The Wall Street Journal op-ed page today has a piece a with an uncharacteristic topic: growing income inequality, which the author calls potentially "the mother of all electoral issues." The author, investment-banking and media mogul Steven Rattner, writes that one can't deny "the failure of robust top-line growth in the U.S. economy to filter into the wallets of Americans below the top of the pyramid. . . . From 2000 to 2005, for example, average weekly wages for the bottom 10% dropped by 2.7% (after adjustment for inflation), while those of the top 10% rose by 5.3%."
This reminded me of the MOJ discussion a few months ago, in which Rick asked,
why, exactly, is [growing income disparity] a problem? If we put aside -- just for the sake of discussion -- entirely appropriate concerns about, for example, a consumption culture that is fed by images of the super-rich on spending binges, or about whether those at the low end of the scale (or in the middle, or at the high end, for that matter) are being compensated justly, and just ask about "income disparity" . . . why, from a CST perspective, is this objectionable?
Catholic social doctrine clearly regards some level of income disparity as the inevitable product of morally commendable freedom and initiative; moreover, you obviously can't identify a precise point at which income disparity becomes too great. But let me try a few suggestions why large and growing income disparity may be ground for concern in itself, and not just as a symptom of other things like a high poverty rate.
One is that great disparity seems likely to make it harder for people to practice the value of solidarity, that is, "see[ing] the 'other'-whether a person, people or nation-not just as some kind of instrument, . . . but as our 'neighbor,' a 'helper'(cf. Gn. 2:18-20), to be made a sharer on a par with ourselves in the banquet of life to which all are equally invited by God." Solicitudo Rei Socialis, para. 39. Again, this is not talking about equal results; but the more that different classes of people lead entirely different lives determined (heavily at least) by income -- with radical differences in housing, schooling, neighborhoods, work, leisure, transportation, and almost everything else -- the more they will find it hard to sympathize with each other (especially the rich to sympathize with those of modest means). Around the time of our discussion last year, Michael Kinsley wrote about threats to "the role of civil equality as a consolation prize for economic inequality":
[W]hole areas of life that were part of everyday democracy have fallen to the empire of money. People increasingly go to schools with people of their own class, live in class-sifted neighborhoods, hold their Fourth of July picnics in their own back yards rather than the public park.
Of course Catholic doctrine calls on all people to develop empathy across the lines that will always be there. But realistically, people will find it harder to do so when income and life-condition disparities are really large. This effect seems independent of what percentage of the population falls below some absolute measure of poverty.
Related to this is that greater income disparity can make it harder to have economic and social mobility. The further you have to go to reach a different class, the harder it is. And I would presume, though I don't have time to get the cites right now, that mobility is a positive goal in Catholic social doctrine with its emphasis on opportunity and full participation by all in economic life. There are studies showing that we now have less intergenerational mobility than we thought and less than many other developed Western nations. (And don't get me started on the estate tax.) I don't deny that the effects here may be complicated; I can imagine that a more laissez-faire economy that produces greater income disparity can promote greater mobility in some situations. But the evidence suggests this is not always the case, and it seems to me that there is a prima facie reason for concern about large and growing inequality in itself.
Finally, there is a concern that relates to, but is distinct from, Rick's mention of "a consumption culture fed by images of the super-rich." It's the concern about "expenditure cascades," defined (in this paper) as "[i]ncreased expenditures by top earners . . . that resul[t] in increased expenditures even among those whose incomes have not risen." The author, Cornell economist Robert Frank, emphasizes that he is not talking about increasing spending caused solely by a psychological need to emulate the rich (the "consumption culture fed by images" to which Rick referred) -- which Christian doctrine might classify as envy that we ought to encourage people to overcome. Rather, increased top-end spending puts pressure step by step on people down the line for more concrete, objective reasons as well. For example, houses mushroom in size and price in the suburbs with the decent schools (which non-wealthy parents want for their kids too); huge Hummers or other SUVs on the road render a cheap or small car not just less fashionable but more dangerous; the suits you're expected to wear to be presentable in formal situations, or the gifts you're expected to give to satisfy etiquette, also balloon in luxury and price; and so forth. Nor, as far as I can see, are these increases even fully reflected by inflation measures, since we're often talking about new, higher-level goods, not simply higher prices for the same basket of goods. Several of these affect primarily the middle class, not the poor (at least not directly). But the paper argues, using regression analysis on the data, that higher income inequality in various areas produces significantly higher average home prices and also matches up with "higher personal bankruptcy rates, divorce rates, [a]verage commute times," and total hours worked -- all of them matters of real concern to CST. Cf. Elizabeth Warren's work on the relation of home prices to families' economic troubles. I'm no economist, but those interested in the issue might want to read the Frank paper, with his statistics.
I have a somewhat different reaction than Rob to my esteemed teacher Martin Marty's column criticizing Tom Delay's speech about Terri Schiavo and Jesus. (DeLay drew rhetorical parallels between their deaths -- both thirsting and forsaken -- which overlooks the fact that Jesus's death was the culmination of the divine plan.) Rob thinks that attacking DeLay's theologizing is "one step removed from a straw man argument." But I disagree; it seems to me that among Marty's points is precisely that the theological assertions of politicians like Tom DeLay are not marginal today but are influential (too much so) and that's why they need to be scrutinized. Marty is also spot on in pointing out that DeLay's interpretation was far from literal; he shaped the text in ways that evangelicals often fail to acknowledge doing.
I have a different question, though. DeLay is hardly the first person in politics to make an analogy between the unjust killing of Jesus and other injustices. William Jennings Bryan, striking a crucifixion pose, said "You shall not crucify mankind upon a cross of gold!" Death penalty opponents point out that Jesus was a man unfairly condemned and executed. Isn't the paradox of the cross, or its fullness, the fact that it is at once the epitome of human injustice -- and thus a type for other acts of injustice -- and also the centerpiece of God's grace? The old rugged cross is both "the emblem of suffering" and the thing most to be "cherish[ed]." I agree that we could call DeLay's use of the cross one-dimensional; I'd just add that we might have to say the same of other political rhetoric from across the spectrum.
Do No Harm, the organization accused last week (in a letter to Science magazine) of making overstatements about the accomplishments and promise of adult stem cell research and treatments, responds in this statement -- for example:
It remains absolutely true that adult stem cells have benefited patients suffering from at least 72 diseases and conditions, where patient improvement is documented by peer-reviewed scientific publications. . . . It is a success that no one can claim for embryonic stem cells.
(Thanks to Notre Dame's Carter Snead for the pointer.)
Apropos the discussion last week with Robby George about the need for care in making claims about the potential of stem-cell research (adult as well as embryonic), see this story.
Check out this overview of the concept of human dignity in human rights discourse and law, by leading scholar Christopher McCrudden (with frequent nods to MOJ friend Paolo Carozza).Excerpts:
[A]lthough we see judges often speaking in terms of "common principles for a common humanity," in practice this is rhetoric, however well intentioned and sincere. The apparently common recognition of the worth of the human person as a fundamental principle to which the positive law should be accountable in fact covers up the use of dignity in human rights adjudication to incorporate theoretically significantly different approaches to the meaning and implications of such worth, enabling the incorporation of just the type of ideological, religious and cultural differences that a common theory of human rights would need to transcend. The "common enterprise" that I identified in my earlier article is not “the working out of the practical implications, in differing concrete contexts, of human dignity for the rights to life and physical integrity,” as Carozza would have it (Carozza, at 1081-2), but rather the use of the concept of human dignity to provide an apparently universalistic and principled surface justification for an enterprise that is better understood in functionalist terms. . . .
[Dignity’s role], in practice, is to enable local context to be incorporated under the appearance of using a universal principle. Dignity, in the judicial context, not just permitsthe incorporation of local contingencies in the interpretation of human rights norms, it requires it to an extent that the ideal of universalism is severely undermined. Dignity remains as a place-holder but in the judicial context it is a place holder that allows each jurisdiction to develop its own theory of human rights.
It should be recognized that the ACLU does sometimes support the right of individuals to speak and act religiously in public settings. As an example, the NJ chapter is filing a friend-of-the-court brief supporting an elementary student's free speech/free exercise rights in this case (noted in The Christian Century):
A year ago a school superintendent in New Jersey barred a second-grade girl from singing the song "Awesome God" in an after-school talent show. The superintendent said that the song was a problem not because it was religious but because it moved into proselytizing. (One lines says, "His return is very close / And so you better be believing that / Our God is an awesome God.")
Tom's recent postings on the MOJ blog regarding religion and legislation, combined with a news story I just saw about the Public Expression of Religion Act of 2005 (HR 2679), led me to wonder about a couple of things.
1) What does the MOJ Blogosphere think of that proposed Act (which attempts to prevent payment of attorney fees for Establishment Clause challenges).
2) Would there be any legal reason that Congress couldn't enact a similar ban on payment of attorney fees for abortion legislation challenges? I'm wondering about that because the South Dakota ballot question regarding its abortion ban will probably have some language indicating that the state might have to pay the attorney fees for the opponents of the ban (i.e. - Planned Parenthood) (see this story).
With respect to Pat's first question, my reaction to the proposed Public Expression of Religion Act is negative.
1. I'm puzzled and disturbed by the text of the bill as found on Thomas.gov, the Library of Congress website tracking legislation. The link above is to Thomas, but it may not work, so I'm pasting the text here:
a) Civil Action for Deprivation of Rights- Section 1979 of the Revised Statutes of the United States (42 U.S.C. 1983) is amended--
(1) by inserting `(a)' before the first sentence; and
(2) by adding at the end the following:
`(b) The remedies with respect to a claim under this section where the deprivation consists of a violation of a prohibition in the Constitution against the establishment of religion shall be limited to injunctive relief.'.
(b) Attorneys Fees- Section 722(b) of the Revised Statutes of the United States (42 U.S.C. 1988(b)) is amended by adding at the end the following: `However, no fees shall be awarded under this subsection with respect to a claim described in subsection (b) of section nineteen hundred and seventy nine.'.
From the title "Public Expression of Religion," I had assumed that the concern of this bill was to rein in the Establishment Clause some, e.g. to hinder lawsuits that would try to strike down noncoercive or mildly coercive official religious expressions in public schools, on public property (creches, 10 Commandments, etc.). But the text by its terms denies attorney's fees for any Establishment Clause suit under section 1983. It would deny fees in a case where a government official plainly imposed religion on students in a coercive manner that most all would agree is impermissible -- for example, if a teacher gave a sermon on her interpretation of the Bible to her first-grade class every day. (You could try to wrench that into a free exercise case, but the constitutional problem sounds much more naturally in the Establishment Clause.) It would deny fees to any plaintiffs challenging government funding of religious institutions, which I suppose moves in a direction some of us would like to see. But again it goes way too far -- no fees for a challenge to a funding law blatantly preferring Southern Baptists in Alabama or Mormons in Utah? -- and goes way beyond the category "public expression of religion" referred to in the title.
It's disturbing enough that the bill would empower truly coercive official impositions of religion. Equally disturbing is that it would cover claims by religious institutions that government interference in their internal affairs violates the Establishment Clause. As we've touched on before here, in the wake of the decline of free exercise claims after Employment Division v. Smith, churches seeking to protect their autonomy may rely more and more on the religion-protective elements of the church-state separation derived from the Establishment Clause.
So the title of the bill is a mistake or a fraud. The text reaches far beyond the mere "public expression of religion" claims and would hamper claims that are much more compelling constitutionally and morally -- including some claims that you'd think the "pro-religion" types would like, which is puzzling.
2. All the above, of course, assumes for sake of argument that we should try to empower (by shielding from fee awards) all instances of mere "public expression of religion" by government -- creches, 10 Commandments, prayers without direct coercion, etc. For lots of reasons, familar to many of us here, I think that a fair number of such official expressions ought to be deemed unconstitutional, or deemed morally and theologically unwise by thoughtful Christians. Therefore, I'm not happy with shielding from challenge everything that might be called a mere "public expression of religion." But to reiterate, I don't have to rest on this point, it seems, because the text of the bill reaches other Establishment Clause claims that are unquestionably compelling constitutionally or morally.
3. I imagine there are constitutional questions about whether Congress can disfavor a class of claims in terms of procedure or remedies. This has been debated in the context of jurisdiction-stripping proposals, with Tribe saying that stripping federal courts of jurisdiction to hear claims asserting a certain right is a presumptively unconstitutional burden on the right, and others disagreeing. Even if Tribe were right, though, a denial of fees in federal court is less of a burden than closing the federal forum altogether (though the fee denial also lacks a specific constitutional authorization like Congress's power to control federal court jurisdiction). Moreover, perhaps here the breadth of the text -- all Establishment Clause challenges -- would actually reduce the sense that Congress was trying to tip the scales against one particular set of plaintiffs or constitutional interests. (But you couldn't make this last point in defense of fee stripping in the abortion context; that would be more clearly aimed at one distinct set of constitutional interests.)
A federal district judge in Colorado has ruled that the company "Clean Flicks" violated the copyright laws by making and renting "family-friendly" versions of movies with sex, profanity, and violence edited out. (Clear Flicks v. Soderbergh, 2006 WL 1876624 -- can't find it online yet.) The decision is probably right as a matter of copyright law, although the question seems to me somewhat closer than the judge allowed under the statute's fair-use defense (section 107). The judge placed heavy emphasis on the fact that Clean Flicks did not add any of its own commentary to the movie -- what courts refer to as "transformational use" -- the way, for example, someone doing a review makes comments after showing a movie clip or quoting a book passage. As I've argued here, a general problem with making the addition of commentary such a decisive factor is that it excludes from the fair-use defense an activity such as education -- say, the reproduction of part of a text simply to study it -- that has long been thought to be a quintessential fair use. The judge also found irrelevant any argument that Clean Flicks might not cost the movie producers much economic loss (and might even give them a net gain) since the producers weren't exploiting the market for sanitized versions of their works as it was. The judge's argument on this score continues a trend of giving copyright holders more and more control over markets for their works even if they can't show economic harm -- a trend that I think is in tension with basic premises of copyright law.
Nevertheless, what Clean Flicks did was probably not a fair use, because the copying of virtually an entire work for commercial use is strongly presumed unfair; because there might have been various kinds of economic loss and reputational harm; and because Congress in 2005 created a specific exemption that allows software helping private viewers to filter objectionable content from an original DVD, but refused to extend the exemption to cover making copies of an altered, sanitized form.
Those are some of the legal issues. A movie critic at Christianity Today considers the moral issues and also criticizes what Clean Flicks did:
I'd never consider showing my sons "sanitized" versions of [many] films. If you remove the violence and bloodiness of The Passion, what's the point of watching it? The scourging and crucifixion were the very definition of "graphic violence," so why pretend it was anything less?
Moreover, even if parents rent the mature movie and fast forward through the objectionable stuff, there are still differences between that and "having a company do that editing for you" (in other words, the line that Congress drew makes some moral sense):
First is this: I know my sons, and they don't. My wife and I want to be the ones deciding what they can, and can't, watch. If we decide they're ready for exploding heads but not to hear the Lord's name in vain (or vice versa), that's our call, and nobody else's.
Also, if an outside company edits that stuff out, it robs us of a potential "teaching moment." After a couple of years [of watching Raiders of the Lost Ark], we decided to let our boys [h]ear Marion use God's name in vain. And at that moment, I hit "pause" and we talked: "Did you hear what Marion said? How did that make you feel? Did that make the movie any better? Why or why not? Do you ever hear other kids say that at school? What's wrong with saying those words? What does God say about it?" And so forth. It made for a great time of teaching and discussion—arguably more powerful than simply sitting down and reading them the Third Commandment.
I can't imagine having such a teaching moment with an edited version of Raiders of the Lost Ark: "Hey guys, at this point in the original version, Marion uses God's name in vain. If you heard her say that, how would that have made you feel?" Uhh, it just doesn't work nearly as effectively.
Thanks to Rob for posting the Seventh Circuit decision in Christian Legal Society v. Southern Illinois University. It's a great win for the ability of religious (and other) groups to participate in the public square and government-created fora without giving up their essential beliefs. In addition to recognizing the obvious fact that forcing CLS to accept actively gay members would destroy its ability to express and its maintain its biblical beliefs, the court also correctly rejected SIU's claim that CLS was not burdened because it could meet off campus and was merely being denied benefits as opposed to being forced to associate. The "mere benefits" that CLS was denied included the ability to meet privately in law school classrooms like other groups (CLS would have to let other students walk through the room during the meeting), to use law school bulletin boards, to appear on the school website and in publications, and to call itself the "SIU chapter" of CLS. The rule would effectively drive CLS off campus and out of the eye of SIU students. The Court had rejected the very same defense in Healy v. James (1972) when universities tried to bar Students for a Democratic Society from campuses.
On this and other holdings, the Seventh Circuit ruling disagrees with a recent district court decision concerning CLS and UC-Hastings School of Law (linked to here and on Westlaw at 2006 WL 997217). Hopefully the Seventh Circuit's arguments will affect the Hastings appeal, but if the Hastings decision is affirmed in the Ninth Circuit, that case may be prime for Supreme Court review. (Although the Hastings case involves a final judgment as opposed to a preliminary injunction "likelihood of success" question, the Seventh Circuit's analysis in the SIU case virtually says that CLS should win on the merits.)
Thanks to Richard for his post on the article (online here) by Kristen Day, executive director of Democrats for Life of America (DFLA). Richard makes some important points, but I believe there is a fallacy in his post that means his argument against Kristen's piece is largely misdirected. (Full disclosure: I am on the advisory board of the Minnesota state chapter of Democrats for Life, and I know and have consulted with Kristen Day, although not on the article in question.)
Richard's main claim is that Kristen (and DFLA generally?) improperly "confus[es] not killing babies with helping them and their mothers [through various safety-net measures]." He then equates this with a confusion between (a) preventing killing and (b) merely saving lives or minimizing overall deaths (including deaths from natural causes) -- the latter of which, he argues, cannot be the foundation of the pro-life movement because it logically would entail the permissibility of taking one life in order to save several (he cites the castaways-in-the-boat scenario).
But this argument is misdirected as against Kristen's article, for most of it (and most of DFLA's work) aim not just at saving lives or minimizing deaths in general, but at stopping or reducing abortions or other forms of killing/violence. In the online PDF copy of the article linked to above, out of about 10 pages dealing with specific issues, more than 2 pages deal with the group's 95-10 proposal for reducing abortions through safety-net and other measures; about 2 pages deal with embryonic stem-cell research, almost 2 with euthanasia, almost 2 with the death penalty, and 1 with the justice of war -- all of them issues involving killing rather than the mere fact of death, to use Richard's distinction. With respect to the content of her textual arguments, these too mostly concern preventing killing; see, e.g., pp. 3-4 (calling for legislation "providing women with the options they need to bring their pregnancy to term"); p. 11 (calling for stem-cell research " that does not harm or destroy human life"); p. 15 (pointing to the number of Iraqis and Americans "killed as a result of the [Iraq] war"); p. 12 (quoting the Catholic bishops' call, with respect to the death penalty, "'to abandon the illusion that we can protect life by taking life'"). Notice how the last quote runs precisely opposite to Richard's claim that Kristen's/DFLA's logic entails that one life could be taken to save several; such a consequentialist argument is more prevalent among death-penalty supporters than among pro-life Democrats.
Admittedly, many of Kristen's and DFLA's proposals emphasize the importance of reducing abortion through a strengthened safety net -- attacking the economic pressures and vulnerabilities that make abortion seem necessary to many women -- rather than only through criminalization (though DFLA has worked to pass regulations against abortion, including in its 95-10 initiative, and has supported abortion bans like this one). But trying to stop abortion through the safety net is still (no less than criminalization) trying to stop killing. It's not the same as just trying to help people, or to minimize overall deaths in some purely consequentialist fashion.
Now, of course one can argue that we must respond to killing with criminal sanctions before all else, or that strengthening the safety net is misguided because it will encourage undesirable behavior, etc. But Richard doesn't raise either of those challenges -- and if one accepts that a strengthened safety net would be effective in reducing abortions (as European experiences suggest), then one can rightly be quite concerned about the relative willingness of Republicans to cut the safety net, and conclude that this is one significant factor weighing in favor of Democratic policies. (That's to say nothing of the pragmatic argument that the safety-net emphasis, as an incrementalist strategy, may be more effective than prompt criminalization in moving Americans ultimately toward an attitude of striving against abortion.)
It's also true that Kristen's article calls at various points for "a true culture of life that extends beyond abortion." But that refers largely -- not exclusively, but largely -- to the other issues of killing that I listed above. Of course, one can argue that the death penalty and war, although forms of killing, are not as fundamental in terms of life issues as is abortion because of the distinction between targeting innocent and non-innocent persons. But again, since Richard does not make that criticism, for these purposes we are assuming that the death penalty and war are fundamental life issues -- and one can certainly conclude that there are significant differences between Republicans and Democrats on both of them.
Admittedly, at various points in her article Kristen's call for a "broader culture of life" extends beyond preventing killing/violence to preventing deaths in general: she mentions, for example, deaths from poverty and AIDS. I would reemphasize that these arguments accompany the numerous arguments in Kristen's piece for preventing or reducing various forms of violence and killing -- and I would submit that in this overall context, it is not only perfectly understandable, but also morally imperative, to include a strong call for preventing such "non-killing" deaths. It is morally right because deaths from epidemic or desperate poverty or severe environmental degradation, even if not morally the same as deaths from violence, reflect tremendous human suffering, stunting, and lost hopes and opportunities -- and moreover, the kind of suffering that is usually so pervasive and hopeless as not to be spiritually rewarding in any way. We are certainly called, by explicit scripture and by moral reason, to try to minimize such things (which themselves are often a proximate consequence of civil wars, gang conflicts, or other violence). We are also called, by God-given common sense, to recognize how various policy positions ultimately, even if indirectly, affect the extent to which such horrors occur.
Lest I be misunderstood, let me make a few things clear: I know that Richard is committed to the full range of important moral issues, and I respect him both for that and for his emphasis on the foundational status of preventing violence and killing. I also concede that one can reasonably disagree with DFLA's particular emphases, or with its judgment that pro-life goals can be pursued within the Democratic Party (although I think that they can and that it's important for some people to do so). I do claim that (1) DFLA's position makes sense and (2) the argument that Kristen Day and DFLA are embracing a principle of simply "helping people" is fallacious.
