An interesting discussion, here, complete with charts and stuff. (HT: Vox Nova).
Sunday, March 9, 2008
Poverty and Abortion
The veto and consequentialism
It seems to me that we could think about the President's decision to veto the bill that would have limited the CIA to those interrogation techniques authorized by the 2006 Army Field Manual in (at least) two ways.
First, we could consider whether we agree with the President's view that "[t]he bill Congress sent . . . would take away one of the most valuable tools in the war on terror" or whether, instead, we think that the techniques the bill would have banned are not, in fact, useful or necessary to protect Americans from terrorists. (Senator Kennedy noted, for example, that the Army field manual contends that harsh interrogation is a "poor technique that yields unreliable results, may damage subsequent collection efforts, and can induce the source to say what he thinks the (interrogator) wants to hear.")
I take it we all agree that the President is obligated to do what he can -- within the bounds of prudence and morality -- to protect Americans from terrorists. Do we also agree, though, that (a) few, if any of us, are qualified to resolve the debate over whether the techniques in question -- including waterboarding -- yield reliable, valuable results; and, in any event, that (b) the morality of the techniques in question does not depend on whether they yield reliable, valuable results? Or, do some of us think that the question whether a particular act is moral does, in fact, depend on the consequences of that act? Do those of us who believe that the President was wrong to veto this bill also believe that proportionalism -- once characterized by Fr. McCormick as the view that "an action is morally wrong when, all things considered, there is not a proportionate reason in the act justifying the disvalue [caused by the act]" -- represents an unsound approach to moral questions generally, or only to moral questions involving the treatment of detainees?
The second approach to the question, I suppose, would be to ask whether the various techniques that the bill would have banned are -- wholly and apart from our guesses about their usefulness, and wholly and apart from the question whether they are listed in the Field Manual -- immoral, because they cannot be reconciled with the treatment due a person -- any person -- made in the image and likeness of God. And, on this approach, could one that different answers might be warranted for some techniques (I have not seen the entire list) than for others?
UPDATE: Just to be clear: I am *not* suggesting here that different answers *are* warranted; again, I have not seen the full list of techniques. Some of the ones that have surfaced in news reports strike me, for what it's worth, as worthy of the same answer I think we should give with respect to waterboarding.
The President's Veto
Jamie Smith, a student in my Jurisprudence Seminar, has these thoughtful comments and questions in response to the President's veto of a bill that would have banned various interrogation techniques, including waterboarding.
"I was stunned to learn of President Bush's veto of the ban on waterboarding. The ban would not just have applied to water boarding, but also to burning, beating, the use of dogs, stripping detainees, and even forcing them to perform or mimic sexual acts. Basically, every act from the infamous Abu Ghraib photos that shocked and disgusted the American public has been declared by President Bush, to not only be legal, but to be "valuable" in the war on terror. Valuable? Really? As a student in Professor Scaperlanda's Jurisprudence Seminar, the first thought that came to mind when reading about this veto, is the human dignity of every individual. For many weeks now, our class has discussed the idea that human beings have inherent and inviolate dignity, simply from "being". My question is, "does this apply to terrorists who want to kill Americans"? "Is there a way to treat prisoners with dignity while still getting valuable information from them"? To answer this question, I thought about my reaction, as well as others, to the Abu Ghraib photos when they were first released. I knew, as well as others, that the prisoners in the photos were terrorists, that they hated Americans, and that they had participated in evil plans to kill and harm America. But when looking at the photos, my reaction was of disgust. Why woud I be disgusted to see humiliating photos of a complete stranger that hated America and my way of life? Perhaps, simply because the photo was of another human being. Apart from his conduct or the sins he may have committed, he is human, just like me. And because of that, without myself even having been in such a humiliating situation, I felt and knew at the core of my being when viewing those photos, that they were "wrong", that it is inhuman to violate the dignity of any human being in such a way. But at the same time, I'm torn between this basic truth of human dignity and the atrocities committed by these prisoners. I'm not quite sure how to reconcile these two issues.
I can say that the possible consequence of President Bush's veto will have not just an impact the law but human rights theories as well. What does this say about America and how we value the individual? And what message are we sending to other countries by participating in such practices? If we do not recognize the dignity of foreign individuals, I question then, how much we recognize the dignity of our own citizens."
Responses would be most welcome.
Saturday, March 8, 2008
Pluralism, Religion and the Law
I just returned from Seattle, where Seattle University School of Law hosted a fine symposium yesterday: Pluralism, Religion & the Law: a conversation at the intersection of identity, faith and legal reasoning. Among the speakers were MOJ'ers Steve Shiffrin and myself and MOJ-friends Vince Rougeau and Russell Powell (who not only co-organized the conference, but jumped into the breach at the 11th hour when one scheduled speaker was prevented by weather from attending).
The day started with a panel on the role of religious morality in shaping legal freedoms. Although all three speakers were wonderfully thought-provoking, the highlight of the panel for me was Steven Hobbs' storytelling approach to the role of religion and religious institutiosn in helping slaves to freedom. In a spellbinding first person narrative, he told the story of one slave's journey to freedom and the help he received along the way. The other three panels were: Reimagining the Relationship between Religion and Law, Religous Pluralism, Critical Multiculturalism, and Liberal Political Theory, and Religious Influences on Ethics, Professionalism and the Practice of Law and the papers on each panel offered much to think about. (I confess, I'm way too tired to start to summarize the papers now. I'm hoping Steve Shiffrin will jump in and say a little more about the day.)
"American lives" vs. "hardened terrorists"
We talk a lot on MoJ about the law's pedagogical function. There is also, I would suggest, a powerful pedagogical dimension to this veto.
Friday, March 7, 2008
Allen on Women in the Church
John Allen's latest NCR column includes this interesting reflection on the role of women in the Church.
What will we see first: a woman president or women priests?
That's an easy one. Since there's no doctrinal bar to a woman president, it's simply a question of a female candidate being able to get enough votes - and whatever eventually happens to Hillary Clinton in 2008, the evidence of this campaign would suggest we're probably not that far away. On women priests, however, there is a serious doctrinal obstacle. Without entering into the merits of that question, it seems clear that given today's strong pressure surrounding Catholic identity, women won't be ordained anytime soon.What I suspect we will see throughout the 21st century, however, is a continuing effort to empower women in the church in all ways short of sacramental ordination. In the United States, 48.4 percent of all administrative positions in dioceses today are held by women, and at the most senior levels, 26.8 percent of executive positions are held by women. Perceptions of patriarchal bias aside, the Catholic church actually does better in this regard than many other institutions. A 2005 study of Fortune 500 companies found that women hold only 16.4 percent of corporate officer positions and just 6.4 percent of the top earner positions. Similarly, a 2007 study by the American Bar Association found that just 16 percent of the members of the top law firms' governing committees are women, and only 5 percent of managing partners are female. According to a 2004 report from the Department of Defense, women held just 12.7 of positions at the grade of major or above.
Even in the Vatican, there are signs of movement. No woman at all worked in the Roman Curia until 1952, when Pius XII created the Permanent Committee for International Congresses of the Lay Apostolate and appointed Australian lay woman Rosemary Goldie as its Executive Secretary. Things changed significantly over the following half-century. According to a 2005 report from the Catholic News Service, by the end of John Paul's pontificate women were 21 percent of Vatican personnel, even if they rarely broke through to the most senior levels.
Under John Paul II, two barriers for women in the Vatican where shattered. In 2004, he appointed Salesian Sr. Enrica Rosanna to the position of under-secretary in the Congregation for Institutes of Consecrated Life and Societies of Apostolic Life, the first time a woman had ever been named as to a superior-level position in the Vatican. Also in 2004, John Paul tapped Harvard law professor Mary Ann Glendon as the President of the Pontifical Academy for Social Sciences, the first woman to head a pontifical academy. (Glendon is now the U.S. Ambassador to the Holy See.) None of this augurs a revolution, but it is an indication of things to come.
The rise of the Charismatic impulse will also push Catholicism in this direction, since it encourages spontaneous, non-institutional participation that's as open to women as it is to men. There's an implicit egalitarianism in the Pentecostal movement that has allowed women to assume new roles in surprising ways. One of the most powerful Pentecostal pastors of the 20th century, for example, was Aimee Semple McPherson, founder of the Foursquare Church. "Sister Aimee" was, among other unusual accomplishments for her time, the first woman to own a radio station west of the Mississippi River. As Catholicism across much of the global South is progressively "Pentecostalized," we'll likely see more of this informal, charismatic leadership by women.
GLBT curriculum (cont'd)
Well, the day started with a woman handing me a flyer about a proposed GLBT curriculum, and it ended with my comments at a public forum being part of the lead story on our local news tonight. I've received several emails wondering whether I am being too quick to embrace these new lessons, so I'll clarify my earlier post by pointing out reasons to be cautious, which are the same points I shared at the public forum tonight.
My earlier post focused on whether I should be objecting to the substantive values being taught by the proposed curriculum, not on the means by which they are being taught. To be clear, there are very troubling paths by which schools might be tempted to engage these issues. I support the inclusion of positive portrayals of non-traditional families within the school curriculum, which will (hopefully) help overcome harmful stereotypes by casting the members of such families in a more familiar light. They are not the threatening, unknown "other" -- they are our neighbors, friends, and classmates. However, to the extent that schools take a more aggressive stance in pushing students to affirmatively embrace certain conclusions about other family arrangements and reject their previous beliefs about family, there is a two-fold risk. First, if the school directly criticizes traditional teachings about family, the student (especially young students) are led to question not only the validity of that particular teaching, but the credibility of the authority figures responsible for that teaching. Second, by portraying other views as illegitimate in comparison to the "truth" espoused by this curriculum, students are led to view the school as the source of moral truth.
Admittedly, these risks will always be present to some degree when the school enters the debate over contested moral issues, but a stance of moral humility (not moral agnosticism or apathy) can lessen the risk. The school principal tonight reported that, out of 62 incidents of bullying this year, 30 have involved name-calling and harassment over (perceived) sexual orientation issues. There is a problem, and public schools cannot remain neutral. But they should remain humble.
For those who disagree, what stance should the public schools take on these issues? Should schools be neutral? (And what does neutrality look like in this context?) Should they remain silent? Should they teach that families headed by same-sex couples are not legitimate? not ideal? Or are these questions moot given that Christian famllies, to paraphrase James Dobson, should have fled the public schools by now?
Thursday, March 6, 2008
Douglas Laycock, "Substantive Neutrality Revisited"
I just finished reading a new article by Douglas Laycock, who, after many years at the University of Texas, is now Yale Kamisar Collegiate Professor of Law at the University of Michigan (where his spouse is Provost). The article--titled Substantive Neutrality Revisited--appears in a symposium issue of the West Virginia Law Review: volume 110, pages 51-88 (2007). In the article Laycock defends his position on how the constitutional ideal of religious liberty should be understood.
The article is, in a word, superb. Laycock's clarity is exemplary; and his argument, in my judgment, is utterly compelling, start to finish. Laycock demonstrates--I use the word deliberately--the inferiority of two competing views, one represented by Noah Feldman, the other by Steven Gey. With this article, Laycock has come as close as one can to achieving closure on the questions he addresses.
Do yourself a favor: Get a copy of the article, find a relaxing venue, and read it!
Home schooling no more (in California)?
The L.A. Times has this story about a recent ruling by an appellate (state) court in California:
Parents who lack teaching credentials cannot educate their children at home, according to a state appellate court ruling that is sending waves of fear through California's home schooling families.
Advocates for the families vowed to appeal the decision to the state Supreme Court. Enforcement until then appears unlikely, but if the ruling stands, home-schooling supporters say California will have the most regressive law in the nation. . . ."Parents do not have a constitutional right to home school their children," wrote Justice H. Walter Croskey in a Feb. 28 opinion signed by the two other members of the district court. "Parents who fail to [comply with school enrollment laws] may be subject to a criminal complaint against them, found guilty of an infraction, and subject to imposition of fines or an order to complete a parent education and counseling program."
Phillip Long said he believes the ruling stems from hostility against Christians and vowed to appeal to the state Supreme Court. . . .
Thoughts? Predictions?
UPDATE: A reader writes:
. . . Although I haven’t read the actual ruling, my initial reactions are that this is not a case that homeschooling advocates would want to push too far. Just on the facts presented in the story, this family is obviously struggling in ways aside from schooling – they’ve had allegations of abuse, and this is a case initially filed by a guardian ad litem (or something similar).
I support homeschooling (and was homeschooled myself a couple of years) but this is not the type of homeschooling situation I would envision as the ideal – far from it, actually. Even though one gentleman comments that he thinks the ruling stems from hostility against Christians, I would say it could very easily be construed as being a decision favoring the best interests of the children. This might be a case in which homeschooling could be demonstrably detrimental rather than beneficial for the children, which would make the case hard to win either in and I am leery of saying “homeschooling at all costs for anyone who wants to.” If it were me pursuing a case like this, I would think a good, long time before making these people the poster children for homeschoolers everywhere.
In addition, while homeschooling is often seen as being a religiously-motivated, it is a fallacy that all homeschoolers are Christian. Many are not Christian, or even religious at all. From my homeschooling friends in the Twin Cities, I know of secular homeschooling co-ops here, and I’m sure that with a little research one could find similar organizations in California. Painting this as an “anti-Christian” ruling ignores the growing appeal of homeschooling outside Christian circles. It is too bad the reporter writing this story did not explore the demographics of homeschoolers a little more fully.
My prediction is that this ruling will not result in homeschooling witch-hunts in California. My bet would be that criminal charges would be low on most prosecutors’ priority lists. Until there is a definitive statement from the state supreme court or some sort of legislative changes to homeschooling regulations, I would predict things will remain status quo.
And, Joe Knippenberg has more information, here.
My daughter's "controversial GLBT curriculum"
This morning when I dropped my daughter off at school, a woman handed me a flyer alerting me that a "controversial GLBT curriculum" is coming to the Minneapolis public schools next year, and that I need to make my voice heard at a meeting scheduled for tonight. The curriculum, the flyer informs me, is designed to develop "new understandings of the diversity of families," to teach students that there are no "wrong" families, to facilitate discussion of the harmful effects of stereotyping about sexual orientation and gender roles, and to help students gain an awareness of families with two moms or two dads.
As a Catholic parent, am I supposed to object to this curriculum and if so, on what basis? My children do not believe -- nor would I want them to believe -- that there are "wrong" families. There are some family structures that are more conducive to the flourishing of children (two-parent, namely), but does that reality mean that we shouldn't teach our children to be welcoming toward single-parent or same-sex-parent families? And does anyone dispute that stereotypes about sexual orientation and gender have harmful effects?
More fundamentally, though, my daughters would not blink twice at the notion that families headed by same-sex couples can be healthy and nurturing. Their own life experience confirms as much, as same-sex couples have been part of their lives for as long as they can remember, and they have seen up close how those parent-child relationships function. For me to suggest to them that Susie's family is "wrong" because Susie has two moms would be much more troubling and jolting for them than to read a book portraying a same-sex couple in positive terms.
I'd compare it to our debates about race in this country. I had never heard my second-grader refer to a person's race until the last few weeks when she picked up on conversations about Barack Obama being the first African-American President. Until then, race wasn't even on her radar screen. Her schools and friendships have always been racially diverse, and so her perception of race's relevance is shaped by her relationships with real people. In the same way, her perception of sexual orientation's relevance is shaped by her relationships with real people. It hasn't been an issue for her. Not having a school curriculum reflecting her experience of the world would be more jolting, I would think, than having a "controversial GLBT curriculum." And I imagine that will be the case for more and more children as gays and lesbians become more open and more prominent in our society.
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