[The item below, from Martin Marty's "Sightings," deals with an issue with which some recent MOJ postings have dealt. --mp]
Sightings 1/31/05
Club
Evangelical -- Martin E. Marty
James Madison, who had a thing or two
to do with constitutional matters in the early republic, wanted a "line of
separation" between "the rights of religion and the Civil authority." At a
recent workshop where I elaborated on that theme, a colleague persuaded me that
my views on this line are "messy." That's not a bad description for what I
think the nation's Founders brought to the matter and what they left us
with. We did not have, do not have, and will not have "absolute
separation," nor will we ever clearly and permanently "solve" issues along that
line. Fierce as one may be (and as I indeed am) about "non-establishment"
of religion and other such issues, it is not realistic to think one can draw an
"absolute" line. A person wanting to do so would start tomorrow by legally
ending tax exemption for religious properties and institutions. Not a
single member of Congress could get re-elected with that in her
platform.
Sometimes cases reaching the U.S. Supreme Court achieve
clear resolutions and definitions, but usually things are messy. That
calls to mind the newest messy-lined case, detailed best in Burton Bollag's
recent story "Choosing Their Flock" in the
Chronicle of Higher Education (January 28, 2005). The article's
subhead says that "conservative Christian groups have forced colleges to allow
them to bar gay students and nonbelievers." But now major institutions are
fighting back. It would be a good time to be a lawyer on either side,
though this is the kind of battle for which the concept of "pro bono" was
invented. Voluntary associations of conservative Christian legal experts
are on the front line. Want to take them on? Be prepared for
rough-and-ready argument. Prefer to side with the opposition? You
must not have met the informed and motivated legal and activist agents of
pro-gay groups.
Barring gays and non- or other-believers clearly
violates institutional rules and, almost as clearly, the laws behind them.
Those rules and laws prohibit discrimination on the grounds of race, religion,
sex, disability, and other factors. Exclusion on the basis of sexual
orientation is barred on hundreds of campuses, especially public ones. And
since almost all private colleges also receive tax funds in one form or another,
the same rules and laws apply there. If the world were not messy, the
schools and the law would simply draw a bold, clear, and unwavering line between
"the rights of religion" and "the Civil authority," and here see the civil side
winning. Ah! But then come profound religious reactions: What
happens to "free exercise" if "we" are not permitted campus locations,
acknowledgments, and sanctions?
You haven't seen anything yet. Wait until the
Muslim student causes get activated on this front. There are, after all,
many "out" evangelical gays and many more closeted ones, and there is room for
debate -- indeed, there is debate -- on this issue among
Christians. But the Muslim rejection of homosexuality and homosexuals is
absolute and vehement. Will the campus laws support them?
The Chronicle story tells of some efforts by
thoughtful leaders, for instance at Ohio State University, where conversations
on this matter occur even when there is no basis for agreement. They are
trying to remain civil and humane across the messy line.
Do not envy the judges who have to decide this
issue as it makes its way up, as it surely will, to the U.S. Supreme Court,
which stands very little chance of getting a "civil" and "humane" response from
publics, whichever way it rules.
Sightings comes from theMartin Marty
Center at the University of Chicago Divinity
School.
I just learned about a new radio program, PROVOKE, which is archived and available on the web. The host--Stephen Spahn, SJ--is a Jesuit priest and currently serves as associate pastor to the parish of The Holy Trinity Catholic Church in Washington, DC. I lifted the following information from the website. To go to the website, click here.
--mp
About The Show
We thought, “wouldn't it be great if there was a program that discussed critical social issues not merely from a pundit's perspective, but from a religious perspective?” Yes, religion--that part of us we aren't always comfortable talking about, yet admit to its crucial importance in our lives. So, we created Provoke radio - intended not only as a forum for reflection, but reflection from the vantage of faith. As you listen to Provoke and visit the website, we invite you to do so from the distinct perspective of your own religious tradition. We'll illustrate how the principles we all embrace--principles found in every religion and culture--can be lived out in every day life. Principles as basic as the Golden Rule, compassion, equality, justice, and a conviction that each individual person has inherent, God-given dignity. Standing on this common ground, we then thought, “Wouldn't it be great if we not only engage people in an exploration of real issues, but offer practical ways to get involved? Wouldn't it be great if we provoke people not merely to thought and reflection…but to action?” To that end, at the close of every show, we mention area programs --faith-based and secular, advocacy and outreach--which are in need of volunteers and support. In addition, you can consult our website database for a more thorough list of such organizations.
About The Host
Father Stephen Spahn, SJ, is a Jesuit priest and currently serves as associate pastor to the parish of The Holy Trinity Catholic Church in Washington, DC. Father Spahn received his Certificat d'Etudes Politiques from the Institut d'Etudes Politiques in Paris, France; B.S. and M.S. degrees in International Politics and Foreign Policy Studies from Georgetown University School of Foreign Service, Washington DC; his M.A. in Philosophy from Fordham University, New York; and his Masters of Divinity and Theology from Weston Jesuit School of Theology in Cambridge, Massachusetts. He recently taught philosophy and political science at Loyola College in Baltimore. His time at Loyola involved work in their Center for Values and Service where he came to know and understand the complicated problems of the Baltimore community. In addition, Fr. Spahn has done case studies of the U.S. foreign policy in the Sudan and has traveled to and worked in Mexico, Haiti, and China among others. Father Spahn serves as the host for Provoke in between all his other ministries!
About The Database
Provokes’s database is meant as a guide to anyone looking for different ways to get involved in social justice, charity, and other worthwhile causes in the Baltimore/Washington DC area. While lengthy and diverse, it is by no means meant to be completely comprehensive. But if you have been provoked to action by our program, this database is a good place to start!
Provoke Radio is brought to you by Radio Mass of Baltimore, www.st-ignatius.net
Reader Jeff Drocco has forwarded an article by Michael Baxter, CSC to serve as a contrast with the James Turner Johnson article discussed earlier. Drocco is concerned by:
Johnson's peculiar assertion that there are actually two distinct (and manifestly incompatible) Catholic just war ethics: one for religious life that deals with "ultimates" and another for secular life that deals with "historical realities." This resonates with Baxter's claim that modern just war theorists are often led astray by an "ideal/real antinomy" that leads to a prevailing philosophy of pragmatism.
During World War II, German prisoners of war often received better treatment than African-American soldiers who were guarding them, particularly when the POWs were being imprisoned Stateside. It seems to me that the Allies knew, certainly late in the war, what kinds of atrocities German soldiers were committing, and they knew that many German soldiers were fiercely committed to Nazism and willing to die for their cause.
Should German soldiers have been subjected to more "extreme" forms of interrogation so that we could have prevented some of the Nazi slaughter? We certainly had more, and better, information about what the Nazis were doing than we have about the plans of today's terrortists. I think it is also fair to say that the evils attributed to the Nazi regime far surpass anything we have yet seen from Islamic fundamentalists, and Germany's capacity to inflict harm was infitely superior to anything Al Qaeda has at its disposal.
Although the Allies were subject to their own serious laspses during the war (Dresden comes immediately to mind), I certainly applaud them for resisting the impulse to stoop to more generally to savagery in order to combat it. I say this despite the fact that I have a great uncle who ate outside while German POWs were served at table. The fact that he was often mistreated and dehumanized in his own country did not in his mind justify mistreating the Germans.
Corporate law scholar (and blogger) Larry Ribstein has a new paper, "Partnership Social Responsibility," that will be of interest to many MOJ readers. Our colleague Steve Bainbridge discusses this paper, and others, here. I should add that Professor Ribstein also provides helpful movie reviews. In this post, for example, he ties together the wonderful movie "Groundhog Day" with the corporate-governance debate.
I've received a lot of e-mail in response to my earlier post, and to my question, "is it the case that an appropriate respect for human dignity absolutely rules out all interrogation tactics -- employed, let's assume here, on persons who are being otherwise humanely treated, where there is a reasonable basis to believe the persons have information about potential or past terrorist attacks -- designed to 'break a suspect's reliance on God'?" I'd welcome more reactions.
I should note, by the way, that Marty Lederman -- a top-flight lawyer who is, I'm sure, already familiar to those in the law-blog world -- has contributed an enormous amount of work over at Professor Jack Balkin's blog on the questions surrounding the interrogation tactics used at Guantanamo, in Iraq, and elsewhere. Check it out.
I also asked for, and was pleased to receive, Professor John Finnis's thoughts on the matter:
. . . There's nothing per se wrong with trying to shake a person's faith in God, if it is a false faith (and provided one isn't intending to replace it with a false belief such as that there is -- or may well be -- no God or no divine will and providence for human beings). If he thinks God is telling him to blow down the Twin Towers, or that his own scheme to do so has divine blessing or will be divinely rewarded, then trying to undermine and overthrow that faith is not per se wrong. The question then becomes one about means. If women behave towards prisoners with the intent to suggest that fornicating with them would be a good thing, or is an available possibility, that's an immoral means. If women behave towards prisoners with the intent to suggest that the prisoners' faith-guided belief that women are not equal to men, or ought to have no place outside the home, is a false faith, whose falsity is a clue to the falsity of their faith-guided decision to blow down the Towers and to maintain silence about that plan in interrogations, then I don't see anything wrong with their so acting. (I'm talking per se wrong . . . . What I've said has to be qualified by adding that, as always, one has to consider side-effects as well as what's intended, and so, if e.g. atheism and/or lust are likely side-effects, in the prisoner, of what one is doing, one needs to satisfy oneself that bringing about or risking these unintended but foreseeable and bad consequences is not unfair. I don't see why it should be thought to be so in cases where innocent people are at serious risk from the prisoner's or his colleagues' activities and there is a good chance that shaking his false faith will significantly diminish that risk.
Professor Gerard Bradley adds: "In addition to what [Professor Finnis] says, it might further clarify matters to consider whether it would be right to limit a Muslim prisoner's diet in such a way (mostly pork?) that he is eventually sorely tempted to give in, eat the forbidden food, recognize that by doing so he is a pretty poor Muslim, and maybe abandon his faith in jihad, and maybe in Allah altogether. Unlike the case of female interrogators, we would here be going beyond refusing to adjust our practices (which presuppose equality of the sexes) to suit Islam, and acting so as to induce a kind of conversion. I think this [tactic] -- consciously feeding the guys pork to break him -- might be wrong, as manipulation if not coercion in matters religious."
Professor Larry Solum -- who runs, among other things, the invaluable Legal Theory Blog -- says: "I would think that such tactics [i.e., questioning aimed at breaking a suspect's "reliance on God"] are inconsistent with the liberty of conscience and hence are (prima facie) contrary to the duty of respect for individual dignity owed to all humans. You can make the usual consequentialist arguments about dire circumstances. An interesting variant of the question concerns how one ought to treat this issue from within particular religious conceptions, GIVEN the assumption that the particular individual is NOT IN FACT relying on God, but is instead (perhaps unintentionally) relying on evil in religious garb."
I have a quick follow-up to Rick Garnett's post on Catholic legal education from a few days ago. I think the most useful starting place in these discussions is to reflect on Ex Corde Ecclesiae, the Apostolic Constitution on Catholic Universities. The title conveys an important insight. Many in Catholic institutions of higher education view themselves as independent of the Church and envision their task as somehow providing a bridge between the Church and the world (of higher education). Ex Corde's orientation is totally different. The Catholic university is born from the heart of the Church. The Catholic university is not somehow independent of the Church, it is a part of the Church. A university that wants to stop calling itself Catholic is of course in a very different position. But a university that wants to claim a Catholic identity is properly viewed as part of the Church and as Rick notes is necessarily committed to the cause of the truth and to the supreme Truth, who is God (as Ex Corde states in paragraph 4). It does this not with fear or embarassment but with enthusiasm and with an awareness that it has been preceded by Jesus Christ--the Way, the Truth, and the Life.
The Catholic university is one of the principal means through which the Church engages modern culture. In so doing, the Catholic university must, according to Ex Corde's paragraph 13, have 4 essential characteristics: "1. A Christian inspiration not only of individuals but of the university community as such; 2. A continuing reflection in the light of the Catholic faith upon the growing treasury of human knowlesge, to which it seeks to contribute by its own research; 3. Fidelity to the Christian message as it comes to us through the Church; 4. An institutional commitment to the service of the people of God and of the human family in their pilgrimmage to the transcendent goal which gives meaning to life."
A Catholic law school ought to begin reflections on its identity by considering the extent to which it is being faithful to this charge.
Vincent discusses (below) a news story about disturbing, sexually charged interrogation tactics employed on Muslim detainees at the U.S. prison camp in Guantanamo Bay.
I assume we all agree that respect for human dignity should constrain the activities of interrogators (and, indeed, all government officials), even (especially?) in war time, even in cases involving persons who -- like many of the Guantanamo detainees, I imagine -- mean us harm, and certainly without regard to whether persons "look Western." (I'm confident -- though I understand that some of my colleagues disagree -- that the relevant officials in our government endorse these propositions, too).
Now, because we live in politically charged times and these are sensitive topics -- and because, in the academy and in the public square, it seems that people are often inclined to misread those with whom they disagree -- I want to emphasize that I do not at all endorse, condone, defend, or approve of the tactics described by Vincent or recounted in the news story to which I linked above. That said, I would welcome thoughts on what I intend to be a serious question:
Putting aside the specific sleazy tactics at issue in Vincent's post, is it the case that an appropriate respect for human dignity absolutely rules out all interrogation tactics -- employed, let's assume here, on persons who are being otherwise humanely treated, where there is a reasonable basis to believe the persons have information about potential or past terrorist attacks -- designed to "break a suspect's reliance on God"?
Now, it seems clear to me that forcing someone -- anyone -- to perform an act or profess a belief against conscience or obligation, even in a pressing interrogation setting, should be off the table. (Am I right about this?) Let's put aside such tactics. But is it the case that the purpose or desire to "break a suspect's reliance on God" -- where there is reason to believe that the suspect's "reliance on God" is strengthening the suspect's resolve not to provide information that, let's assume, the interrogator is within her moral rights to want -- itself renders an interrogation practice immoral? For example, does it violate our obligation to respect human dignity to use female interrogators to question strictly observant Muslim suspects? If not, does the answer change if the reason for using female interrogators is a hope that using women questioners will "break the suspect's reliance on God"? If the answer does change -- and I cannot help thinking that it might -- can we articulate why it changes?
The 60th anniversary of the liberation of Auschwitz and the recent controversies surrounding the confirmation of Alberto Gonzales made me think once again of Hannah Arendt's powerful words. The Associated Press reported yesterday that Muslim prisoners at Guantanamo Bay have been subjected to interrogation practices designed to "break [their] reliance on God." In particular, suggestively dressed female interrogators told Muslim male prisoners that they were menstruating, reached into their panties and pretended to smear menstrual blood on the men's faces. Muslim men are forbidden from touching a woman during her period. Doing so make them unclean and unfit to address God. After the "blood" was smeared on their faces, the prisoners were informed that the water had been turned off in their cells.
I suppose our government would not consider this torture, certainly not for the unter-menschen who are housed in Guantanamo Bay, and who might possibly be harboring plans to harm Americans. How do we define human dignity and respect for human life? Is there a sliding scale based on what we think someone might be planning to do? Do Americans get to decide how human beings get to be treated based on our perceptions of potential threats to American lives and interests? Are people entitled to higher levels of respect for their dignity simply because they are American or, more generally, because they look "Western"?
Our government has adopted an interesting philosophical perspective on the dignity of the human person. The end justifies the means.
