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, November 24, 2008

How to talk about embryo destruction and euthanasia

Reflecting, here, on the state-level election-day set-backs for the pro-life cause -- specifically, the Michigan referendum on embryo-destroying research, the Washington referendum on assisted suicide, and the defeat of a pro-life initiative in California -- George Weigel suggests that: 

We need more persuasive ideas and language in the fight against euthanasia. Yes, the good guys were outspent in Washington State by orders of magnitude -- and that should cause serious examinations of conscience among Catholic philanthropies and individuals of means. But, as in the debate over embryo-destructive stem-cell research, the culture of life has yet to develop a language that trumps the invocation of "compassion" when that's misused by the culture of death.

Any ideas?

"In Defense of the Sovereign Family"

The current issue of First Things includes a wonderful essay by Jack Coons, called "In Defense of the Sovereign Family."  Unfortunately, the text is not yet available to non-subscribers.  It would be hard to do justice to the essay in just a short blog post, but . . . Coons takes on the notion that "government alone is where law can be found", and insists that families (like churches, Native American tribes, and some other associations) really do generate law.  Coons' essay is a challenge to the "monopolist, who believes that no one can create authentic law beyond the reach of the state and believes that the state provides parents what legal authority they have."  Be sure to check it out.

Tuesday, November 18, 2008

International Religious Freedom Act panel

Along with Thomas Farr, of Georgetown, and the ACLU's Jeremy Gunn, I'll be speaking about the International Religious Freedom Act, on the occasion of its 10th anniversary, at this year's Federalist Society National Lawyers Convention.  (More here.)  If you're there (and you are not busy anticipatorily preparing your meritless pardon requests to our incoming Attorney General) (I kid!  I kid!), please say hello.

Thursday, November 13, 2008

Response to Michael (Sean Winters)

Michael P. re-posted an op-ed by my sometime-blogging-colleague (at America) Michael Sean Winters.  Because, I confess, I am tired of blogging about Obama, abortion, Kmiec's follies, etc., etc., I will try to keep this response pithy:

MSW says that one of the "difficulties" with the anti-abortion statements of several American bishops is "that they did not persuade."  Is this fact really a "difficulty" with the various bishops' statements?  Does the fact an argument does not persuade always suggest an error on the part of the would-be persuader?

MSW writes, "[t]he pro-life movement has been carrying water for the Grand Old Party for 35 years and there has been no change in the law."  Sigh.  This is entirely wrong, and MSW -- God bless him -- should know better.  (What's more, the relevant law is about to get worse.)

MSW says that "Obama's ace in the hole, especially with young voters and independents, was his promise to end the slash-and-burn partisanship that had made Washington politics so bitter, not only in George W. Bush's term, but during the Clinton years as well."  Note to "young voters and independents":  Don't hold your breath.

Finally, MSW says, "the greatest problem is that these 'abortion-only' bishops are living in a parallel universe. In denigrating the Democratic Party and its nominee, the only conclusion is that the Republicans were the salvific choice."  In fact, none of these bishops is "abortion only."  Nor did any bishop suggest that Republicans are a "salvific choice."  Obviously, they are not.  They are, however, not fundamentally committed to the enshrinement in our Constitution and in our laws of a near-unlimited (and publicly funded) abortion license.

Wednesday, November 12, 2008

"A New Day"

This piece, from First Things, by Fr. John Jay Hughes, is worth thinking about.  A taste:

The worst aspect of an Obama presidency, I have been telling friends for months, will be his Supreme Court appointments. They will set the so-called constitutional right to an abortion in concrete for years to come. While this remains true, Sen. Obama’s victory challenges pro-lifers in two ways.

We need first to recognize that politics is the art of the possible and that political battles can never be won by attacking our friends. During the annual march on Washington each January, some pro-lifers have had nothing better to do than to stage confrontations with pro-life members of Congress whose support they consider insufficiently militant. I received such an attack myself, during a previous presidential campaign, when a listener found the decibel count of a strong pro-life homily I preached too low. This is madness.

Second, we need to recognize that, for some years to come, abortion will be with us; we must support the kind of limitations on the practice which are in force in most other countries. To oppose such limitations on the grounds that they do not banish all abortions is also madness.

Beyond replacing political naivete with political savvy, the task before pro-life people now is to concentrate on the only task that will bring success in the fight for life: changing hearts and minds.

This is, of course, ex post advice.  That is, it seems clear that Fr. Hughes was not one of those arguing, ten days ago, that "changing hearts and minds" matters and good laws and clear-thinking Justices do not.  But, given the new (in his view, unfortunate) givens -- which seem to include a Congress and an Administration that will be strong proponents of abortion rights -- what to do?  Interestingly, his point is not, so far as I can tell, that those who oppose abortion should settle for re-packaging various spending programs as pro-life measures.  Instead, he suggests:

A good entry point for persuading people that abortion is wrong is pointing out the chilling similarities between the arguments for slavery in the 1850s and those used to defend abortion today. Like today’s pro-choice people, slaveholders said they weren’t forcing others to own slaves. They simply pleaded for the right to do what they wanted with their “property.” That word disguised, of course, the fact that human lives were at stake. The question of pro-choice people today, “Doesn’t a woman have a right to do what she wants with her body?” similarly disguises the fact that exercising these so-called rights involves taking a human life.

I wonder.  I wonder if Fr. Hughes is underestimating the trickiness, in a legal context that is thoroughly committed to the fundamental-right-ed-ness of abortion, of moving the ball with this kind of "pointing out"?  Is this really likely to be a "good entry point" (even if we assume, as I think I am willing to do, that there are instructive similarities)?  I just don't know.

Continue reading

Tuesday, November 11, 2008

Robert George to U.N.

The Catholic News Agency is reporting:

Intellectual heavyweight, Professor Robert P. George, has received an appointment as a member of the World Commission on the Ethics of Scientific Knowledge and Technology (COMEST).

More here.  Congrats to Robby! 

Continue reading

Wednesday, November 5, 2008

"Odyssey Catholics"

One of my Catholic Social Thought students sent me a link to this piece, "Odyssey Catholics", which appeared in the National Catholic Reporter about a year ago.  It profiles several young, "Millennial"  Catholics (including Notre Dame graduates) who are wrestling with integrating the Faith into their, at present, nomadic lives, lives that are simultaneously isolated and interconnected.  My own reaction was to be a bit discouraged that these young Catholics -- who seem sincere, idealistic, generous, etc. -- seem not to have been presented, in a way that "took", during their formation, with the importance of the sacramental life in the Church.

Thursday, October 30, 2008

Mirror of Justice and law-blog rankings

Prof. Paul Caron has posted the latest law-prof-blog rankings; unfortunately, because we were late getting our site-meter set up, Mirror of Justice was not eligible.  However, it looks to me -- if one extrapolates from the available site-meter data -- that MOJ would rank somewhere around 22 in both "visits" and "page views".  We'll see!

In the meantime . . . a request for readers:  Take a brief break from thinking about Faithful Citizenship and, instead, send an e-mail to 5 friends who might not read MOJ and urge them to add it to their "bookmarks."  Our motto can be "Beat the Wills, Trusts, & Estates Prof. Blog in 2009!"

Tuesday, October 28, 2008

Pope Benedict on church-state separation

In his address to the Philippine ambassador (thanks to Commonweal for the link), Pope Benedict had some important things to say about church-state separation:

The Catholic Church is eager to share the richness of the Gospel’s social message, for it enlivens hearts with a hope for the fulfilment of justice and a love that makes all men and women truly brothers and sisters in Christ Jesus. She carries out this mission fully aware of the respective autonomy and competence of Church and State. Indeed, we may say that the distinction between religion and politics is a specific achievement of Christianity and one of its fundamental historical and cultural contributions. The Church is equally convinced that State and religion are called to support each other as they together serve the personal and social well-being of all (cf. Gaudium et Spes, 76). This harmonious cooperation between Church and State requires ecclesial and civic leaders to carry out their public duties with undaunted concern for the common good.

Right on.  For more, see, e.g., Richard W. Garnett, "Church, State, and the Practice of Love" (Villanova L. Rev., 2007) (link) or (God willing) R. Garnett, Two There Are:  Understanding the Separation of Church and State (Cambridge, forthcoming).

Frs. McBrien and Reese are wrong

In the piece by Fr. Richard McBrien, to which Michael linked, we read the following:

The only way that abortions are going to be reduced, as Jesuit Fr. Thomas Reese insisted recently on his blog for The Washington Post ( Abortion: Rhetoric or Results), is by dealing directly with the causes that lead women to have abortions.

This is just wrong.  I won't burden readers with an endless stream of links, but the claim that the "only way" to reduce abortions is to "deal[] directly with the causes that lead women to have abortions" is badly mistaken.  Reasonable regulations of abortion (and rules against public funding of abortion) also reduce the number of abortions.  Fr. Reese also states:

Those wanting to do something about abortion must face the political reality that abortion is not going to be made illegal in the United States. Granted that fact, then the political question has to change from "Who will make abortion illegal?" to "Who will enact programs that will reduce the number of abortions?"

No, there is another question, i.e., "who will enact regulations, and who will nominate and confirm judges who will permit regulations, of abortion".  It it true, of course, that overruling Roe will not end abortion.  (As I have written before, though, Roe's wrong needs correcting even if that wrong does not prevent a single abortion.)  It is also true, though, that there is plenty of room for (and plenty of public support for) reasonable regulations of abortion, regulations of the kind that would (and do) reduce the numbers of abortion.

No one is saying -- certainly, I have never said -- that "dealing with root causes" is not one way to reduce the number of abortions.  (Will Sen. Obama ever endorse the Democrats for Life proposal in Congress?)  But, especially at this late date, and at this point in this election-year argument, it is bewildering -- and, frankly, frustrating -- that someone of Fr. Reese's stature would assert something that is so incorrect, i.e., that the "only" way to reduce abortions by dealing with root-causes (and, therefore, that we should not worry so much about Sen. Obama's commitment to Roe, to public funding, to the FOCA, etc.). 

Nowhere in Fr. Reese's piece (or in Fr. McBrien's) is the impact on abortion rates (which would seem to matter more than the raw numbers relied on in the pieces) of public funding, the FOCA (in all its glory), and the election of an Administration that is full-throatedly pro-abortion-rights.  This consistent refusal -- by Reese, McBrien, Kmiec, Cafardi, etc. -- to engage the effects of policies that will increase the abortion rate, in the context of their contentions that pro-lifers should stop worrying about Roe and put their hopes in an Obama administration's social-welfare programs, is inexcusable.

UPDATE:  Here's Professor Gerard Bradley, on the "root causes" argument.

. . . Public authority’s first responsibility is not, in any event, to counsel persons to make good choices.  Nor is it to make it easier for them to make good choices.  There are many institutions and people in society who can do those things, not least the charitable offices of churches.  The first responsibility of government, the indispensable core of social justice, is the equal protection of everyone from violent destruction by others.  Only government can see to that.  No one else and no other institution in society can see to it, because seeing to it depends upon the enactment of just laws and their effective enforcement by enforcement authorities.

I have not said a word so far about the critical empirical claim made by “root cause” strategists:  better social services (healthcare and the like) will reduce the incidence of abortion.  For what it is worth, I think the evidence for that empirical claim is dubious.  I think that what I have said so far establishes that the “root cause” campaign is morally dubious, and unworthy of Catholic’s support for that reason.