issues, but just about how to analyze them: the fact that an issue is prudential in nature at the level of policy, as opposed to one on which the Church specifically teaches, does not entail that the issue is less important in the weighing process of proportionality.

Tom

Thursday, July 26, 2007

Prudence and Proportionality

Taking off from Daniel Suhr's remarks concerning abortion, Iraq, and proportionality, I wanted to make one comment.  It's about the relation between prudence and proportionality in voting, something I've been thinking about ever since we had a conference on the role of prudence in the Catholic social tradition here at St. Thomas Law's Murphy Institute in April 2006.  Daniel wrote that

being wholeheartedly against the War in Iraq is not a proportionate reason for being pro-choice. As Archbishop Myers reminded us in the run up to the 2004 election, the Pope did not bind the conscience of Catholics to oppose the War in Iraq - he merely expressed his own prudential judgement on the question. Moreover, as the Archbishop points out, we must remember what we are balancing here - the lives of 1.3 million unborn children in America every year. Virtually no other modern policy issue - not taxes, welfare benefits, minimum wage, farm subsidies, the war - compares on that scale.

My focus here is not on the second point in that paragraph -- that no other issue can compare to the lives of 1.3 million unborn children.  That has been discussed before on the blog, and it is a powerful prima facie argument concerning proportionality (although one can question whether any policy that the pro-life community proposes will come close to saving 1.3 million lives, and also whether some policies widely opposed by Republicans -- such as access to contraception -- will prevent more of those abortions).

I want to focus on Daniel's (and Abp. Myers's) first point -- that abortion is matter of binding conscience for Catholics whereas Iraq is a matter of prudential judgment -- because I don't think that this argument logically shows disproportionality between the two issues.  An issue could be prudential, in the sense that the Church doesn't take a position on it, and yet be overwhelmingly important.  For example, suppose a voter is very knowledgeable on homeland security matters and, based on this knowledge, believes (i) that terrorists are very likely to try to smuggle nuclear bombs through a port, with a potential loss of millions of lives, and that (ii) the pro-choice candidate's plan for securing the ports is excellent and very likely to succeed while the pro-life candidate's plan is so inadequate as to create a huge risk.  The Church doesn't take a position on how to secure ports, so this is "merely" a prudential matter at the relevant level of decision, but that doesn't mean that the ports issue isn't a proportionate reason for voting for the pro-choice candidate (not, as all the analyses of this make clear, because the candidate is pro-choice, but because of the proportionate reason of a grave threat to millions of lives).

Now, the fact that the Church doesn't take a position on some issue could be evidence that the issue isn't important.  But it's pretty weak evidence once it's been acknowledged, as thoughtful people in both the magisterium and laity have done, that there are many issues on which the Church doesn't officially speak -- at least at the level of policy -- and instead leaves the matter to the better informed (and hopefully morally well-formed) judgment of lay people in their secular callings.  "Prudential" logically does not mean "unimportant."  The fact that an issue is prudential gives people discretion concerning it -- discretion, within reason, to disagree on its resolution -- instead of binding them to treat it as less important.

Again, this objection does not go to the "1.3 million unborn children" point, which I quite agree is logically about proportionality and would have to be answered, if at all, on other grounds.  But I expect that the argument "X can't be proportionate because it's only prudential" will appear in upcoming discussion about the 2008 elections.  So I offer this as a modest proposal for how to think about (not how to resolve) these issues.

Tom

Wednesday, July 25, 2007

More on Abortion and Democrats

Rick is right to point out how far the Democrats have to go concerning abortion and how daunting the challenge is to pro-life Democrats.  Without denying or minimizing that challenge, I would respond with a couple of comments why pro-life Democrats should soldier on.  First, the presidential race, at the primary stage, is the place and time at which the abortion-affirming wing will be strongest among Democrats, because the process aims at the one highest position and the activists have so much influence.  But as the article linked by Rick notes, the issue overall is under debate in the party, and the pro-life position will be more successful in moving things its way in some other contexts, such as Congress, governorships, and state legislatures.  Thus, in the 2006 midterm elections, a number of congressional candidates favoring measures against abortion, led by Bob Casey in the Senate, were nominated by the Democrats and won.  Second, the hard-nose abortion-affirming wing of the party has been empowered this cycle by, among other things, the widespread sense that the Democrats could win on "values" issues without having to move on abortion, simply because the Bush administration has flunked so many moral issues: the justice of the war in Iraq as initiated and executed, the half-hearted attitude toward renouncing torture, the acceptance of scandal and overreaching, etc.  One can't put the weight of blame for Democrats' positions onto Republicans; nor am I claiming equivalency among all these issues.  But as a practical matter, it would help those Democrats trying to push their party on abortion if the competing party provided a less morally flawed challenge.

Tom

Monday, July 23, 2007

Harry Potter and the Deeper Magic

Three of four members of our household have now read Harry Potter and the Deathly Hallows -- and that was with a late start, not getting out of the checkout line at the bookstore party until 2 a.m. Saturday.  No spoilers in this post.  But if you're ready to be told a lot, Christianity Today's review catalogs the ways in which the book presents (almost always symbolically) themes that are deeply Christian, most notably the power of sacrificial love.  The review's conclusion:

When C.S. Lewis started out to write The Lion, the Witch, and the Wardrobe, he didn't have Christianity in mind. "Some people seem to think that I began by asking myself how I could say something abut Christianity to children; then fixed on the fairy tales as an instrument, then collect information about child psychology and decided what age group I'd write for; then drew up a list of basic Christian truths and hammered out 'allegories' to embody them," Lewis once wrote. "This is all pure moonshine. I couldn't write in that way at all."

"Everything began with images," Lewis continued. "A faun carrying an umbrella, a queen on a sled, a magnificent lion. At first there wasn't anything Christian about them. That element pushed itself in of its own accord."

Something similar seems to have happened to J.K. Rowling. She began writing about wizards and quidditch and Bertie Botts Every Flavor Beans, and somewhere along the way, Christ began to whisper into the story.

Tom

Thursday, July 19, 2007

Judgment and Inclusiveness

The readings in my Episcopal parish last Sunday included two classic texts for Christian ethical and political thought: Amos's prophetic challenge to the royal temple cult of Israel, followed by the parable of the Good Samaritan.  (As I look at the Catholic lectionary, it seems you may have heard Deuteronomy instead of Amos.)  At The Christian Century's Theolog blog, William Willimon -- a great Methodist preacher -- reflects on the two together, finding the theme of God's judgment not only in Amos (where it's obvious), but in the parable:

We gather in church to be closer to God. But how do we like proximity to a God who loves enough not to pass by but lingers long enough among us to judge us, to hold a higher standard of judgment against us than that by which we measure ourselves? To a God who is not only loving but righteous, and rarely leaves us unscathed? God is no limp projection of ourselves and our felt needs. God wields a sword against our self-righteous presumption, and against our positive self-image slams a disgusting Samaritan who, while not having our theological commitments, embodies those commitments better than we.

In positing that the person who is very much "the other" may embody our best commitments, the Samritan story teaches a lesson of "inclusiveness."  Today that term, a very popular one, is typically set in opposition to judgment: to be inclusive toward people or ideas is to refrain ever from judging them.  But the two come together in the best way at the heart of the Gospel:  One of the most inclusive messages in human history is that we are all sinners, failing to measure to God's plumb line, and thus all in need of salvation and grace, which God in love offers to all.  As Willimon points out, this challenges all of our notions of self-satisfaction and superiority.  But it does so under standards of judgment -- some of which you fail, but some of which, I must always remember, I fail -- and not under a version of inclusiveness that, too frequently these days, reduces to moral relativism or feel-good therapy.

Tom

What Obama Probably Meant, and an Answer

Rob asks what Obama could've meant in complaining about "facts cast aside for ideology" in the partial-birth abortion opinion.  This video from his campaign website doesn't include that passage, but it does show him complaining about how Kennedy's opinion (1) suggests that women will regret their abortions and (2) fails to defer to the position of the American College of Obstetricians and Gynecologists that prohibiting intact D&E would endanger women's health.  (Those are my paraphrases; the language starts around 1:30 in the 4 minute, 45 second video.)  On both of these counts, it seems to me, one could reasonably question the scientific/empirical argument for the partial-birth abortion ban -- i.e. one could question how many women regret their abortions, and one could agree with the doctors who say the partial-birth procedure is safer for women -- and thus it's comprehensible for Obama to claim that the Act "cast[s] aside facts."  (The facts about fetal life and development, of course, can be cast aside in his view ...)

But even accepting all that, the big gap in his reasoning is the claim that the Court is trumping facts with ideology, when what the Court is actually doing is letting the legislature decide -- within boundaries -- about how to respond to the facts and resolve factual disputes.  On women's regret over abortions, the Court only claims (slip op. at 28-29) that "some women" may regret the decision; that this is relevant to the partial-birth context because recognizing the difficult nature of the subject may keep both doctor and patient from talking about this procedure fully; and most important, that all of this supports a "legitimate" governmental interest in prohibiting the particular procedure.  "Legitimate interest," of course, is the language of rational-basis review with deference to the legislature.  The Court didn't make its judgment on the facts, but let Congress do so, within boundaries.

One of the boundaries of course, following the rules of the Casey decision, was that the Act, even if it served a legitimate interest, not impose an "unconstitutional burden on the abortion right" by prohibiting a procedure "necessary, in appropriate medical judgment, for [the] preservation of . . . the health of the mother."  (slip op. 31)  Rational-basis review wouldn't apply if there weren't alternative abortion procedures, pre-viability, that didn't endanger the health of the mother.  On that question, the Court found, quoting one of the district courts, that there "continues to be division of opinion among highly qualified experts regarding the necessity or safety of intact D&E" (slip op. 32).  Given the medical disagreement, the Court (a) allowed Congress to choose between the competing views and legislate, but (b) only as against a facial challenge -- the Court preserved pre-enforcement as-applied challenges when "it can be shown that in discrete and well-defined instances a particular condition has [occurred] or is likely to occur in which the procedure prohibited by the Act must be used" to protect a woman's health (slip op. 37).

Given the clear language of deference to the legislature, and the reservation of as-applied challenges, Carhart is a decision based on judicial restraint.  Not on judges trumping facts with ideology.

Tom

Bush the Perfectionist Heretic?

President Bush has stirred up irritation-to-outrage among some conservative bloggers of Christian intellectual peruasion, with his comments in last Friday's news conference: for example (from Rich Lowry's summary), "I strongly believe that Muslims desire to be free just like Methodists desire to be free," and "America must never lose faith in the capacity of forms of government to transform regions."  Everyone agrees that God desires freedom for all human beings, including political freedom; it's Bush's move from that to the inevitability of realizing these aspirations that provoked the reactions.  Ross Douthat: "[T]he attempt to transform God's promise of freedom through Jesus Christ into a this-world promise of universal democracy is the worst kind of 'immanentizing the eschaton' utopian bullshit," and (Douthat thinks at least sometimes), "not one more American soldier should die for the President's world-historical delusions."  And Rich Lowry:

Perhaps Methodists and Muslims do equally desire freedom, but Methodism, as a movement that grew out of and thrived in 18th century Anglo-America, would seem to me to be more naturally compatible with an individualistic, liberal democratic order. Culture matters, and that's something Bush is very reluctant to acknowledge. You can believe freedom is a gift from the Almighty and still recognize that some cultural soil is more or less compatible with supporting political systems that protect liberty. . . .  In my view, people don't desire freedom first and foremost, but order, and after that probably comes pride.

What are Michael Novak, Richard Neuhaus, and the familiar "culture comes before politics" religious conservatives when the President talks about the "capacity of forms of government to transform regions"?

I vacillate between thinking that the great failures in Iraq are attributable to Bush-style naive universal moralism, and thinking that they're attributable to Cheney-style national-interest cynicism.  Probably it's been a toxic mixture of both.  From different starting points, they overlapped in suggesting that the U.S. didn't have to worry too much about the fallout of invasion: Bush because God would ensure everything would turn out all right if we showed patience, and Cheney because, well, who cares about the consequences, long-term or to others, if we can enforce our will to make ourselves safer in the immediate term.

Of course diagnosis of the wrongheaded past is not the same as prescription for the way forward, let alone a solution for what to do about Iraq now.  But at least two books in the last year -- Ethical Realism by Anatol Lieven and John Hulsman, and The Good Fight by Peter Beinart -- give ideas for an approach that combines the moral goals with a sense of realism about both the extent to they which can be achieved and the routes for doing so.

Tom

Friday, July 13, 2007

Reactions to the Vatican Document on the Church

This week's Vatican statement clarifying the doctrine concerning the Catholic Church and other Christian churches and denominations has of course triggered reaction, mostly over its assertions that the others "suffer from defects" and that the Protestant bodies "cannot . . . be called 'Churches' in the proper sense."  The New York Times article, while recognizing that this document simply restated previous teaching (most recently in Dominus Iesus, 2000), strove to suggest some sinister "roll back Vatican II" trend in the timing of it, a week after the authorization of the Latin missal.  Some mainline Protestants, quoted in the Times, complained (as they did in 2000) that the Church's assertions call into question its "respect for other beliefs" and will set back ecumenical relations.  But as a Protestant, I agree with Christianity Today's response in 2000 and today: Respect for each other in dialogue requires the participants to be honest about their differences before moving ahead in openness and charity -- to practice "an ecumenism of conviction, not an ecumenism of accommodation" -- and therefore honest, respectful statements of differences are "a step forward, not backward, for Christian unity."

To me, the new document is respectful and charitable.  Like Dominus Iesus, it takes pains to recognize the "numerous elements of sanctification and truth" in other Christian denominations, which the Spirit can and does use as "means of salvation" (Dominus Iesus 17), although those "derive their efficacy from the fullness of grace and truth entrusted to the Catholic Church" (id.).  We Protestants, of course, won't agree with the last clause.  We believe that some of what the Church calls the fullness of grace and truth are mistaken doctrines; and we cannot agree with the kind and degree of primacy that Catholicism gives to the visible Church, as against the invisible church of all believers in Christ, or with some of the doctrines stemming from that primacy (such as the necessity for apostolic succession in order to be called a "Church").  But discussion and argument over those matters will continue -- in charity and respect -- and the Catholic Church should not have to be quiet about fundamentals in its understanding of the faith in order to participate in such dialogue.

I'd make only a more modest point about this document and Domine Iesus: perhaps a criticism, but more likely only a suggested further clarification.  When the Church claims "the fullness of grace and truth" as compared with other Christian bodies -- that the Church possesses or affirms all the essential elements A through Z while others, say, only have/affirm up through P -- it would help me if there was also some explicit recognition that this fullness, while it exists (let's grant for argument) in ideal doctrine and structure, is not necessarily always present empirically to the same extent as in other bodies.  Other bodies may not merely have some of what the Catholic Church has and affirms; they may actually have more of it, or in a more effective form, and thus may have something to teach the Church about its own core affirmations and elements.  For example, I assume that the Church affirms as a matter of "grace and truth" that believers should know and understand the Scriptures, yet the evidence indicates -- this is not just some hoary stereotype -- that American Catholics are substantially less likely than other Americans (certainly than Protestants) to read the Bible.  (Thanks to Rob for the survey link.)  If one finds that a problem (as I hope is the case), then one may be led to pursue some other questions about why it's so, and what changes in practices and culture within Catholic institutions (parishes, seminaries, etc.) may be necessary to do something about it.

But let me be clear: I have analogous reactions to some assertions that Protestant theological positions are superior.  For example, although Protestants often claim that their approach is better than the Catholic at observing the Second Commandment -- not to make an idol of anything in the culture or the world -- things frequently have failed to work out that way, to say the least.  Protestants have sometimes capitulated to evil in the culture much more easily than have Catholics, partly because Protestants have lacked a strong ecclesiastical structure to stand against powerful competing forces, and thus have tended to mirror or adopt the mores and institutions of the local community.  A prime example, sometimes mentioned here on MOJ, is the much better record of Southern Catholic bishops, compared with Southern Protestant clergy, at standing up against racial oppression in the 50s and early 60s.  Protestants have lot to learn from Catholicism, even to be better Protestants.

The modest point of this long post is that when any of us talk about the greater truth of our theological claim as against another's, we should also be asking and acknowledging how that claim is (or isn't) being lived out in reality.  At the very least we're less likely to fall into arrogance -- or leave that impression, which documents like this week's can easily do -- and we'll realize we need to pray for grace to live up to the ideal.  But beyond that, we might find that we can each be truer to our own claims by learning from the other: Catholics learning from certain features of Protestantism about how to be fuller and more faithful Catholics, and Protestants learning from certain features of Catholicism about how to be fuller and more faithful Protestants.  Maybe we'd find we need to change some non-core beliefs and practices that are interfering with the core ones.  All of this amounts to a lot of learning from ecumenical dialogue, and it all stops short of changing any really core beliefs themselves.

I can't imagine that any of this is inconsistent with what's said in this week's document and in Dominus Iesus, which is why I think I'm just suggesting a clarification.  But if some such recognition of the gaps between ideal and reality were explicitly included in documents like those, it would remove a stumbling block for me and maybe for others in reading them.

With thanks to all of you who continue to welcome me as a contributor to the MOJ project.

Tom

Monday, July 9, 2007

The Latest on the Muslim Episcopal Priest

While the Rev. Anne Redding's embrace of Islam was accepted by Seattle's Episcopal bishop,

it turns out that Redding is actually a priest under the Diocese of Rhode Island. Bishop Geralyn Wolf doesn't find the interfaith possibilities so exciting, and announced Thursday that Redding is undergoing church discipline. . . .

In the meantime, Redding will continue "teaching theology at Seattle University, a Jesuit school."

(HT: Christianity Today weblog)

Tom

Thursday, July 5, 2007

More Confusion in the Lower Courts ...

... on whether local authorities can exclude privately-run worship services from public facilities that are open to other community group meetings.  This time the Second Circuit panel couldn't agree on a majority disposition, and the two judges who reached the merits divided.  The issue is certainly crying out for the SCT to clarify it, in a case ripe on its facts.  Here's my previous post on the issue.   (HT: Christianity Today blog)

Tom