In Sunday's New York Times, William Saletan reviewed Robert George's and Christopher Tollefsen's new book, Embryo: A Defense of Human Life. George and Tollefsen responded, and now Saletan has made some additional points in reply. It's a debate that is helpful and productive, shedding more light than heat. An excerpt from George and Tollefsen:
In attempting to resist our conclusion that human embryos ought not to be exploited and killed, while at the same time acknowledging their moral standing and the special respect they are owed, Saletan gets himself into a jam. To meet our argument that a human embryo is, as a matter of scientific fact, a developing human being—i.e., a living member of the species Homo sapiens in the earliest stages of development—and thus, as a matter of basic justice, a possessor of inherent dignity and a right to life, Saletan is driven to deny that human embryos are whole entities, as opposed to mere parts (such as gametes, tissues, or organs). He denies that embryos are determinate individuals, and he seems to doubt that they are organisms at all. But if these denials and doubts are warranted, then there is no rational basis for believing that human embryos “deserve our respect” or that “we should never create or destroy them lightly.” Saletan is trying to find a plot of solid ground lying between the views of radical liberal bioethicists, on the one side, and defenders of the pro-life view, on the other. The failure of his effort shows that the middle ground is nothing but quicksand.
An excerpt from Saletan:
The virtue of Embryo is that the authors stake their case on science and logic, not religion. What makes you a human being, they argue, isn't a soul, but "a developmental program (including both its DNA and epigenetic factors) oriented toward developing a brain and central nervous system." They believe that this program starts at conception, and therefore, so does personhood.
I like this bet on science. It's scrupulous, brave, and constructive. Let's toss in our chips and call the bet. We'll have to accept what science shows: Conception is, as George and Tollefsen argue, the sharpest line we could draw to mark the onset of moral worth. But they, in turn, will have to accept the other side of what science shows: The lines of embryology are dotted, not solid. Such lines don't warrant severe categorical restrictions on stem-cell research or assisted reproduction.
So, let's bracket the question whether Justice Scalia's recent comments on torture, punishment, and the Constitution were as judicious and careful as we'd like judges' comments to be. And, let's also take as given that all of us here at MOJ do not believe that torture, even if effective, can be justified with reference to its expected (or actual) good consequences. What, exactly, did Justice Scalia say and why, exactly, was he wrong?
Start with this:
[Justice Scalia said that] aggressive interrogation could be appropriate to learn where a bomb was hidden shortly before it was set to explode or to discover the plans or whereabouts of a terrorist group.
''It seems to me you have to say, as unlikely as that is, it would be absurd to say you couldn't, I don't know, stick something under the fingernail, smack him in the face. It would be absurd to say you couldn't do that,'' Scalia told British Broadcasting Radio Corp.
Now, it would be absurd (wouldn't it?) to say that precisely the same constitutional (and extra-constitutional) regulations that apply to garden-variety interrogations of suspects must apply, in the same way, to a "ticking timb bomb" interrogation. (No, to point this out is not to say that, in the "ticking time bomb" scenario, morality does not bind or anything goes.) So, what do we think the public authority could do differently in the ticking-time-bomb scenario? We need not -- as a moral matter, putting aside whatever the current constitutional-law doctrines might be -- it seems to me, issue Miranda warnings and call lawyers. And, I would think, we may use more aggressive techniques than we would otherwise want to use. No, we cannot torture, no matter what. But, are we sure it would be immoral to "smack in the face" someone we thought was hiding the ticking bomb? It seems to me that "waterboarding" is on the other side of the line. But, is a smack in the face?
Here's more:
Scalia said that determining when physical coercion could come into play was a difficult question. ''How close does the threat have to be? And how severe can the infliction of pain be? I don't think these are easy questions at all, in either direction,'' he told the BBC's ''Law in Action'' program.
Isn't Justice Scalia right here? That is, it *is* a "difficult question" -- isn't it? -- to determine "when physical coercion could come into play" and to determine the moral limits to the "coercion" that could ever be employed. Does anyone think these are "easy" questions? We all agree that human-dignity commitments constrain what may be done, even for good purposes, and even to bad people. But, we would justly be criticized (using Scalia's term) as "smug" if we suggested that these commitments translate easily, neatly, and non-controversially to interrogation regulations.
There's this:
''Is it obvious, that what can't be done for punishment can't be done to exact information that is crucial to the society? I think it's not at all an easy question, to tell you the truth.''
Right again, right? It is immoral, I believe, to punish someone with indefinite incarceration; it is not immoral to detain someone who refuses to give information to which the public authority has a legitimate right.
With respect to the death penalty (which I oppose), Justice Scalia said:
''Europeans get really quite self-righteous, you know, (saying) 'no civilized society uses it.' They used it themselves -- 30 years ago,'' he said, adding that a majority of Europeans probably supported capital punishment anyway.
The first point is obviously correct. And, with respect to the second, it is, in fact, the case that the abolition of the death penalty in Europe was not brought about democratically, and that there is more popular support in Europe for capital punishment than European nations' legal regimes would suggest.
So, and again -- torture and the death penalty are, in my view, wrong. And, I would rather Justice Scalia not amuse himself by being quite as candid and provocative as, it seems, he likes to be. Still . . . to say this is not at all to establish that what he actually said is wrong.
US Judge Scalia on 'So - Called Torture' By THE ASSOCIATED PRESS
LONDON (AP) -- One of the United States' top judges said in an
interview broadcast in Britain on Tuesday that interrogators can
inflict pain to obtain critical information about an imminent terrorist
threat.
Supreme Court Justice Antonin Scalia
said that aggressive interrogation could be appropriate to learn where
a bomb was hidden shortly before it was set to explode or to discover
the plans or whereabouts of a terrorist group.
''It seems to me you have to say, as unlikely as that is, it would
be absurd to say you couldn't, I don't know, stick something under the
fingernail, smack him in the face. It would be absurd to say you
couldn't do that,'' Scalia told British Broadcasting Radio Corp.
Scalia said that determining when physical coercion could come into
play was a difficult question. ''How close does the threat have to be?
And how severe can the infliction of pain be? I don't think these are
easy questions at all, in either direction,'' he told the BBC's ''Law
in Action'' program.
U.S. interrogation techniques, including waterboarding,
have been the subject of growing debate in the United States, and could
play a role in the military trials of six men charged in connection
with the Sept. 11, attacks. The issue also could find its way to the
Supreme Court.
Scalia, visiting London during a break in the court's calendar,
referred generally to those methods as ''so-called torture,'' and said
practices prohibited by the Constitution in the context of the criminal
justice system -- including indefinite detention -- are readily allowed
in other situations, such as when a witness refuses to answer a
question in court.
''I suppose it's the same thing about so-called torture,'' he said
in the interview. ''Is it really so easy to determine that smacking
someone in the face to find out where he has hidden the bomb that is
about to blow up Los Angeles is prohibited by the Constitution?
''Is it obvious, that what can't be done for punishment can't be
done to exact information that is crucial to the society? I think it's
not at all an easy question, to tell you the truth.''
Scalia, a judicial icon among American conservatives, an acerbic wit
and often abrasive personality, said Europeans had no business
''smugly'' decrying those techniques as torture. Earlier in the
interview he also faced down criticism of the U.S. death penalty.
''Europeans get really quite self-righteous, you know, (saying) 'no
civilized society uses it.' They used it themselves -- 30 years ago,''
he said, adding that a majority of Europeans probably supported capital
punishment anyway.
Scalia said that neither he nor any of the eight other Supreme Court
justices who collectively make up the United States' highest court
should be seen as setting the moral tone for the international
community.
''I don't look to their law, why do they look to mine?'' he said.
''We don't pretend to be Western mullahs who decide what is right and wrong for the whole world,'' he said in the broadcast.
Scalia also took issue with his ''tough guy'' reputation, saying he
would have had trouble navigating the Supreme Court nomination process
as it exists today with his feelings intact.
"You can't come in smugly and with great self
satisfaction and say 'Oh it's torture, and therefore it's no good'," he
said in a rare interview. . . . In the interview with the Law in Action programme on BBC Radio 4, he
said it was "extraordinary" to assume that the ban on "cruel and
unusual punishment" - the US Constitution's Eighth Amendment - also
applied to "so-called" torture. "To begin with the constitution... is referring to punishment for
crime. And, for example, incarcerating someone indefinitely would
certainly be cruel and unusual punishment for a crime."
Justice Scalia argued that courts could take stronger measures when a witness refused to answer questions. "I suppose it's the same thing about so-called torture. Is it really
so easy to determine that smacking someone in the face to determine
where he has hidden the bomb that is about to blow up Los Angeles is
prohibited in the constitution?" he asked.
"It would be absurd to say you couldn't do that. And once you acknowledge that, we're into a different game. "How close does the threat have to be? And how severe can the infliction of pain be?"
Earlier today, I wrote and submitted the following letter in response to an editorial appearing in this morning’s (February 12, 2008) electronic edition of one of the student-initiated papers at Georgetown University, The Hoya. The editorial is entitled “GU Must Allow for Safe Sex.” [HERE] I do not know if the editors will publish my letter. If they do, they may well ask that its size be reduced in order to meet space restrictions. Since the matters I address discuss the identity of Catholic institutions (a topic we have often addressed), I decided to post the complete text of my letter here:
For many years I have read The Hoya in order to follow the news about a great university that is almamater to many—many who are Catholics and many who are not. Over the years I have found that prevailing attitudes reported in The Hoya have departed from the University’s raison d’être. On those past occasions, I remained silently discreet (or, if you prefer, discreetly silent), but today I cannot. I found this morning’s opinion piece sobering on a number of fronts. I write this letter to the editors from my dual citizenship of Georgetown as an alumnus (A.B., ‘’70, J.D., ‘’73) and as a Jesuit priest. I am saddened that I must write in response to this editorial. But to remain silent could suggest consent on my part, and I cannot consent to this editorial’s views nor can I be presumed to consent through silence. I am grateful to the editors of The Hoya for the opportunity to express my perspectives on some of the graver matters which their editorial raises.
The editorial begins by mentioning that the University President, Dr. John DeGioia, recently established a resource center for LGBTQ students citing the “need for a safe and accepting university community above objections raised by some that such a center would be inconsistent with the mission of a Catholic university.” No one should fear a university community regardless of who he or she is. But this does not mean that acceptance of each person must mean acceptance and, therefore, subsequent endorsement of views and activities that are inconsistent and conflict with the teachings of the Church which must be a part of any Catholic university’s mission. A Catholic university must exercise its responsibility and its authentic academic freedom to state and argue through reason why the teachings of the Church are meritorious and why conflicting views are wrong. Providing forums for responsibly debating issues—even controversial ones—within a Catholic university does not require endorsement of positions which contravene the Church’s positions. In the context of a discussion of academic freedom, the editorial cites the recent reversal of a decision at the Law Center that originally denied university funding for internships where law students would work for organizations whose views challenged head-on the Church’s moral teachings. With the reversal of the original decision which was correct because it gave a voice to the Church in a prestigious component of the academy, academic freedom has suffered rather than been enhanced. Moreover, a Catholic university has now been recruited as an accomplice to activities that contravene its identity and mission.
The editorial continues by stating that Georgetown “has proudly upheld its Catholic and Jesuit tradition for 219 years.” I am intrigued by the increasing choice of the word “tradition” over words like “identity” and “mission” to explain Georgetown and other schools which claim Jesuit heritage and patrimony. There is something about reliance on the term “tradition” that suggests the institution was Jesuit and Catholic and these comprise a part of its history. One could similarly argue that the United States has a tradition that one time permitted slavery (at least in some parts of the nation) and restricted the franchise to certain males over a particular age. These points constitute a part of the history of our nation, too. But these traditions of the country have been abandoned for good reason. I do not think that relegating Georgetown’s traditions to its past (to its history) as a Catholic institution can be endorsed for any reason, let alone a good one. Its traditions not only define its past but also its present and its future.
This point receives sharp focus when the editorial justifies its position advancing “safe sex” on the grounds of “public health” and the dangers of invoking Church doctrine “to deny students a safe environment.” The editorial then attempts to clarify what it means by these assertions. In the editors’ estimation, public health and safe environment mandate supporting and offering any form of birth control to any student without asking questions of students and without questioning these practices. The final justification offered for a “safe sex” policy appears in the statement that the University’s responsibilities to uphold Church teachings “should not be extended to the detriment of safe sex.”
This is a remarkable claim, but it is tragically flawed. The Church’s teachings on the matters questioned by this editorial involve not only the condemnation of abortion (in the context of the editorial’s discussion of denying “H*yas for Choice” university support) but also on not condoning pre- and extra-marital sex. The Church has given her sound reasons for the positions she teaches, and I need not explain them here.
But what I must explain is that the editorial’s claim that the University’s current practices serve as a detriment to “safe sex” is wrong for several reasons. The first is the need to acknowledge that condoms, the pill, and other artificial birth control measures can and do fail. And when they fail, people—both born and unborn—can be and are harmed. Second, unmarried persons should not be having sex with anyone, and they should be living chaste lives. Some, perhaps many, will argue that my second point is outdated since the contemporary culture has accepted, tolerated, and perhaps even sanctioned pre- and extra-marital sex in their diverse manifestations. Cultures can accept, tolerate, and sanction many things, but the actions of the culture in these regards do not make the activities being accepted, tolerated, or sanctioned right. They can be and often are still wrong. I, for one, do not believe that it is proper for any university, and certainly not one that considers itself in the Catholic and Jesuit “tradition,” to support behavior that endangers anyone and that is wrong for everyone. The University will promote far greater safety and advance what is right by staying the course with its current policy. Moreover, it should take proactive steps to explain why its policy is correct and why the changes advocated by the editors would endanger. Discussion is good, but endorsement is not.
I must disagree with the editors who claim that the policy they want the University to accept “should pose no problem” to Georgetown’s “Jesuit identity.” Here the word “identity” rather than “tradition” is used by the editors. And by doing so, they put their collective editorial finger on the heart of the matter: what is the soul of Georgetown? But their objective will attack the soul of Georgetown’s Jesuit and Catholic identity and, therefore, its mission to educate all who come to Georgetown in learning how to become wiser and more virtuous people. As a Catholic and Jesuit university, the salvation of souls is also inextricably related to Georgetown’s duty. That is, or at least was, a grand part of Georgetown’s mission. But the editors now advance a cause that would separate Georgetown from this and other critical responsibilities. The editors suggest that the University can remain true to its identity by simply looking the other way when they state that “[t]here is no need for explicit endorsement.” The history of our human race has demonstrated time after time that looking the other way permits what is wrong (and, in some instances, evil) to flourish and what is virtuous to perish.
This result would betray Georgetown’s identity for both now and for the future. Its duty to care for the whole person is to cultivate a virtuous life rather than one that is dangerous and wrong. I, too, am concerned about the health of students and of all others, but I do not express my perspective on the basis of “sticky ideological points” (a phrase with which the editors conclude their opinion) but on the wisdom that God has given us and the virtuous life which enables us to use that wisdom well.
The BBC reports a disturbing ruling in Wales (HT to my colleague Teresa Collett):
A gay Christian who won a claim against the Church of England has been awarded more than £47,000 in compensation.
John Reaney took the Hereford diocesan board of finance to an employment tribunal after his appointment as a youth worker was blocked.
According to an earlier BBC story, Mr. Reaney seemed to be in line for the job but then, in a final-stage interview, the bishop of Hereford asked him a series of questions about whether he could remain celibate outside of marriage as the Church of England's rules require. Reaney's claim was that the bishop wouldn't have asked these questions of a heterosexual applicant, and/or that such an applicant's assurances that s/he could remain celibate would have been accepted. From the current story:
In his evidence to the original tribunal, Bishop Priddis said anyone in a sexual relationship outside marriage would have been rejected.
However the tribunal last month ruled Mr Reaney, who now lives in Cardiff, had been discriminated against "on the grounds of sexual orientation."
There is a distinction between orientation and extramarital conduct as grounds for employment actions; and one might criticize, say, the Catholic Church on theological grounds (as severalMOJershave) for rejecting men with a "deeply rooted" homosexual orientation as priests regardless of whether they can convincingly claim a past and future commitment to celibacy. (A counterargument here.) But from what I can see, this case exemplifies why that distinctions should not form the basis for imposing liability on a church for its hiring -- especially for a position that appears pretty pastoral (Mr. Reaney speaks of "numerous young people who have become Christians due to my work and ministry among them"). It looks like there was indeed reason to raise questions about Mr. Reaney's commitment to celibate conduct, since according to the earlier story he had "resigned [a previous youth-worker position] after being asked to choose between his partner and his job." With the prospect of a tribunal deciding after the fact whether any given line of questions was more than a straight applicant in similar circumstances would have faced -- and $100,000 in damages possibly at stake each go-round -- surely a lot of church interviewers will just let the celibacy subject drop. The Hereford diocese spokeswoman puts a brave, but not altogether convincing, face on it when she says:
"We are now aware that when making such an appointment we must make it clear if it is a genuine occupational requirement that the post-holder should believe in and uphold the Christian belief and ideal of marriage, and that sexual relationships are confined to marriage."
If you would like to be a signatory to this statement on civility in poliitcs, please e-mail Professor Ed Gaffney at Valparaiso Univeresity School of Law: Edward.Gaffney@valpo.edu
If you would like to see a list of the current signatories, click here.
Statement
A Catholic Call to Observe Civility in
Political Debate
Civility – should
be a guiding principle in our public life. Civility
and its potential impact on the fabric of the Catholic Church should be of
concern to all faithful Catholics, both clergy and lay people.
It is apparent that the political debate in the United States is becoming divisively partisan. The
political debate preparing all American citizens for the 2008 Presidential
elections is increasingly filled with attacks on private conduct and
recriminations.
As Americans we acknowledge deep divisions over some policy
issues; and recognize that some, who are active in political life and who
differ with the Church’s teachings on certain issues, such as, abortion, stem
cell research, the death penalty, and the justification for war, air their
differences in public and criticize the Church for these teachings. Others, for political and even ecclesiastical
reasons, seek the public embarrassment of politicians whose public positions
differ with Church teachings through the public refusal of the sacrament of
Holy Communion or public admonition by the Bishops.
To right this wrong, we should observe the following
principles.
As Catholics we should not enlist the Church’s moral endorsement for our political preferences. We should do this out of respect for our fellow Catholics of equally good will but differing political convictions and our interest in protecting the clergy from being drawn into partisan politics to the detriment of the Church’s integrity and objectivity.
As lay Catholics we should not exhort the Church to condemn our political opponents by publicly denying them Holy Communion based on public dissent from Church teachings. An individual’s fitness to receive communion is his or her personal responsibility. And it is a bishop’s responsibility to set for his diocese the guidelines for administering communion.
Catholic politicians who advertise their Catholicism as part of their political appeal, but ignore the Church’s moral teachings in their political life confuse non-Catholics by giving the appearance of hypocrisy.
Bishops, and all involved in the leadership of The Church, should not permit The Church to be used, or appear to be used, as a partisan, political tool.
As Catholics we must learn to disagree respectfully and without judgment to avoid rudeness in expressing our opinions to those whom we suspect will disagree with us, or in reacting to others’ expressions of opinion.
As Catholics we need to keep in mind the common humanity that we share with those with whom we disagree. We must avoid seeing them as “the enemy” in a life-or-death, winner-take-all political contest.
As Catholics we should never lose faith in the power of reason – a unique gift from God to mankind – and we should always keep ourselves open to a reasoned argument. In this spirit we should defend our views and positions with conviction and patience, but without being obnoxious or bullying.
As lay Catholics we should not pass judgment, and should avoid public statements that undermine the authority of the Church’s leaders. American Catholics know who their Church leaders are: their Bishops, Archbishops, and Cardinals.
Aggressive personal attacks may help reach a desired
political goal, but these actions will burden one’s personal conscience and
endanger the peace of Christ’s Church. By observing the principle of civility
in all our political actions we will protect our conscience and protect our
Church against harm. Civility for Catholics, as for all
Believers, is grounded in the teachings of the Lord, who demands we love one
another as we love ourselves, that we be kind, and that we forgive. From this
teaching flows the command to respect even a bitter opponent, to exercise
restraint in political combat, and to not use the Church for one’s political
purposes.
These guidelines may assist the Catholic community to
maintain the spirit of civility and to protect our beloved Church from being
stained by the appearance of partisan political involvement. With God’s help we can participate in our
elections, discuss the issues, and practice civility as we make our decision on
who should be the next President of the United States
Co-Organizers
Amb. Thomas P. Melady Former U.S.
Ambassador to the Holy See President Emeritus Sacred Heart University
Timothy J. May Senior Partner
Executive Committee Patton Boggs LLP, and Trustee Emeritus, The Catholic University of America
Connell withdraws bid to stop files examined Monday, 11 February
2008
Archbishop Diarmuid Martin has welcomed the decision by Cardinal Desmond
Connell to withdraw his High Court attempt to stop the Government-appointed
commission examining diocesan child abuse files.
A source close to Cardinal Connell has speculated that he may have been
persuaded by fellow clergy in retirement to hand over his problems to his
successor.
The move comes 11 days after Cardinal Connell got an injunction against the
commission preventing it from examining files while he prepared his case to show
that he had legal privilege over them or a duty of confidentiality in relation
to them.
When the case was called for mention this morning, Roddy Horan SC said he was
appearing for Cardinal Connell. 'I am withdrawing that application,' he told
Judge Iarfhlaith O'Neill.
Brian Murray SC, counsel for Judge Yvonne Murray and the two other commission
members, applied for costs.
At Mr Murray's request Judge O'Neill discharged the undertaking by the
commission not to examine the controversial files while the case was
pending.
At the court hearing on 31 January, Cardinal Connell's solicitor, Diarmuid Ó
Catháin, said in an affidavit that any file recording communications between
Cardinal Connell, while he was archbishop, and lawyers acting for the diocese,
could not be opened to the Commission of Inquiry.
The commission is scheduled to report by next September.
An organisation representing survivors of sexual abuse has welcomed the
move.
The One in Four group said it was imperative for the sake of victims that he
did so.
Speaking on RTÉ Radio's News at One, Marie Collins, a victim of clerical
abuse, said Cardinal Connell's move came as a great relief. She said it was
good for the Church, the victims and the laity, because the commission could now
do its work unhindered.
Alabama law prof Bill Brewbaker comments on my recent posts on Barack Obama:
[Obama] and Huckabee have both exploited the (worldly) idea that things would be ok if only "people like us" were in charge (Barack: educated, smart progressives; Huck: born-again Christians). Both also talk a lot about "hope" but not so much about the issues. Talking about issues doesn't fit well with "bringing the country together." Shouldn't alarm bells go off whenever someone tells us to put our hope in Caesar? Or that Caesar will unite us? Even if Caesar is, to quote Michael Jackson, a lover, not a fighter? I voted for McCain in part because nobody's going to mistake him for the messiah.
Last week we began MoJ's fifth year of existence, and I would like to commend Prof. Brewbaker for his comment, which embodies the expansiveness of the Catholic legal theory project: a Protestant making his insightful political point by marshalling resources ranging from Holy Scripture to the King of Pop.
