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.

Thursday, October 18, 2007

Wealth, inequality, and human dignity

Zenit has available, here, excerpts from the Pope's remarks on "the World Day to Overcome Extreme Poverty."  A bit:

The disparity between rich and poor has become more evident and more disturbing, even within the most economically advanced nations.

"This worrying situation appeals to the conscience of mankind because the conditions being suffered by such a large number of people are such as to offend the dignity of human beings and, as a consequence, to compromise the authentic and harmonious progress of the world community.

"I encourage, then, an increase in efforts to eliminate the causes of poverty and the tragic consequences deriving from it."

So . . . which "efforts" should be "increase[d]"?  (I would think, for example, that steps by wealthy and politically stable countries to incentivize developing and poor countries to crack down on corruption, and provide meaningful protection for property and other legal rights, so as to encourage more investment, are essential).  And, which have shown themselves to be ineffective?  (I would think, for example, that there's no future in celebrating dictator-demagogues who promise massive confiscation and redistribution.)  How do we put this into practice, as we should?

Ave Maria litigation begins

Former Ave Maria Law School professors Steve Safranek, Ed Lyons, and Phil Pucillo have filed a six-count complaint against the law school, Dean Bernard Dobranski, and Tom Monaghan.  (HT: Leiter)

More from Fr. Miscamble on Catholic hiring

A few weeks ago, my Notre Dame colleague, Fr. Bill Miscamble, had a piece in America magazine, in which he discussed the importance to Catholic universities -- at least, to those that aspire to be Catholic -- of hiring and retaining Catholic faculty.  The piece was widely discussed in the blogosphere (and, I'm sure, in faculty lounges and bars where alumni hang out).  In response, another friend and colleague, Prof. John McGreevy, responded in Commonweal, and contended that Fr. Miscamble had both missed the good news that there is and failed to appreciate the nature of the Catholic-hiring challenge.

Fr. Miscamble has now prepared a reply to Prof. McGreevy.  Apparently, America magazine is not going to publish it.  So, I have reproduced the whole thing, below the jump.  In his reply, Fr. Miscamble discusses, among other things, the importance of non-Catholics to the mission of a Catholic university, the caution that is (as Prof. McGreevy had pointed out) appropriate regarding a focus simply on "the numbers", and the question of the "depth of the pool" of possible Catholic hires.

Continue reading

Justice Scalia, a "Catholic" judge . . .

. . . whether he likes it or not.  Thanks to Rob for the link to the news account of Justice Scalia's talk at Villanova.  As I see it, when Justice Scalia says "there is no such thing as a 'Catholic judge'" and "the Catholic faith seems to me to have little effect on my work as a judge", what he means to say is that his faith does not supply the substantive content of the opinions he writes and the decisions he reaches.  He is, I think, pushing back on the idea -- which seemed to be widespread during the Alito and Roberts confirmations -- that a "Catholic" judge would be one who handed down "Catholic" decisions, i.e., decisions that, in their policy dimensions, somehow reflect or map onto Catholic Social Teaching.  Understood in this way, I think Justice Scalia is entirely right. 

That said, it is unfortunate that he insists on putting the matter this way, because he is way too smart not to know that his statements will be, and are, taken to mean that, as a judge, he "puts aside" his faith (JFK-style).  But, I am confident this is not what he means.  The point is not that "I am not a 'Catholic' judge because I put aside my faith when I judge, and operate only in slimmed-down-identity mode."  To be a Catholic judge -- and Justice Scalia is, whether he likes it or not, a "Catholic judge" in this sense -- is to be a judge in the way a Catholic, like everyone else, should be a judge:  To take seriously one's obligation to decide impartially, to submit to the rule of law, rather than one's own preferences, and to have an appropriate humility about the task one is charged to perform.  Obviously, this is not a distinctively Catholic way of judging -- I'm not even saying that Catholics are more likely to judge in this way than others are -- but it is, I think, the way a Catholic should judge.  It's also the way Justice Scalia thinks he should judge and, I'm confident, he thinks this way (at least in part) because he is a Catholic.

Wednesday, October 17, 2007

Justice Scalia Fires up the Grill

Since our Villanova contingent hasn't weighed in on yesterday's Scarpa conference, I'm forced to rely on local news accounts:

Devout U.S. Catholics like himself may stand apart from much of the nation on abortion, homosexuality, and embryonic stem-cell research, Supreme Court Justice Antonin Scalia told a packed audience at Villanova University yesterday, but he insisted "there is no such thing as a 'Catholic judge.' "

"The bottom line is that the Catholic faith seems to me to have little effect on my work as a judge," he declared.

Invited to speak to that very question - "the role of Catholic faith in the work of a judge" - the famously opinionated justice rendered his decision just three minutes into his keynote lecture at Villanova Law School's annual Scarpa conference on law, politics and culture.

"Just as there is no 'Catholic' way to cook a hamburger," he said to a murmur of laughter, "I am hard-pressed to tell you of a single opinion of mine that would have come out differently if I were not Catholic."

So is Justice Scalia correct?  At least when it comes to the judge's role, is MoJ's Catholic Legal Theory project akin to constructing a Catholic Meat-Grilling Theory?  (For those interested, I address Justice Scalia's past statements on this subject in an article exploring the contrasting functions of prudential judgment in the roles of lawyer and judge.)

A Reply to Susan’s Invitation

I thank Susan for her post on the Duquesne/Planned Parenthood matter. I realize there may be some intricacies about Duquesne’s license to have a radio station aligned with the Corporation for Public Broadcasting that may need to be addressed, but at this stage in the discussion the question is this: must a public broadcaster accept all donations? I do not think so. Is money, in the context of donations to a broadcaster, a form of speech? It can be and often is viewed as a form of speech when it is used to promote, directly or indirectly, the view of the donor involving matters about public life, i.e., debate about the important issues of the day. Moreover, the relationship between the donor and the institution receiving the benefactor can come into question, particularly when the donor’s identity is or must be disclosed in the programming that the radio station owner intends to broadcast. Can the Duquesne radio station have a program/debate on the abortion issue without raising the problems presented here? I think it can. Must it accept the endorsement of Planned Parenthood (no friend of the Church)? No—it need not, and it should not. 

But this is not the only question Susan has raised. Her inquiry and invitation for response also deals with debate on Catholic campuses; more specifically, she focuses the question by asking what kind of speakers should a Catholic university or college permit. She is in favor of more, not less speech. There is nothing wrong with that. But in the case of the radio station and the university (as owner of the station or of the medium for discussion) it can be and usually becomes a forum for someone else’s speech when it accepts either a donation or a speaker. Must the Catholic university or college as owner of the station or as provider of the podium be required to do either without compromising speech? Again, my answer is no.

The Duquesne situation raised by Susan may remind some MOJ contributors and readers about another controversy taking place on a Catholic campus. This situation involves the College of the Holy Cross in Worcester, MA which has leased space for a conference sponsored by the Massachusetts Alliance on Teen Pregnancy (MATP). Interestingly, Catholic Charities of the Archdiocese of Boston has been a member of MATP in the past, but its membership has not been renewed for next year according to MATP’s website. It appears that Holy Cross has leased space to MATP for some of its previous conferences. This year, the Catholic Bishop of Worcester, the Most Rev. Robert J. McManus, has intervened and called upon Holy Cross to disassociate itself from this conference and revoke its agreement to lease the space for the conference. The bishop has properly and correctly raised concerns about two speakers at this conference: Planned Parenthood and NARAL-Pro Choice (another adversary of the Church). Some might argue that Holy Cross has not leased space to Planned Parenthood or NARAL but to MATP, an organization to which Catholic Charities (Boston) was formerly a member. But I must point out that Catholic Charities has terminated its membership; moreover, MATP now endorses as a part of its mission, shared with the “comprehensive sex education programs” of Planned Parenthood and NARAL Pro-Choice, “to increase youth access to comprehensive sexuality education” that includes “support for… healthy choices including abstinence and condom and contraception use” and “access to condoms and other contraception.” These are positions that are diametrically opposed to the Church’s teachings and which are subscribed to and promoted by Planned Parenthood and NARAL-Pro Choice. It is, therefore, not surprising that Bishop McManus has taken the action that he did. Nor is it surprising that Duquesne has returned the PPF donation.

I come back to Susan’s invitation seeking the views of others. In the case of returning donations or denying forums for certain speakers, genuine debates are not affected. What is affected is cooperation—formal or material (or formal masquerading as material). In either case, of returning a donation or denying a podium, discussion of an issue is not prohibited; however, cooperation with an adversary of the Church is stopped.    RJA sj

Anderson on WHO-Guttmacher Study

I didn't get any takers here, but Ryan Anderson takes a crack over at First Things at the question I asked in the wake of the WHO-Guttmacher Study.  As I read his thoughtful post, he suggests that a  consequentialist approach to the decision whether "there ought'a be a law" may not be appropriate or decisive in all moral contexts, or, perhaps, consequentialist considerations are muted in certain contexts.  His post provides a lot of food for thought. 

I do have a question, though, about a passing analogy he makes to slavery.  Anderson asks:

What if during the early days of abolition people claimed that the results of outlawing the slave trade wouldn’t reduce the number of slaves but would only have deleterious effects on those slaves who now would be transported on the black market? I doubt that any of us would consider this a reason not to start down the road of criminalizing slavery and emancipating slaves.


I'm not sure I fully buy the analogy here.  Slavery is, at least in substantial part, a legal (status) relationship.  As such, a law outlawing slavery would, in some substantive sense, be guaranteed to be effective in that it would immediately transform the legal status of the former slaves.  Now, Anderson is right of course that such a law might drive relations of involuntary servitude underground or might simply lead slavery to be replaced by new legal institutions (e.g., debt peonage) that make former slaves even worse off in some respect, or perhaps no better off (although this is certainly contestable, since one might plausibly argue that even the most destitute and dependent free person is better off than the legally enslaved).  The analogous question to the one I asked would be whether these consequences would be worth paying for the abolition of legal slavery. (As an aside, at least one feature of abortion makes me think it  would to be harder to stamp out than slavery, and that is that, unlike slavery, all parties involved (with the exception of the fetus, who cannot speak for him or herself) consent to the procedure.  As with other consensual vices -- prostitution and drug sales spring to mind -- this dimension might make enforcement of laws prohibiting abortion very challenging in a free society.)  I think the ultimate answer would depend, at least in part, on whether we thought the hypothetical consequences of outlawing slavery were really beyond our control, but I'm not sure it's absurd to suggest that they would be at least relevant to the question whether (or perhaps how) to abolish slavery.

For a different take on this question than Anderson's, take a look at this post over at Catholic blog Vox Nova.

"Civilizing Authority"

Run, don't walk, to . . . an internet bookseller and get Patrick Brennan's new edited volume, "Civilizing Authority:  Society, State, and Church."  It's just great.  Or, as I put it in my (first!) back-cover blurb, "An education and a delight, Civilizing Authority is like participating in a rich and provocative conversation, about questions that are both timely and timeless, among learned friends."  Contributors include Patrick Brennan, J. Budziszewski, Jack Coons, Avery Cardinal Dulles, Russ Hittinger, Tom Kohler, Steve Smith, Glenn Tinder, Joe Vining, and Michael White.  Wow!

SCHIP, "Pro-Life," and "Prudence"

Thanks to Rick for posting Ryan Anderson's article on SCHIP.  I agree that whether to support the SCHIP expansion is a question with significant elements of prudence and should not be a litmus test for whether one is a "good Catholic" or a "good Christian."  But that doesn't mean there aren't moral and policy reasons why pro-lifers and Christians, among other citizens, should exercise their judgment in favor of this bill to make children's health care available to more modest-income families.  (Like Mr. Anderson, I'm not an expert on this; my comments are based on general knowledge and on learning from the nonpartisan website factcheck.org and links from it.)

First, Mr. Anderson's statement of the SCHIP issues largely reflects Republican characterizations, some of which are inaccurate or misleading and to which Factcheck has correctives that are worth reading.  Second, it's really too much to hear the President oppose the expansion on the ground that it may benefit some families with incomes up to $83,000 in one or two states, when his own coverage proposal -- a fixed income-tax deduction for a family at any income level who buys health insurance -- "would disproportionately increase coverage among higher income groups," according to the consulting-firm report that the administration itself quotes (see near the end of the Factcheck.org page).  According to that report (see Figure 3 at that link), the percentage increase in coverage among families making more than $100,000 a year (38.6 percent) will be double or greater the increase among families making less than $40,000 (19.1 percent for incomes in the 30s, less for lower incomes) -- yet the President criticizes the congressional bill for not "focus[ing] on serving children from families below" the $40,000 level!  As is usually the case, the choice of a tax deduction as the means to deliver benefits disproportionately helps those in higher tax brackets.  By contrast, under the congressional bill, according to the Urban Institute study quoted in Mr. Anderson's article, SCHIP will still preserve 70 percent of its benefits for children in families under $41,300 yearly income (figuring a four-person family) -- hardly "a welfare program for the middle class" as Mr. Anderson claims.  In the light of this contrast, I'm not so confident as Mr. Anderson that everyone in the debate is focused on helping the poor.  Where is the administration proposal that focuses on expanded coverage for the modest-income family?

Finally, Mr. Anderson raises a colorable concern that the term "pro-life" will be diluted if it is applied to more than just "opposition to legalized abortion coupled with support for mothers facing crisis pregnancies."  But there are of course colorable (at least colorable) arguments the other way, which he ignores: that expanding the range of policies in a "pro-life" agenda will recognize the various economic and social factors and conditions that affect women's decisions whether to abort, and that the broader view can increase the credibility of the pro-life position among those not already committed to it.  At the least, Mr. Anderson should not, in a post calling for tolerance of opposing viewpoints, accuse those who adopt the broader pro-life view of "charg[ing] to eviscerate" the term pro-life.

Tom

Duquesne and Planned Parenthood

We've had discussion on this blog at various times and in various contexts regarding Catholic Universities and their sponsorship of certain speakers and events.  The New York Times reported this morning that a Pittsburgh public radio station stopped running messages from Planned Parenthood becuase Duquesne University, the licence holder of the radio, determined that Planned Parenthood was "not aligned with our Catholic identity."  The article appears here.

From the article, it appears that Duquesne founded the public radio station 58 years ago.  During a pledge drive, the following message was run: "Support for DUQ comes from Planned Parenthood, providing comprehensive sexuality education, including lessons on abstinence.  Planned Parenthood: Their mission is prevention."

Leave aside whether the message is an accurate statement of Planned Parenthood's mission, since that does not appear to be the issue.  Rather, the question raised is "whether the station's news content is independent and, ultimately, whether the station should separate itself from Duquesne."  The station has received a significant number of calls and e-mails objecting to its decision to stop running the ads and questioning its "editorial integrity."

I'm interested in the views of others on this.  It seems to me that the debate about what kind of speakers a Catholic university should have on campus and/or should honor is different from the question of what content is appropriate for a public radio station as to which the Catholic university is a licence holder.  I'm not making a statement about how either should be resolved (although I confess my general leaning is always in favor of more speech rather than less), but I do think they are different questions and I tend to think there should be less control exercised over a public radio station than in other situations.