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 12, 2006

Wine, Women, and Taxis

Thanks to Lisa for updating the story of Somali taxi drivers' conscience claims.  Just to be (relatively) clear on my position, I would oppose the state legally empowering individual drivers to refuse passengers on any moral ground the driver deems relevant.  I would also (more tentatively) oppose the state forbidding taxi companies from working out limited accommodations of the drivers' conscience claims.  Within these two boundaries, there remains plenty of room for debate.  If the state (i.e., the airport commission) is simply proposing a system for allowing drivers to self-identify as a way of avoiding the transport of liquor from the airport, that seems sensible provided that there are plenty of drivers who would not so identify.  Having the state facilitate gender discrimination (the story of Lisa's friend) is a different story, both because of the invasiveness of the moral judgment involved (my status as a woman versus my status as someone carrying a bottle of wine) and because gender equality, after decades of debate in the marketplace of ideas, can, in my view, be considered a foundational norm in our society that is the proper object of state regulation, at least on matters of political and economic participation (which would include access to publicly licensed transportation).

Rob

Response to Father Araujo

Many thanks to Father Araujo for responding to Eduardo and me.

I note that Father Araujo is silent on the question whether the doctrinal perspective he took in his post (that a Catholic can not in good conscience disagree with the Church on questions of morality) is consistent with American democracy.

He asks me to support the view that an overwhelming majority of American Catholics reject that perspective. I had principally in mind the very high percentage of Catholics that reject the
Vatican’s position on contraception. Clearly they know what the leaders of the Church think, but they do not feel obligated to follow their lead. Andrew Greeley has detailed the extent to which American Catholics do not feel obligated to adhere to Vatican pronouncements on morality in much of his work (see, e.g., The Catholic Revolution: New Wine, Old Wineskins, and the Second Vatican Council Now).

I agree with Father Araujo’s implication that Kennedy’s address to the Houston Ministerial Association was misconceived. I would have preferred it if President Kennedy had said that he was a Catholic, had deeply internalized Catholic values, but believed that Catholics had the right and the duty to follow their conscience when they disagreed with the leaders of the Church. In other words, he did not submit to the dictates of a foreign power. In this connection, I think any Catholic who publicly endorsed Father Araujo’s doctrinal perspective could not be elected President of the United States.

I do not contend that speaks against Father Araujo’s theological position. I think it is a mistake to suppose that theology must fit the needs of politics or the state (Stanley Hauerwas has spoken eloquently on the latter point (see A Christian Critique of Christian America in The Hauerwas Reader). Although I do not agree with Father Araujo’s position, the point of my post was exclusively political. Consequently I think the quotation from John Courtney Murray is relevant to Father Araujo’s theological position, but not to the point of my post (though I would be grateful for the citation, on or off line).

Father Araujo is puzzled by my reference to First Things Catholics. I certainly do not maintain that readers of First Things are necessarily First Things Catholics (I, in fact, suggested that Robert George, a contributor to First Things may or may not be a First Things Catholic). I had in mind the description of the First Things project in Damon Linker’s excellent book The Theocons (which is not to say that I wholly agree with his conception of the role of religion in politics). Linker maintains that the First Things project is to show that Catholic values of a particular stripe are American values. He maintains, as do I, that the effort is a failure. As I have suggested, I think the principles propounded by the Vatican and by First Things are far more absolute than those typically followed in this country.  I think that efforts to show that the United States is really a Catholic country or a Kantian country or any other deontology run up against the relentless tendency of the country to compromise. The Church can play a prophetic role; it can be influential; it can speak truth to power. But it is a pilgrim church and a divided church in a pluralistic, pragmatic country. The First Things project seeks to argue that a divided part of a minority church is really at the center of American political philosophy in a country dominated by Protestants. Not very likely, but the project has had far more political success than could have been predicted.

Response to Rick, Michael, Richard

I am really quite grateful to Rick, Michael, Richard, and Father Araujo for responding to my recent post (and, of course, to Eduardo for his contribution). I respond here to Rick, Michael, and Richard and will have to respond to Father Araujo later.

In response to Rick: I did not say that “the fact that Americans do not believe that it is immoral to destroy embryos for research purposes establishes that the immorality of destroying embryos for research purposes can only be established by ‘resort to authority.’” I said that the extent to which Americans do not follow Catholic values embarrasses the First Things attempt to show that Catholic values are American values. Moreover, I asked what arguments other than authority can be used to counter the position of the American majority and how natural law doctrine relates to this debate. To claim as Rick and Michael do that America has a “[deep] and core commitment to the equal dignity and worth of every human being from conception to natural death,” is a well phrased statement of a conclusion, but it is not an argument. It begs the question by asserting what many deny: that a human being (as opposed to a human organism exists from the time of conception). I am genuinely interested in determining what arguments can be made for the Catholic position outside resort to authority.

But, in the latter connection, I will add one more question. Suppose a Catholic is unsure about the morality of embryonic stem cell research, and, therefore, accepts the Church’s position (believing that having no strong reason to affirm or dispute it that she should accept it). Suppose further that this Catholic continues to think that the Church position is open to doubt. Does such a Catholic become less than faithful if she takes her doubts into account in the election process? Or must she vote as if she holds the Church’s position as a strong conviction (even though she does not)?

Which leads me to Richard’s response to my post on conscience and democracy:  As I said, I was responding to Father Araujo’s statement that “’Our faith teaches that Catholics cannot, in good conscience, disagree with the Church on questions of morality.’” Although it was not the point of my post, I do believe that a Catholic has the right and the duty to follow his or her conscience (which is informed by reflection, study, and experience, but is in the end subjective) even when it disagrees with the Church on questions of morality. I do not know what led Michael to think that I believe that following conscience can not involve erroneous judgment, but that is not and has never been my view. I did not defend my view of Catholic obligations and rights of conscience. We have been down that road on this site already.

The point of my post was rather was to maintain that if Catholics were to adhere to Father Araujo’s conception of the faith (in the main they do not) anti-Catholicism would rise (wholly apart from whether his conception of the faith is correct). I suggested among other things that most Americans have historically been suspicious of Catholicism on the ground that Catholics follow the dictates of a foreign power rather than exercising independent judgment (i.e., following their “subjective” conscience). I wondered how Father Araujo’s conception of the faith could be reconciled with American democracy. In response, Richard asks, “Does he mean to say that one could not follow the Magisterium on a disputed moral question without somehow breaking faith with American democracy? Or just that one could not support a law that was consistent with a moral view held by the Magisterium because that would violate the Establishment Clause?” The answer to both questions is an emphatic no. I know of no one anywhere who has taken the second position, and I do not believe a serious argument could be made for that view. In fact, I believe that Catholic citizens have a religious duty to act on their religious beliefs in political life and a moral right to express their religious views in political life. (I bypass here the restrictions that the Establishment Clause places on the reasons government can give for its actions, e.g., leaving aside ceremonial monotheism, government could not justify a law on the supposition that it has a privileged insight on what God has to say about a subject).

As to the first question, I think it depends on why the person has followed the Magisterium. If the person has followed the Magisterium through an exercise of independent judgment accompanied by deference, I do not think such deference is incompatible with good citizenship or American democracy (though many might disagree). I do think it is hard to reconcile absolute submission to the Magisterium with American democracy.

Bush and the Religious Right

A new book out, written by David Kuo, a former number-two at the faith-based initiatives office, argues that the Bush administration is cynically manipulating religious voters.  I've always believed that Bush's  religiosity was a bit of a put on, but now there's some evidence from someone on the inside.  (HT:  DailyKos)

Responses to Eduardo and Steve

I would like to thank Eduardo Peñalver and Steve Shiffrin for their thoughtful commentaries and to my earlier posting on “Voting for the Common Good”. I am grateful for their respective postings to which I now respond.

With regard to Eduardo’s remarks, I recognize and do not deny that there are, at one level, different questions regarding office holders and voters. But, sooner or later, in spite of the independence of some officeholders from their constituents, the two groups are linked. Legislators, some government executives, and some judges hold office because they receive an electoral mandate from a majority of the voters. Thus, with regard to these officials, there inevitably is a nexus between the voter and the office holder. When the gap increases between the two and the nexus shrinks, the holder of the office may well be without an office to hold.

In short, sooner or later, the connection between the responsibilities of the Catholic office holder and the Catholic voter is established. Catholics, be they in political life or public life as holders of office or as holders of the franchise, share a common responsibility to infuse the temporal order with values that express the moral teachings of the Church if they continue to be members of the Church. The official behavior of Catholic public officials is linked with the electoral behavior of the Catholic voters who have a role in placing these officials into office.

Eduardo states that I assume that “abortion should be the most weighty issue due to the gravity of its evil…” It seems that he agrees with me that it is a most weighty issue. There are also other weighty issues in close proximity—euthanasia and embryonic stem cell research. This is so because of the gravity of their evils—the deliberate taking of human life that can be identified as “innocent.” Eduardo properly goes on to identify other important moral issues including the death penalty, unjust war, and the advocacy of torture. Let me compare and contrast the issues of abortion and the death penalty.

First of all, the Church’s teachings on these two grave subjects are different. Second, there is another difference that needs to be considered, and this concerns the numerical distinctions between the annual number of abortions and the number of executions performed. According to the Alan Guttmacher Institute, the annual number of legal abortions performed each year beginning in 1980 and running to the present day ranges from 1.3 to 1.6 million per annum. In contrast, according to the United States Department of Justice, Bureau of Justice Statistics, the number of executions in the United States from 1993 to the present has ranged between 37 and 98 per annum. These may be 37 to 98 executions too many. But it also needs to be remembered that just one abortion is too many. Both of these points regarding different teachings and statistical comparisons are relevant considerations for Catholics, be they office holders or electors. Moreover, for me, both of these points are relevant to ascertaining what is “extraordinary and compelling.”

I would now like to respond to Steve’s commentary of my earlier post. Like him, I recall the nativist spirit that existed and may still exist in the U.S. against the presence of Catholics and their participation in public life. One need only recall the cartoons of Thomas Nast and some contemporary illustrations to realize that this attitude did exist and still does in some parts of the U.S. I am hesitant to agree with him, however, on his two assertions that introduce a statistical or numerical component into his argument. At one point he states in regard to Catholic acceptance of “the absolute power of the Magisterium,” “the overwhelming majority do not.” Later, in the context of the “conception of conscience” that is “fully consistent with American democracy”, he states that “the overwhelming majority of American Catholics” subscribe to the aforementioned “conception of conscience.” I would like to learn more about the source of the data that Steve uses and how he defines this “conception of conscience.”

But I would also like to offer two remarks about the exercise of conscience and the American Catholic. The first involves an illustration from forty-six years ago when Senator John Kennedy was running for the Presidency. When he was running for the Presidency, he had delivered his famous and controversial speech in Houston to an association of Protestant ministers in which he emphasized his strong belief in an “absolute” separation of Church and State “where no public official either requests or accepts instruction on public policy from the Pope, the National Council of Churches or any other ecclesiastical source.” However, after he was elected to the Presidency, and shortly following the encyclical’s promulgation, President Kennedy spoke at the Centennial Celebration at Boston College, and in his address he offered a different perspective from the speech he delivered to the Protestant ministers. He said of Pacem in Terris: “As a Catholic I am proud of it, and as an American I have learned from it.” Clearly the impact of Pope John’s letter had an impact on Kennedy once he became President. In a carefully worded general statement, the U.S. State Department subsequently indicated that the points developed in the encyclical about disarmament, world peace, and development “should be the aspirations of all governments…” It appears that once elected to the Presidency, John Kennedy may have overcome his initial concerns about the effect of the encyclical and began to see its possibilities as an asset for Western diplomacy. Does this not suggest something about the formation of his conscience as well as something about prudential politics?

The second remark is also about conscience as practiced by American Catholics. I am not so sure that I would endorse Steve’s remarks in light of the Second Vatican Council Decree on Religious Liberty—Dignitatis Humanae Personae. While the Decree supports the view that a person should not be forced to act in a manner contrary to one’s conscience, we must also consider what John Courtney Murray, a principal drafter of the text, said about conscience: “[T]he Declaration nowhere lends its authority to the theory for which the phrase frequently stands, namely, that I have a right to do what my conscience tells me to do, simply because my conscience tells me to do it. This is a perilous theory. Its particular peril is subjectivism—the notion that, in the end, it is my conscience, and not the objective truth, which determines what is right or wrong, true or false.”

Finally, I am puzzled by Steve’s reference to “First Things” Catholics, regardless of whether they are right or wrong, whoever they may be. This has me wondering if there are “America” Catholics; “Commonweal” Catholics; “Crisis” Catholics; “NCR” [National Catholic Reporter] Catholics who are not to be confused with “NCR” [National Catholic Register] Catholics. For what it is worth, I usually read all these publications; whether my reading of them identifies me as one type of Catholic versus another type of Catholic is another matter.   

Again, my sincere thanks to Eduardo and Steve for their important commentaries of my earlier posting. I am grateful to them both.    RJA sj

Wednesday, October 11, 2006

William Junker on Stem Cells and Natural Law

I received the following communication from William Junker:

Apropos your questioning whether natural law can have any
role to play in deciding the fate of stem cells, I thought
it might bear mentioning that Aquinas himself is rather
modest about what natural law can get you: only the primary
precepts, such as seek good avoid evil, procreate, etc. seem,
on Aquinas' own view, indelibly imprinted on our hearts.  The
secondary precepts of the law, in my understanding at least,
follow from these first precepts but not in a way that they
are immediately evident to all.  I believe Aquinas cites the
example of the German tribes who, purportedly, thought
stealing was o.k. to make just this point.  I'm sure you know
all this, but I thought that your concerns regarding natural
law's efficacy in this arena could be made more pointed if
you made the argument that it is irrational to suppose that
in our current society one could persuasively argue just
from the primary precepts of the law to such a nice
conclusion as that one concerning stem-cells.  If anything,
the First Things folk are guilty of trying to extend the
reasons of natural law beyond the point to which it is
reasonable to expect them to reach.

Conscience, majority views, and the natural law

Eduardo notes that, in fact, most people in the United States do not believe in the "equal dignity and worth of every human being from conception to natural death" and do not believe that a "blastocyst" is a "full human being."  I am sure that he is right.  That said, it still seems to me that Michael S. is right to suggest that federally funded embyro-destroying research is, in fact, "inconsistent with America's deeper and core commitment to the equal dignity and worth of every human being from conception to natural death."  After all, that most Americans do not see the inconsistency does not eliminate it, does it?  I take it Michael was not suggesting that those Americans who support federally funded embryo-destroying research are hypocrites, but only that, because an embryo is, in fact, a human being, most Americans' support -- however well meaning -- for such research is not consistent with their commitment to the equal dignity and worth of every human being.

With respect to the natural law, Steve S. observes that most Americans do not accept the Church's teaching that it is immoral to destroy human embryos for research purposes, and states that "if natural law is written on our hearts, the Catholic position should be capable of defense without resort to authority."  I'm not a natural-law theorist, but I agree with Steve that we should be able to establish the immorality of destroying human embryos for research purposes without resort to authority.  But it is not clear to me why the fact that Americans do not believe that it is immoral to destroy embryos for research purposes establishes that the immorality of destroying embryos for research purposes can only be established by "resort to authority."

Steve continues, "[t]he law written on the hearts of Vatican Catholics does not appear to be the same as the law written on the hearts of millions of other Catholics and non-Catholics in American society and elsewhere.  Ironically the Vatican takes a countercultural position at the same time it asserts that the truth is written on our hearts."  Putting aside reservations I might have about the term "Vatican Catholics" -- and, again, admitting that I am not an expert in these matters -- I am not sure that natural-law theorists' claim is that the natural law is that which surveys establish is written on the hearts of most people.  Maybe Patrick Brennan or someone else can help me out here?

Steve's Question

In response to Michael's post, I take it to be a premise of Steve's question that most Americans do not in fact believe in the "equal dignity and worth of every human being from conception to natural death."  In that sense, the question is very much different from the situation confronted by Martin Luther King.  I think most people in the 1950s and 60s did (at least purport to) affirm the fundamental equality of all human beings and, at the same time, affirm the fact that African Americans were indeed human beings in the fullest possible sense.  That is, if you asked people at the time (apart from heated exchanges over civil rights) whether black people were "full human beings," they would have said yes.  The same does not seem to be true of most people in the United States today with respect to the question of human embryos, particularly in the earliest stages of their development.  If you asked most people today whether blastocysts are "full human beings," I think the majority would say no.  So an appeal to internal (in)consistency does not seem possible here. 

The Lancet Report on the Number of Iraqi Dead

In connection with my earlier post ... click here to see a PDF of the Lancet report.  (HT:  dotCommonweal.)

A Challenge to Catholic Scholars

In the post titled Embryos, Counter Culture, and Natural Law, Steve seems to suggest that Catholic values and American values diverge on issues such as fetal stem cell research and destruction, signalling an incoherence in the "first things project" of showing that "Catholic values are American values."  In my view, we need to look beneath the surface to see the convergence of values (which, as Steve suggests, is not evident on the surface).  The Catholic Church is appealing to the better angels of our nature, suggesting that our current desire (assuming the poll data is correct) for federally funding embryonic stem cell research is inconsistent with America's deeper and core commitment to the equal dignity and worth of every human being from conception to natural death.  MLK, Jr. acted similarly in his Letter from the Birmingham Jail, when he suggested to white pastors that their racial views were inconsistent with their core beliefs.

All of this leads me to Peter Maurin's challenge to Catholic scholars.  Maurin, the co-founder of the Catholic Worker Movement (with Dorothy Day) wrote a collection of short essays called Easy Essays.  One of them is called "Blowing the Dynamite of the Church":

"Writing about the Catholic Church, a radical writer says:  'Rome will have to do more than to play a waiting game; she will have to use some of the dynamite inherent in her message.'  To blow the dynamite of a message is the only way to make the message dynamic.  If the Catholic Church is not today the dominate social dynamic force, it is because Catholic scholars have failed to blow the dynamite of the Church.  Catholic scholars have taken the dynamite of the Church, have wrapped it up in nice phraseology, placed it in an hermetic container and sat on the lid.  It is about time to blow the lide off so the Catholic Church may again become the dominate social dynamic force."

Reprinted in the Houston Catholic Worker, September - October 2006