Jody Bottum's Commonweal piece has attracted a fair bit of attention, criticism, praise, raised eyebrows, etc., during the last few weeks. I gather that he has tried to clarify or re-state a few things that, in the essay itself, were not said so well (e.g., his off-the-cuff and unwarranted dismissal of the argument that the Constitution does not require including same-sex relationships in the legal category of marriage).
I have read the essay twice. It is, as many have pointed out, very long and I think it is fair to say that it meanders and that its arguments are, at times, difficult to follow. Although the piece was billed as a "case for same-sex marriage," it's not clear to me that the essay was actually crafted or intended to make such a "case."
Initially, it seemed to me that, for purposes of this blog, what might be of particular interest in the piece is the connection between (what I think was) the author's point (i.e., those who embrace what the Church teaches about marriage should nevertheless accept, and abandon efforts to resist, revisions to the law's definition of marriage) and the longstanding debate / conversation about "legal moralism" and about the extent to which the demands, prohibitions, definitions, and categorizations of the positive law should track those of morality. (See generally, e.g., G. Kalscheur, "Moral Limits on Morals Legislation", here.) On this topic, I took Jody to be saying that because of certain things about our contemporary culture in the United States (including our views about sexuality and marriage generally), it no longer makes sense -- it will not, for much longer, be possible -- to insist or even expect that the positive law regarding the legal category of marriage track what the Church teaches (and, I think, Bottum still believes is true) about marriage.
So, is this true? I take it that Bottum believes that even if popular opinion swings dramatically toward the legalization of euthanasia, he (and the Church) should continue to oppose the legalization of euthanasia and should resist this legalization even after it happens. Why, in Jody's view, is this "case" different? Because of a distinction between "public" and "private" matters? Because euthanasia's legalization endangers the vulnerable while legal recognition of same-sex marriages does not? Because the Church and her bishops have credibility on dignity-of-life issues but not on matters relating to marriage and sexuality? For other reasons?
Bottum also suggested, I think, that, given all the cultural givens (the lack of "enchantment," etc.), it is almost anomalous for the law *not* to recognize same-sex marriages, that those who embrace the Church's teachings cannot reasonably expect this anomaly to continue, and that perhaps they should, instead, work on changing these cultural givens and -- thereby, eventually -- changing our practice of marriage. A question, though, is whether accepting, resigning to, or even endorsing the move toward legal recognition of same-sex marriage is actually likely to change these cultural givens or prompt changes in the practice of marriage -- to "re-enchant the world," as Bottum puts it. Or, as some fear, will this move be accompanied by intrusions on religious freedom, by unforeseen consequences, and by additional cultural changes that make the practice of marriage even more difficult?
As I thought and talked about the issue more, it started to seem to me that my "ah, we're talking about legal moralism!" reaction was itself a mistake. After all, as a friend pointed out, we are (almost) *always* talking, when we talk about what the content of the positive law should be, not about *whether* the positive law should reflect, teach, and / or enforce "morality," but about *which* views regarding the true, good, beautiful, and right the law should reflect, teach, and / or enforce. If this is right, Jody's essay is not of a piece with the misguided "you can't legislate morality" assertion that we often (oddly) hear in law-school classrooms, but is instead a call for "conservatives" to accept the fact that positive law of marriage is moving to reflect more accurately the moral views that, he thinks, are the ones that (for better or worse) increasingly, and perhaps already, animate our culture and practices. And, if *this* is really what Bottum was arguing -- and not that what the Church teaches about marriage and sexuality is wrong -- then it seems to me that the two primary counter-arguments will be (a) No, the positive law's apparent movement in that direction will not necessarily continue, in part because that movement is not, actually, consistent with the moral views that most people hold and want the positive law to reflect and / or (b) the positive law's movement in that direction should be resisted, even if it is consistent with the moral views that increasingly hold sway, because those moral views are misguided and need to be (charitably, effectively, etc.) challenged. Or . . . I could (still) be misreading the essay!
The other day, I heard this NPR interview with Gina Perry, the author of a new-ish book, "Behind the Shock Machine: The Untold Story of the Notorious Psychology Experiments," and was intrigued. My Criminal Law professor, Joe Goldstein, used the experiments in our unusual (but really fun) introductory course, as part of a discussion about consent and human-subjects research.
I have not read Perry's book (yet), but it sounds like she's established that Milgram was pretty set all along on reaching his "regular people will do really bad things if told to by an authority figure" (or, as this reviewer put it, his "most of us are potential Nazis") conclusions and troublingly uninterested in the possibility that his subjects could have been harmed by their experiences. Here's a bit, from a review in MacLean's:
To start with, Milgram was—in layman’s terms—nuts. He began the shock tests without any clear theory of what he was aiming to prove, and had to cobble it together afterwards, some of which he gleaned from a pamphlet entitled, “How to Train Your Dog.” He refused to consider that many people took it as a given that the stated aim of any psychological test was never its true purpose: A large proportion of the volunteers simply didn’t believe Yale would allow people to administer potentially fatal shocks. Among those who did accept what Milgram told them, far fewer than the 65 per cent he claimed actually continued to up the voltage. Worst of all, for fear the truth would leak out to other prospective volunteers, Milgram refused to fully debrief his subjects, many of whom were haunted for years by guilt at what they thought they had done.
If any readers have had a chance to read the book, I'd welcome and appreciate reactions.
At Catholic Moral Theology, David Cloutier has a post ("Immigration and Prudential Judgment") that is worth reading and that tries to push the conversation toward clarity when it comes to "absolute norms" and "prudential judgments." I have a few specific disagreements (e.g., his suggestion that questions about abortion-regulation should be framed in terms of "toleration of individual choices", a framing that risks obscuring the fact that abortion-regulation is connected to the obligation of the political community to protect the vulnerable from violence) but agree with the piece's basic point, i.e., that "prudential judgment" cannot be an "escape" from or a license to ignore those Church teachings with which we disagree:
By claiming “prudential judgment” in these significant discussions, what is obscured is the claim Catholic teaching makes to be a complete vision, a unified whole. That vision does not provide a simple blueprint for policy. However, it does provide clear orientation for the ends of policy, an orientation that is in significant conflict with the philosophical assumptions (or if you prefer, the theological anthropology) that founds other kinds of policy.
The distinction between a "blueprint" and an "orientation for the ends of policy" is an important one, I think. David is focusing in this piece on the immigration debate (and I agree with him that it is not a matter of "prudential judgment" whether or not we should figure out a way -- putting aside the question whether the current proposals *are* such a way -- to regularize, in a sensible and fair way, the status of the people who are, at present, in the United States unlawfully); for me, a good example (coming from "the other side", I suppose) of mistakenly taking the "blueprint" approach was the way many simply invoked Pope Leo XIII and Rerum novarum as resolving all questions about public-employee unions. And I'm sure we can think of other illustrations . . .
This side of Heaven, it will be a rare legislative proposal or piece of positive law that is the only, or that is obviously the best, way of promoting human flourishing and the common good. But, as David points out, this fact is not a license or excuse to say "anything goes" or to opt out of the hard work of reasoning through the problem, carefully, considering all the facts, and going with the all-things-considered best option.
A powerful piece, by the Editorial Board of the Washington Post, quite appropriately calling out the DOJ for its latest and lame attack on school choice in Louisiana. School choice is, of course, a pressing social-justice issue and it's deeply regrettable that, so soon after the commemoration of Dr. King's March on Washington, the administration is trying to hamstring this program. As the Post puts it:
NINE OF 10 Louisiana children who receive vouchers to attend private schools are black. All are poor and, if not for the state assistance, would be consigned to low-performing or failing schools with little chance of learning the skills they will need to succeed as adults. So it’s bewildering, if not downright perverse, for the Obama administration to use the banner of civil rights to bring a misguided suit that would block these disadvantaged students from getting the better educational opportunities they are due.
What was it that Slate was saying, again, about "bad people"?
Kyle Duncan has an interesting post ("Law, Not Theology") at the blog of the Becket Fund in which he discusses, among other things, a strange exchange during oral argument in one of the HHS mandate cases (Conestoga Wood), in which the lawyer for the DOJ contended that the term "abortifacient" is a "theological term."
Several times in recent weeks I enjoyed a (for me) new experience (but one that I know many other law-profs have had) -- former students (in these cases, students I taught during my first semester, in the Fall of 1999) were back on campus for on-campus interviews and meetings with current students. I felt, well, (a) old ("Good Lord, was I teaching law in the 90s?"), (b) humble ("I cannot believe they let me teach law to this guy -- I didn't have a clue what I was doing. Thank God it worked out for him!"), (c) proud ("Dang, this person seems happy in her vocation, and is thriving! If I had anything to do with that . . . cool!"), and (d) grateful (both to the former students from coming by and re-connecting and to all those who made it possible for me to be in the position of helping with the students' education and formation).
This piece, by Allison Benedikt (who also served up this little gem a while back), is -- on the one hand -- offensive, stupid, and scary for its statism. On the other hand, she has a point (at least, I think one can extract this point from the piece): *If* you send your child to a private school because you are fortunate enough to have the means to do so and you believe that a private school is more conducive to your child's development, safety, and happiness, but you oppose policies aimed at making it financially possible for parents who are not so fortunate and who have the same belief . . . well, I am not saying you are "bad", but you might have some soul-searching to do.
The good folks at Pepperdine University School of Law are hosting (yet) another outstanding conference this February. The theme this time is "Love and Law":
In a provocative essay, philosopher Jeffrie Murphy asks: “What would law be like if we organized it around the value of Christian love [agape]?” Analogous questions arise within other theological and moral traditions. What would be the implications for the substance and the practice of law? We invite presentation and panel proposals for our upcoming conference.
The list of confirmed speakers is fantastic, and already includes (inter alia) MOJ-ers Patrick Brennan, Rob Vischer, Michael Scaperlanda, and Amy Uelmen. For more information on the conference, and on how to submit a proposal, go here. I hope that the MOJ-ers will share their thoughts and papers with us -- and also report back!
The other day, this AP story by Rachel Zoll provided a pretty good overview of the ongoing debate about religious-freedom-related exemptions and SSM laws. As MOJ readers know, Tom Berg and I have participated in the effort, described in the piece, to get such exemptions included in SSM legislation. (Here is an example of the letters we have sent to legislators.) As the article discusses, the effort has been criticized not only by those who regard it as, in effect, special pleading for bigots, but also by those -- like Matthew Franck, of the Witherspoon Institute -- who contend that it constitutes a premature surrender, that it has not yielded any good results, and that it has made it easier for SSM legislation to pass in states where it otherwise would not have.
As I wrote in Commonweal a few weeks ago ("Worth Worrying About?", here):
In recent years, a group of law professors (including me) with differing views on the policy merits of changing the legal definition of marriage has presented to legislators in various states a detailed analysis of these and other live and potential conflicts, and urged them to include in any new legislation not merely superfluous affirmations of churches’ authority over their own sacraments but also “meaningful religious freedom protections,” for both individuals and institutions, in both the private sphere of worship and belief and the public square of civil society. The group’s letters, in other words, take seriously the acknowledgment by President Obama and other prominent same-sex-marriage supporters that there are fair-minded and decent people on both sides of the argument and remind lawmakers that both prudence and principle counsel protection and respect for the consciences of religious believers and the distinctiveness of religious institutions.
These interventions have had nontrivial but admittedly modest effect. They have been criticized by some same-sex marriage advocates for privileging the irrational and atavistic objections of some over the full equality of others and, at the same time, they have been given low marks by some proponents of traditional marriage for offering naïve and premature concessions to an aggressive and uncompromising political and cultural campaign. Nevertheless, I continue to believe that it is important and worthwhile for those who see and embrace the connection between human dignity and the human right to religious freedom to do what they can—even if it does not seem like very much—to protect that right in and through law. Such work is not inconsistent with, and need not be counter-productive to, equally important efforts to, charitably and prudently, align the positive law with the truth about the person and enlist it in the service of the common good - See more at: http://www.commonwealmagazine.org/worth-worrying-about#sthash.wIKhlR38.dpuf
