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.

Monday, March 27, 2006

Senate Committee Exempts Humanitarian Assistance to Immigrants

From the website of Senator Durbin:

The Senate Judiciary Committee today approved an amendment authored by U.S. Sen. Dick Durbin (D-IL) that would help ensure that charitable organizations and local churches would not be prosecuted for providing humanitarian assistance to an undocumented immigrant. Durbin's amendment was approved in a bipartisan vote of 10 to 7. . . .

Durbin said that while the original bill included an exception for humanitarian assistance, the exception only protected individuals, not organizations, like churches, hospitals, or schools. Furthermore, the exception only applied to aid provided in emergency situations and aid given without compensation.

Durbin’s amendment expands the humanitarian exception to cover organizations. It makes it clear that humanitarian assistance would include housing, counseling, and victim services. And it strikes the provisions that limit the humanitarian assistance exception to emergency situations and to assistance that is rendered without compensation. . . .

The U.S. Conference of Catholic Bishops sent a letter to every member of this Committee in support of the Durbin amendment.

HT: Howard Friedman (though it's not on his blog yet)

Tom

Sunday, March 19, 2006

"Prudential Judgment and Public Policy" Conference: Info and Registration

With registration materials available, I'm re-posting information on "Public Policy, Prudential Judgment, and Catholic Social Tradition," the annual conference of the Murphy Institute at St. Thomas (co-sponsors, Law and Catholic Studies), coming up in Minneapolis on April 7 and 8.  The list of 8 plenary speakers, including Chris Wolfe (Marquette Poli Sci), John McGreevy (Notre Dame History), and our own Rob Vischer, is here.  They'll be joined by 15-20 panelists in concurrent sessions.

Tom

"PUBLIC POLICY, PRUDENTIAL JUDGMENT, AND THE CATHOLIC SOCIAL TRADITION"

April 7-8, 2006, University of St. Thomas School of Law, Minneapolis, Minnesota

Registration Information

There is no fee to attend the conference. However, participants must make their own travel and lodging arrangements.  Attendees must complete and submit registration form by Wednesday, March 29, 2006.

General Conference Information

In the Catholic moral tradition, prudence is understood to be a moral virtue that enables a person to reason well about things to be done. Prudence concerns reasoning both about goals to be pursued and means to be employed to accomplish them. The tradition acknowledges the importance of moral principles, which shape practical reasoning in very fundamental ways, but it also insists that concrete actions are also determined by prudential judgment, which wisely takes account of particular conditions.

In recent years a number of public policy questions, such as the permissibility of the death penalty, the morality of the war in Iraq, and the justice of welfare reforms, have provoked controversy among Catholics. Advocates of very different policies have claimed that their positions follow from the Catholic social tradition and, at times, some have even insisted that their positions alone are faithful to this tradition. These controversies highlight enduring questions about the proper relationship between moral principles and prudential judgment.

In much the same way, controversies have also accompanied some of the formal positions adopted by the American bishops and even the Vatican on questions of public policy. Here again there has been an indistinct line between direct inference from moral principles and sound prudential judgment, where the former invites commitment and the latter tolerates disagreement.

Because of the importance of prudential judgment in public policy matters, the time is ripe for a careful and comprehensive discussion of the topic. The Murphy Institute's 2006 conference, held April 7-8 at the School of Law building in downtown Minneapolis, will investigate these questions with a roster of approximately 25 speakers in concurrent and plenary sessions.

The Glass Ceiling, Work and Family, and Catholic Thought

The lead story in Sunday's NYTimes business section asks "Why Do So Few Women Reach the Top of Big Law Firms?" (when entry-level hiring is now pretty equal between the sexes).  There are lots of answers, including one, the "maternal wall," that ought to be of particular interest to Catholic legal and social theory:

Research conducted by the Project for Attorney Retention, a program sponsored by the University of California's Hastings College of the Law, has also identified an inflexible, billable-hours regime as an obstacle to job satisfaction for both sexes, a trend that is more pronounced among the most recent crop of law school graduates. Some veteran lawyers witness this dissatisfaction firsthand and say that it tugs more powerfully at women than men because of social expectations about household roles and child-rearing. . . .

Research conducted by the New York City Bar Association and other groups indicate that women who temporarily give up their professional dreams to pursue child-rearing or other personal goals have a difficult, if not impossible, time finding easily available on-ramps when they choose to re-enter the legal world.

Catholic social thought might well be ambivalent (or internally divided) about the idea that "household roles and child-rearing" with respect to one sex vs. another are no more than "social expectations."  But setting that aside, Catholic legal and social theory ought to have a lot of things to say about the problem of sex, family, and the workplace:  things such as (1) the proper priority of family concerns; (2) the inadequacy of having the logic and demands of the marketplace drive so much else in life; and (3) the importance of having women in positions of influence in economic and public life so as to bring distinctive contributions, meaning that it's wholly inadequate from a Catholic standpoint just to say "the domestic sphere is important and that's where women should concentrate."  (The last of these three points appears in the Times article under, among other things, the familiar rubric of the workplace advantages of "diversity.")  My St. Thomas Law colleague Lisa Schiltz, one of the few addressing these problems from a Catholic point of view, is bringing out all of the above points in what promises to be a rich series of articles.  The first, posted here, includes the following summary argument:

Catholic teachings on the role of women, particularly the powerful arguments in Mulieris Dignitatem about women's contributions to the realization of a truly humane social order, could provide support for feminist arguments for more radical restructuring of the workplace to ensure mothers' access to the public sphere. At the same time, I argue that the work of Catholic scholars on these topics could be enriched by engaging the dependency-based theories of justice being developed by the feminists, and by considering the feminist perspective that women, including mothers, have a significant role to play in the public as well as the private sphere.      

It would be good to see a number of others join Lisa in making questions like this a major focus of Catholic social and legal thought.  (I realize there are other entry points into the problem of the work-family split, for example Nicole Stelle Garnett here on home-based businesses and the zoning and other legal problems they face.) In any event, just to conclude on a provocative note:  isn't this a case where the recent trend in Catholic thought to accept (if not embrace) market logic really creates theological problems and needs to be qualified?

Tom

Saturday, March 18, 2006

"Sex Wars" and Public Life

Daniel Henninger in Opinion Journal blames "sex wars" for the broader, and dangerous, loss of religious and serious moral influences in public life.

Roe v. Wade, decided in 1973, ignited a 33-year war over sex, bowdlerized for political discourse as "privacy." [The categorization in the 2004] Pew [public opinion poll] collapses all moral life in America down to abortion and gay rights because the political class believes those issues move votes. And the result is that anything else important, like what Messrs. [Barry] Bonds or [Enron's Andrew] Fastow represent, is ignored. . . .

Our political culture's preoccupation with sexual boundaries has smothered the more important ability of religious or ethical formation to function in the U.S. Currently the most rigorous whole-person moral system resides among evangelical right--at least in terms of keeping one's earthly life in perspective. But because the religious right has "positions" on abortion and homosexuality, politics seeks to undermine its entire function in the life of the nation.

Inner-city parents desperate to use vouchers to send their children to values-forming parochial schools can't, because the reigning political calculus holds this would somehow "advantage" an abortion-resistant Catholic Church. . . .

Maybe it's time for the sex obsessives on the left and right to take their fights over abortion and gay rights into a corner somewhere and give the rest of society space to restore some ethical rootedness in an endlessly variable world.

This certainly voices the frustration I (and I think others) feel over how two or three issues have driven the whole "religion and politics" debate, distracted from the myriad crucial contributions that "conservative" religion makes every day to civil society, and led "progressives" to exalt individual autonomy and denigrate their own history of religious-moral judgments.  But what does "taking [the sex wars] into a corner" mean?  I assume that it would mean, for example, that Massachusetts would preserve Catholic Charities' contributions in placing foster children instead of giving it the boot, even though it won't place children in gay families.  Perhaps more generally, "taking the issue[s] into a corner" would mean gay-rights laws with religious exemptions?  The Religious Right would accept such laws on the ground that they don't imply "normalization" of gay behavior or that any such limited implication is overcome by the more important public value of ensuring access to jobs, public accommodations, etc.  But taking the issue into a corner means not expanding disagreement with a non-profit organization's traditional position on sex issues into punishing it or disqualifying it from providing other benefits to civil society (like Catholic Charities in special-needs adoptions, or a Catholic hospital refusing to provide abortions).

The big problem with the idea is that some contested practices concern not just sex but (in opponents' view) basic questions of human rights and civic well-being (Henninger overlooks this, as Protestants for the Common Good did concerning abortion in its statement on the Christian Right that we blogged about).  The abortion issue will resist being sent off "into a corner," whatever constitutional or pragmatic limits there are on public policies addressing it.  And even if we could agree that basic issues like abortion and same-sex marriage shouldn't expand imperialistically into others (like general health-care or adoption-placement), those basic issues will still be on the table.  Finally, of course, there are problems of reciprocity and the "prisoner's dilemma": how does one side know that, if it reduces its efforts, the other side will abide by the bargain?

Tom   

Wednesday, March 15, 2006

More on Gay Adoptions and Religious Liberty

I'm with Rick in seeing a significant religious liberty issue in the Catholic Charities adoption case.  There are plenty of serious free exercise issues that don't involve, in Rob's words, "the protection of religious speech or a community's internal affairs" -- for example, a state rule, applied to a Catholic hospital, requiring all hospitals to offer abortion services in order to have a license to operate.  Under the "compelling interest" test that likely governs under Massachusetts' religious freedom clause, see, e.g., Attorney General v. Desilets, 418 Mass. 316, 636 N.E.2d 233 (1994), the state can't just assert a need for uniformity of whatever moral norm it chooses.  (That a generalized need for uniformity is insufficient to constitute a compelling interest is the key holding of the Uniao do Vegetal case decided by the Supreme Court last month.  And that's true with respect to children, too, as Wisconsin v. Yoder, one of the key cases applying the compelling interest test, shows.)  The state should have to show in some more particularized way how Catholic Charities' refusal to place children in gay families would harm the children or impede the process.  Both of those conditions might well be present if there were no opposite-sex family to adopt and therefore the special-needs child assigned to Catholic Charities would stay longer in a foster home waiting for a placement.  But (a) there's no evidence that I've heard that this happens, and (b) a "less restrictive means" of addressing this (also part of the compelling interest test) would be to require Catholic Charities to give notice of such a problem within a short time and reassign the child to another adoption placement service.

Tom

UPDATE:  Rob's latest post points out that the state can want the child placed in the best adoptive family (based on criteria other than the same-sex or opposite-sex nature of the couple), so the state's interest  arises even when there are heterosexual-couple alternatives.  Fair enough, but if we start from the premise of allowing room for moral pluralism on the homosexuality issue, then society shouldn't be so ready to dictate that homosexuality is always and everywhere irrelevant to parenting (and thus that a child will always lose if the straight family s/he is placed with is even slightly less qualified based on the other criteria).  With race discrimination, we've reached the conclusion, after two centuries of experience including a civil war, that we will allow less room for moral pluralism on the issue (while still affording basic rights to racist speech etc.).  If we're now reaching the same conclusion about discrimination based on homosexuality, then Catholic Charities loses; but that's to say that we're rejecting moral pluralism as the solution to the homosexuality dispute.

In addition, it's hard for me, as it is for Rob, to believe that the state is really concerned about the loss of potential numbers or quality in the parenting pool.  How many potential adoptive families will the state lose -- or how many delays will there be in placing children -- by losing the connections and experience that Catholic Charities and like-minded agencies have?

Tom

The Federal Register's Growth: The Numbers

If you ever want to cite the federal government's expansion through the growth in the Federal Register (which turned 70 yesterday), here are some numbers.

Tom

Bush's Speechwriter on Christianity and Politics

Rob pointed me to this recent New Yorker profile of Michael Gerson, Bush's speechwriter, evangelical Episcopalian, and a vigorous proponent (though with limited success) of a serious "compassionate conservatism" in the White House.  It's full of ideas about the relation between Christianity and politics, idealism and realism.

Gerson told me that Bush finds no policy prescriptions in Christianity, but he believes that God’s desires helped to shape the ideas at the core of [his] second Inaugural [address]. “The President’s views about the universal appeal of liberty come in part from the fact that he is kind of marinated in the American ideal,” Gerson said. “They come in part from a view that human beings are created in the image of God and will not forever suffer the oppressor’s sword, that eventually there’s something deep in the human soul that cries out for freedom. That doesn’t mean he believes that God blesses this particular foreign policy or that particular foreign policy.”

There's a lot of exploration of "the distance between rhetoric and accomplishment in the Bush Presidency," especially the difficulties in the goal of replacing tyrannies with democracies around the world.  But the article omits perhaps the most striking disconnect between morals and reality:  the abuse of prisoners.  It would have been interesting to hear the speechwriter who crafted the President's moral argument for war in Iraq answer the challenge that the Administration was at best far too lax on this issue, both ahead of time and afterward, in a way that has crippled the nation's moral credibility around the world.

Gerson is also described as "somewhat apologeti[c]" and resigned "about faith-based [social service] programs, to which even some conservatives have argued that the Administration is insufficiently committed."  He says there's insufficient money in the budget to do much; but he also defends the high-income tax cuts with supply-side arguments about promoting economic growth.  On the other hand, the article describes Gerson's success in promoting and defending U.S. assistance to combat AIDS in Africa.  Finally, there's discussion of the recurring theme about Christian principle and political prudence:   

I once asked Gerson to describe the role that the Sermon on the Mount plays in his own life, and in Bush’s life. (The theologian Reinhold Niebuhr calls the Sermon an “impossible ethical ideal” for human behavior.) “The Gospel stands in judgment of all human institutions and ideologies. It’s not identical with any one of them,” Gerson said. There is a danger, though, in “proof-texting”—searching the Bible for policy instruction. “You can’t find the justification for anti-sodomy laws in the Book of Matthew,” he said. “There is this idea that you can know what Jesus would think about missile defense or S.U.V.s, but it’s wrong. . . . I don’t have any moral qualms about saying that free-market economics are the single best way to take millions of people out of poverty that the world has ever seen,” but he added that he didn’t learn this from the Bible.

Tom

Tuesday, March 14, 2006

"Rioting Over the Riots"

Christianity Today offers a sobering reminder to counter the simple idea that "Christianity worked off its tendencies to violence a long time ago, but Islam is only doing it now."

The riots were as inexplicable as they were deadly. Outraged youths marched through the streets, armed with guns, machetes, and nail-laden boards. They destroyed houses of worship and businesses owned by religious minorities. At roadblocks, they demanded to know the religion of each passerby. Those who answered incorrectly were beaten to death, then decapitated, dismembered, and burned in the streets. The victims—more than 100—had nothing to do with what had supposedly sparked the outrage. They were just in the wrong place at the wrong time.

Muslims rioting over the publication of Muhammad caricatures? Sadly, no. These were Nigerian Christians rioting over the riots.

The editorial also takes to task pugnacious Christian groups in the U.S. who have advocated publishing the Muhammad cartoons more widely and have called decisions not to publish "appeasement":

[Deciding not to publish so as to avoid offense] echoes Paul's instruction to the Corinthians: "Give no offense to Jews or to Greeks or to the church of God, just as I try to please everyone in everything I do, not seeking my own advantage, but that of many, that they may be saved."

Tom

Thursday, March 9, 2006

Response from Prof. Gamwell on Christian Right

Prof. Chris Gamwell of the University of Chicago Divinity School and Protestants for the Common Good (PCG) responds to our earlier posts (here, here, and here) on their statement criticizing the Christian Right.  My comments inserted at places:

           My thanks to Tom Berg for inviting attention to the “Statement on the Christian Right” issued by Protestants for the Common Good and to him and Rick Garnett for the thoughtful comments they posted. . . .

            1.  While I appreciate that Mr. Berg could not post the entire statement, it is at some pains to say that the Christian Right, on our use of the term, is not equivalent to Christians evangelicals or Christian conservatives generally.  The former is defined in relation to a particular political agenda, and we are grateful to share with many Christian evangelicals and Christian conservatives political purposes we call our own.  I will be happy to send the entire statement to anyone who wishes to have it, and I can be reached here.

            2.  Nothing in the statement says or implies that a commitment to the formation and practice of private virtues, on the one hand, and, on the other, to mutuality in the sense we advocate are, as Mr. Garnett says, “competitive” or that the former is not, as Mr. Berg puts it, “essential to the latter’s effectiveness.”  As Mr. Berg also noted, the statement explicitly says that “we, too, wish to affirm the importance of personal virtues” and, moreover, do so because we are committed to mutuality:  “We affirm the need for personal character because mutuality is gravely threatened when dedication to intimate relationships, taking responsibility where one can, and charity for those who suffer are widely missing.”

            Thus, the statement does not criticize the Christian Right because it asserts the importance of private or personal virtues.  To the contrary, we object that its political purposes are dominated by the formation and practice of private virtue, which implies that the widespread practice of private morality is sufficient for the good society, and thus many communal sources of empowerment are unimportant or largely unimportant.  On our reading, the Christian Right excludes any significant political concern for poverty, the want of many persons for health care, the massive inequity of income distribution, inequality in educational funding, injustice in the criminal justice system, persisting structural forms of racism, and so forth.

Fair enough -- and I personally agree that the Christian Right overall pays far too little attention to these structural/communal matters.  But let me issue a challenge back:  do groups like Protestants for the Common Good translate their concern for private virtues (and the admission that these are "essential" to communal empowerment) into public policy emphases?  Are such groups, for example, proposing policy solutions -- or even efforts within the Protestant churches -- that directly address the problem of pervasive divorce (which certainly contributes to many social ills, and causes special problems for the most vulnerable)?  The interaction between groups like PCG and the Christian Right still seems trapped in the "either-or" debate when they could look, and perhaps even cooperate on, "both-and" solutions.

Second, we ought not to limit "communal sources of empowerment" to government.  Private social service organizations and other mediating institutions (religious and nonreligious) themselves offer empowerment in a communal setting -- often a more personal and effective setting than that of government.  Indeed, the PCG statement affirms the importance of "a favorable pattern of associations" among the societal conditions that "empower people to achieve, and [that] are the business of justice."  I would hope that PCG could recognize a similar concern on the Christian Right in the form of the "faith-based" initiative, which ideally combines a society-wide commitment (in financing social services through taxes) with the work of mediating institutions (in delivering the services).  (I say "ideally" because the Bush administration is reportedly failing to treat the initiative seriously.)

Prof. Gamwell continues:

            While affirming the importance of private virtues, the statement does not seek to resolve controversial political issues about what those virtues include.  For instance, the statement does not present a political position on abortion or same-sex equality.  This is because those issues, as virtually all specific political questions, cannot be resolved solely by deduction from the inclusive understanding of justice and the common good we present.  Protestants for the Common Good has, in fact, endorsed something like the conclusions (although not necessarily the reasoning) of Roe v. Wade and has argued for the legal equality of heterosexual and same-sex unions.  But the arguments we give for these positions include judgments additional to the general principle of mutuality advanced by the statement, and we believe that other Christians who affirm the same general principle might come to differing resolutions of those specific issues.

            3.  Both Mr. Berg and Mr. Garnett comment that our summary of the Christian Right’s political agenda appears to include, as Mr. Berg puts it, issues of “justice for the broadest human community”—and the concern for abortion is cited by both as an illustration.  We certainly agree that the Christian Right pursues issues that affect the entire community and, in that formal sense, issues of justice.  Were this not the case, it would not be a political movement.  The point is, then, that its understanding of justice is focused on legal encouragement and enforcement of personal moral character, and the intent to have abortions or virtually all abortions legally proscribed is a prime illustration.  A prohibition of abortion would be enforcement of what is taken to be one aspect of sexual responsibility as a personal virtue.  I recognize that, for those who so advocate, the prohibition of abortion would have as its principal purpose “protecting the life of unborn children from lethal violence.”  But it remains that what is enforced is personal moral character, since refusal to do lethal violence to the innocent is certain among the most basic of such character traits. 

            Perhaps the statement should have clarified what it means by personal or private virtue.  We mean habits or character traits whose widespread enactment is, within very generous limits, indifferent to alternative social and institutional arrangements.  If these virtues are taken to be sufficient to a good life, one’s station in the communal structures or power, privilege, benefits, and burdens is not, again within very generous limits, fundamentally important to human flourishing.  Being worthy of trust, for instance, is a moral trait all individuals can exhibit whether the society is equalitarian or feudal—and so, too, are refusal to do lethal violence to the innocent and sexual responsibility.

My point (and perhaps Rick's) about abortion was that in bringing unborn humans into the circle of protection, the pro-life position doesn't merely "affect the entire community"; it actually serves the goals that PCG states as fundamental, namely serving the "inclusive community," "loving all persons as oneself," and "treating each person [as] the neighbor for each one of us."  I would urge PCG to recognize how the failure to protect the unborn is a failure of the very "mutuality [for] all humans" that the organization commends.  Of course, I'd add that if the pro-life position fails to emphasize significant safety-net assistance to women as well, then it fails to treat them as neighbors too.  In any event, I had read the PCG statement to criticize the Christian Right, unjustifiably, for not caring about members of the broader human community except insofar as it wants those people to receive personal salvation and enter the church.  The clarified version here, I think, is more defensible: that the Christian Right does care about justice and service to others, but conceives of this too exclusively in individualistic and personal terms.  Indeed, perhaps the problem is exemplified precisely by the Christian Right's political abortion position, which tends to include restrictions and leave out societal safety-net measures.

            4.  Doubt was expressed about our view that the Christian Right is a threat to democracy because it asserts religious authority as the sole basis for political decisions.  Perhaps the term “sole” was a poor choice, because it suggests that no appeal is made to considerations that might be acceptable to those outside of the Christian community.  The point we had in mind was this: Defense of political positions on the Christian Right at least often includes essential premises that themselves are dependent solely on the authority of scripture or religious teaching and thus cannot also be defended by argument, that is, by appeal to the reason of fellow citizens.  Perhaps this reading is controversial.  So far as I can see, however, the most important tenets of faith and morals are, for the Christian Right, not themselves open to rational assessment, and these tenets are often implicated in the specific political purposes pursued.

I still maintain that on several of the central political issues -- most notably abortion -- the wide range of responsible argument on the Christian Right appeals to premises other citizens can accept.  With abortion, such "publicly accessible" considerations include the facts of fetal development, the presumption in favor of life, the vector of broadening the universe of persons receiving protection, and so forth.  With same-sex marriage, the considerations include the dominant historical nature of marriage, the optimal nature of male and female role models, and so forth (perhaps less convincing, but nevertheless publicly accessible).

Tom

Monday, March 6, 2006

The Progressive William Jennings Bryan

If this NYTimes review is accurate, a new biography of William Jennings Bryan, A Godly Hero, is both interesting in its own right and relevant to the questions today about the lost connection (and possible reconnection?) between traditional religion and progressive politics.

Bryan is mainly remembered as the fanatical old fool Fredric March played in "Inherit the Wind." Michael Kazin's valuable biography of the Great Commoner, "A Godly Hero," aims to dust him off and resurrect him as a political model for small-p progressives in the new century. Kazin [a Georgetown history prof] presents a compelling case that Bryan, at his zenith, was not only a powerful and effective leader of a political-moral crusade but also a pioneering advocate of progressive ideas still with us today. . . .

Kazin also contends that Bryan's opposition to evolution was in part aimed at social Darwinism, which contemporary proponents used to justify war, exploitation by the strong and eugenics. . . .

The author criticizes current liberals who have sought to "quarantine the sacred from the realm of politics" and have lost the trust of the majority who "yearn . . . for a society run by and for ordinary people who lead virtuous lives" — Bryan's people.

Yet many of these people have presumably found a home on the religious right, where they support a narrow pro-business program that omits the concern for economic justice that galvanized Bryan. How could Bryan's Christ-inspired populism thrive in today's multicultural society? Still, there is a religious left that shows signs of reviving.

Tom