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.

Sunday, April 17, 2005

"Grandparents' Rights"

By Rick Garnett

Here is a news story, from the Christian Science Monitor, about the recent court decision in Washington, striking down a state law that purported to give grandparents a legal right to visitation with grandchildren, notwithstanding the objections of custodial parents. 

As many MOJ readers know, the Supreme Court invalidated (in a confusing set of opinions) Washington's earlier visitation law in a case called Troxel v. Granville.  (Full disclosure:  I authored two amicus curiae briefs in Troxel, arguing that the visitation law was unconstitutional because it failed to respect fit, custodial parents' fundamental right to direct the upbringing and education of their children.  I've also written about the issue.)

To be clear -- and in case my parents or in-laws are worried -- I'm all for close relations between and among extended-family members.  (And I agree with -- for example -- MOJ-er Vince Rougeau, who has explained that our legal regime has often embraced rules and policies that atomize families and isolate individuals).  I do not support, however, laws that authorize judges to override the visitation decisions of fit, custodial, non-abusive parents, merely on the ground that they believe that they know better than parents which relationships and contacts are in the "best interests" of others' children.

Rick

The Moral Theology of John Paul II

By Michael Perry

This new book (2005) has just come to my attention, and I thought that some MOJ readers would be interested in it:  Charles E. Curran, The Moral Theology of Pope John Paul II (Moral Traditions Series).  Lisa Sowle Cahill of Boston College's Theology Department says:  "For all who want a serious, critical analysis in relation to Catholic social tradition and the development of moral theology, this book is unsurpassed."  John Pawlikowski of the Catholic Theological Union concurs:  "No one serious about understanding Catholic social teaching can ignore this work."  The publisher of the book--Georgetown University Press--offers this description of Father Curran's book:

Pope John Paul II is the second longest serving pope in history and the longest serving pope of the last century. His presence has thrown a long shadow across our time, and his influence on Catholics and non-Catholics throughout the world cannot be denied. Much has been written about this pope, but until now, no one has provided a systematic and thorough analysis of the moral theology that underlies his moral teachings and its astonishing influence. And no one is better positioned to do this than Charles E. Curran, widely recognized as the leading American Catholic moral theologian.

Curran focuses on the authoritative statements, specifically the fourteen papal encyclicals the pope has written over the past twenty-five years, to examine how well the pope has addressed the broad issues and problems in the Church today. Curran begins with a discussion of the theological presuppositions of John Paul II's moral teaching and moral theology. Subsequent chapters address his theological methodology, his ethical methodology, and his fundamental moral theology together with his understanding of human life. Finally, Curran deals with the specific issues of globalization, marriage, conscience, human acts, and the many issues involved in social and sexual ethics.

While finding much to admire, Curran is nonetheless fiercely precise in his analysis and rigorously thoughtful in his criticism of much of the methodological aspects of the pope's moral theology—in his use of scripture, tradition, and previous hierarchical teaching; in theological aspects including Christology, eschatology, and the validity of human sources of moral wisdom and knowledge; and in anthropology, the ethical model and natural law. Brilliantly constructed and fearlessly argued, this will be the definitive measure of Pope John Paul II's moral theology for years to come.

New "Religion Clause" blog and Sri Lanka conversions law

By Rick Garnett

Here is a new blog, thanks to Prof. Howard Friedman of the University of Toledo, called "Religion Clause."  There are already a number of interestings posts up.  I was particularly interested in this one:  "Sri Lanka Parliament Considering Bill on Conversions."

Rick

The Catholic Church, Women, Sexuality . . .

By Michael Perry

Colm Toibin, an Irish writer who lives in Dublin, wrote last Sunday in the New York Times Magazine about John Paul II.  Toibin is author of, among other books, The Sign of the Cross:  Travels in Catholic Europe.  In today's NYT Magazine, Toibin writes a short piece about today's Catholic Church--and its future.  To read the whole piece, click here.  Some excerps follow:

The rules that the church still imposes that affect most law-abiding people tend to govern sexuality and gender; they seem difficult to many Catholics because they focus on the matter of how we love and whom we love. A divorced woman falling in love a second time can be denied communion; a gay man who has found comfort, once unimaginable, in love can be excluded from the official church; a couple who use artificial contraception are deemed to be sinful; a priest who wishes to marry must leave; a woman who feels a vocation to the priesthood must live her life with this vocation unfulfilled.
. . .
The slowness of Holy Mother Church, the sense of it as a bastion of distilled wisdom overseen by -- at least most of the time -- unworldly old men, guards it from fashion, gives it the immense solidity that is lacking in, say, the Church of England, which has moved with the times, thereby losing much of its power. But the slowness of the Catholic Church in dealing with the sexual abuse of children and minors by members of the clergy has been very damaging. It has seemed astonishing to the Catholic faithful that the official church did not understand that, for parents, the safety of children is antecedent to all rules and all hierarchies. In its response to these allegations, the church seems to have been truly universal; it behaved as badly in Boston as in Newfoundland as in Dublin as in Sydney, moving offending priests to other parishes rather than reporting them to the police, more concerned with protecting its own reputation than protecting innocent lives.
. . .
If one were to give advice to these grand old men [i.e., the Cardinals, as they elect a new pope,] -- and they are not, I notice, seeking advice -- it would be simple. Find a cardinal who was brought up with many, many sisters, who has a lesbian in the family, a cardinal whose life has been bound up and fully informed by women, who knows the problems and challenges they face in a church where they cannot minister. Even if the next pope and his cardinals were not to change the rule against female priests quickly, it might be important, as acts of witness and of love, to enter into real dialogue with women in the church, and to be seen to listen, to take heed, as St. Patrick did centuries ago, to the other's pain.

 

Saturday, April 16, 2005

William Shea on "The Imperial Papacy"

By Michael Perry

William M. Shea is the director of the Center for Religion, Ethics, and Culture at the College of the Holy Cross.  Shea's reflections, titled The Imperial Papacy, will appear in the May 6th Commonweal.  To read the whole piece now, click here.  Two excerpts:

Many other things must be said about the last papacy, but I have the awful sense that over the past twenty-five years one voice has filled the ecclesial airwaves, leaving little room for any other. Pardon me a hyperbolic metaphor, but in this regard I would say the Catholic Church has been undergoing asphyxiation. I see two large problems in this. I hope the next pope can begin to resolve them, but I have serious doubts that he will be able to do either. Both have to do with governance of the church.

First, the last papacy revealed in acute form what everyone knew already: the Catholic Church is a monarchy. That fact grounds both the achievements and failures of John Paul II. Though the intensity of the monarchical rule depends on factors ranging from political context to the psychological character of the monarch, historical inertia has lead to the centralization of power in the pope and his curial servants and advisors. Though many regard this centralization as having a supernatural root, I do not. To me it has been and remains an unfortunate natural development resting on the myth of Peter and the gradual and willful accretion of political and ecclesial power to the bishops of Rome. This power has been hardened in Catholic doctrines of the papacy and has displayed itself in the popular revival of ultramontanism in the last papacy.
. . .

The second problem the next pope will face is reversing the quality of the episcopate created by his predecessor. That Catholic bishops, like Catholic popes, are and should be men of orthodox catholic faith, well-versed in the classical creeds, conciliar teaching, and the doctrines of the churches of Christ, seems evident. But there is no need for Catholic bishops to be hermeneutical parrots. Bishops, archbishops, and cardinals seem devoted to repeating, without nuance, the never ending stream of papal and curial pronouncements under John Paul. We need bishops with brains and the courage to use them, bishops who believe that their job is to witness to the gospel in their own circumstances without wary and pious eyes cast over their shoulders to “the holy father,” waiting on him for enlightenment. They are appointed to witness to Christ’s resurrection and to serve their churches, not to witness to the papacy and serve it. They should be men capable of telling the pope he is wrong. I am not sanguine about this possibility, although under as powerful men as Pius XII and John XXIII such men were raised to the episcopacy and revealed themselves at the council. The full flown imperial papacy has been in place now for a quarter of a century and one must ask whether reversal is any longer possible and whether the bishops, most of them appointed by the deceased pope, are capable of honest and decent rule of their churches. Surely they are not up to a council and John Paul II could not have abided one.

Virtue, Sin, and Law

By Thomas Berg

I've given Mark's critique of law and economics only a quick read, and even on detailed reading I doubt I'd have anything particularly insightful to say.  However, I was thinking about Steve's argument that (in Mark's words) "law and economics . . . provides appropriate rules for a fallen world" and Mark's response that this conflicts "with the Aristotelian and Aquinean concept of virtue and the conception of civic happiness articulated by . . . Catholic economists."

The virtue-based emphasis of Catholic social thought was also the subject of a talk here at St. Thomas this week by Mark Massa, who teaches theology at Fordham.  (You can listen to the talk here with Real Player; click on the April 15 "Midday" show, and he's the first half.)  Professor Massa argues (as he does in this book as well) that anti-Catholicism in America stems from a fundamental difference between the typically Catholic and typically American (and Protestant) ways of looking at the world.  Borrowing from U. Chicago theologian David Tracy, Professor Massa argues that Catholic thought takes an "analogical" approach to theology, seeing truths about God embodied in things in this world, including the Church.  By contrast, the Protestant groups that set the main course of American thought have taken a "dialectical" approach to theology, emphasizing the distance and divergence between God and the world and the dangers of idolatry that lurk in making analogies between the two.  This attitude tends to bring all institutions, including the Christian Church, under critique, primarily by the individual conscience.  But more to the point here is that the analogical approach tends to emphasize the pursuit of virtue in formulating laws, while the dialectical approach tends to emphasize the pervasiveness of sin and the limited function of law in maintaining a basic social order.  (This should be familiar to those who have studied the social ethics of, say, Aquinas versus Luther (and I'd add Augustine).)

As one who believes in the centrality of "original sin" as a Christian concept, but also is greatly attracted to Catholic social thought (CST), I think and hope that CST -- and indeed any good Christian social ethic -- can give proper weight to both sin and virtue.  That is, development and articulation of legal norms should take into account both the importance of embodying and encouraging virtue and community through law, and the need to adjust law to the pervasive reality of human limitations such as self-interest, lack of knowledge, and so forth.  The most convincing Christian arguments combine the two.  I think, for example, of Reinhold Niebuhr's defense of democracy from Christian premises:  "humans' capacity for justice makes democracy possible, but humans' capacity for injustice makes democracy necessary."  That's just an aphorism -- summarizing the argument Niebuhr made in full in The Children of Light and the Children of Darkness (1944) -- but it exemplifies the kind of double-barreled argument I mean.

I guess that, as a total layman on law and economics, I'd ask how Mark's "virtue" approach makes appropriate room for original sin, and how Steve's "fallen man equals economic man" approach makes appropriate room for "original virtue."  (I can think of answers on both scores, but posing the questions might help frame a discussion.)

Tom

Friday, April 15, 2005

Family Fest

By Amy Uelmen

In case you're interested, the Focolare's international "Family Fest" - is being televised on EWTN, this Saturday April 16 at 3:30 pm EST.  It's a festival of music and the stories and examples of families who are trying to live a culture of life, peace and unity in every point of the globe.  Nine sites in four continents will be linked directly by satellite: Rome, Manila, San Paolo, Toronto, Tokyo, Teheran, Algiers, Johannesburg, Zagreb, and Krasnojarsk (Siberia) - and many others countries will be represented at the gathering in Rome.  The program also includes a special tribute to John Paul II for all that he did to build up and strengthen family life.  (There is also a live Internet linkup beginning at 9 a.m. also on Saturday - www.familyfest2005.org - clink on info internet, and that brings you to the english translation).  Enjoy!

The Case for Conscience

By Rob Vischer

The notion of pharmacists-as-moral-agents has been taking a hit in the media recently.  Ellen Goodman writes that:

The pharmacist who refuses emergency contraception is not just following his moral code, he's trumping the moral beliefs of the doctor and the patient. "If you open the door to this, I don't see any place to draw a line," says Anita Allen, law professor at the University of Pennsylvania and author of "The New Ethics." If the pharmacist is officially sanctioned as the moral arbiter of the drugstore, does he then ask the customer whether the pills are for cramps or contraception? If he's parsing his conscience with each prescription, can he ask if the morning-after pill is for carelessness or rape? For that matter, can his conscience be the guide to second-guessing Ritalin as well as Viagra?

How much further do we want to expand the reach of the individual conscience? Does the person at the checkout counter have an equal right to refuse to sell condoms? Does the bus driver have a right to refuse to let off customers in front of a Planned Parenthood clinic?

A clarification might help dispel some of Goodman's concerns.  I do not favor efforts to shield individual pharmacists from all professional repercussions of their decision-making.  Rather, I support efforts to protect pharmacists and their employers from state requirements that pharmacists ignore moral considerations in their professional conduct.  A robust civil society demands that associations be given space to create and maintain identities that diverge from -- and even defy -- the surrounding society's norms.  (I've explored this idea more fully in an article posted on the right: The Good, the Bad, and the Ugly: Rethinking the Value of Associations.)  If Walgreen's wants to create an environment in which: 1) none of its pharmacists are allowed to dispense the morning-after pill; 2) all of its pharmacists are required to dispense the morning-after pill; or 3) its pharmacists are given discretion to follow their own moral convictions in deciding whether to dispense the morning-after pill, the company should be empowered to make that choice.  The choice should not be trumped by the top-down imposition of collective norms, nor hijacked by the conscience of an individual pharmacist.  If a pharmacist refuses to dispense the morning-after pill, she can be fired, but she shouldn't be brought up before a state agency for discipline.

With this understanding, Goodman's parade of horribles falls flat.  If Walgreen's chooses to tolerate a pharmacist who dispenses drugs based on personal facts about the customer, so be it.  If Walgreen's chooses to tolerate a cashier who refuses to sell condoms, so be it.  Customers can boycott, picket, etc., but they should not be able to invoke the identity-squelching trump of state power.  (The argument applies even more powerfully, in my view, to the mom & pop pharmacy down the street.)

Dahlia Lithick takes on a slightly different angle, making the seemingly reasonable proposition that:

Where the burden can either fall on a pharmacist (who knows in advance of her own moral reservations and is in a position to provide a patient with suitable alternatives) or on an unknowing patient (who may well be pregnant, frantic, poor, and short on time), the burden must properly fall on the pharmacist. Patients cannot have their expectations of timely, professional service undermined by unanticipated bursts of conscientious objection. . . .

These solutions don't force individual pharmacists to undermine their personal religious views. They do place high costs on the drugstores, which would now need to implement fixes such as posted warnings, agreements with other pharmacies, and the hiring of extra pharmacists, even if they can ill afford it. If an individual service provider wants to reserve the right to deny services, they should be free to do so, and if a drugstore wants to employ such a person, they should also do so. But these celebrations of religious conscience should happen at their own cost and never at the expense of citizens requiring services.

My response to Lithwick's proposal is grounded in the distinction between positive and negative liberty.  Throughout this debate, the fact that the state may not obstruct one's access to a product or service is equated with a norm that the state must ensure access to that product or service.  If value pluralism means anything, we should be very careful when we allow negative liberties to give rise to positive liberties.  Could women who want to use the morning-after pill be inconvenienced if a pharmacy allows its pharmacists to refuse to provide it?  Certainly, but that's an understandable outcome of seeking a highly controversial product in a free market.  Putting the burden on non-state actors to ensure that individual consumers are not inconvenienced in their pursuit of such products replaces the mediating structures of civil society with a one-size-fits-all consumerist conception of organizational identity.

Finally, Dan Markel at the new (and excellent) PrawfsBlawg asks the important question:

Why should conscience be given special protection? If you want to be in a particular business, then you have to realize that business is subject to certain state regulations ensuring equal access.  Just as Denny's shouldn't fail to serve blacks, drug stores shouldn't deny medicine to some people when it is available to other people, when the relevant neutral criteria  (ie, a prescription) link the two classes of people.   

I could simply argue that racial equality has become deeply entrenched enough to merit its top-down imposition, even at the expense of associational identity, but of course that wasn't the case at the time of the civil rights statutes' enactment.  Or I could try and distinguish the substance of the two norms: I think race discrimination is bad and should be stamped out, while I'm not sure that universal access to all legal pharmaceutical products is a good thing, especially as technology brings the pharmacist into more morally controversial arenas, notably reproduction and end of life.  But that essentially is a punt, for if I care about a robust civil society, my inclination is to let the marketplace of ideas work it out, not to have my favored norms enshrined as collectively imposed judgment.  For the time being, I'll try and carve out a distinction between anti-discrimination laws, which ensure full participation in the civil society, and access to all pharmaceutical products, which embodies a particular norm contested by participants in civil society.  (I anticipate the response, that access to reproductive care is essential to women's participation in civil society.  I don't completely agree with that, but acknowledge it's a tough point for my case, especially if I'm averse to enshrining collective moral judgments.)

As you can tell, I'm working through these issues myself.  It's an important area, and it's going to get more important.  I'm open to other perspectives and reactions.

Rob

Thursday, April 14, 2005

President Bush and the Poor

By Michael Perry

Which side should we who affirm Catholic Social Thought be on:  President Bush's side?  The side of the 44 Republicans who signed the letter?  Or is Catholic Social Thought indeterminate on this issue--and if it is, what's CST good for?

WASHINGTON (AP), April 14, 2005 -- President Bush's budget centerpiece to squeeze billions of dollars from spending on health care for the poor ran into jeopardy Thursday as 44 House Republicans signed a letter protesting the cuts.

The lawmakers said reducing Medicaid spending over the next five years by up to $20 billion as approved last month by the House ''will negatively impact people who depend on the program and the providers who deliver health care to them.''

[To read the whole article, click here.]

Michael P.

Peggy Steinfels on The Church at This Time of Interregnum

By Michael Perry

As many of you know, Margaret O'Brien Steinfels is, like her husband Peter Steinfels, a former editor of Commonweal; with Peter, she directs the Fordham Center on Religion and Culture.  For her reflections on the Church at this time of interregnum--reflections that will appear in the May 6th edition of Commonweal--click here.

Michael P.

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