My down-the-hall Notre Dame colleague Cathy Kaveny says that an earlier blog of mine shows that I have "too much energy." If only! (Readers familiar with Cathy's up-to-the-minute Colbert-blogging will know that hers is high praise.) I'm glad that Cathy found my post "interesting" but worry that she might have read it as questioning the merits of "neutral framing", or as reflecting an inability to "see how someone who is reasonable could take the position that they take", or (worst of all) reasoning "instrumentally" in accord with a "culture war mentality."
A few thoughts: First, I am happy to agree with Cathy that it can often be illuminating "to frame legal and jurisprudential questions in a general way", and to highlight the "structural similarit[ies]" between arguments. I am not "uncomfortable" with "neutral framing" (How could I be? After all, like Cathy, I'm a law professor.) Sometimes, though, such similarities can be more apparent then real. And yes, of course, the "merits matter . . . to everyone not just to you and me." Still, "as . . . Catholic scholar[s]", Cathy and I will sometimes need to evaluate carefully the merits of structurally similar (or apparently structurally similar) arguments; in doing so, we are not (and should not) refusing to see how someone who is reasonable could take the position that they take, but are instead trying to determine which position we should take.
Next, Cathy asks whether the "actions of religious groups [are] deserving of special consideration when they break with the common morality?" For starters, I guess I would say (in keeping with our constitutional traditions) that, as a general matter, religious claims for exemptions are stronger than other such requests. But, I'd also say (in keeping with, say, Dignitatis humanae) -- and I'm sure Cathy would, too -- that the public authority need not and should not comply with every request for religiously motivated exemptions. With respect to the particular debate Cathy is addressing -- the applicability of nondiscrimination laws to religious institutions -- it does seem to me (for plenty of reasons that I and many other religious-liberty scholars have elaborated elsewhere) that we can and should distinguish discrimination in employment and benefits by government and commercial entities (which conflicts with the liberal norms that do and should govern such entities' operations) from religious institutions' efforts to operate in accord with the different norms that might govern theirs. (Obviously, there are limits; there always are. The content and implications of these different norms will matter. We can take seriously this distinction in our public policy without endorsing religiously motivated human sacrifice.)
On the matter of the "culture war mentality" and "instrumental analysis." Culture-warring sounds bad. Like Cathy, I worry about the tone and rigor of "public moral deliberation" and so about any "mentality" that undermines it. I worry also, though, that it might be easier for all of us to see public-deliberation-undermining habits of mind, and purely instrumental deployment of lawyerly arguments, in others' interventions than in our own. As Cathy says, no place on the political spectrum is safe from this temptation. Cathy worries that "culture warriors make an argument because it advances their view of the way things should be –the merits — on an ad hoc basis–and make a different argument on a different issue." Maybe "culture warriors", and lawyers generally, do this (we shouldn't, and I didn't); however, they also sometimes move too quickly from the merits of particular arguments to higher-than-warranted levels of generality.
Finally, with respect to the Stupak Amendment: Cathy is quite right that the "money is fungible" argument could be (and has been) used to "stop students taking Pell Grants to Catholic colleges, or to stop the funding of faith based initiatives – or even to stop the funding of Catholic Charities." It is not, however, necessarily "inconsisten[t]" to think that money's fungibility (i) warrants support for the Stupak Amendment but (ii) does not provide a good reason to oppose the President's funding of faith-based social-welfare agencies. It would be inconsistent, I think, if the principle doing the work were "public funds ought never to be used to support of advance activities to which some taxpayers are opposed"; or "even indirect public funding makes taxpayers' complicit in those activities that are so funded, and taxapyers ought not to be forced to be complicit in activities they oppose." Cathy is right -- a Catholic scholar (like any scholar) should point out such inconsistencies. My own view on the matter, though, is that the Stupak Amendment is welcome not because it protects the consciences of taxpayers (I do not believe, generally speaking, that public funding of X should be regarded as wrongfully burdening the consciences of taxpayers who oppose X) but because (i) it puts law's pedagogical function to work in the right direction and (ii) it will probably result in fewer abortions.
So much for "too much energy." I need an espresso. . .
Thursday, December 3, 2009
The lovely images of the Blessed Mother that now appear on this blog's banner appear courtesy of our friends at Villanova, where they are enjoying a beautiful new building and chapel. The chapel's stained-glass window was designed by Fr. Richard Cannuli, OSA. His website is
here.
A few days ago, a few of us noted the "
Manhattan Declaration." At
National Review, Kathryn Lopez has this
interview with our own Robby George, one of the Declaration's co-authors.
Wednesday, December 2, 2009
Thanks to Michael P. for linking to my Notre Dame colleague Cathy Kaveny's timely and thought-provoking Washington Post op-ed.
I am not entirely sure what I think about Cathy's observation that "you don't win the minds and hearts of ordinary Americans by holding the food, shelter and medical care of needy people hostage to moral principle." Descriptively, this seems right. But, I'd want to hold on to a distinction between holding these things "hostage to moral principle" and insisting, even when it's costly, on the need and right to act with integrity. How that distinction -- assuming there's something to it -- "maps" onto the two debates that Cathy discusses (abortion funding in the healthcare-funding proposals and same-sex-spousal benefits by religious social-welfare organizations that cooperate with government) is a tricky question.
I disagree, I think, with Cathy's suggestion that "in the enforcement of anti-discrimination law in Washington, D.C gay rights activists are in exactly the same position as the bishops are with respect to abortion." I guess I think the merits do matter, as does the "framing" of the issue. To say this is not to say that "error has no rights," and Cathy is, obviously, correct to note that history tells "many tales of the majority being mistaken on matters such as slavery, religious liberty, and the rights of aboriginal peoples." But, it is a deep injustice -- wholly apart from tricky questions about taxpayers' culpability for the wrongs done by their governments -- for a political community to permit, let alone to fund, abortions, because abortion is a grave wrong. (The problem is not, in other words, that Catholics are being made to pay for a practice they oppose; it is that the political community is funding and facilitating abortions, thereby helping to entrench the unjust exclusion of unborn children from the law's protections.) On the other hand, it is not a deep injustice for religious institutions to take religious teachings -- including religious teachings on sexual morality -- into account when hiring and firing. (To be clear: to say this is not to deny that it would be wrong for the government to take religious teachings on sexual morality into account when hiring and firing.)
Of course, a lot depends on how one "frames" or describes what it is that is being funded: I think that what the District funds when it cooperates with Catholic Charities (say) in the provision of social-welfare services is, well, "social welfare services", or even "social-welfare services by an organization that serves all comers but hires and fires in accord with its animating principles." It is, I think, wrong for governments to discriminate, but it is not (I think) wrongful discrimination for a religious institution to hire and fire in accord with religion -- even when that institution is cooperating with the government to provide social-welfare services. But, a health-funding proposal that says "public funds will be used to pay for abortions" is, it seems to me, harder to re-frame.
In any event, Cathy is entirely right to remind everyone that "[t]here is no easy way to resolve the theoretical tension between respect for moral truth and respect for consciences which disagree with the majority's best assessment of truth." This -- stated at a general level -- is a vexing question, as anyone who thinks about conscience, religious liberty, and politics knows.
Tuesday, December 1, 2009
Michael P. called our attention, a few days ago, to the President's creation of a new Presidential Commission for the Study of Bioethical Issues, and also to his appointment of Amy Gutmann to serve as Chair of the Commission. In my own (non-expert) view, Leon Kass and Edmund Pellegrino (both of whom chaired President Bush's Council on Bioethics) provided the previous President, and the country, with valuable service, work, and reflection, and with a welcome moral clarity on heartland human-dignity-and-science questions. Amy Gutmann is, of course, well known and accomplished, but -- based on my reading of her Democratic Education and Democracy and Disagreement -- I have concerns (though, given all the givens, I realize that President Obama was not likely to appoint to such a position a scholar with whom I agree on these matters) about the likely content and direction of the new Commission's work. We'll see. . . .
Monday, November 30, 2009
Have you read Walker Percy's 1987 novel, "The Thanatos Syndrome"? You should! I admit it -- I read a bunch of Percy novels in law school, because I was told by a super-smart Catholic that, well, I should. I don't think I really appreciated them. So, I've been re-reading them. (I didn't appreciate, for one thing, how funny -- while still heavy -- they are.)
In Thanatos, the protagonist, Dr. Thomas More has an old acquaintance named Fr. Smith who gets in some choice, if hard to hear, observations about modern science. (Amy Welborn has a short-and-sweet review, here. See also this, in First Things, from 16 years ago.) Remember, he warns, "tenderness leads to the gas chamber."
More here:
A panel discussion titled “What Would a Good Conscience Clause Look Like? A Catholic University’s Perspective” will be held Dec. 3 (Thursday) at 12:30 p.m. in the Patrick F. McCartan Courtroom of the University of Notre Dame’s Eck Hall of Law.
The discussion will concern how Catholic teaching and tradition, scholarship and legal developments might inform efforts to protect the rights of conscience of health workers, pregnant women, taxpayers and other citizens. . . .
