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, May 4, 2006

More on the Boston College controversy ...

[MOJ-friend Patrick Shrake writes:]

I think it would be interesting to know if  these protesting BC professors
did anything in the past when the following were scheduled to receive
honorary awards or made commencement speeches (though I understand that it
is the award, and not the invitation to speak, that the professors object
to):

Sara Lawrence-Lightfoot, Honorary Degree, Chairwoman of the John D. &
Catherine T. MacArthur Foundation (May 2002). The MacArthur Foundation's
Population and Reproductive Health grant program is a leading contributor to
organizations advocating abortion, contraception and population control.

Paul Cellucci, Ambassador to Canada and former Massachusetts Governor (May
2002). While governor, Cellucci was a strong advocate of abortion rights.

Walter Dellinger, commencement speaker, May 24, 2004.  Dellinger was closely
associated with NARAL Pro-Choice America and chaired NARAL's 1992 commission
to defend Roe v. Wade.

Supreme Court Associate Justice Stephen Breyer, author of Stenberg v.
Carhart, commencement address, May 23, 2003.

Rev. Robert Drinan, received BC's first Distinguished Service Medal (October
2004). As congressman, opposed numerous efforts
to ban federal funding of abortions.  In 1996, published articlesin the
National Catholic Reporter and the New York Times supporting
President Bill Clinton's veto of a partial-birth abortion ban.   

I'll note that I'm NOT saying that the professors are wrong to oppose the
award for Rice.  Just curious if they have consistently opposed awards to
those who were "in fundamental conflict with Boston College's commitment to
the values of the Catholic and Jesuit traditions and is inconsistent with
the humanistic values that inspire the university's work."

Grace & Peace,

Patrick Shrake
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UPDATE, 5/5/06

In posting Pat Shrake's message, I edited out his sentence referring to the Cardinal Newman Society.  In his original message, Pat wrote (right before his final paragraph, which begins: "I'll note that . . ."):  "I'm sure there is a long history of similar awardees and speakers, I picked these ones up after perusing the Cardinal Newman Society website for a few moments (http://www.cardinalnewmansociety.org/)."

Cardinal Martini on abortion and public policy

[John Allen reports, in the May 5th issue of NCR:]

On abortion, Martini firmly upheld the moral teaching of the church, but acknowledged the complexity of writing it into public policy.

“It seems to me difficult [to imagine] that, in situations like ours, the state would not distinguish between acts that are punishable in a penal fashion, and acts for which a penal solution doesn’t make sense,” he said. “That doesn’t mean a ‘license to kill,’ but that the state doesn’t intervene in every possible case. Its efforts should be to reduce the number of abortions, to impede them with every means possible (above all after a certain period from the beginning of the pregnancy), to reduce the causes of abortion, and to take precautions so that women who decide to take this step, especially during the period when it’s not illegal, do not suffer grave physical damage or have their lives placed at risk.”

Martini noted that the risk of serious physical injury is especially grave in the case of clandestine abortions, and hence said that, all things considered, Italy’s abortion law -- which permits abortion during the first trimester -- has had the positive effect of “contributing to the reduction and, eventually, elimination” of back-alley procedures.

In a case in which a fetus threatens the life of the mother, Martini said “moral theology has always sustained the principle of legitimate defense and of lesser evil,” in order to justify a procedure that would save the life of the mother while terminating the pregnancy.

-- John L. Allen Jr.
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An Honorary Degree for Condoleezza Rice?

CHRONICLE OF HIGHER EDUCATION
Thursday, May 4, 2006

2 Professors at Boston College Protest Honorary Degree for Condoleezza Rice

By JENNIFER JACOBSON

Two theology professors at Boston College have written a letter protesting the institution's decision to award an honorary degree to Secretary of State Condoleezza Rice on the grounds that her role in the Iraq war and foreign policy makes her morally unfit for the honor at the Roman Catholic College.

Kenneth R. Himes, an associate professor and chairman of the theology department, and David Hollenbach, a full professor, sent their letter, titled "Condoleezza Rice Does Not Deserve a Boston College Honorary Degree," to the entire faculty by e-mail on Tuesday.

The professors wrote that they "strongly disagree" with the university's decision, announced on Monday, to invite Ms. Rice to the commencement ceremony, scheduled for May 22, and asked their colleagues to sign on. About 150 faculty members had done so by midday Wednesday, Mr. Hollenbach said. He was unable to provide the names of those who had signed the letter, but said he planned to make them public.

"On the levels of both moral principle and practical moral judgment, Secretary Rice's approach to international affairs is in fundamental conflict with Boston College's commitment to the values of the Catholic and Jesuit traditions and is inconsistent with the humanistic values that inspire the university's work," the letter said. It also noted that Pope John Paul II and the United States Catholic bishops opposed the Iraq war.

Mr. Hollenbach said that he and his colleagues who signed the letter do not object to Ms. Rice's speaking at the college because they support academic freedom. "It is not our intent to disrupt the commencement," he said. But since she was the architect of the strategy for the Iraq war, he said, they do oppose awarding her the degree. He said they would submit the letter, which did not call on the college to rescind the invitation, to the institution's Board of Trustees and its president.

John B. Dunn, a spokesman for the college, said that while there may be some disagreement over the selection of Ms. Rice, college officials believe she is an appropriate choice. "As a university that embraces freedom of expression, we expect that she will be respectfully received," he said.

A spokesman for the U.S. State Department could not confirm whether Ms. Rice had agreed to speak at the college and declined to comment on the letter.

Mr. Dunn, however, said that Ms. Rice had accepted the invitation. He also said that students by and large seem to support the decision, citing an editorial, "Politics Put Aside, Rice Is Right Choice," that the student newspaper published on Monday.

Some faculty members disagreed with Mr. Himes's and Mr. Hollenbach's letter.

"What some of my colleagues, in theology and elsewhere, have done is to take contingent political judgments and raise them to the level of dogma," said the Rev. Paul W. McNellis, an adjunct professor of philosophy. He added that people of good will can be on either side of the Iraq war and that the church does not have an official policy on it.

Marc Landy, a political-science professor, also opposed the letter. He said he e-mailed faculty members that it was an honor to have Ms. Rice speak. "She is the secretary of state, after all," he said. "This is not a moment to let foreign-policy disagreements stand in the way of this occasion."

At least five other Roman Catholic colleges and universities have been criticized this year for inviting commencement speakers who have publicly opposed various church teachings (ChronicleNews Blog, April 20).

 

Following is the text of the professors' letter.

Condoleezza Rice Does Not Deserve a Boston College Honorary Degree

We, the undersigned members of the faculty at Boston College, strongly disagree with the decision of the university's leadership to grant Condoleezza Rice an honorary Doctor of Laws degree and to invite her to address the 2006 commencement. On the levels of both moral principle and practical moral judgment, Secretary Rice's approach to international affairs is in fundamental conflict with Boston College's commitment to the values of the Catholic and Jesuit traditions and is inconsistent with the humanistic values that inspire the university's work.

As a matter of moral principle, Rice maintains that U.S. foreign policy should be based on U.S. national interest and not on what she calls the interests of an "illusory international community." This stands in disturbing contrast with the Catholic and humanistic conviction that all people are linked together in a single human family and that all nations in our interdependent world have a duty to protect "the common good of the entire human family."

On the level of practical judgment, Rice has helped develop and implement the strategic policies that have guided the United States in the tragic war in Iraq. Pope John Paul II and the United States Catholic bishops opposed initiating this war on ethical grounds. We also believe the policies that have shaped the war's ongoing conduct cannot be justified in light of the moral values of the Catholic tradition or the norms of international law.

For these reasons, we object to Boston College honoring Condoleezza Rice at its 2006 commencement. Doing so contradicts the university's Catholic, Jesuit, and humanistic identity.
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Wednesday, May 3, 2006

Some More Arguments About HIV and Condoms

Thanks to Richard for his interesting post.  I do want to disagree with the analogy to the man in the mouth of the cave.  As I see it, the causal mechanism involved in using condoms to prevent the spread of HIV is not so much like the man in the cave, whose death is the means to remove him from the mouth and to freedom for those inside.  In the condom case, the blocking of the sperm (which I take it to be the problem with condoms) is merely a side effect of the use of the latex barrier to block the HIV virus (which I understand to be present in the seminal fluid, not in the sperm themselves).  That is, couples using condoms to block HIV transmission and without contraceptive intent would (if possible) use some barrier that would block just the HIV and not the sperm, whereas in the cave case, no such causal separation is possible, since the removal of the man is precisely what is desired.

I've taken the time to read the Benedict Guevin and William May articles that Michael Perry recommended.  Very interesting stuff, if you go in for this kind of thing.  Guevin's argument, such as it is, I find to be singularly unconvincing.  As far as I can tell, his principal point is that in the case of therapeutic use of anovulents, the choice to use the anovulent is separate from the choice to engage in sexual intercourse, but in the case of condomistic (can we come up with a better word, please?) sex, the choice to use a condom (to prevent HIV infection) is inseparable from the choice to have sex.  This is a valid distinction, as far as it goes, but I fail to see how it changes the moral character of the sexual act.  In both cases, the parties know (but do not desire) that their sexual act is nonreproductive.  In both cases, the non-reproductive nature of their act is necessitated by a desire that one of the partners not become ill.  It seems to me that the relevance of the fact that it is the party's own decision to have sex which necessitates the use of the condom in the case of HIV prevention sounds more in Richard's argument that people should use the least harmful means possible to achieve a good end.  I fail to see how it changes the moral quality of the act, and Guevin doesn't really provide an  argument in his favor.  He simply asserts that his distinction makes a difference.  I disagree.

William May's argument is more interesting.  He essentially asserts that condomistic (that word again) sex is intrinsically disordered sex.  In fact, he is so hard core, he says that even a sterile couple where one party has HIV cannot use a condom to prevent the spread of the disease.  Unlike Guerin, though, he gives us an argument.  Drawing on John Paul's "theology of the body," he argues that "condomistic intercourse . . . mutilates the language of the body, and the act chosen is more similar to masturbation than it is to the true marital act."  This is essentially an argument that the insertion of a latex barrier prevents a true conjugal union of the husband and wife.  (The image I have here is of the body-sized condoms in the Naked Gun.)  Although this is an argument, it's not a very good one, I think.  First of all, it's not clear precisely what bothers May about the condom.  Is it the latex barrier or is it that, as he puts it, "in such intercourse the male's semen [is] deposited in a vas indebitum or 'undue vessel'"?  Is it the depositing of the semen in the appropriate vessel or the barrier that causes the problem?  It's not clear to me, then, whether May would object to my porous condom hypothetical.  (Another interesting hypothetical for May would be a vaginal cream that destroys both sperm and the HIV virus indiscriminately.)

May's argument strikes me as crude physicalism.  Certainly couples where one partner has HIV would rather not use a latex barrier.  I'm sure they would agree with May that the need to rely on one renders their sex less unitive than it might be under ideal circumstances.  But I am confused by the claim that unitivity is binary in the sense that anything less than perfect sex (in the sense of some abstracted platonic ideal of the human sexual act) is not just unfortunate, but affirmatively evil.  I wonder what he would say, for example, about a couple where one party lacked any sensitivity in his/her genital area.   Would such a couple be permitted to have sex? 

In any event, it's not even clear to me that May is correct that condomistic sex between spouses where one spouse is HIV positive is not perfectly unitive in a more limited (though I think far more plausible) sense of the spouses giving to each other all that they have to give.  Obviously, for such spouses to have unprotected sex would be very wrong.  Accordingly, the only option available to them is to engage in sex with a barrier or no sex at all.  That is, on the range of unitive behavior available to them, sex with a condom is at the most unitive point.  Why isn't that enough?

[UPDATE:  Michael Perry pointed out in an email to me that getting the man out of the cave does not causally require his death, just that he be moved.  I agree that an argument can be made to that effect.  Maybe the two are the same.  The man's death (like the blocking of the sperm) would not on this understanding contribute to the desired state of affairs -- his being removed from the mouth of the cave.  I think the answer to the cave example really depends on the specific facts.   Clearly, if the only way to get him out of the mouth of the cave were to saw him in half, the DDE would not permit that.  So the question is whether the dynamite here is the equivalent of sawing him in half to get him out.  Isn't this fun?]

Back to Eduardo's issue: on narrow and broad intent

Dear Eduardo--

 

Basically, what is at stake in your condom conundrum is the question of whether morality is solely a matter of the narrowest of intentions, i.e. whether intent always includes every direct effect. Grisez and Finnis are the luminaries in favor of the narrow meaning while I believe that Peter Geach and his late, great wife are the main thinkers on the other side (but I could be wrong on this). Anyway, I think it all comes down to whether you can blow up the fat guy who is stuck in the mouth of the cave, with rising waters inside about to drown a party of spelunkers. Your INTENT is said by the “narrow school” to be only to use a stick of dynamite (the only means available) to dislodge him, even though you know it will have an immediate and directly lethal effect on him. As I understand the debate, Grisez and Finnis would say “If your heart is pure, go ahead and light the wick.” Geach and Anscombe would say that in such a case one cannot not be intending a direct attack on innocent life.

Probing further, in my personal view (N.B.) the issue is whether we are “polluted” only by our intentions or also by any strong causal connection between us and a violation of the Holy. Nowadays, we think that we think it silly to worry about whether the thirty pieces of silver should be put back in the Temple treasury, whether a sword that has accidentally killed somebody must become a deodand  in order to be redeemed, whether my running my car over a child wholly without any fault on my part nevertheless requires some reparation from me, etc. But in fact we would not want the silver or the sword in our home, and (much more than any passenger–onlooker in the car) we would be in deep moral agony and desirous to make reparation to the child’s parents.  Again: our law rightly demands reparation (retribution, if you will) from a negligent archer who has killed someone; he DESERVES significant punishment, we think, while his equally negligent companion archer (who was lucky enough to cause no harm) gets off with little blame and no punishment at all. So, although on many issues I end up with the same conclusions as the “broad school” of intent (because such intent includes all known direct effects of the act in question), I do so because of the directness itself and not solely because of any necessarily broad intent. (I actually agree with Grisez and Finnis that intent itself can be narrow enough to exclude direct effects, but I also think it blameworthy to cause unintended direct harm to human dignity.) Causing evil, as well as intending evil, is, in my own view, blameworthy. (I do not think this is the explicit view of the Church, but it may lurk in the background, as it does in our secular criminal law, as discussed above.) The Eastern Church, for example, in every Liturgy asks pardon for all "voluntary or involuntary" transgressions. Or think back to St. Augustine, et al.

Our Church should not jettison the ancient teaching (and still deeply felt intuition) that it is wrong intentionally OR directly to violate human dignity. Modernity is only a saeculum; the Church must endure in saecula saeculorum.

 

Richard

MoJ-ers in Commonweal

In the current issue of Commonweal, I review Robert Wuthnow's new book, American Mythos: Why Our Best Efforts to Be a Better Nation Fall Short, Mark Sargent reviews Bruce Ackerman's Before the Next Attack, and Eduardo Penalver asks "Are Illegal Immigrants Pioneers?"

Rob

Government Funding and Religious Transformation

Marty Lederman has offered his analysis of why the Bureau of Prisons' "residential multi-faith restorative justice program" is, in his words, "blatantly unconstitutional."  An excerpt:

The very purpose of the program, acknowledged by BOP, is "to facilitate personal transformation." (See page 1 of Attachment II, here.) Indeed, one of the ten program goals is "spiritual development" (see page 3 of that attachment). These are constitutionally illegitimate state interests. The government is required to be neutral -- agnostic, really -- on questions of transformation and spiritual development. BOP suggests that its interest in spiritual development of inmates is in the broader service of trying to "reduce recidivism through promoting the virtues of productive work, respect for others, self-worth, responsibility, and accountability." Those are, of course, legitimate state goals. But the government cannot specifically aim at religious transformation as a means of accomplishing those secular ends. As Madison explained in his Memorial and Remonstrance Against Religious Assessments, employing religion "as an engine of Civil policy" is forbidden, not least because it is "an unhallowed perversion of the means of salvation." What is more, I think there's something profoundly disturbing -- whether or not it's constitutional -- in the federal government advancing the view that the virtues of productive work, respect for others, self-worth, responsibility, and accountability are correlated with religious transformation or faith.

I don't know enough to quibble with Lederman's overall conclusion about the constitutionality of the program, but assuming that the government does not stake out a normative position that religious transformation should be the preferred path to virtue, why should the government be precluded from recognizing that there is, for many individuals, a correlation as a matter of fact between religious transformation and socially desirable virtues?

Rob

Gay covenant marriage

Joe Carter at Evangelical Outpost explores the issue of gay marriage and monogamy, asking:

Is monogamy a “straight” ideal that may or may not be useful in gay relationships? If so, then this is not what most people, even the supporters of same-sex marriage, have in mind when they discuss this issue. The subject is already contentious enough when it is thought that these “marriages” are going to be exclusive; what will happen when it's discovered that what's being advocated is “same-sex open marriage?”  Perhaps to avoid this perception gay marriage advocates should press for “gay covenant marriage.”

Rob

Tuesday, May 2, 2006

The Times on the Church

Like Michael, I read with interest Ian Fisher's May 1 article in The New York Times, "Debate Over Condoms and AIDS Tests the Pope."  And, I agree with Michael and the many other MOJ-folks who have posted recently that the article raises interesting, important, and challenging questions about the Church's teaching on contraception.  That said, isn't the Fisher article almost embarrassing in how ham-handedly it frames the issues? 

Even at the Vatican, not all sacred beliefs are absolute. Thou shalt not kill, but there is still "just" war. Now, behind the quiet Vatican walls, a clash is shaping up between two poles of near-certainty: the church's long-held ban on condom use and its advocacy of human life.

Ugh.  Next, Fisher trots out the Cardinal Ratzinger as "strict enforcer of doctrine" business.  This must be in the Times' style manual (right next to "remember, the Catholic Church issues 'edicts'").  Whatever.  Later, Fisher notes that the Pope Benedict (you know, the "strict enforcer") wrote his first encyclical on love (and not "strict enforcement of doctrine"!  Wow!), "specifically between a man and a woman inside marriage."  Of course, that's not really what DCE  is about.  But never mind.

Fisher then notes that "critics of the current Vatican policy say it is hard for the church to remain consistent on 'life' issues [rg:  why the scare quotes?] . . . when condom use can help prevent the spread of AIDS."  Really?  Even one who struggles with the Church's teaching on contraception -- as, I am happy to admit, one very well might -- need not concede any "inconsistency" between the Church's teaching that (a) it is immoral intentionally to kill a human being and (b) some actions are immoral, even if engaging in them could save lives.

None of this is to suggest, for a moment, that the discussion we are having about the questions raised in the Fisher piece is anything but important and engaging.  Nor is it to say anything about whether the Church can or should change its teachings (or, rather, revise its application of those teachings) with respect to condom use.  Still, it needs to be said.  When it comes to the Church, the Times is fascinated but (at best) clumsy and clueless.

UPDATE:  It's worse than I thought.  (Thanks to "Get Religion").

The Magisterium and Gay Adoption

COMMONWEAL

May 5, 2006

To Welcome a Child

GAY COUPLES & ADOPTION

Jo McGowan


I have always been a strong advocate of adoption. It is a family tradition: my parents adopted my sister; my husband and I adopted our youngest, my sister and her husband adopted their little girl; and my brother-in-law and his wife adopted both their children. There was a time when I thought of starting an adoption agency because it seemed the perfect answer to two deep human yearnings: a child needs parents, parents want a child. What could be simpler? In fact few things can be more complicated.

I have stopped advocating, stopped trying to persuade young couples to adopt before having a homemade baby, stopped trying to convince the world that “Each One Take One” is the solution to the problems of abortion and unwanted children.

I still believe fervently in adoption. I still thank God every day for my sister, my daughter, my nieces, and my nephew. I just know now that it isn’t necessarily the right thing for everyone to do. I believe couples considering adoption should be far better prepared for the journey they are embarking on, and far clearer about the guaranteed burdens the new baby coming into their family will bear.

A child who has been abandoned by its mother, no matter how dire the circumstances, no matter how sensible her decision, suffers a loss nothing can make up for. Life contains sorrows that cannot be assuaged, and it is important to be honest in acknowledging this. Too often, in our desire to believe in the healing powers of love, we deny the power of grief.

Couples volunteering to be the parents of such a child need to understand this and to realize the enormity of what they are taking on. When my husband and I adopted our baby daughter, Moy Moy, we were as innocent as babies ourselves. She was twelve weeks premature, but I think our pre-maturity was far more profound. Lucky for us, and for her, some things were given: we were deeply in love, we had already raised two homemade children, and I was a stay-at-home mom.

That stay-at-home bit is crucial. Somebody-man or woman-has to be willing to do it. A baby who has been abandoned needs to be held more often, cuddled more convincingly, and loved in ways that go beyond “quality time.” That baby needs unconditional acceptance, and she needs it constantly.

The recent decision by Catholic Charities of Boston-under unwarranted pressure from both the bishops of Massachusetts and from the Vatican-to refuse to allow gay couples to adopt children, is an example of wrongheadedness and intransigence that would make the angels weep. It is a disgrace to all that the church stands for, and it is an indictment of all that we believe about the sanctity of life and the gift that every child represents. As a Catholic, I am grieved by this rejection of love freely offered, selflessly and heroically. As the mother of an adopted child, I am amazed at the stupidity of a policy that denies the unique capacity of gay couples to provide what would-be adoptive children so desperately need.

Without being sentimental or biased, it is possible to say that certain people, because of their life experiences, are better qualified for certain tasks than others. People with disabilities, for example, and those who work with them, are more likely to be able to accept others as they are, simply because they have more experience doing it. People with disabilities may drool or have difficulty in expressing themselves. They may use sign language rather than words, or read Braille rather than conventional print. Those who are disabled themselves, or who have experience with people with disabilities, tend to be calmer about the variety of life’s gifts, knowing it is the same Spirit who provides them.

Similarly, gay couples, having staked everything on love in a world that is often hostile toward them, let alone tolerant, are better suited than most to the challenges of caring for children who need unconditional acceptance. If, having risked being ostracized and rejected by the community they-like anyone else-desire to be a part of, they are still willing to offer their lives and their hearts as a haven for children in the most desperate need of protection and unconditional acceptance, who on earth are we to say they are unworthy?

As a Catholic, I say no to the decision by Boston Catholic Charities to refuse to provide adoption services to gay couples. Love is rare enough in this world of violence and meanness. Can we truly consider rejecting it because it comes from people of the same sex?


ABOUT THE WRITER

Jo McGowan

Jo McGowan, a Commonweal columnist, writes from Deradoon, India.