The indispensable Legal Theory Blog has worthwhile posts up, by the University of San Diego's Steve Smith and Larry Solum, on the Justice Thomas / Natural Law / public reason issue, which I mentioned here a few days ago. Here is Larry Solum's original post, commenting on the question "whether it is proper for a Supreme Court justice to argue that the underlying moral foundation for the constitution is religious in extra-judicial discourse." It is tempting simply to cut-and-paste the entire discussion, but I won't. (Go check it out!). One of Solum's conclusions is that, "few exceptions, Supreme Court opinions should include only public reasons." However, Solum is careful to note (as, unfortunately, many who write and comment on these matters are not) that "[t]he best ideal of public reason does not equate the line between reasons that are public and reasons that are nonpublic with the line between reasons that are religious and reasons that are secular."
Larry also posts Steve Smith's response. Steve notes that "discussions [about public reason and religion] always provoke a couple of questions in my mind:
1. Were Thomas Jefferson and the other signatories of the Declaration of Independence behaving badly when, acting as founders and statesmen and not as preachers or even private citizens, they made the statements that provoke this discussion-- e.g., that our rights are attributable to a creator, etc.? Is this what the critics of Thomas believe? Is it what Rawlsian are forced to say, or perhaps eager to say?
2. Is it the current consensus that when Justice Douglas, writing for the Court in Zorach v. Clauson, famously said that "we are a religious people whose institutions presuppose a Supreme Being," was he (a) just plain wrong, or (b) saying something he should not have said as a Justice and for the Court, or (c) both?
Larry answers both of these questions in detail. For my own part, I'm inclined to think -- with respect to the first question -- that the Declaration signers were not "behaving badly" (i.e., not violating political morality), and not only because (as Larry observes) theistic claims and premises fit comfortably within the zone of "public reason" of the 18th Century. (I can imagine coming to a different conclusion, had the signers' theistic premises been more denominational and sectarian.) But, with respect to the specific kinds of public claims the Founders made, and the premises they appear to have endorsed -- that is, claims and premises having to do with, for example, the connections between basic human rights, the existence of God, the knowability of certain moral truths through reason, the dignity of the person as a creature of God -- it seems to me that they must always be acceptable in public political and judicial discourse. They are acceptable, and any attractive theory of political morality will permit and welcome them, because they are powerful on the merits, and not only because they are widely shared at a particular moment in time. No worthy political discourse, in my judgment, could exclude such claims and arguments, and so any theory of political morality that purported to require their exclusion should be, for that reason, a non-starter.
Rick
Wednesday, December 15, 2004
As noted in a post by Rick a week or so ago, the 2005 omnibus appropriations bill contains a provision denying federal aid to states and localities that compel health care providers, facilities or insurance companies to provide, fund or refer abortion services.
Today, the National Family Planning and Reproductive Health Association (NFPRHA) filed suit in the federal district court for the District of Columbia, seeking to block enforcment of the provision. According to the description of the lawsuit I read (I have not yet read the complaint), plaintiff argues that the provision is not consistent with federal rules for the Title X family planning program, which requires organizations receiving funding under the program to refer women to abortion services upon request. A copy of the complaint and other information relating to the lawsuit can be obtained here. (Thanks to both Teresa Collett and to Kim Daniels for sending me the link).
Susan
A survey of 151 Catholic institutional investors conducted by the Christian Brothers Investment Services, Inc. (which manages over $3 billion for Catholic institutions) found that the top ten concerns of such investors in 2004 were: (1) abortion; (2) environmental justice; (3) pornography and universal access to health care (tied at #3); (4) military weapons contractors; (5) fetal tissue/embryonic stem cell research; (6) violence in the media: (7) responsible operations in the developing world; (8) sweatshops/contract supplier terms: (9) sexually explicit material in ther mainstream media; and (10) affordable AIDS drugs in developing countries.
The 2004 findings show some change from a similar survey conducted in 2001. Although abortion, stem cell issues, sweatshops, health care access and military were high concerns in both years, pornography went from #10 in 2001 to #3 this year and violence in the media was not listed as a top ten concern at all in 2001.
The survey also finds support the active use of shareholding - through proxy voting and restriction of certain investment - to voice these concerns. (The survey is reported at plansponsor.com. Your need to register, but it is free.)
Susan
William Safire points out that the debate over embryonic stem cell research is bypassing the federal government, as states and universities clamor to follow California's lead and get their share of this 21st century "gold rush." Supporters of the research (like Safire) may hold this out as an example of subsidiarity in action; skeptics (like me) will remind supporters that certain absolutes, such as the sanctity of life, are not be devolved to local communities for redefinition, no matter how enthusiastic our embrace of subsidiarity might be.
Rob
Tuesday, December 14, 2004
Two recent news reports (both emanating from the same reporter) offer a bit of insight into the Vatican's efforts to formulate a policy on homosexuals as priests. One states that:
The Vatican has confirmed several times that men with homosexual sexual orientations should not be ordained. The December 2002 bulletin of the Vatican's Congregation for Divine Worship and the Sacraments contained a letter signed by Cardinal Jorge Medina Estevez, who has since retired as the head of the Congregation, which said ordaining such men would be imprudent and "very risky."
A prominent Vatican document dealing with the issue was released as early as 1961. The 1961 document from the Sacred Congregation for Religious prohibits the admission of homosexuals to the diocesan priesthood and religious orders. The document states: "Those affected by the perverse inclination to homosexuality or pederasty should be excluded from religious vows and ordination," because priestly ministry would place such persons in "grave danger".
. . . .
Commenting on the coming document which has been more than five years in the making, Bishop Nienstedt said, ""I think it's going to be a balanced document, because the whole question of homosexuality not only has psychological dimensions but also has varying degrees of a person acting out or not acting out." He added, "So the whole question has to be nuanced considerably: 'What is homosexuality?' 'What are the homosexual attractions?' and that sort of thing. I think this document will be helpful because it is going to address those questions."
(Thanks to MOJ reader Jason Adkins for the link.)
The other suggests:
The document on homosexuality has been in the works for more than five years. An early draft of the document took the position that homosexuals should not be admitted to the priesthood; in its current form, the document takes a more nuanced approach to the whole issue, sources said.
(Thanks to Teresa Collett for the link).
Rob
Welcome, Patrick, to the blog. Like your fellow bloggers--indeed, like MOJ readers generally--I'm eager to read your further contributions.
Michael P.
Pat Brennan responds to Tersa's last post as follows. (By the way, Pat, the John F. Scarpa Chair of Catholic Legal Studies at Villanova, will be joining our team of blogistas shortly)------
I appreciate Teresa's clarification of the point of engagement with M. Perry on the question of "sin;" a neophyte blogger, I guess I hadn't seen the whole context. With that point of engagement clear, I can say that I can readily imagine circumstances in which individuals acting authoritatively in the name of the Church could sin against men by excluding them from the priesthood, either one by one or through the adoption of a "policy," on the ground of their being "homosexual." This is not because anyone has a "right" to claim the office of ministerial priesthood for himself in the abstract (see CCC sec. 1578), but because the Church's role and responsibility is to determine "who is called to it [the sacrament of Holy Orders] by God'' (ad illud fit a Deo vocatio). The task that this traditional theology sets the Church is the one of discerning God's will; a person or regime that supplants that inquiry with one into more straightforwardly "managerial" concerns risks sin against those whose divine calling goes unacknowledged by the Church and is thus frustrated. If we are to maintain a sacramental theology that teaches that the question is "whom God calls," we cannot be content with policies and platforms that would cut off this inquiry in the name of all the reasons recent history has made painfully clear.
Furthermore, I do not understand the Catholic tradition to have taught that God does not call homosexual men to ministerial priesthood. Of course, this modern way of framing the issue was perhaps subsumed in the traditional, psychologically less-nuanced inquiry into a person's suitability to function in ministerial priesthood, but this latter point remains to be made - and most of us know so many homosexual men who are exemplary priests that this point would seem hard to establish. Also of course, the tradition is developing, and it could be that we are now seeing for the first time clearly that a man's being a "homosexual" prevents him from truly "imaging" Christ. The tradition has been clear, as Teresa points out, that women and men image the triune God differently and complementarily. I do have some inchoate (if inarticulate) insight into the difficulty of trying to separate a person's anatomy from his or her unchosen desires for purposes of sorting out the "imaging" metaphysics, but it seems altogether important that, so far as I am aware (and I stand to be corrected), in two-thousand years the Magisterium has not in its sacramental theology of discernment of priestly vocation taught that homosexuality (which current understanding acknowledges is not necessarily an all-or-nothing state) precludes such imaging. Pope John Paul II's theology of the nuptial meaning of the body perhaps suggests a new direction in sacramental theology of the priesthood, but that question should be separated from the one about what should be done in order to restore the (American) priesthood to the regular fidelity to chaste celibacy to which the Church has called its priests for nearly a millennium.
Finally, I'm aware that I could appear guilty of a kind of sacramental naivete and in need of a little "sacramental realism." My objection to the kinds policies I'm reading about depends on the Church's role's being one of discerning God's will (and the Church's having not taught as a matter of sacramental theology that homosexual men are disqualified from priesthood). Judgments of suitability, which are required by sacramental theology, can operate as a cover for a regime that decides rather discerns who is called to priesthood. But I remain hopeful that, at Rome and in the particular churches, those with the power to ordain are looking for those whom God calls as His priests.
