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.

Saturday, September 16, 2006

The Democrats' abortion proposal / Casey's speech

By Rick Garnett

Eduardo posted the news of the Democrats' planned proposal to reduce the number of abortions through "such preventive measures as funding for contraceptives and expanded sex education geared toward avoiding pregnancy as well as support for adoption and services to new mothers[.]"  (That is, their proposal to appeal to "values voters" by re-packaging longstanding policy goals as efforts to reduce the number of abortions).  He continues:

Let's also assume that these proposals by the Democrats would cause a substantial drop in the actual number of abortions. 

With all due respect, I see no reason why we should make this assumption.  And, there is, in my view, no reason to assume that this proposal would reduce abortions more than would, say, the Republican goal of (a) returning the matter of abortion regulation to the political process, with a view toward (b) regulating the practice of abortion to a greater extent than the Court, at present, permits. 

It strikes me, also, that Eduardo's thought experiment needs to be revised, to factor in the fact that this proposal is (see Patrick's post) part of an overall program of (a) public funding for many abortions; (b) opposing any judicial nominees who might permit even moderate regulation of abortion; (c) opposing even those minor regulations of abortion (e.g., partial-birth abortion bans) that Casey might be thought to permit; (d) supporting proposals that would compel Catholic hospitals to provide abortions; (e) demonizing opponents of abortion as hostile to women's rights and civil liberties, and so on.

I have no doubt that Eduardo and I agree that abortion is immoral, and that we should do what we can -- wholly and apart from regulation -- to reduce them.  But I cannot agree with him that, all things considered, the Democrats' position -- that is, their operational position, the position to which their political base and financial backers are committed, the position that will advance when the Democrats re-take the House -- is consistent with the view that abortion is immoral.   (This is not to say that a faithful Catholic could not conclude that -- contrary to my own view -- a vote for a Democrat is, all things considered, more likely to promote the common good.)

Relatedly, Rob has a post about Senate-candidate Casey's address at Catholic University, where he voiced his support for "legislation that would work toward real solutions to our abortion problem by targeting the underlying factors that often lead women to choose abortion."  There is much to admire about Mr. Casey.  One might think, though, that there can be no "solution" to our "abortion problem" so long as it is the case that the Constitution is imagined to embody a commitment to a liberty to define the meaning of existence -- a commitment that disables us from reasonably regulating abortion -- and that any politician or judge who suggests otherwise is tarred as an extremist bent on "rolling back the clock", etc., etc.  There can be no solution to our abortion problem so long as political leaders who say they want to reduce the number of abortions are willing to say plainly *why* we should want fewer abortions.

It is often suggested that President Bush's pro-life initiatives and statements are cynical ploys intended merely to ensnare well-meaning, faithful Christians into supporting his nefarious program.  They aren't.  But, putting that aside, couldn't one reasonably conclude that Casey's speech, and the Democrats' proposal (which, operationally, is entirely consonant with public funding for abortion on demand), are no-less-cynical ploys? 

Wednesday, September 13, 2006

Chaput on immigration

By Rick Garnett

According to this news story, Denver's Archbishop Charles Chaput -- usually characterized in the press as a "conservative" -- has been going around the state, holding town hall meetings on immigration, and "explaining the church's immigration position as one that respects the rule of law but also believes immigrants have a right to human dignity and freedom."

Tuesday, September 12, 2006

Another review of "The Theocons"

By Rick Garnett

Writer David Hart has this review of Damon Linker's "The Theocons:  Secular America Under Siege," in The New Criterion.  A subscription is required for the full review, but here are some excerpts (sorry for the colored font):

I should first confess that I cannot approach this book with perfect detachment. I am personally acquainted not only with its author, Damon Linker, but with Richard John Neuhaus and the rest of the so-called “theocons,” and I have cause to feel good will towards all parties involved. . . .

But, even if I find detachment impossible, I can still profess ideological disinterest. I am certainly not attracted to the drearily platitudinous liberal secularism that Linker has now apparently adopted as his political “philosophy,” but neither am I an adherent of the “theoconservatism” that Linker attributes—with a variable degree of accuracy—to Neuhaus and his circle (unless mere hostility to the “culture of death” is enough to earn one membership).  So I think I am being fairly impartial when I say that The Theocons is a poor book—on any number of counts. It is frequently badly reasoned; it is marked by a surprising degree of historical ignorance; it is polluted by a personal animosity towards Neuhaus that—while denied by Linker—is both obvious and unrelenting; and it is extremely boring. . . .

According to Linker, theoconservatism is the bastard offspring of the youthful radicalism of Neuhaus and his chief co- conspirator David Novak, transposed into a conservative key, but no less apocalyptic, revolutionary, and fanatical for all that. Its central tenet is that the moral and philosophical roots of the American political order lie not in secular reason, but in Christian theological tradition, which alone can provide an ethical and metaphysical rationale for our liberties, laws, and virtues.  The theoconservative reading of the constitution, moreover, denies that the non-establishment clause was ever intended as a prohibition of participation by religious bodies in political or civil life, or as a call to purge religious expression from the “public square.”

. . .  Now they are poised, perhaps, on the very verge of total triumph, and—if Linker is to be believed—the possible consequences are terrifying to contemplate: our political system in thrall to Catholicism’s moral absolutism, science driven from our schools, economic and technological decline as we sink into a new epoch of credulous barbarism, isolation from the international community, and (naturally) a rise in anti-Jewish prejudice.

All of this, of course, is horrendous twaddle, and I do not know whether Linker actually believes any of it. . . .

. . .  If I follow Linker’s story—stripped, that is, of its bombast—it goes rather like this: There is a group of articulate and influential thinkers in America who believe firmly in liberal democracy and free markets and things of that sort, but who also believe that the principles underlying modern democratic order are derived from a long history of European Christian thought regarding human authority. They are, moreover, convinced that the notion of the inherent dignity and worth of every human being is grounded in something older than liberal tradition. They also think that an impermeable “wall of separation” between public policy and private faith is an extra-constitutional and misguided principle. They believe that the lives of the unborn ought to be protected in law, and that the Supreme Court’s decisions pronouncing abortion a constitutional right are a collection of willful jurisprudential fictions. They regard the traditional family as a desirable institution, believe marriage to be the union of a man and a woman, and are somewhat anxious concerning the drift of modern culture towards an ever greater coarseness and ever more pronounced indifference to innocent life.

Now, whether one agrees or not, none of these convictions is, by any sane measure, “extreme”; they all fall well within one of the broad main currents of American political and social thought. Nor are any of the historical claims involved particularly fantastic (though Linker knows too little of the history of ideas to see this). Nor, surely, is it any secret that persons holding such views have supported George Bush in both of his presidential campaigns, and that some of them continue to offer him advice.  Nor, as far as I can tell, has anyone among the “theocons” made any attempt to keep it a secret. If these men are in fact “radicals,” they are far and away the most unadventurous radicals ever to have appeared on our political horizon. . .

When Linker actually describes the methods employed by the theocon conspiracy, it turns out that they consist principally in encouraging Christians to vote for conservative politicians who will use legislation, referenda, constitutional amendments, and court appointments to frustrate the secularist agenda. Moreover, though Linker speaks of the decade 1984–1994 as the period of the theocons’ “stealth campaign” to seize power, he can only report that they advanced their cause in those years by founding magazines and think tanks, seeking funding for both, associating with conservative forces within the Catholic Church, and forging ties between conservative Catholics and conservative Evangelicals.

This is all very cunning, I expect, but I believe the customary term for such methods is “democratic politics” (though I am prepared to be corrected on this). . . .

Monday, September 11, 2006

Baumann on Linker

By Rick Garnett

Commonweal's Paul Baumann has this review of Damon Linker's "Theocons" book, in the Washington Monthly.  Here is a bit:

Named by Time in 2005 as one of the nation’s 25 most influential evangelical leaders, a thinker who has the ear of President George W. Bush on moral and cultural issues, Father Richard John Neuhaus remains little known in secular liberal circles. According to his former protégé, Damon Linker, that’s a serious problem. In The Theocons: Secular America Under Siege, Linker portrays Neuhaus (a Lutheran pastor who converted to Catholicism in 1990) as the charismatic leader of an extremist movement bent on saving the nation from its headlong descent into decadent relativism by remoralizing politics and returning America to its Christian—perhaps even its unsuspected Catholic—roots. 

That’s exaggerated and alarmist, like much else in this tendentious book; yet Linker gets the basic political outlines right. If you are perplexed about why George Bush and so many other Republicans can’t stop extolling “Almighty God” in public, you need to inform yourself about Neuhaus and his decades-long campaign to put religion back into the center of American politics.

In his influential 1984 book, The Naked Public Square—Linker calls it the theocon “manifesto”—Neuhaus argued that the American “experiment in ordered liberty” is premised on religious assumptions about the freedom and dignity of the human person. In his view, freedom of religion is the first freedom, and the effort by liberal elites to strip the public square of religious language and advocacy is an assault on every American’s freedom of conscience. According to Neuhaus, government, because it must inevitably order aspects of our common life that touch on our ultimate moral concerns, cannot turn a deaf ear to the religious aspirations of the governed. Nor, he argues, can the fundamental values of democracy be sustained outside of a larger religious context. . . .

. . . Linker is right about Neuhaus’s political ambitiousness, but his movement is hardly the ideological colossus this book would have us believe. . . .  Nor is it plausible that the theocons’ ultimate goal is the destruction of the nation’s democratic political order. Linker sees inordinate peril in Neuhaus’s insistence that democracy be grounded in metaphysical, and ultimately religious, claims about the transcendent nature of the human person. The “liberal bargain” Linker extols, on the other hand, explicitly rejects the need for democratic societies to come to any comprehensive agreement about first principles. In the liberal bargain, we can disagree about the ultimate good, about “first things,” and still order our political life in a fair and peaceful way.

The theocons reject this conception of liberalism, insisting that only a political order based on absolute moral “truth” can protect human dignity and freedom. Such an insistence appears hard to square with our society’s inability to agree on the moral truth about such issues as abortion or same-sex marriage. Emphasizing such shortcomings, Linker is too quick to dismiss the appeal of the theocon position. (Neuhaus would argue, for example, that the law’s failure to protect unborn life is a far greater threat to democratic values than his protests against Roe v. Wade.) In a time when science presents excruciating dilemmas about when human life begins or ends—and about who should make such determinations—it is not just conservatives who balk at the idea that individual autonomy trumps all other moral values. Nor can Linker’s strictly secular “liberal bargain” account for the role religious convictions have played, for example, in the triumph of democracy in Poland’s Solidarity movement or America’s own abolitionist and civil-rights struggles.

There's more.  Check it out.

We Were There

By Rick Garnett

Here is a new publication of the USCCB, "We Were There:  Catholic Priests and How They Responded, in Their Own Words."  And here is a prayer from the Bishops' web site:

Five years have passed, O Lord,
five years of mourning and of tears,
of struggling to make sense and to go on.
Five years since crashing planes, collapsing building,
rivers of smoke and ash and fear brought death and fear.

Give us the courage to hope again, Father.
To pray even for our enemies, and for ourselves.
Give us the grace to be freed from hate
and unbound from the paralysis of fear.
Give us the freedom of the children of God:

Awaken in our hearts a firm resolve
“to reject the ways of violence,
to combat everything that sows hatred and division
within the human family,
and to work for the dawn of a new era
of solidarity, justice and peace.”i

We ask this through the Prince of Peace,
our Way, our Truth, and our Life,
Christ the Lord. Amen.

Sunday, September 10, 2006

New study regarding faculty and Catholic identity

By Rick Garnett

A new study published in the Journal for the Scientific Study of Religion looks interesting:

Journal for the Scientific Study of Religion
Volume 43 Page 83  - March 2004
doi:10.1111/j.1468-5906.2004.00219.x   
Volume 43 Issue 1      
      
      
The Difference Catholic Makes: Catholic Faculty and Catholic Identity 
D. Paul Sullins

This study examines, for the case of Catholics, the thesis that a "critical mass" of devoted faculty members­50 percent or more, according to the papal document Ex Corde Ecclesia­serves to promote or preserve the religious character of religiously affiliated institutions of higher education. Factor analysis and structural equations are employed to analyze a random sample of faculty members (n= 1,290) and institutional profiles (n= 100) of American Catholic colleges and universities. Catholic faculty show higher support for Catholic identity in latent structures of aspiration for improved Catholic distinctiveness, a desire for more theology or philosophy courses, and longer institutional tenure. Institutions having a majority of Catholic faculty exhibit four properties consistent with stronger Catholic identity: a policy of preferential hiring for Catholics ("hiring for mission"), a higher proportion of Catholic students, higher faculty aspiration for Catholic identity, and longer faculty tenure in the institution. These latter two characteristics are not due simply to aggregation, but are stronger, on average, for Catholic faculty when they are in the majority. Preferential hiring marks Catholic identity, but is ineffective to increase the proportion of Catholic faculty. I conclude that the prediction of the critical mass thesis is correct.   

Thanks to MOJ-alum Paolo Carozza for the tip.

Secular "scorecards"

By Rick Garnett

The Secular Coalition for America has released its congressional scorecards for the 109th Congress.  Particular for Senators, it seems to me that the scorecards are quite misleading, as they are based on 10 Senate votes, eight of which involved a few selected -- cherry-picked, perhaps -- judicial nominations on which the Democrats stayed together as a caucus.  (So, the Alito vote counts for the "secular" score, but the Roberts vote does not).  This means that some of the more moderate Democrats in the Senate wound up with inflated "secular" scores, while some fairly liberal Republicans would up with deflated ones.  The votes that counted for members of the House are more varied and so, perhaps, more interesting.

Krugman on income inequality

By Rick Garnett

Michael reprints here Paul Krugman's recent opinion piece on income inequality.  Underneath Krugman's usual partisan invective about "right-wing commentators", "whin[ing]" conservatives, and "inequality's apologists" comes the charge that "misleading" statistics about income inequality are flying around.  Indeed, they are -- in this map, for example, which has been flying around and hotly debated in the blogosphere of late.  It appears to be Krugman's view that to question the value to informed discourse of inaccurate claims about declining incomes is to "whine" or "apolog[ize]" for inequality.  This is too bad.  It seems fair to ask if Krugman -- obviously a very gifted and intelligent scholar -- has any objections to the use of "misleading" statistics when they serve his purpose.

Let's stipulate, as I did earlier, that it should be a matter of serious concern -- to Americans generally, and to Catholics committed to principles of solidarity and a preferential option for the poor -- if the economic growth during the Bush Administration has worked to the benefit of only a very few Americans or if, notwithstanding this growth, working-class and low-income people are worse off than they were before.  I wrote earlier:

[W]e might conclude that, even the full picture of the economy (i.e., one that factors in real compensation, [etc.]) is troubling, perhaps because of the disparity between those at the top and the bottom.  (See these old MOJ posts on income inequality.)  We might think that even real, total compensation is too low, and failing to keep pace with American workers' increased productivity.  And so on.

Now, we can all agree that the new Krugman piece, in Michael's post, raises a number of important and timely questions.  For example, let's assume it is true that the "effective federal tax rate on the richest 0.01 percent has fallen from about 60 percent in 1980 to about 34 percent today."  What should we make of this?  What would be the effect -- on the economy generally and, of course, on the most vulnerable among us, with whose welfare I take it Catholic Social Thought charges us to be most concerned -- of raising the effective rate back to, say, 60%?  Or, is it right-wing "whin[ing]," or "apologis[m]" for inequality, to ask such questions?

Bainbridge on the Bishops and enterprise liability

By Rick Garnett

In this post, our MOJ colleague Steve Bainbridge discusses his new paper, "The Bishop's Alter Ego:  Enterprise Liability and the Catholic Priest Sex Abuse Scandal."  Here is the abstract:

Since 1950, more than 11,500 sex abuse claims have been filed against priests and other agents of the Roman Catholic Church. The eventual direct costs to the Catholic Church of the priest abuse litigation are predicted to range from $2 to $3 billion.

The corporate structure of the Church under civil law can have a substantial impact on the ability of priest sex abuse claimants to recover on favorable judgments or settlements. In many U.S. dioceses, all Church assets are owned by a single corporation, typically a corporation sole, by virtue of which the local bishop becomes the legal titleholder of all Church-affiliated property in the diocese. The dominant view is that all assets of such dioceses, including those of individual parishes and other so-called juridic persons, are available to satisfy tort judgments against the diocese.

Some dioceses, however, long have separately incorporated at least some of their affiliated juridic persons. In response to the priest sex abuse liability crisis, there is a growing trend for diocesan assets to be divided among multiple incorporated entities. Although separate incorporation of diocesan assets implicates a number of legal doctrines, alter ego claims likely will play a central role in any litigation seeking to reach the assets of such corporations for the benefit of diocesan creditors.

There is no constitutional bar to a court using the alter ego doctrine to treat a diocese and its separately incorporated parishes as a single enterprise for liability purposes in the priest sex abuse scandal litigation (or any other dispute, for that matter). The analysis in this paper, however, suggests that appropriate cases for invoking the alter ego doctrine in this context will be few and far between.

Two entities will be treated as alter egos where (1) one entity exercises such a high degree of control that the other has effectively lost its separate existence and (2) the controlling entity has abused its power of control in an unjust or inequitable manner. As to the former prong, a diocesan bishop who comports himself in accordance with the requirements of canon law is unlikely to exercise the requisite degree of day to day control over a separately incorporated parish. As to the latter prong, the courts have discretion to consider the potentially severe deleterious impact of liability on the ability of innocent parties to exercise religious practices implicating constitutionally protected values. In other words, while the Free Exercise and Establishment clauses do not bar judicial application of the alter ego doctrine to churches, the values protected by those provisions appropriately may be weighed in the balance. Given the ready availability of alternative doctrines better suited to the problems at hand, particularly fraudulent transfer law, there case against invoking alter ego in this context thus becomes quite strong.

Thinking about "The Common Good"

By Rick Garnett

Here is a very interesting post, by J. Peter Nixon, from the Commonweal blog.  He is discussing two relatively new "organizations of lay Catholics in the last year that both have the phrase 'common good' in their name."  He notes, among other things, that "if the example of Jesus is any guide, one of the things that Christians must do is trouble the consciences of those closest to us."

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