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.

Wednesday, September 20, 2006

A puzzle: What do Republicans stand for?

Eduardo's Commonweal article and Rick's response got me thinking:  What do Republicans stand for?  Consider this:

Across the nation’s 36 races for governor, Republican candidates in states heavy with moderate or Democratic voters are playing up their liberal positions on issues including stem cell research, abortion and the environment, while remaining true to their party’s platform on taxes and streamlining government.

In Massachusetts, Lt. Gov. Kerry Healey, who is seeking to fill the seat that will be vacated by Gov. Mitt Romney, has openly split with Mr. Romney on abortion rights and stem cell research; her views are shared by the Republican candidate for governor in Illinois, Judy Baar Topinka, who also supports civil unions for same-sex couples.

In Maryland, the Republican incumbent, Robert L. Ehrlich Jr., is pushing for increasing state aid for programs for the disabled and imposing tighter restrictions on coal-fired plants; the Republican governor of Hawaii, Linda Lingle, opposes the death penalty. In Connecticut, Gov. M. Jodi Rell also parts ways with the Republican Party on civil unions and financing for stem cell research.

Governing Republican and campaigning Democratic is not a new technique; George E. Pataki, the New York governor, has made a career winning elections as a Republican in a mostly Democratic state. But political experts say that the strategy is particularly pervasive this year, as Republicans seek to distance themselves from an unpopular president and to respond to what is widely recognized as polarization fatigue among many voters.

“The conservative side of Republican party has been so dominant in recent years that we haven’t seen a lot of this phenomenon at work until this year,” said Bruce E. Cain, the director of the Institute of Governmental Studies at the University of California, Berkeley.

Now, Mr. Cain said, the easiest way for Republicans to “stay competitive is to take deviations from the standard G.O.P. lines.”...

In the Republican primary in Illinois, Ms. Baar Topinka, the state treasurer, was criticized by opponents for her support of same-sex unions. She nonetheless prevailed in that race.

To read the whole article in today's New York Times--

For Governors in G.O.P. Slots, a Liberal Turn

--click here.

Of course, the obvious next question:  What do Democrats stand for?

Benedict on Benedict

At today's General Audience at St. Peter's Square, this is what Pope Benedict XVI said about his Regensburg remarks:

It was an especially beautiful experience for me that day to deliver a conference before a large auditorium of professors and students at the University of Regensburg, in which for many years I was professor. With joy I was able to meet once again with the university world which, during a long period of my life, was my spiritual homeland.

I had chosen as topic the question of the relationship between faith and reason. To introduce the auditorium to the dramatic and timely character of the argument, I quoted some words of a Christian-Islamic dialogue of the 14th century, in which the Christian interlocutor, the Byzantine emperor Manuel II Paleologus, in an incomprehensibly brusque way for us, presented to the Islamic interlocutor the problem of the relationship between religion and violence.

Unfortunately, this quotation has given room to a misunderstanding. For the careful reader of my text it is clear that I did not wish at any time to make my own the negative words uttered by the medieval emperor in this dialogue and that its controversial content does not express my personal conviction. My intention was very different: Based on what Manuel II affirms afterward in a very positive way, with very beautiful words, about rationality in the transmission of the faith, I wished to explain that religion is not united to violence, but to reason.

The topic of my conference -- responding to the mission of the university -- was therefore the relationship between faith and reason: I wished to invite the Christian faith to dialogue with the modern world and to dialogue with all cultures and religions. I hope that on different occasions of my visit, as for example in Munich, where I underlined the importance of respecting what others consider sacred, my deep respect for the great religions, in particular for Muslims -- who 'adore the one God' and with whom we are engaged in "preserving and promoting together for all mankind social justice, moral values, peace and freedom" ("Nostra Aetate," No. 3) -- emerged clearly.

Therefore, I trust that, after the reactions of the first moment, my words at the University of Regensburg will represent an impulse and encouragement to a positive dialogue, including self-critical, both among religions, as well as between modern reason and Christians' faith.

Lisa

The Pope & The Witch

Finally, a theatrical production to argue about besides The Vagina Monologues.  Next March, the University of Minnesota will be putting on Dario Fo's play, The Pope and the Witch.  Here is the theater department's description:

A wild send-up of Catholicism and politics by Italy’s Nobel Prize-winning farceur.  In the Piazza San Pietro thousands of hungry children, the fruits of the Pope’s birth control doctrine, are crying for food.  Meanwhile he contends with assassination attempts, Mafiosi, drug dealers, sinister bankers, and inept cardinals.  Fo’s point is that it is easy for a rich church to rage against abortion when millions are born into poverty, and become victims of the drug trade, from which people under the Vatican’s protection can fill their pockets.

Bill Donohue has protested, albeit unsuccessfully.  As a university spokesman said, this is "a mainstream production."

Rob

Response to Eduardo

Thanks to Michael for linking to Eduardo’s piece in Commonweal.  At the risk of being thought by my friend Eduardo to be a “Republican partisan within the Church” or a “Republican Party apologist” – and making clear my view that faithful Catholics can, in good conscience and without being mere “apologist[s]” or “partisans,” disagree about how or for whom to vote – I have to say that I think Eduardo’s arguments are, in places, flawed.

Eduardo writes, “Republican partisans within the church have typically zeroed in on four controversial issues: gay marriage, euthanasia, stem-cell research, and abortion.”  This is, I suppose, “typically” true.  That said, a faithful Catholic might also believe that the Republican positions are strongly to be preferred on, for example, religious-freedom and education-reform questions.  (Indeed, the Church’s social teaching would seem to speak quite clearly on the question of school choice.)  Such a Catholic could easily conclude that an Executive Branch staffed by a Republican president, or a Congress in which Republicans hold the majority, is more likely to be friendly to religion in the public square and to, for example, conscience-based exemptions from general laws for religious believers and institutions.  Certainly, such a Catholic can (and should) regard the Democratic Party's position on school choice as inappropriately attentive to the narrow interests of teacher unions, and insufficiently attentive to social-justice concerns and low-income children's well-being.

Eduardo contends, “[o]n gay marriage, the parties don’t differ all that much; the Democratic Party’s most recent platform, for example, stops well short of endorsing homosexual nuptials.  On stem-cell research, Republicans generally oppose federal funding while Democrats typically support it, but there are dissenters in both parties, neither of which has called for its outright prohibition. Finally, physician-assisted suicide has been legalized in only one state and is more of a cultural bogeyman than a live political issue. That leaves abortion to do the heavy lifting for Republican activists who are trying to capture the Catholic vote.”  It seems clear to me, though, that morally questionable research is far more likely to be supported, and celebrated, if the Executive Branch is staffed by a Democratic President or if Democrats hold a majority in the Congress.  It is true that (thankfully) the euthanasia movement appears to have stalled but – as the recent dust-up involving the Attorney General’s effort to ban the lethal drug used in

Oregon

for euthanasia shows – this does not mean that there are not live end-of-life issues on which the two parties differ.

I do not believe it is the case that the “logic” of a Catholic who, given all the givens, supports Republicans – or, as Eduardo calls this person, a “Republican Party apologists” – is that “the issues where traditionally Democratic policy positions have tended to reflect church teaching-economic justice, the death penalty, war, environmental protection, and others-are issues for which the church’s positions are flexible, making policy disagreements permissible even among those who accept Catholic principles.”  That is, while such a Catholic probably does think that, on these matters (unlike abortion), the Church’s teaching calls for the exercise of prudential judgments, I doubt that he or she needs to concede that the Democratic policy positions on all these issues actually do reflect Catholic teaching more faithfully than do Republican policy positions.  (I am happy to concede, though, that they sometimes do, and sometimes have.)

Eduardo says that “certain aspects of the church’s just-war doctrine as well as what we are taught about the evil of poverty are . . . just as unambiguous as the condemnation of abortion” and that the “George/Bradley argument [for the priority of the abortion issue] would render irrelevant the entire breadth of the church’s social teaching.”  But, that the Church teaches poverty and unjust wars are evil does not, it seems to me, yield definitive answers on particular questions of policy (e.g., is this armed-conflict just?  Is this measure a good way of operationalizing our obligations to the poor?) in the way that the Church’s teaching on abortion does.  And, as we have discussed before, one might want to factor in the extent to which the Democratic Party, at present, tends to regard abortion as not only tolerable, but as necessarily connected to moral claims about autonomy, while the Republican Party, one might conclude, at least purports to endorse the idea that, say, armed conflicts must be morally justified.

With respect to President Bush’s alleged “failure to take extraordinary steps during his six years in office to put an immediate end to the slaughter” and the claim that his failure “makes him nearly as culpable as prochoice politicians,” I think I have, in other posts, explained as well as I can why the claim, in my view, is not very powerful.

Regarding judges:  Eduardo writes, “since abortion is a fundamental constitutional right protected by the courts, the election of antiabortion politicians is not likely to have a tremendous effect on the number of abortions performed. Even more tenuous is the argument that Catholics should vote Republican because Republicans will appoint antiabortion justices to the Supreme Court.”  This latter argument is, in my view, hardly tenuous.  The five Justices who will, we can expect, vote to uphold the ban on partial-birth abortion were appointed by Reagan or post-Reagan Justices (Republican presidents before Reagan never purported to be pro-life.)  Judges appointed to the federal courts (who are able, notwithstanding Roe and Casey, to improve the law by upholding reasonable regulations even under the undue-burden rule) by Republicans are far more likely to believe that abortion may be reasonably regulated.  More generally, I cannot accept the idea that, because the Democratic Party has made it an unmovable, foundational commitment that the Roe / Casey regime, which insulates abortion from democracy, must be preserved, pro-life Catholics should therefore vote for the Democratic Party, rather than for the Party that (Souter notwithstanding) is willing to take steps to ameliorate that regime.

With respect to Eduardo’s statement that “the Bush administration and Republicans in Congress have time and again made decisions that run directly counter to that teaching.”  Insofar as Eduardo is talking about the war in

Iraq

, it seems relevant that the Democratic Party did not oppose at the time, and even now does not oppose with one voice, that war.

On the treatment of detainees, I share Eduardo’s view that it is categorically immoral and unjustifiable to torture detained terror suspects.

I appreciate Eduardo’s recognition that, on questions of economic justice, “Catholic social teaching does not prescribe any one economic system or policy. Still, it does provide unambiguous guidance concerning the values by which economic decisions must be made, offering clear instructions as to which factors must be given the greatest weight.”  We agree that “intentions matter.”  That said, I believe that Eduardo is insufficiently open to the possibility that faithful Catholics, who are as informed about economics as he is and who endorse with no less sincerity than he does the preferential option for the poor, who are neither “incredibly naïve” nor “willfully blind”, to believe   really do believe that, on balance and all things considered, most “Republican” policies are better for the common good than most “Democratic ones.”  (That said, it seems to me that one would have to be “incredibly naïve” to think that the economic policies of the Clinton Administration were crafted – or that the policies of the Warner or H. Clinton Administration would be crafted -- always with an intention of operationalizing the preferential option for the poor.)   

Eduardo and I agree that “most Republicans are not racists” (neither are “most” Democratis).  This is one reason, of course, by the treatment by so many on the left of Justice Clarence Thomas is so offensive.  It is wrong to pander, as Republicans have done (and as Democrats have done in, for example, the

Newark

mayoral race or the

Louisiana

governor’s race, against Bobby Jindal), to voters’ racism.  It is not racist, though, to express doubts about, say, race-based affirmative action and it is, perhaps, quite cynical for Democrats to cast some Republicans’ doubts about affirmative action as reflecting racism.

With respect to environmental stewardship, I would note only that environmental policies involve cost-benefit analyses and trade-offs, and require us – no less than labor policy – to think about the impact of proposed regulations and taxes on the poor. 

Finally, we all agree that our votes ought not to reflect a “narrow fixation on abortion," or on anything else.  That said, and as the bishops have said clearly, we ought not to regard abortion as merely one issue among many, either.

Thanks to Eduardo for the provocative piece, which I regard as reflecting the decisionmaking of a faithful Catholic, and not merely the advocacy of a Democratic "partisan" or "apologist."

Review of Feldman and Hasson

I have posted on SSRN a review essay (forthcoming in Constitutional Commentary) about two (relatively) recent books on law and religious freedom, Noah Feldman's "Divided By God," and Kevin Hasson's "The Right To Be Wrong."  Here is the abstract:

America is divided, and religion is divisive. These two claims – usually asserted with both confidence and concern – are the drone notes sounding under so much of what is said and written today about law, politics, religion, and culture.  This essay reviews two recent books dealing with religious freedom, pluralism, and conscience:  Noah Feldman's "Divided By God: America's Church-State Problem­and What We Should Do About It" and Kevin Hasson's "The Right To Be Wrong: Ending the Culture War Over Religion in America." Each of these authors hopes for, and holds out the promise of, a less rancorous civil society.  And, each of these works puts the freedom of conscience at the heart of the authors' arguments about religious liberty, state action, and the common good. Neither author, however, pins his hope on a public square scrubbed clean by judges of religious expression, symbols, and activity.

"Divided by God" and "The Right To Be Wrong" are engaging and rewarding books. Each has its strengths; each is, in some places, provocative, and in others, inspiring.  Each is animated by a spirit of charity, and by a welcome and worthy desire to find common ground, to engage fellow citizens on that ground, and to point the way toward a state of affairs and law that is conducive to civil peace and consistent with mutual respect.  It is true, as Feldman writes, that our diversity has long and “often been called a blessing and a source of strength or balance,” and is at the same time “a fundamental challenge to the project of popular self-government.”  Feldman and Hasson are right to remind readers that our response to this challenge need not, and should not, include a demand that religious expression, symbols, and activities be confined, laicite-style, to the private sphere or the margins of our common life.  The end-game, though, will not and should not be unity, but respect.  As John Courtney Murray suggested several decades ago, given the reality and permanence of pluralism, we should “cherish only modest expectations with regard to the solution of the problem of religious pluralism and civic unity.”

I'd welcome any comments.

Cathy Kaveny on Prophecy and Casuistry, Abortion and Torture

I highly recommend this terrific essay by Cathy Kaveny, who, as many of you know, holds the John P. Murphy Foundation Professorship at Notre Dame Law School; she is also Professor of Theology at Notre Dame.  (Among her many other accomplishments:  She survived a semester as my student, at the University of Chicago Divinity School, where I was co-teaching a course with Robin Lovin.)  Cathy's essay was the basis for her Donald A. Giannella Memorial Lecture at Villanova Law School, on February 23, 2005.

M. Cathleen Kaveny, Prophecy and Casuistry:  Abortion, Torture and Moral Discourse, 51 Villanova Law Review 499-579 (2006)

Maggie Gallagher on Benedict and Islam

What Did the Pope Think He Was Doing?
Maggie Gallagher

Just what in the world did the pope think he was doing?                    

For a Catholic like me this last week has been deeply trying to the soul. Pope Benedict cannot apologize for defaming Islam, be*cause he didn't. But he did apologize for the distress of the Muslim faithful, and clarify that the words of the 14th-century Byzantine emperor (issued before the final Islamic conquest of Constantinople) suggesting Islam's innovations were "evil and inhuman" did not represent his opinion.       

Like many ordinary Catholics, I find this surprisingly galling. I have sudden new sympathy for Peter's position in the garden of Gethsemane: Jesus is surrounded by soldiers, and Peter naturally wants to do something about this to prove his courage and his faithfulness, in spite of the clearly overwhelming odds. So Peter pulls out his sword and chops off the nearest guy's ear.                    

"Put your sword back into your sheath," Jesus orders.

Harrumph. Pope Benedict -- a better Christian than me? Who would have thunk it?        

But if a mere speech is worth conducting a worldwide day of anger over (this Friday), passing parliamentary resolutions (Pakistan), making death threats (Great Britain), burning churches (Palestine), issuing supercilious and deeply offensive orders to the pope to apologize for Catholic theology (New York Times editorial board) and slaughtering a nun (Somalia), perhaps it is also worth actually reading and thinking about.

The New York Times in a news story this week (to give credit where it is due) tried to point out that the pope's point was not attacking Islam at all: "The speech was largely a scholarly address criticizing the West for submitting itself too much to reason."

Oh, dear. Wrong again. What Pope Benedict was trying to say was the exact opposite thought: that in restricting reason to "science" (or that which can be empirically verified through the scientific method), the West risks reducing the "radius of reason" in ways that are dangerous. Why? Because (among other things) we risk relegating almost all the great important questions about human beings to the realm of unreason:

"If science as a whole is this and this alone, then it is man himself who ends up being reduced, for the specifically human questions about our origin and destiny, the questions raised by religion and ethics, then have no place within the purview of collective reason as defined by 'science,' so understood, and must thus be relegated to the realm of the subjective."        

What are the consequences? Ethics and religion become "a completely personal matter," losing "their power to create a community" and ending the very possibility of dialogue between different cultures: "A reason which is deaf to the divine and which relegates religion into the realm of subcultures is incapable of entering into the dialogue of cultures." (Postmodernism suffers from the same deficit: If truth is impossible because reality is entirely subjective, what is the point in speaking to one another at all?)                    

The Byzantine Emperor Manual II (whom Benedict cited) argued: "Faith is born of the soul, not the body. Whoever would lead someone to faith needs the ability to speak well and to reason properly, without violence and threats."

At the heart of Christianity, drawn by John from the book of Genesis, lies the insistence that God is "logos," or creative reason capable of being communicated. One cannot "dehellenize" Christianity, says Pope Benedict, without doing violence to the faith. The meeting of Jerusalem and Athens was no historical accident: "... they are developments consonant with the nature of faith itself."

The alternative to a new synthesis of faith and reason, points out Benedict, is to remove reason from the most urgent questions human beings face, including this one: How do we live together in peace?

Readers may reach Maggie Gallagher at [email protected].)

Tuesday, September 19, 2006

Eduardo in COMMONWEAL

MOJ-readers would do well to read MOJ-blogger Eduardo Penalver's new article in Commonweal, September 22, 2006.  The title:  A Guide for Catholic Voters:  Abortion Is Not the Only Issue.  To read the article, click here.

John Allen on Benedict and Islam

John Allen--who is the Vatican correspondent for The National Catholic Reporter and well known to us--has an op-ed in today's New York Times.  I don't think it's accessible to non-subscribers, so here it is in full.

A Challenge, Not a Crusade
By JOHN L. ALLEN Jr.

SEEN in context, Pope Benedict XVI’s citation last week of a 14th-century Byzantine emperor who claimed that the Prophet Muhammad brought “things only evil and inhuman” to the world was not intended as an anti-Islamic broadside. The pope’s real target in his lecture at the University of Regensburg, in Germany, was not Islam but the West, especially its tendency to separate reason and faith. He also denounced religious violence, hardly a crusader’s sentiment.

The uproar in the Muslim world over the comments is thus to some extent a case of “German professor meets sound-bite culture,” with a phrase from a tightly wrapped academic argument shot into global circulation, provoking an unintended firestorm.

In fact, had Benedict wanted to make a point about Islam, he wouldn’t have left us guessing about what he meant. He’s spoken and written on the subject before and since his election as pope, and a clear stance has emerged in the first 18 months of his pontificate. Benedict wants to be good neighbors, but he’s definitely more of a hawk on Islam than was his predecessor, John Paul II.

The new pope is tougher both on terrorism and on what the Vatican calls “reciprocity” — the demand that Islamic states grant the same rights and freedoms to Christians and other religious minorities that Muslims receive in the West. When Benedict said in his apology on Sunday that he wants a “frank and sincere dialogue,” the word “frank” was not an accident. He wants dialogue with teeth.

Roman Catholicism under Benedict is moving into a more critical posture toward Islamic fundamentalism. That could either push Islam toward reform, or set off a global “clash of civilizations” — or, perhaps, both.

Personally, Benedict’s graciousness toward Muslims is clear. For example, when Ayatollah Mohammad Emami Kashani, a member of the powerful Guardian Council in Iran, wrote a book comparing Islamic and Christian eschatological themes in the 1990’s, Benedict, then Cardinal Joseph Ratzinger, swapped theological ideas with him in the Vatican.

Immediately after his installation Mass last year, Benedict thanked Muslims for attending an inter-faith meeting. “I express my appreciation for the growth of dialogue between Muslims and Christians,” he said. “I assure you that the church wants to continue building bridges of friendship with the followers of all religions.”

Yet Benedict has also challenged what he sees as Islam’s potential for extremism, grounded in a literal reading of the Koran. In a 1997 interview with me, he said of Islam, “One has to have a clear understanding that it is not simply a denomination that can be included in the free realm of pluralistic society.”

In the same interview, he accused some Muslims of fomenting a radical “liberation theology,” meaning a belief that God approves of violence to achieve liberation from Israel. He also said he opposed Turkey’s candidacy to enter the European Union, arguing that it is “in permanent contrast to Europe” and suggesting that it play a leadership role among Islamic states instead.

Thus it’s no surprise that Benedict has struck a different tone from his predecessor. John Paul met with Muslims more than 60 times, and during a 2001 trip to Syria became the first pope to enter a mosque. He reached out to Islamic moderates. He talked of Muslims and Jews along with Christians as the three “sons of Abraham.” And he condemned injustices thought to be at the root of Islamic terrorism.

Desire for a more muscular stance, however, has been building among Catholics around the world for some time. In part, it has been driven by persecution of Christians in the Islamic world, like the murder of an Italian missionary, the Rev. Andrea Santoro, in Trabzon, Turkey, in February. A 16-year-old Turk fired two bullets into Father Santoro, shouting “God is great.” But perhaps the greatest driving force has been the frustrations over reciprocity. To take one oft-cited example, while Saudis contributed tens of millions of dollars to build Europe’s largest mosque in Rome, Christians cannot build churches in Saudi Arabia. Priests in Saudi Arabia cannot leave oil-industry compounds or embassy grounds without fear of reprisals from the mutawa, the religious police. The bishop of the region recently described the situation as “reminiscent of the catacombs.”

The pope is sympathetic to these concerns, as several developments at the Vatican have made clear.

At a meeting with Muslims in Cologne, Germany, last summer, Benedict urged joint efforts to “turn back the wave of cruel fanaticism that endangers the lives of so many people and hinders progress toward world peace.”

On Feb. 15, he removed Archbishop Michael Fitzgerald, who had been John Paul’s expert on Islam, as the president of the Pontifical Council for Interreligious Dialogue, sending him to a diplomatic post in Egypt. Archbishop Fitzgerald was seen as the Vatican’s leading dove in its relationship with Muslims.

That same month, Bishop Rino Fisichella, the rector of Rome’s Lateran University and a close papal confidant, announced it was time to “drop the diplomatic silence” about anti-Christian persecution, and called on the United Nations to “remind the societies and governments of countries with a Muslim majority of their responsibilities.”

In March, Cardinal Camillo Ruini, the pope’s vicar for Rome, voiced doubts about calls to teach Islam in Italian schools, saying he wanted assurance that doing so “would not give way to a socially dangerous kind of indoctrination.”

And on March 23, Benedict summoned his 179 cardinals for a closed-doors business session. Much conversation turned on Islam, according to participants, and there was agreement over taking a tougher stance on reciprocity.

Through his statements and those of his proxies, Benedict clearly hopes to stimulate Islamic leaders to express their faith effectively in a pluralistic world. The big question is whether it will be received that way, or whether it simply reinforces the conviction of jihadists about eternal struggle with the Christian West.

Conscience & Airport Taxis

Here is an interesting new venue for the battle over rights of conscience; the response of airport officials is encouraging.

Rob