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, March 23, 2006

Stem Cells

Four UCLA professors (including yours truly) were asked to do short comments on California Proposition 71, which set up funding of stem cell research, including programs here at UCLA. The UCLA magazine's website has published those opinions and has a reader poll where you can vote for the position most closely representing your own view. Here's my take:

"A key problem with this debate it that you have attractive and sympathetic spokespeople like [stem cell activist and UCLA grad student Candace] Coffee, whose stories play on our emotions. But who speaks for the unborn child? We only get one side of the story. The Catholic Church, of course, claims to speak for the fetus: ‘All human beings, from their mothers’ womb, belong to God who searches them and knows them, who forms them and knits them together with his own hands, who gazes on them when they are tiny shapeless embryos and already sees in them the adults of tomorrow whose days are numbered and whose vocation is even now written in the “book of life”’ (compare Psalms 139:1, 13-16) - Evangelium Vitae, 61.

“If you believe that human life begins at conception, as I do, creating human lives for the purpose of destroying them is an intrinsically evil act (as California’s Catholic bishops have made clear). Even if you believe human life begins sometime later than conception, however, you should still oppose Proposition 71. Stem cell research advocate Francis Fukuyama blasted Proposition 71 as ‘a huge, self-dealing giveaway of money from cash-strapped California taxpayers to a small group of institutions and companies that will remain largely unaccountable.’ California’s taxes are already among the highest in the country. Why then should California taxpayers who are opposed to the intentional destruction of human embryos in the name of scientific research be forced to subsidize venture capitalists, biotech companies and research institutions that already receive vast state and federal handouts?”

Also on the stem cell issue, my UCLA law colleagues Russell Korobkin and Stephen Munzer have just posted to SSRN a very detailed monograph on the law of stem cells, discussing "issues concerning the regulation of research, patent protection for stem cell innovations, informed consent of research subjects, and property rights in human tissue."

The Times on "Executing Christians"

So, a few days ago, in a post called "An Outrage in Afghanistan," I noted the case of Abdul Rahman, who apparently faces execution in Afghanistan for converting to Christianity.  (According to some more recent reports, he might end up being declared "mentally unfit", and therefore not subject to penalties for his apostasy).  Now I learn that the New York Times has an editorial today, called "Outrage in Afghanistan," about the same case, expressing (pretty much) the same views I did.  Hmmm . . . I'm getting nervous.

In all seriousness, though, this line in the editorial did raise some questions:  "Muslim leaders would also do well to condemn this strongly; those who continue to hold the teachings of Islam hostage to intolerance do grievous harm to their religion."  I'm not an expert on Islam, but I imagine that those who wrote the editorial aren't, either.  So, is the editorial's claim that, in fact, the call to execute Rahman for apostasy really is inconsistent with Islam, and so "Muslim leaders" -- in order to be good Muslims -- should condemn the call?  Or, is the claim that Muslim leaders should -- in order to be good citizens of the 21-st century secular world order -- condemn the call in order to help move Islam in a direction that the editors think Islam (and all religions) should go (i.e., away from "intolerance"?).

"A New Constitutional Order?"

The Fordham Law School is hosting, on March 24-25, what looks to be a remarkable Centennial Conference, entitled "A New Constitutional Order?"  (More info here).  The conference features nine different panels of speakers, on subjects like:  "The Rehnquist Court and Beyond:  Revolution, Counter-Revolution, or Mere Chastening of Constitutional Ambitions?", "Constitutions in Exile:  Is the Constitution a Charter of Negative Liberties or a Charter of Positive Benefits?"; and "Subnational Norms in the New Constitutional Order." 

One of the participants, I am happy to note, is our own Eduardo Penalver.

More on Murdering for God

Lest we feel squeamish about condemning the Afghan religious impulse to murder a Christian convert, out of either excessive deference to a strongly-felt religious compulsion or weak-kneed reluctance to impose "Western" values, we should note the following argument by Slavoj Zizek, the well-known (but hard to classify) Slovenian philosopher, who succeeds in making atheism look good by comparison:

FOR centuries, we have been told that without religion we are no more than egotistic animals fighting for our share, our only morality that of a pack of wolves; only religion, it is said, can elevate us to a higher spiritual level. Today, when religion is emerging as the wellspring of murderous violence around the world, assurances that Christian or Muslim or Hindu fundamentalists are only abusing and perverting the noble spiritual messages of their creeds ring increasingly hollow. What about restoring the dignity of atheism, one of Europe's greatest legacies and perhaps our only chance for peace?

1. More than a century ago, in "The Brothers Karamazov" and other works, Dostoyevsky warned against the dangers of godless moral nihilism, arguing in essence that if God doesn't exist, then everything is permitted. The French philosopher André Glucksmann even applied Dostoyevsky's critique of godless nihilism to 9/11, as the title of his book, "Dostoyevsky in Manhattan," suggests.

This argument couldn't have been more wrong: the lesson of today's terrorism is that if God exists, then everything, including blowing up thousands of innocent bystanders, is permitted - at least to those who claim to act directly on behalf of God, since, clearly, a direct link to God justifies the violation of any merely human constraints and considerations. In short, fundamentalists have become no different than the "godless" Stalinist Communists, to whom everything was permitted since they perceived themselves as direct instruments of their divinity, the Historical Necessity of Progress Toward Communism.

During the Seventh Crusade, led by St. Louis, Yves le Breton reported how he once encountered an old woman who wandered down the street with a dish full of fire in her right hand and a bowl full of water in her left hand. Asked why she carried the two bowls, she answered that with the fire she would burn up Paradise until nothing remained of it, and with the water she would put out the fires of Hell until nothing remained of them: "Because I want no one to do good in order to receive the reward of Paradise, or from fear of Hell; but solely out of love for God." Today, this properly Christian ethical stance survives mostly in atheism. ENDQUOTE

I AM by no means sure that this "properly Christian ethical stance exists only in atheism;" in fact, I know it doesn't. But for the rest of Zizek's argument see the NYT 3.12.06. Thanks to my colleague Ellen Wertheimer for the pointer.

--Mark

Wednesday, March 22, 2006

status of the early human embryo

The question raised by Cathleen Kaveny is an interesting one. She suggests that the pre-implantation embryo is not a human being because of the possibility of twinning. I think it worth mentioning that we are talking about a relatively rare phenomenon and that embryologists agree that fertilization normally represents the beginning of life for an individual. Does the possibility of twinning mean that the pre-implantation embryo ought not to be treated as a human being. It seems clear that the embryo at this stage is as Robby George has stated, "a unitary, self-integrating, actively developing human organism." That it is not certain to be an individual huuman person because it might split into 2 individuals does not mean that the early embryo "is a mere clump of cells." As Patrick Lee has stated: "a distinct, living human individual comes to be with the fertilization of the ovum by the sperm; another distinct, living human individual may be generated from the cells of a single living human individual either by twinning or by cloning." A developing human organism ought to be treated as a person. Bill May's treatment of this issue is at pages 166-170 of his Catholic Bioethics and the Gift of Human Life. One of Patrick Lee's statements on this issue is here. Robby George's statement on cloning addressing this issue (his statement to the President's Council on Bioethics) is here. A statement on this issue by Dr. John Hubert is here

Richard M. 

This could be interesting . . .

Here is a twist, perhaps, on the civil-disobedience issue raised by Cardinal Mahoney's statements on immigration.  Consider this from the San Francisco Chronicle:

San Francisco elected officials, who have tangled with the Catholic Church before, issued a blistering statement Tuesday that calls on the Vatican to overturn its edict [RG:  Does anyone else issue "edicts" anymore, besides "the Vatican"?  Just wondering . . . ] that children waiting to be adopted should not be placed with gays and lesbians.

The Board of Supervisors unanimously passed a nonbinding resolution that takes aim at a statement issued two weeks ago by Cardinal-elect William Levada, the former archbishop for San Francisco who now serves as second-in-command at the Vatican. Levada said Catholic agencies "should not place children for adoption in homosexual households.''

The San Francisco Board of Supervisors wasted little time chiming in, and challenged local church officials to defy the Vatican.

"It is an insult to all San Franciscans when a foreign country, like the Vatican, meddles with and attempts to negatively influence this great city's existing and established customs and traditions, such as the right of same-sex couples to adopt and care for children in need,'' the resolution stated.

Now, I think the Board of Supervisors is and ought to be entitled to voice its views -- which reflect, I am confident, those of many of the Supervisors' constituents -- on this difficult issue in this way.  That said, I wonder if someone committed to the Supreme Court's so-called "endorsement test" ought to disagree with me.

UPDATE: Here is a more measured and thoughtful critique of the bishops' approach to the gay-adoption question, from the editors of Commonweal.  The editors note:

But if the bishops have swallowed a camel and strained out a gnat, leaders of the Massachusetts legislature have done little better. Like the right to speech, press, and assembly, the exercise of religion is given special protection by the Constitution. Whether it is conscientious objection to military service or exempting Communion wine from Prohibition laws, the inviolability of religious belief lies at the heart of the Constitution’s understanding of the limits of government coercion. The state must demonstrate a high and compelling interest before it can circumscribe the free exercise of religion. In many contexts, antidiscrimination law constitutes such an interest, especially where a religious institution is taking public money. [RG:  I'm not sure.  The "secular" good that a religious institution can do with "public money" would seem, at least sometimes, to justify exemptions from non-discrimination norms].  But that is not the case here.

Buckley v. Mahoney, cont'd

Thanks to Rob and Michael for passing on Grant Gallicho's post about William Buckley and Cardinal Mahoney.  My own views -- like, I gather, Michael's, Grant's, and Rob's -- are closer to those expressed in Cardinal Mahoney's op-ed than to those expressed by Buckley here.  (Which is not necessarily to endorse -- on the merits -- the positions on immigration-reform and immigration-related matters that are often proposed by the USCCB, etc.)

That said, and not to be snarky, it really is a bit much -- isn't it? -- to read the condescendingly approving kudos being handed out to Cardinal Mahoney by the same editorial-writers (see, e.g., March 3's "The Gospel v. HR 4437" in the New York Times) who find dangerous, Catholic-inspired breaches in the wall of separation under every bed and who are driven to frothing rage every time a Christian leader suggests that Christians really ought to, say, try to change our abortion laws, or end the government's dysfunctional monopoly in education, or refuse to comply with a state's contraception-coverage mandate.

Buckley v. Mahony

[This is from dot.Commonweal:]

William F. Buckley vs. Cardinal Mahony

March 21, 2006, 11:43 pm

Look at the Right go. Yet another salvo from the National Review shot across the bow of the U.S. Conference of Catholic Bishops. Buckley's conclusion is worth quoting in toto:

President Bush endorsed the House bill and asks the Senate to act on it. He hardly understands himself to be rejecting the canon of Christian behavior towards our fellow men by making the point that free and independent societies have the right to prescribe immigration codes, and need especially to reject such distortions of Christian dogma and practice as invite the wrong kind of attention to appropriate divisions between church and state.


It strikes me as a stretch to suggest that Cardinal Mahony's call for civil disobedience, should the bits of HR 4437 he finds objectionable be signed into law, is meant as an attack on the right of "free and independent societies...to prescribe immigration code." Likewise, no bishops have intimated that President Bush "understands himself to be rejecting the canon of Christian behavior towards our fellow men." The whole canon? Bit much. The concern, I think, is just the part about the works of mercy.

But I should let the cardinal speak for himself.

by Grant Gallicho
_______________
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"Today's Gravest Injustice"

Pope Benedict XVI Calls Abortion "Today's Gravest Injustice"

By John-Henry Westen

VATICAN, March 20, 2006 (LifeSiteNews.com) - In a meeting today with representatives of the Vatican to international organizations, Pope Benedict XVI stressed that respect for the truth is the bases of justice. 
"Relations between States and within States are just in so far as they respect the truth," he said. "When, however, the truth is offended, peace is threatened and rule of law is compromised, then, as a logical consequence, injustices arise."

"These injustices can adopt many faces," said Benedict XVI. "For example, the face of disinterest or disorder, which can even go so far as to damage the structure of that founding cell of society that is the family; or perhaps the face of arrogance that can lead to abuse, silencing those without a voice or without the strength to make themselves heard, as happens in the case of today's gravest injustice, that which suppresses nascent human life."

The Pope concluded by telling the Holy See representatives that through "difficulties and misunderstandings" they "participate authoritatively in the prophetic responsibility of the Church, which intends to continue to raise her voice in defense of mankind, even when policies of States and the majority of public opinion moves in the opposite direction. Truth, indeed, draws strength from itself and not from the amount of consent it arouses."

(More here).

Buckley on Mahony

William F. Buckley responds to Cardinal Mahony's call to disobey the proposed immigration law:

Now the good cardinal, whose motives we must as a matter of Christian forbearance accept as humanitarian, has got to be sharply rebuked by the Conference of Bishops. Begin with the basic question: The writing of the law is a democratic exercise. To call for disobedience to the law is acceptable behavior when such law transgresses upon the city of God. The laws that called for the annihilation of the Jewish race violated the city of God. Proposed laws that would punish citizens who deliberately help to defeat or to circumvent immigration laws aren't inherently defiant of the prerogatives of a democratic community. Cardinal Mahony's contumacy has to be rejected for what it is, never mind what the Senate ends up doing in the matter of formulating fresh rules to enforce policies that have not been enforced.

President Bush endorsed the House bill and asks the Senate to act on it. He hardly understands himself to be rejecting the canon of Christian behavior toward our fellow men by making the point that free and independent societies have the right to prescribe immigration codes, and need especially to reject such distortions of Christian dogma and practice as invite the wrong kind of attention to appropriate divisions between church and state.

Rob