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.

Tuesday, October 16, 2012

(More) Pre-Election Confusion about Abortion from the New York Times

By Michael Moreland

Perhaps it’s asking too much for arguments (most especially on the topic of abortion) touching on Catholicism and politics on the cusp of an election to be coherent, but this op-ed in today’s New York Times by Fordham theologian Michael Peppard is remarkably specious. So far as I can tell (the essay conflates legal, philosophical, and canonical terms throughout, with folk political observations along the way), Peppard believes that because Congressman Ryan (a Catholic) takes the following positions, Ryan is similarly situated with regard to dissenting from Catholic teaching as Vice President Biden and should be placed on (in Peppard’s crude, frivolous phrase) “wafer watch:” 

  1. While affirming that life begins at conception, Congressman Ryan stated in the vice presidential debate last week that the policy of a Romney-Ryan administration would be “to oppose abortion, with the exceptions for rape, incest, and life of the mother.”
  2. Ryan criticizes Roe v. Wade and holds that “people through their elected representatives in reaching a consensus in society through the democratic process should make this determination.” 

Peppard seems to think that because these positions depart from an absolute pro-life moral and legal position, Ryan, like Biden, places a “distance between nonnegotiable Catholic moral teaching and civil law” and has “joined the ranks of dissenting Catholic politicians.” But what Peppard seems to misunderstand (and profoundly misstates Catholic doctrine about) is that not all positions placing a “distance between nonnegotiable Catholic moral teaching and civil law” are equally wrong. Pro-choice Catholic politicians and their apologists are right about this: there are some hard questions about the relation between morality and law in the abortion debate. But it is a profound mistake to move immediately to the conclusion, implied in Peppard’s essay, that it is impossible to make reasonable comparative judgments on law and morality (comparative judgments about how the positive law is derived in various circumstances from the natural law) in the abortion debate. 

I don’t expect the New York Times to represent Catholic teaching accurately, but I would hope a theologian could have bothered to take account of the text in Evangelium Vitae that speaks to this very question: 

¶73.1 Abortion and euthanasia are thus crimes which no human law can claim to legitimize. There is no obligation in conscience to obey such laws; instead there is a grave and clear obligation to oppose them by conscientious objection…

¶73.2 In the case of an intrinsically unjust law, such as a law permitting abortion or euthanasia, it is therefore never licit to obey it, or to "take part in a propaganda campaign in favour of such a law, or vote for it".

¶73.3 A particular problem of conscience can arise in cases where a legislative vote would be decisive for the passage of a more restrictive law, aimed at limiting the number of authorized abortions, in place of a more permissive law already passed or ready to be voted on. Such cases are not infrequent. It is a fact that while in some parts of the world there continue to be campaigns to introduce laws favouring abortion, often supported by powerful international organizations, in other nations--particularly those which have already experienced the bitter fruits of such permissive legislation--there are growing signs of a rethinking in this matter. In a case like the one just mentioned, when it is not possible to overturn or completely abrogate a pro-abortion law, an elected official, whose absolute personal opposition to procured abortion was well known, could licitly support proposals aimed at limiting the harm done by such a law and at lessening its negative consequences at the level of general opinion and public morality. This does not in fact represent an illicit cooperation with an unjust law, but rather a legitimate and proper attempt to limit its evil aspects.

So we have two positions: 

(A) A Catholic politician may voice opposition to abortion while advocating (arguing for, voting for, taking public positions in favor of) legislation that restricts abortion further than the current legal baseline (or judicial rulings restricting abortion) but falls short of an absolute prohibition. The object of such legislation (or judicial rulings) is to restrict abortion, while tolerating exceptions to a prohibition on abortion in order to bring about restrictions. This position is affirmed by ¶73.3.

(B)  A Catholic politician may voice opposition to abortion while advocating (arguing for, voting for, taking public positions in favor of) legislation permitting abortion (or judicial rulings recognizing an expansive right to abortion). The object of such legislation (or judicial rulings) is to permit abortion. This position is rejected by ¶73.1 and ¶73.2.

Peppard’s entire essay rests on a conflation of (A) and (B) in order to make those who hold (A) seem as much "bad Catholics" as those who hold (B). Alas, the "Catholic position" to which Peppard refers throughout his essay teaches otherwise.

Friday, October 12, 2012

The HHS Mandate and the Vice Presidential Debate

By Michael Moreland

The USCCB has issued a statement clarifying that Vice President Biden's characterization of the effect of the HHS mandate as "a fact" (twice) is not, in fact, a fact:

October 12, 2012

WASHINGTON—The U.S. Conference of Catholic Bishops (USCCB) issued the following statement, October 12. Full text follows:

Last night, the following statement was made during the Vice Presidential debate regarding the decision of the U.S. Department of Health and Human Services (HHS) to force virtually all employers to include sterilization and contraception, including drugs that may cause abortion, in the health insurance coverage they provide their employees:

"With regard to the assault on the Catholic Church, let me make it absolutely clear. No religious institution—Catholic or otherwise, including Catholic social services, Georgetown hospital, Mercy hospital, any hospital—none has to either refer contraception, none has to pay for contraception, none has to be a vehicle to get contraception in any insurance policy they provide. That is a fact. That is a fact."

This is not a fact. The HHS mandate contains a narrow, four-part exemption for certain "religious employers." That exemption was made final in February and does not extend to "Catholic social services, Georgetown hospital, Mercy hospital, any hospital," or any other religious charity that offers its services to all, regardless of the faith of those served.

HHS has proposed an additional "accommodation" for religious organizations like these, which HHS itself describes as "non-exempt." That proposal does not even potentially relieve these organizations from the obligation "to pay for contraception" and "to be a vehicle to get contraception." They will have to serve as a vehicle, because they will still be forced to provide their employees with health coverage, and that coverage will still have to include sterilization, contraception, and abortifacients. They will have to pay for these things, because the premiums that the organizations (and their employees) are required to pay will still be applied, along with other funds, to cover the cost of these drugs and surgeries.

USCCB continues to urge HHS, in the strongest possible terms, actually to eliminate the various infringements on religious freedom imposed by the mandate.

For more details, please see USCCB's regulatory comments filed on May 15 regarding the proposed "accommodation": www.usccb.org/about/general-counsel/rulemaking/upload/comments-on-advance-notice-of-proposed-rulemaking-on-preventive-services-12-05-15.pdf

Vatican II 50 Years Later

By Michael Moreland

Rocco Palmo has comprehensive coverage of the events in Rome commemorating the 50th anniversary of the opening of the Second Vatican Council. Here's an excerpt from Benedict XVI's remarks last night:

Fifty years ago tonight, I, too, was in this square, with my eyes turned toward this window, as the Good Pope, Pope John, spoke to us those unforgettable words – full of poetry, of goodness, words from his heart. We were all happy that night and full of enthusiasm – the great ecumenical council had begun, and we were sure of a new springtime for the church, a new Pentecost with a new presence of the liberating grace of the Gospel.

We're happy today, too – we should carry joy in our hearts. I would say, however, that our joy is a more sober one, something more humble. Over these fifty years, we have learned and experienced that original sin exists, and that it translates itself into personal sins which can become structures of sin. We have seen that even in the Lord's field there is discord, that even in the net of Peter we find bad fish, that human weakness is present even in the church, that the ship of the church journeys in the face of an opposing wind, amid storms that threaten the ship. And sometimes we have thought that 'the Lord is asleep and has forgotten us.' But this is only one part of the experience of these fifty years. We've also been made to experience the presence of the Lord, the gifts of his goodness and strength.

Thursday, October 11, 2012

Rowan Williams on Evangelization

By Michael Moreland

Rowan Williams has had a difficult tenure as Archbishop of Canterbury, to put it mildly. But this talk he delivered yesterday at the Synod of Bishops on the New Evangelization at the personal invitation of the Pope (story from Rocco Palmo here) is a wonderful theological reflection and gives hope that we will hear more from him in his new role as Master of Magdalene College, Cambridge. Here is an excerpt with, I think, some lessons for all of us engaged in Catholic education:

To be converted to the faith does not mean simply acquiring a new set of beliefs, but becoming a new person, a person in communion with God and others through Jesus Christ.

Contemplation is an intrinsic element in this transforming process.  To learn to look to God without regard to my own instant satisfaction, to learn to scrutinise and to relativise the cravings and fantasies that arise in me – this is to allow God to be God, and thus to allow the prayer of Christ, God’s own relation to God, to come alive in me.  Invoking the Holy Spirit is a matter of asking the third person of the Trinity to enter my spirit and bring the clarity I need to see where I am in slavery to cravings and fantasies and to give me patience and stillness as God’s light and love penetrate my inner life.  Only as this begins to happen will I be delivered from treating the gifts of God as yet another set of things I may acquire to make me happy, or to dominate other people.  And as this process unfolds, I become more free—to borrow a phrase of St Augustine (Confessions IV.7)—to ‘love human beings in a human way’, to love them not for what they may promise me, to love them not as if they were there to provide me with lasting safety and comfort, but as fragile fellow-creatures held in the love of God.  I discover (as we noted earlier) how to see other persons and things for what they are in relation to God, not to me.  And it is here that true justice as well as true love has its roots.

The human face that Christians want to show to the world is a face marked by such justice and love, and thus a face formed by contemplation, by the disciplines of silence and the detaching of the self from the objects that enslave it and the unexamined instincts that can deceive it. If evangelisation is a matter of showing the world the ‘unveiled’ human face that reflects the face of the Son turned towards the Father, it must carry with it a serious commitment to promoting and nurturing such prayer and practice.  It should not need saying that this is not at all to argue that ‘internal’ transformation is more important than action for justice; rather, it is to insist that the clarity and energy we need for doing justice requires us to make space for the truth, for God’s reality to come through.  Otherwise our search for justice or for peace becomes another exercise of human will, undermined by human self-deception.  The two callings are inseparable, the calling to ‘prayer and righteous action’, as the Protestant martyr Dietrich Bonhoeffer put it, writing from his prison cell in 1944.  True prayer purifies the motive, true justice is the necessary work of sharing and liberating in others the humanity we have discovered in our contemplative encounter.

Thursday, October 4, 2012

Edward Goerner, RIP

By Michael Moreland

Edward Goerner, a longtime member of the Government Department at Notre Dame, has passed away. His book Peter and Caesar: Political Authority and the Catholic Church (Herder & Herder, 1965) is an unduly neglected classic of Catholic political theory, and (though I disagree with them) his essays on Aquinas are learned and provocative. See "On Thomistic Natural Law: The Bad Man's View of Thomistic Natural Right," Political Theory 7 (1979): 101-22 and "Thomistic Natural Right: The Good Man's View of Thomistic Natural Law," Political Theory 11 (1983): 393-418. Here is an excerpt from the closing to Peter and Caesar:

[M]uch of the modern Western world is no longer characterized by religiously homogeneous political communities. The modern West has committed itself to technological objectives that break up such communities. That commitment is partly a product of a revulsion against religious fanaticism and the wars and massacres to which it led. That revulsion led to a powerful tendency to secularize political society radically by directing it to the maximization of exclusively private and/or pre-political goals. And the technological objectives that have come to dominate so much of our lives seem integrally to involve the regular shifting and mixture of individuals as interchangeable units in the perpetual and kaleidoscopic transformations of the economy. For the semi-nomadic populations produced in Europe and America by these forces, the religious pluralism inherent in this time before the harvest takes the form of religiously diverse individuals living in close proximity. Here the task of the magisterium is not only to teach the faithful that the gospel does not authorize them to oppress others in any way, but also to teach them that the gospel must in some way inform the structure of their public lives.

....

Different civilizational moments pose the pluralistic problem in different ways and require a different dialogue between integrist and prophetic critic. So perhaps someone will say: "There! At the very end you, too, have come to [John Courtney] Murray's historicism." But that is to miss the point. It is, no doubt, true as he argues that no historical realization is the Ideal Republic of Truth and Justice. That is a valid expression of the voice of prophetic criticism. But it may also be true that no Christian action in public affairs is possible without the pole star of the apocalyptic vision of the City of God. And no serious reflection on the significance of that vision for action in this world can avoid exploring the human possibilities for realizing crude images of that vision, as well as the dangers inherent in such attempts by men who are both bathed in grace and flawed by sin. And it would be absurd to pretend either that they are not arranged in a hierarchy--as are the states of individual life--or that any particular realization is possible or prudent as an objective for a given society.

It may not be an easy task to begin again, and there may be danger in it, but every Christian who is in the world must, at the level of his competence, ask the question how the structure of the common action in which he moves can be conformed to the archetypal Christian action. In it, the integrist's truth and the prophetic critic's truth are both present, and the tension symoblizes our time: to stretch out the arms to embrace one's brothers--and to receive the nails.

Monday, October 1, 2012

Alasdair MacIntyre, Teacher

By Michael Moreland

Villanova honored Alasdair MacIntyre last week as the inaugural recipient of the Civitas Dei Medal. Video of the event, including MacIntyre's splendid address ("Catholic Rather than What?") will soon be available, but, in the meantime, here are some brief remarks I delivered for the occasion:

Continue reading

Tuesday, September 18, 2012

Civitas Dei Medal Presentation at Villanova

By Michael Moreland

The Inaugural Presentation of the
Civitas Dei Medal
to
Alasdair MacIntyre
University of Notre Dame

Villanova University
Thursday, September 27, 2012 at 4:30 p.m.
Connelly Center, Villanova Room

In his seminal work, City of God (De Civitate Dei), St. Augustine articulates a distinctive commitment to intellectual engagement between the Church and the world. He created communities focused on the search for truth in unity and love, while respecting differences and the complexities of Catholic intellectual thought. With the Civitas Dei Medal, Villanova University seeks to recognize Catholics who through their work have made exemplary contributions to the Catholic intellectual tradition and have shown particular commitment to the pursuit of truth, beauty, and goodness.

The inaugural presentation of the Civitas Dei Medal will be awarded to Alasdair MacIntyre of the University of Notre Dame. A short panel presentation by Villanova faculty will be followed by a lecture by Professor MacIntyre.

Program:

Peter Wicks
St. Catherine of Siena Fellow, Ethics Program, Villanova University
“MacIntyre and Moral Philosophy”

John Doody
Robert M. Birmingham Chair in Humanities and Professor of Philosophy, Villanova University
“MacIntyre and Political Theory”

Thomas Smith
Anne Quinn Welsh Director, University Honors Program and Associate Dean, College of Liberal Arts and Sciences, Villanova University
“MacIntyre and Catholic Higher Education”

Michael Moreland
Vice Dean and Professor of Law, Villanova University
“MacIntyre as Teacher”

Presentation of the Civitas Dei Medal

Alasdair MacIntyre
Rev. John A. O’Brien Senior Research Professor of Philosophy (emeritus), University of Notre Dame
“Catholic Rather than What?”

Biography:

Alasdair MacIntyre is the Rev. John A. O’Brien Senior Research Professor of Philosophy (emeritus) at the University of Notre Dame. In a career spanning six decades, he has published over 30 books and hundreds of articles and reviews. Professor MacIntyre has made significant contributions to the history of philosophy, moral philosophy, political theory, the philosophy of the social sciences, and the philosophy of religion. His early works include Marxism: An Interpretation (1953), The Unconscious: A Conceptual Analysis (1958), A Short History of Ethics (1966), and Against the Self-Images of the Age (1971). The influential sequence of books, After Virtue (1981), Whose Justice? Which Rationality? (1988), Three Rival Versions of Moral Enquiry (1990), and Dependent Rational Animals (1999) constitute the most important contemporary articulation of Aristotelianism and a sustained critique of modern moral philosophy. More recently, he has published an examination of the philosophical work of Edith Stein set against the background of twentieth century phenomenology, Edith Stein: A Philosophical Prologue, 1913-1922 (2005), two volumes of his collected papers, The Tasks of Philosophy and Ethics and Politics (2006), and God, Philosophy, Universities: A Selective History of the Catholic Philosophical Tradition (2009).

Professor MacIntyre received his BA from Queen Mary College, University of London and MA degrees from Manchester and Oxford. Professor MacIntyre has held academic appointments at Oxford, Princeton, Brandeis, Wellesley, Boston University, Yale, Vanderbilt, and Duke. He has delivered the Gifford Lectures at the University of Edinburgh, the Carus Lectures at the American Philosophical Association, the Caryle Lectures at Oxford University, the Tanner Lectures and Gauss Lectures at Princeton University, and the Aquinas Lecture at Marquette University. Professor MacIntyre is a Fellow of the American Academy of Arts and Sciences, a Corresponding Fellow of the British Academy, a Member of the Royal Irish Academy, and a Member of the American Philosophical Society. In 2010, he was awarded the Aquinas Medal by the American Catholic Philosophical Association.

Christ in the Desert

By Michael Moreland

I've just returned from a wonderful weekend in New Mexico, which included a visit to the Benedictine Monastery of Christ in the Desert several miles down an unpaved Forest Service road in the Chama River Canyon north of the tiny town of Abiquiú. Below are photos from my iPhone of the monastery in the early evening following Sunday Vespers and of the chapel, designed by the Japanese architect and woodworker George Nakashima. The monastery's founder, Father Aelred Wall, OSB once remarked that "A monastery is not a refuge, not a solution to problems of adjustment. Monasticism is a head-on collision with reality, and the more silent, the more solitude, the more head-on it is." Here's a sign of hope amid our troubled world: Christ in the Desert has seven novices.

 

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Wednesday, September 12, 2012

The NLRB and Religious Freedom

By Michael Moreland

As noted in this story from the Chronicle of Higher Education and in this press release from the US House Committee on Education and the Workforce, I was one of the witnesses at a hearing earlier today on the topic of the NLRB and higher education. A good portion of the hearing was taken up with the issue of unionization of graduate students (one of my fellow witnesses was the graduate dean at Brown), but my testimony was about the NLRB's use of an intrusive (and constitutionally suspect) "substantial religious character" test for exemption from the NLRA for religiously-affiliated colleges and universities.

Tuesday, August 21, 2012

Inazu on the Contraceptive Mandate and McConnell on Inazu

By Michael Moreland

MOJ-friend John Inazu (Washington U.) has a piece at USA Today about why the fight over the HHS mandate isn't merely a "Catholic thing" here. When you're finished with that, go over to the First Things site and read Mike McConnell's review of Inazu's book on freedom of assembly. Here's the conclusion to McConnell's review:

The title Liberty’s Refuge: The Forgotten Freedom of Assembly is therefore sad but all too true: Freedom of assembly has been forgotten. And unfortunately Inazu is right about another thing as well: It matters. America has long been distinguished by a vibrant and independent civil society, one possible only when voluntary associations can meet freely in public spaces and public institutions and when they can limit their membership and leadership to persons who share their beliefs. This means that groups will exist that we like and groups will exist that we do not like.

Under the Court’s current weak doctrine, governments can effectively pick and choose which groups are permitted to use public property, using pretexts like the “all-comers” rule or the policy against “worship.” The framers of the First Amendment thought they had guaranteed all associations the right to meet, with the sole limitation that they behave peaceably. That freedom has slipped away.

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