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.

Monday, July 9, 2007

Same-sex marriage as trademark tarnishment

Yale law prof Kenji Yoshino compares the argument against same-sex marriage to the intellectual property law doctrine of tarnishment:

To people like Henry Hyde, the idea that same-sex marriage demeans or assaults the institution of marriage is a tarnishment claim. It doesn't matter that he can still marry a woman. If a woman can also get married to a woman, he feels the value of his trademark has gone down. Even those who regard cross-sex and same-sex marriage as separate institutions will conjure up both when they hear the term "marriage." So now we have an answer to Edwards' query about what another person's marriage has to do with hers.

But tarnishment analysis cannot justify the objection it illuminates for at least two reasons. First, intellectual property law seeks to protect intangible goods that belong to people because they have created and built up good will for them. No such claim can be made about state-sponsored marriage, because no individual invented marriage, and no individual owns it. Second, and probably more importantly, the tarnishment analogy reveals the homophobia in Hyde's claim. Tarnishment claims arise only when the mark is being associated with something uniformly deemed unsavory. The paradigm case is a famous mark used in a sexually explicit context, like the 1996 case in which the game manufacturer Hasbro successfully barred a sexually explicit Web site from using "Candyland" as part of its domain name. To say that marriage would be tarnished by including gays is an oblique way of saying straight marriage is sacred while gay marriage is profane.

Joe Carter responds here.

Law, morality and contract

Minnesota law/philosophy prof Brian Bix has posted a new paper, Contract Rights and Remedies, and the Divergence Between Law and Morality.  (HT: Solum)  Here is the abstract:

There is an ongoing debate in the philosophical and jurisprudential literature regarding the nature and possibility of Contract theory. On one hand are those who argue (or assume) that there is, or should be, a single, general, universal theory of Contract Law, one applicable to all jurisdictions and all times. On the other hand are those who assert that Contract theory should be localized to particular times and places, perhaps even with different theories for different types of agreements. This article considers one facet of this debate: evaluating the relevance of the fact that the remedies available for breach of contract can vary significantly from one jurisdiction to another. This wide variation in remedies for breach of a (contractual) promise is one central difference between promises in morality and enforceable agreements in law. The article asserts that variation of remedies strongly supports the conclusion that there is (and can be) no general, universal theory of Contract Law.

Sunday, July 8, 2007

CST and the City: Looking for Advice

As the 2007 Journal of Catholic Social Thought Conference  on CST and the Law approaches, I''ve been mulling over ideas for the 2008 conference. One that occured to me is really just a phrase at this point: "CST and the City." I am wondering what CST has to tell us about the conundrums we face in deciding what sort of communities we want to live in physically. What spaces, physical settings are most conducive to community? What does CST mean  by "community"? Is there a relationship between the evolving Catholic thinking about the environment and ways to think about urban planning? Is exburban sprawl a form of 'social sin''? Is Ave Maria Town really "Catholic" in its self-conception as a community and in its environmental implications? Naturally, all of the familiar threshold questions about CST as a guide, inspriration or source of authority for complex practical problems apply here as well, particularly when we move to the legal implications. Problem is, I know even less about this stuff than I do about most 0other things. Thoughts, reactions, suggestions from both my fellow blogistas and readers would be welcome as I try to figure out whether this would be worth exploring. Rick and Nicole Garnett -- I know you have some interesting ideas about all this...

--Mark

CST on the Market: Conference Brochure

Here is a link to the brochure for the Journal of Catholic Social Thought Conference on CST on the Market, the State and the Law, containing registration info as well as the agenda.

http://www.law.villanova.edu/links/docs/jcst2007.pdf 

Friday, July 6, 2007

More bad news about pre-implantation genetic testing

More reasons to be leery of pre-implantation genetic testing, from CNN:

An older woman's slim chances of getting pregnant could be made worse if embryos are screened for defects before being implanted into the womb, doctors said Wednesday.

Pregnancy and live birth rates were substantially lower among women whose embryos were screened compared with those whose were not, according to a study presented Wednesday at a Lyon, France, meeting of the European Society of Human Reproduction and Embryology. . . .

In the study, also published Wednesday in the New England Journal of Medicine, Mastenbroek and colleagues were trying to determine the value of pre-genetic screening, a process that involves taking a single cell from a developing embryo to look for chromosomal defects that could lead to problems such as Down's syndrome. Doctors have generally thought selecting the most promising embryos will give older women a better chance of getting pregnant.

But some experts have expressed concern that fertility centers promote the genetic tests because they generate profit -- with a single test costing up to $5,000.

Thursday, July 5, 2007

More Confusion in the Lower Courts ...

... on whether local authorities can exclude privately-run worship services from public facilities that are open to other community group meetings.  This time the Second Circuit panel couldn't agree on a majority disposition, and the two judges who reached the merits divided.  The issue is certainly crying out for the SCT to clarify it, in a case ripe on its facts.  Here's my previous post on the issue.   (HT: Christianity Today blog)

Tom

Another way to help New Orleans

A reader kindly passed on to me this link, about the Fr. Harry Tompson Center in New Orleans.  It sounds like the Center does really good work with the poor and homeless in New Orleans.  Check it out.

Tuesday, July 3, 2007

Lay Ecclesial Ministry & Family Wage

An MOJ reader shared the following comments about my recent post on the feminization of the lay ecclesial ministry.  I think his arguments ought to apply equally to the "middle-aged women" running the Catholic Church who are mothers, though.

I am an alumn of Franciscan University of Steubenville, which turns out a disproportionate number of lay ecclesial ministers.  Four of my male classmates found jobs in the Church upon graduation: two youth ministers, a high school teacher, and a parochial director of music and liturgy.

None of them were employed by the church thee years later, and interestingly enough, all have entered the traditional business world or law school.  The economic and social implications both weighed heavily on their decisions.  None felt confident that he could support his family on the salary offered by the Curch.  At the same time, most reflected a significant impact of the large female employee majority in the parish office to the point where one even remarked, "The Catholic Church is run by middle-aged women."

I think the underlying problem is the tension inherent in the difference of the idea of fairness in the Church and in the American psyche.  In the Church, a fair wage is what somebody needs to adequately support his or her family.  Thus, ceterus paribus, a single man, and a married man with five children should receive different wages, since the familial supporter needs more to live.  In the American culture, on the other hand, a fair wage means the same compensation for the same work.  It doesn't matter if the person is a bachelor with an extravagent lifestyle or a father trying to send five kids to Catholic School, so long as both men perform the same task, they should be compensated identically. This is even taken to the extreme where the single man can work 60 hour weeks and not sacrifice other aspects of his life, where the married man struggles to work 40.  Obviously, the single man will become more important to the company and receive promotions which, in turn, increase his salary even more.

I'm not arguing that the American ideal of fairness is bad, but simply that there are some unintended consequences resulting from it.  It would be quite challenging for secular businesses to pay based on state in life when it is a much clearer system to pay according to benefit for the company. But regarding the Church, we would have to convince the Church secretary who has worked there for 10 years as a second income while her children are in school that she should get paid less than a person with no experience who has a family to support, so the income tends to be small, and women earning second incomes tend to remain in these types of jobs. Obviously, there are no easy solutions.  I have heard of a couple of Catholic organizations who give raises along with the birth of a child to go along with this idea of a living wage, but it would be challenging to make this more prevalent.

Defining "Torture"

We have talked often on this blog about torture, its immorality, and (the problem of) its definition.  A reader, Geoffrey Turecek, passes on this online essay, "The Catholic View on Torture," which might be of interest.   Here is the concluding paragraph:

Every human being, guilty or innocent, must be treated as someone who is made in the image and likeness of God, who loved us so much that He gave us free will. Torture is always an attempt to break down this God-given free will.  Such violence is a direct attack on an integral part of human nature. As such, it is additionally a vicious attack against the Author of our nature.  It is morally unacceptable for any Catholic to condone or approve any torture in any way, for any reason.

Earlier in the essay, he writes this:

Because God gave humans free will, it is an offense against the individual man and human nature itself to attempt to force what He has made free, for any reason, whether it be through means that are physically, psychologically, or morally violent in any degree.

I wonder, have the definitional difficulties simply been "pushed back", from "torture" to "force"?  The right answer cannot be, it seems to me, that it is immoral -- i.e., that it is "torture" -- to engage, say, in tough plea-bargaining, in which -- for example -- a prosecutor . . . incentivizes a suspect to plead guilty to a particular charge by indicating her willingness to prosecute a more serious one.  "Physically" violent means are (relatively) easy to identify; I'm not sure, though, that terms like "morally violent" move the ball all that much.  What does a prohibition on "morally violent" means mean to an interrogator?

Monday, July 2, 2007

The Catholic Evangelistic Moment ...

... in Missouri (from Christianity Today):

Church planters who receive money from the Missouri Baptist Convention (MBC) must now teach alcohol abstinence. The policy change was sparked by the Journey, a growing interdenominational church that borrowed $200,000 from the MBC to renovate a church two years ago. One of the Journey's outreach groups meets in a St. Louis microbrewery.