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.

Wednesday, July 26, 2006

stem cell veto and Professor Foley's view

By Richard Myers

I don't think that Professor Foley's view that President Bush violated his oath of office is remotely plausible, though it is surprising how frequently these arguments are made. The same sort of argument was made against the Unborn Victims of Violence Act. I had a chance to testify on this legislation and the exact same argument came up in the hearings. In response to the argument that it was inappropriate for Congress to fail to demonstate the intellectual submission of intellect and will to the Court's opinions in Roe and Casey, even when operating outside the context of abortion, I quoted Lincoln's statement in his First Inaugural Address: "At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation bewteen parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal." This seems to be just as persuasive today.

Richard M.

parental notice and abortion: follow-up

By Richard Myers

Just a quick follow-up to Rick's post about yesterday's Senate vote. Teresa Collett (who is from St. Thomas and is probably the leading expert on parental notice laws) and I testified last year on H. R. 748 (the Child Interstate Abortion Notification Act). The full hearing is available here.

Richard M.

Thursday, June 1, 2006

University Faculty for Life conference at Villanova

By Richard Myers

The annual meeting of University Faculty for Life will be held this weekend (June 2-4, 2006) at Villanova. The conference, which has been expertly organized by Professor Jeanne Heffernan from Villanova, is being supported by a generous grant from Our Sunday Visitor Institute and Ave Maria School of Law.

The preliminary conference schedule is available here. Featured speakers include Robby George, Frank Beckwith, and Deidre McQuade. I hesitate to single out other papers but I'll mention a few of the speakers who will address "legal" issues: Sam Calhoun (Washington & Lee), Robert Miller (Villanova), Richard Myers (Ave Maria), Carter Snead (Notre Dame), and Lee Strang (Ave Maria). The conference has an interdisciplinary focus and there are papers that deal with historical, philosophical, and theological issues.

Richard M. 

Wednesday, May 17, 2006

Utah Supreme Court polygamy opinion

By Richard Myers

On May 16, 2006, the Utah Supreme Court upheld Rodney Holm's convictions for bigamy and unlawful sexual conduct with a minor. The Court rejected varous constitutional arguments (e.g., free exercise and due process) that Holm's relied upon to defend his "polygamous practices." The Court's opinion is here. The most interesting opinion was authored by Chief Justice Durham who dissented on various grounds. The Chief Justice concluded that the free exercise of the Utah Constitution protected Holm's conduct. On the main federal constitutional issue, the Chief Justice concluded that Lawrence v. Texas would have supported Holm's if his conduct had only involved consenting adults. This latter issue--whether Lawrence should be read narrowly or broadly (Durham noted that "Lawrence rejected the very notion that a state can criminalize behavior merely because the majority of its citizens prefers a different form of personal relationship")--is one that continues to divide the lower courts.

Richard M.   

Thursday, May 4, 2006

a few thoughts on intention and the moral object

By Richard Myers

I'll begin by noting that I am not a philospher and so my comments should be taken with that in mind.

I agree with Richard Stith that the debate on condoms and AIDS is largely about the proper way to think about intention and the moral object. (This is true at least for those who accept the teaching of Humanae Vitae; for those who do not accept the Church's teaching in Humanae Vitae the issue of condoms and AIDS would not be that difficult.) Another example that raises this issue is the case of craniotomy. Some who defend the morality of craniotomy (John Finnis, for example) do so by saying that the surgeon does not intend to kill the fetus. The surgeon is simply rearranging the skull in order to save the life of the mother. Critics of this position (Kevin Flannery, Steven Long, and Basil Cole, for example) claim that this is too abstract and that it is necessary to take account, in the words of Long, of the "nature or physical species of the act...in determining the moral species." Under this view, the physical character of what is done (in the craniotomy case that would be producing the crushed skull of an innocent person) must be considered. That is why May and others who reject the use of condoms to attempt to prevent AIDS take account of the physical charcteristics of the act in question (using condoms) and do not simply focus on what might better be viewed as the motive of the actor (to prevent disease, to save the life of the mother in the craniotomy case, or to relieve the pain of the terminally ill for doctors who are trying to assist in a suicide). If the moral object of the act is wrong (and as Michael notes that is how May and others view the use of condoms by married couples), then the doctrine of double effect is of no help. One may not do evil that good may come of it, and this is not what the doctrine of double effect allows.

Richard

       

more on BC controversy

By Richard Myers

I have a couple of thoughts on this. One, I applaud the general concern that awarding honorary degrees is extremely important and that these decisions say a lot about the character of an institution. It is a very different issue when a person is being invited to speak as part of an academic debate or to publish in the school's journals as part of a symposium. Awarding some one an honorary degree is very different. Bestowing an honor on someone with public positions that are in conflict with the Church's teaching is something that ought not to be done.

Second, I found it interesting that those opposing honoring Rice did not mention that she very publicly proclaimed that she was "mildly pro-choice." I don't think that she has had a lot to do with the Administration's policy on abortion but I would have thought that her statements on abortion (which clearly did conflict with Church teaching) should have been a part of any opposition to Boston College honoring her.

Third, while I have not been a supporter of the war (the Vatican's concerns about whether this was truly a last resort and about whether there was a real prospect of success really resonated with me), I don't think it is so clear that Rice's positions "conflict" with Catholic teaching. Her positions seem to be more in the nature of debatable prudential judgments. I don't think that would be an inappropriate reason for opposing that she receive an honorary degree but I think it would be better to be clear about the precise nature of the objection.

Richard    

    

Tuesday, April 25, 2006

futile care

By Richard Myers

Wesley Smith has been blogging about a case in Texas in which a private hospital is invoking a Texas law to withdraw life support from a woman over the objection of her family. Smith has been writing about this for a few years now, but this case may bring the issue to public attention. Smith suggests that the Texas law ought to be challenged on constitutional grounds, but there are some tricky "state action" issues. The best argument seems to be the kind of argument that was made in the mid-1990s challenge to Oregon's assisted suicide law--that the law fails to provide equal protection to a class of disabled citizens. That argument won inthe federal district court in Oreogon but the 9th Circuit tossed the case out on standing grounds. Has anyone dealt with this issue?

Richard

condoms and AIDS

By Richard Myers

Some of the material in the recent posts on this issue seemed to suggest that the moral issue is settled in favor of allowing the use of condoms in an attempt to avoid the spread of AIDS. It is true that some moral theologians who defend Humanae Vitae (e.g., Martin Rhonheimer) have argued in favor of this position. (Cardinal Martini, whose specialty is Scripture, defended the use of condoms--as a lesser evil--in a way that is not consistent with Rhonheimer's argument and that is not consistent with the traditional formulations of the principle of double effect--that principle doesn't allow one to choose an evil at all and in fact one of the standard conditions is that the act chosen is good or morally indifferent, albeit one that has an evil as a side effect.)

I think there is still a lot of debate on this question, as Rob's recent update indicates. For example, Luke Gormally recently published an article, "Marriage and the Prophylactic Use of Condoms," in the National Catholic Bioethics Quarterly (Vol. 5; Winter 2005; pages 735-749) that is basically a critique of Rhonheimer's position. (Luke Gormally, the former executive director of the Linacre Centre in London, is a Research Professor at Ave Maria School of Law and he first delivered this paper here at Ave Maria.) I think Peter Cataldo has taken the same position as Gormally in an article published in Ethics and Medics and that Janet Smith has also defended the position that the use of condoms in an attempt to avoid the spread of AIDS, although I don't think that article has yet been published.

Richard    

 

Monday, April 24, 2006

more on law reviews at Catholic law schools

By Richard Myers

This is a discussion of great personal interest because among other reasons I am one of the faculty advisors to our law review here at Ave Maria. I think law reviews at Catholic schools can make an enormous contribution, especially if they focus on the distinctive mission of the schools that support them. I think if the law reviews at Catholic law schools try to imitate their secular rivals that they will have wasted an opportunity to contribute to the scholarly debate on issues that are of particular concern to these schools and to the individual faculty members who teach at these schools.

Here is one example. In the mid-1990s, when the debate on same-sex marriage was heating up after events in Hawaii, a group of scholars (from places such as BYU, Catholic U, Creighton, and later Ave Maria) got together to try to ensure that the scholarly literature on the conflicts of laws issues reflected a diverse range of views. Prior to this time, most of the literature on the conflicts issues was very one-sided and not particularly well done. This literature was mainly written by activists who didn't know much about conflicts. There followed a series of law review conferences addressing these issues. Papers from these conferences have been published in the Creighton Law Review (twice, in volumes 32 and 38) and most recently in the Ave Maria Law Review (in volume 3:summer 2005). These law review issues have reflected a variety of views and I think the articles have been and will be cited as among the best articles on these topics. The two longest articles in the Ave Maria issue are by William Reppy from Duke and Lynn Wardle from BYU and they offer very different perspectives on the conflicts issues presented.  I think this effort has been very successful. The conferences and law review issues have been of high quality and have reflected a range of views on these topics. Due in large part to the distinctive missions of the schools involved and the people on their faculties, this effort has resulted in encouraging prominent conflicts scholars to think about and publish on the important issues at stake. The literature on the conflicts issues is far better and far more balanced than it was before this effort began.    

There is a lot more that could be said about this general topic but I will stop here at this point.   

Richard

Tuesday, April 18, 2006

quick response to Eduardo

By Richard Myers

Thanks to Eduardo and others for the stimulating questions and comments. One initial thought I had about this is that a lot of thinking about the obligations of Catholic scholars and Catholic universities has addressed an "internal" perspective. I think this is a useful starting point. Should a theology department at a Catholic university include lots of folks (Dan Maguire at Marquette for example) who dissent from Church teaching on a whole host of issues. If a theology department does, does it have a claim to be thought of as Catholic. I think that this was the main focus of the debate about Ex Corde. One, admittedly simplistic, way to think about this is as a truth in advertising issue. The particularly troubling thing for people who favored a strong implementation of Ex Corde was that noted dissenters were teaching in the name of the Church and at schools with a claim to being Catholic. So, if and when these folks left Catholic schools (Father Curran leaving CUA) there was no campaign (not that I can recall at any rate) for a heresy trial or for other disciplinary actions.

This doesn't really address Eduardo's question because Catholic scholars whether they are teaching at a Catholic school or not would still owe, according to Vatican II, a submission of intellect and will to authoritative Church teaching. (This is not, it should be noted, an obligation unique to scholars.) His question, I take it, is whether Catholic scholars who follow Vatican II on this point risk not being taken seriously in the broader acadmic community.

I think this would depend on the quality of their arguments and the manner in which the arguments are made. I suppose if people thought that a Catholic scholar didn't really believe in his own articulated positions (he was just publishing them to appear faithful) that this would be an additional obstacle to having his published opinions taken seriously. But, let's assume that this is not the case and that the Catholic scholar really believes what he publishes. Will people still "suspect" his writings because they coincide with what the Church has taught on some issue of morals. My view is I think this would depend on the quality of the arguments and the way in which they are expressed.   

Richard 

      

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