Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, July 11, 2005

Laughing at Tulsa

By Rob Vischer

When the New York Times devotes an editorial to events in Tulsa, Oklahoma, you can bet that the editors are not espousing the virtues of midwestern common sense as a template for their readers. It seems that the directors of the Tulsa Zoo voted to supplement a display about evolution with a display about the Genesis account of creation. An ill-advised vote, perhaps. But from the Times' perspective, these votes are the stuff of knee-slapping hilarity:

After the inevitable backlash from bewildered taxpayers warning that Tulsa would be dismissed as a science backwater, the directors "clarified" their vote to say they intended no monopoly for the Adam and Eve tale but rather wanted "six or seven" creation myths afforded equal time. There was the rub: there are hundreds of creation tales properly honored by the world's multifarious cultures, starting with the American Indian tribes around Tulsa.

You want creationism? How about the Cherokee buzzard that gouged the valleys and mountains? And why should Chinese-Americans tolerate neglect of P'an Ku and the cosmic egg at the zoo, or Norse descendants not speak up for Audhumla, the giant cow?

The futility of this exercise was emphatically made clear last week when a crowd of critics demanded reconsideration. With the speed of the Mayan jaguar sun god, zoo directors reversed themselves, realizing they had opened a Pandora's box (which see). In stumbling upon so many worthy cosmogonies, Tulsa did us all a favor by underlining how truly singular the evolution explanation is, rooted firmly in scientific demonstration.

Exactly how is the evolution explanation "truly singular?" Scientists are in an ongoing process of revising, rejecting, and rescinding previous work tracing the evolutionary path. Individuals who strongly believe in evolution strongly disagree about the particulars. And the litany of creation stories cited in the editorial are simply derivations of The Creation Story: the belief that a divine power is responsible for life's origins. It is only disagreement about the particulars that is reflected in the various creation stories. In this sense, we could say "how truly singular the creation explanation is."

Now in all likelihood, the editors meant "truly singular" in the sense of "not religious." And I assume that the many creation stories are more threatening to the editors than the many varieties of the evolutionary pathway because people may be more passionate about the former than the latter (and those believing the former, we assume, are much more prone to unreasonable action than those believing the latter). So as we've seen in our discussion of Noah Feldman's work and the Ten Commandments cases, the specter of divisiveness drives the inquiry. In the Times' view, the existence of many religious beliefs creates an (apparently irrebuttable) presumption that the government-facilitated expression of some subset of those beliefs in the public sphere is illegitimate. Put simply, religious belief is inherently divisive, science is not; organize society accordingly.

To be clear, I would not vote to install a Genesis timeline in the local science museum. But my reluctance stems from my fear that such efforts foster an unnecessary science versus faith tension -- i.e., the notion that kids can believe their science teacher OR they can believe the Bible. I don't, however, buy the suggestion that our society must respond to religious pluralism by pretending in public that no one is religious and allowing science to fill the gaps.

Rob

Sunday, July 10, 2005

An Anthropology of Dependence?

By Rick Garnett

Try to track down Vigen Guroian's essay, "Family Offices:  Teaching Children to Love Being Sons and Daughters," in the July / August issue of Touchstone Magazine.  (Unfortunately, I do not have a link to the essay).  Like everything of Guroian's I've ever read, the essay features beautiful prose and style.  It also -- in the course of suggesting that we ought to teach our children not to despise childhood and dependence, but rather to accept and love them -- has some very provocative and, I think, instructive things to say about Catholic Legal Theory.  After all, as we've discussed often at MOJ, many of our legal doctrines, cultural values, and political premises reflect an anthropology of autonomy, of the "mystery passage," etc.  Guroian explores, in one particular context, the implications of a Christian anthropology that emphasizes both dignity and dependence.

Rick

Dionne on Feldman

By Rick Garnett

E.J. Dionne's review of Noah Feldman's new book, "Divided by God," is available here.  Here's the conclusion:

Feldman does not simply tell a compelling story. He also offers a proposal for bringing peace, or at least a truce, to the current round of religious warfare. "We want to acknowledge the centrality of religion to many citizens' values while keeping religion and government in some important sense distinct," Feldman writes. He proposes a deal between the legal secularists and the values evangelicals. He would "offer greater latitude for public religious discourse and religious symbolism, and at the same time insist on a stricter ban on state funding of religious institutions and activities." His solution, he insists, "would both recognize religious values and respect the institutional separation of religion and government as an American value in its own right." He summarizes his view as "no coercion and no money."

I admire the respectful spirit of the Feldman Compromise. Surely liberals must accept that "religious values form an important source of religious beliefs and identities for the majority of Americans." Religious people have a right to form their political conclusions on the basis of their religious values, and to voice those views in the public debate. He is also right that evangelicals "need to acknowledge that separating the institutions of government from those of religion is essential for avoiding outright political-religious conflict."

But Feldman's solution is easier said than carried out. As the Supreme Court's messy Ten Commandments decisions showed, giving broader latitude for "religious symbolism" can easily conflict with "the institutional separation of religion and government." Feldman would put roadblocks in the way of President Bush's efforts to expand federal financing of faith-based groups. But how, exactly, would the "no money" principle affect government funding for health care provided in religious hospitals or long-standing cooperative ventures between government and religious social service organizations? What does Feldman's solution have to say about the problems at the Air Force Academy, where "religious discourse" by officers higher up in the chain of command had deleterious effects on the religious liberty of cadets who did not share the faith of the brass?

Rick

Euthanasia for babies

By Rick Garnett

An article in today's New York Times says, "[d]utch doctors have proposed a procedure for infant mercy killing.  Is this humane or barbaric?"  Here's more:

One sure way to start a lively argument at a dinner party is to raise the question Are we humans getting more decent over time?  Optimists about moral progress will point out that the last few centuries have seen, in the West at least, such welcome developments as the abolition of slavery and of legal segregation, the expansion of freedoms (of religion, speech and press), better treatment of women and a gradual reduction of violence, notably murder, in everyday life. Pessimists will respond by citing the epic evils of the 20th century -- the Holocaust, the Gulag. Depending on their religious convictions, some may call attention to the breakdown of the family and a supposed decline in sexual morality. Others will complain of backsliding in areas where moral progress had seemingly been secured, like the killing of civilians in war, the reintroduction of the death penalty or the use of torture. And it is quite possible, if your dinner guests are especially well informed, that someone will bring up infanticide. . . .

Our sense of what constitutes moral progress is a matter partly of reason and partly of sentiment. On the reason side, the Groningen protocol may seem progressive because it refuses to countenance the prolonging of an infant's suffering merely to satisfy a dubious distinction between ''killing'' and ''letting nature take its course.'' It insists on unflinching honesty about a practice that is often shrouded in casuistry in the United States. Moral sentiments, though, have an inertia that sometimes resists the force of moral reasons. Just quote Verhagen's description of the medically induced infant deaths over which he has presided -- ''it's beautiful in a way. . . . It is after they die that you see them relaxed for the first time'' -- and even the most spirited dinner-table debate over moral progress will, for a moment, fall silent.

The author's premise -- i.e., that recoiling from the Groningen protocal, or from the notion that a purported desire to "relieve suffering" excuses or justifies intentional, direct killing of human beings, reflects "moral sentiment", not "moral reasons" -- is, it seems to me, entirely (yet typically) incorrect.

Rick

"Markers" for Catholic law schools

By Rick Garnett

Thanks very much to Fr. Araujo for his extremely helpful post on Catholic law schools.  We've taken up, and returned to, many times here at MOJ the question, "what does it mean to be, and what are the markers of, a meaningfully 'Catholic' law school?"  Fr. Araujo's post raises these questions again, and in a very thoughtful way.

He surfaces at least two points that, it seems to me, are clearly correct:  First, to say that a law school cares about ethics, or is committed to social justice, or aspires to intellectual rigor is not to say that a law school is "Catholic" (though, obviously, a Catholic law school should be all of these things), but only to say that a law school is not lousy.  Second, whether or not a law school is meaningfully "Catholic" depends crucially on its faculty and administrators and their ideals and commitments.

Let me propose, as a complement to Fr. Araujo's post, a few more theses, which I hope others will address and criticize:  First, a law school is not meaningfully "Catholic" if Catholic faith and teaching -- broadly understood, of course -- is not present in the school's intellectual and in-class life.  (That is, a chapel, a clinic, a Christian Legal Society, a death-penalty-abolition group . . . a Catholic law school should have all of these, but they are not enough, and they do not make a law school "Catholic").

Second, for a law school to be meaningfully "Catholic" there must be an overwhelming embrace by the faculty -- whether Catholic or not, whether religious or not -- of the idea that it matters, and is a good thing, for there to be in the arena of legal education meaningfully "Catholic" law schools.  (This does not mean, of course, that the faculty will be entirely, or perhaps even predominantly, Catholic, or that there will be agreement on the particulars of what it means to be a "Catholic" law school; it means that there will be agreement that it matters to be a Catholic law school).

Thoughts?

Rick

Saturday, July 9, 2005

Casey v. Santorum on Families, Culture, and Economics

By Thomas Berg

In the Pennsylvania '06 Senate race, presumptive Democratic nominee Bob Casey Jr. (pro-life record, son of former pro-life governor) criticizes Rick Santorum's book comments about two-working-parent families, and the Santorum campaign replies.  With the prospect of the abortion divide significantly reduced in this contest, it will be really interesting -- and I hope rewarding -- to see these two Catholic candidates square off over issues like this:  are average families more threatened by economic pressures or cultural pressures, etc.

Tom B.

Cardinal Schonborn on Evolution

By Rick Garnett

Thanks to Rob for blogging the link to Cardinal Schonborn's essay on Darwinism.  According to the Times, the Cardinal's essay "redefines" the Church's view on evolution by insisting that "[e]volution in the sense of common ancestry might be true, but evolution in the neo-Darwinian sense - an unguided, unplanned process of random variation and natural selection - is not."  (Here is the Cardinal's essay).  Schonborn emphasizes this, from Pope Benedict XVI:  "We are not some casual and meaningless product of evolution. Each of us is the result of a thought of God. Each of us is willed, each of us is loved, each of us is necessary."

Although the Times portrays this essay as representing a significant change, or retreat, my own impression is that the Cardinal's statements were fairly unremarkable.  As Ann Althouse puts it, "[i]t's front-page news, apparently, that the theory of evolution as accepted by the Catholic Church actually envisions a role for God."  If I were more cynical, I'd say the Times was spinning the Cardinal's statement in the service of the Times' own view of the Church.

Dr. Kenneth Miller, author of "Finding Darwin's God," is featured prominently in the Times' story:

"Unguided," "unplanned," "random" and "natural" are all adjectives that biologists might apply to the process of evolution, said Dr. Kenneth R. Miller, a professor of biology at Brown and a Catholic. But even so, he said, evolution "can fall within God's providential plan." He added: "Science cannot rule it out. Science cannot speak on this."

Rick

A bit more on Catholic legal education

By Robert John Araujo, SJ

I would like to thank Susan for raising some issues that emerge from John Breen’s valuable essay and the recent meeting between Catholic educational institution officials and Archbishop Miller. I take the opportunity here to also thank Amy Uelmen for her recent contribution, “An Explicit Connection Between Faith and Justice in Catholic Legal Education: Why Rock the Boat?” Further gratitude must be extended to those who participated in the MOJ discussion this past spring about Catholic (and Jesuit) legal education.

It is clear that information is important to assess the degree to which religious belief, and in particular the Catholic faith, are a part of the daily life at an educational institution as John Allen’s reporting of the meeting with Archbishop Miller indicates. Otherwise, the debate is more reflective of sense (feeling) that may be useful but not determinative of an educational project’s connection with Catholicism and Catholic intellectual life.

About fifteen years ago, I did some research and publication on Catholic/Jesuit identity in the legal academy. This was before websites, so there were no web pages to consult. However, there were printed textual sources, and I wrote to the deans of each of the then thirteen law schools at Jesuit universities for the printed sources explaining the school’s mission, self-identification, and its contribution to Catholic higher education. The responses were diversified. Some schools explained these issues in varying degrees of detail. Others said virtually nothing about the Catholic/Jesuit affiliation. They all addressed something like intellectual rigor and social justice, but I rhetorically ask: what law school stands for the alternatives of a lack of discipline and social injustice? That is why a definition and understanding, even self-provided, of what it means to be a Catholic legal institution is essential.

Of course, who will provide the definition or explanation largely focuses on those who teach and administer the institution. Like others, I have conducted research and engaged in publication on these matters. What happens and what does not at a “Catholic” law school depends on who teaches and who administers the school. And who teaches and who administers is a question that gets into the delicate matter of who is hired and who is not. Amy concludes that it is “well worth rocking the boat” so that students can integrate faith commitment to the future practice of law. The issue of “rocking the boat” when hiring the faculty who teach these students should naturally follow.

I do not have data on this topic, and I am inclined to suggest that it would be extremely difficult to obtain since hiring deliberations are cloaked in privileged communication and privacy laws protection. However, I, like most other participants in and readers of MOJ, have experience as candidates and as members of hiring committees. What does this collected experience suggest about who can teach at a “Catholic” law school and who cannot? For those who teach and administer at “Catholic” law schools will have a profound influence on those who come to learn and on the existence of markers that measure Catholic identity. But if those who are hired have little or no interest in matters Catholic, the Catholic intellectual tradition that most assuredly bears on questions of law and justice and their “fruitful” debate will not have a place to call home.   RJA sj

Friday, July 8, 2005

"Seamless Garment" Nominees?

By Thomas Berg

I share Rick's reaction to Bishop Sklystad's letter to the President on behalf of U.S. bishops concerning Supreme Court nominations:  the letter fails to make the distinction between (a) voting for policies that coincide with Catholic social teaching and (b) finding those policies in the Constitution.  Of course, several of the bishops' emphases are pretty difficult to disagree with as a matter of constitutional interpretation -- for example, protecting "the rights of minorities" and "respect[ing] the role of religion and of religious institutions in our society and the protections afforded them by the First Amendment."  But that's only because those emphases are stated at such a high level of generality as to dodge all the hard questions that the justices must confront in real cases.  On some of the other emphases, the bishops fail to make any connection at all to constitutional provisions or principles -- for example, the emphasis on "ending the use of the death penalty" -- and it seems pretty clear they're just advocating someone who will vote for the right policies.  (Let me add, too, that I want to see the abolition of the death penalty:  see my "Religious Conservatives and the Death Penalty," posted to the right.  But as a matter of policy, not judicial decree.)

On the other hand, Professor Gerry Bradley's criticism of the bishops' letter is less convincing to me.  His problem is not that the letter speaks of policymaking rather than interpretation, but rather that it gets the policy emphases wrong.  In particular, he thinks that the letter "weakens the message on abortion by unfurling the well-worn 'seamless garment'" -- "the term Catholics use to describe it when their leaders water down the pro-life message by lumping abortion with other issues" as Bishop Skylstad does by adding considerations such as "the rights of minorities [and] immigrants," religious freedom, and "ending the death penalty."

This critical reaction, in this context, strikes me as a bit knee-jerk.  I certainly appreciate the argument that in choosing between candidates for office, a voter should always give abortion greater weight than all the other "seamless garment" issues combined.  (I don't agree with the argument when it's stated that categorically, but I can certainly appreciate its force in view of the seriousness of abortion as a moral wrong.)  But the voter usually has only two, maybe three candidates from whom to pick, and sadly in our current political world, one typically has to choose between abortion and several of the other "seamless garment"-type issues like immgrants' rights or the death penalty.  In that context, maybe the anti-abortion candidate is always the lesser of two evils, no matter how inferior or plain bad the opponent is on all other moral issues.

By contrast, President Bush doesn't face such a bipolar choice with his nomination(s).  He has a lot of qualified candidates from whom to pick, almost all of whom think that Roe v. Wade was wrongly decided.*  In that context, assuming the bishops are going to urge consideration of moral issues at all, it seems perfectly legitimate for them urge the President to ask whether the candidate in question will be strong on other moral issues as well as abortion.  Note that the bishops' letter urges first that the nominee "pre-eminently" support the protection of life from conception to natural death.  And note also that some of the other moral emphases in the letter are pretty darn fundamental -- again, "the rights of minorities," "the role of religion and religious institutions in our society," "the value of parental choice in education" -- such that it's questionable to dismiss them as just a "laundry list" as Gerry does.  Bishop Skylstad wasn't asking for someone who would oppose CAFTA or lift the welfare family-cap.

One can reasonably worry that the "seamless garment" idea will dilute the emphasis on abortion in some contexts.  But that does not entail developing an instinctual gag reflex whenever someone brings up other moral issues to consider along with abortion.

Tom B.

* OK, some of Bush's potential nominees may be soft on the protection of life.  But if Bush picks a (non-pro-life) Gonzalez, it surely won't be because the nominee is strong on the other moral issues that the bishops emphasize.

   

The Church on Evolution

By Rob Vischer

Is the Church shifting its stance on evolution? Read the Times' account here.

Rob

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