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.

Friday, November 19, 2004

Reply to Rick and Susan

I agree with the important points you make.  (And not just because I've made the points myself!)

I wasn't able to read the Beinart piece to which Rick linked, because I'm not registered.  I ran into this problem the last time Rick linked us to pieces in TNR Online.  Rick, how about posting a user name and password ...

Michael P.

Common Political Language

Further to Rick's critique of Peter Beinart's New Republic piece, I agree with the notion that Christians are not required to translate their claims into a common political language.  However I would add something to Rick's response.  The assumption behind those who take Beinart's position seems to be that while religious arguments are not grounded in "reason and evidence," i.e., those things accessible to others not sharing one's religion, that all other bases of arguments are somehow commonly accessible.  That is patently not the case.  There are plenty of arguments made (by those on both sides of the political spectrum) that, although not religious in tone, are no more accessible to others than religious arguments, that are little more than "I just believe x."  Indeed, Beinart's piece suggests a good example - nondebatable identity claims - which are not limited to religious folk. Yet I've rarely, if ever, heard any criticism of nonaccessibility aimed at any arguments other than religious ones.

Susan

"Religious" Arguments, Public Debate, and the New Republic

A few days ago, I linked to an interesting post by Professor Eugene Volokh on the place and role of "religious" arguments in discussions and debates about public policy, noting the important work that our colleague Michael Perry has done on the matter.  Well, here is an essay on the same subject, by the New Republic's Peter Beinart (generally an astute and careful observer), that -- although it makes many sound points -- in my judgment misses the mark.  He writes:

It's fine if religion influences your moral values. But, when you make public arguments, you have to ground them--as much as possible--in reason and evidence, things that are accessible to people of different religions, or no religion at all. Otherwise, you can't persuade other people, and they can't persuade you. In a diverse democracy, there must be a common political language, and that language can't be theological.

Sometimes, conservative evangelicals grasp this and find nonreligious justifications for their views. . . .  Such arguments are accessible to all, and thus permit fruitful debate. . . .  But, since the election, the airwaves have been full of a different kind of argument. What many conservatives are now saying is that, since certain views are part of evangelicals' identity, harshly criticizing those views represents discrimination. It's no different than when some feminists say that, since the right to abortion is a critical part of their identity, opposing abortion disrespects them as women. When George Stephanopoulos asked Dobson to justify his charge that Senator Leahy is an anti-Christian bigot, he replied that the Vermont senator "has been in opposition to most of the things that I believe." In other words, disagree with me and you're a racist. Al Sharpton couldn't have said it better.

Identity politics is a powerful thing--a way of short-circuiting debate by claiming that your views aren't merely views; they are an integral part of who you are. And who you are must be respected. But harsh criticism is not disrespect--and to claim it is undermines democratic debate by denying opponents the right to aggressively, even impolitely, disagree. That is what conservatives are doing when they accuse liberals of religious bigotry merely for demanding that the Christian Right defend their viewpoints with facts, not faith. Once upon a time, conservatives knew better. I hope some still do.

Beinart is absolutely right to note that Christian "conservatives" should not equate opposition to the merits of their political and policy views with "anti-Christian bigotry," and that they should avoid "identity politics."  If Christians want to enter the public square, they must expect to be engaged and challenged on the merits. 

Beinart is also right to note (as Michael Perry has), that Christians hoping to persuade others of the merits of their (Christianity-informed) policy positions will often do well to employ a variety of arguments, including not-obviously-theological ones.  But Beinart -- as I read him -- says more than this; he seems to embrace the common-yet-mistaken notion that the rules of a diverse democracy somehow require religious believers to translate their claims into what he calls a "common political language."  Putting aside questions such as, "what is this language?" and "are we sure that, in America, our 'common political language' is not religious?", it seems to me that Christians owe to their fellow citizens -- and this is no small thing! -- not re-packaging, but a good-faith presentation of the reasons that are, for them, persuasive and operative.  The "rules" of a diverse democracy permit such a presentation.

I'd welcome Michael Perry's reactions to the piece.

Rick   

Thursday, November 18, 2004

ISRAEL AS A JEWISH STATE

[Thought this would be of interest.]

Sightings  11/18/04

Israel: Demography of the Land
-- Alain Epp Weaver

Ira Rifkin, in a recent Sightings column ("Theology of the Land," November 4), suggests that for "even liberal religious Jews" the State of Israel's "identity as a Jewish state" is "more important than the mere existence of a state called Israel."  Rifkin's insistence on Israel as a Jewish state echoes an increasingly heard refrain.  But the question of the Jewish nature of Israel becomes more complex in light of current demographic trends and should, I believe, be addressed calmly and forthrightly in future Christian-Jewish dialogue.

Haifa University demographer Arnon Soffer has warned that the number of Palestinians between the Jordan River and the Mediterranean Sea (that is, in both Israel and the Occupied Territories, or the boundaries of British Mandate Palestine), will equal the number of Jews in that land by 2010.  With one sovereign state in Mandate Palestine, former Jerusalem deputy mayor Meron Benvenisti has argued that a bi-national reality already exists, one in which the three million Palestinians of the West Bank and the Gaza Strip are denied citizenship.

Israeli politicians from across the political spectrum view this demographic reality with alarm.  Israeli public-opinion researchers Ephraim Yaar and Tamar Hermann have found that "the strong desire for a separation, even a unilateral one, is connected to a fear among the overwhelming majority of the Jewish public regarding the emergence of a de facto binational state."  The fear of an emerging bi-national reality has been put most pointedly by Israeli Labor party leader Avraham Burg.  "I am not afraid of weapons and terrorism," Burg notes, "I am afraid of the day that all of them [Palestinians] will put their weapons down and say 'One man, one vote.'"

To prevent this perceived demographic disaster, Israeli politicians of the center-right support versions of Ariel Sharon's unilateral disengagement plan, in which Israel fences and walls off Palestinian population centers, potentially allowing Palestinians to call the Gaza Strip and 40 percent of the West Bank a "state," if they so choose.  Some on the Israeli left, meanwhile, believe that a two-state solution to the conflict along the lines of the Geneva Initiative, which would leave Palestinians with closer to 95 to 98 percent of the West Bank and control over parts of Jerusalem, is the way not only to achieve peace but to preserve a Jewish demographic majority within Israel.

Nearly all Israeli Jewish politicians concur in rejecting any significant return of Palestinian refugees to homes and properties inside Israel, arguing that this would threaten the Jewish character of Israel.  That the PLO has continued to call (at least on paper) for Palestinian refugees to be allowed to return to their homes and properties has been taken as a sign that the Palestinians reject Israel as a state.  It is not sufficient, the argument goes, to recognize Israel (as the PLO did in the Oslo accords); one must recognize Israel as a Jewish state, its right to maintain a Jewish majority.

Does the Jewishness of Israel thus consist primarily in a majority of Israel's citizens being Jewish?  It is important to remember that the Jewish state envisioned by the United Nations Partition Plan of 1947 (UNGA 181) would have had a 50 percent Palestinian Arab population.  If Zionism meant the creation of a state with a Jewish majority, then, as Israeli historian Benny Morris has argued, the expulsions of Palestinians in 1948 represented, in Morris's view, a tragic necessity.

Even if a two-state solution, as envisioned by the Geneva Initiative, would miraculously be implemented tomorrow, with Palestinians relinquishing the right of return, what of the Palestinian citizens of Israel ("Israeli Arabs")?  Some demographers suggest that if current birth and immigration rates hold steady, Palestinians might make up 50 percent of the population inside Israel proper by 2050.  Would that mean the end of Israel as a Jewish state?

After the horrors of the Shoah, it is understandable that the idea of Israel as a safe haven with a Jewish majority would be so important to many Jews.  But does the land's holiness, which Rifkin rightly insists is so important to traditional and liberal Jews, depend on maintaining and protecting a Jewish majority by any and all means?  Might not a bi-national future also be compatible with the land's holiness, a future in which Palestinians and Israelis alike both sit securely under vine and fig tree (Micah 4:4)?  Such questions, as difficult and sensitive as they may be, may prove unavoidable in future Jewish-Christian discussions.


Alain Epp Weaver (University of Chicago Divinity School, M.Div. '99) is Mennonite Central Committee representative for Palestine, Jordan, and Iraq.

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Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.

"Mere clusters of cells"

Notre Dame philosophy prof John O'Callaghan shares my reaction to the New York Times editorial on human cloning; he observes that labeling an embryo as a:

"mere cluster of cells" is not a scientific judgment, even if uttered by a scientist, no more so than if a scientist were to look at a painting, Seurat's "A Sunday on La Grande Jatte" for example, and utter the claim "that is a mere cluster of pigments."

We call people like that ignorant, however much specialized training they may have in some field. What we want to know is why it is in fact more than just "a mere cluster of pigments." It stretches the bounds of credulity to imagine praticing scientists doing their jobs in their labs walking around talking about the "mere clusters of cells in my petri dish." In fact, I do not believe many at all would say this. Look at their practice. The very fact that they are in their petri dishes presupposes they are not "mere clusters of cells."

If they were mere clusters of cells, why are they in their petri dish? Why are they so interested in this "mere cluster of cells" and not some other one? Why as a part of good scientific practice do they attempt to use sterile petri dishes in their studies, the sterility of which requires that they eliminate any "mere clusters of cells" from the environment of the petri dish? No. They know that they are studying no mere cluster of cells, but a certain kind of cluster of cells exhibiting a biological unity ordered toward a certain kind of physical development. In their actual scientific practice, they want to know why it is in fact more than just a "mere cluster of cells." One will learn nothing specific about the cloning of human beings by studying a mere cluster of cells that happens to be a labrador embryo, and even less from a "mere cluster of cells" that has no biological unity to it. Indeed, that is why it is even silly to refer to this supposed "mere cluster of cells" as "potential life." It is identifiably a certain kind of life undergoing biological processes of life distinctive of the kind of being it is in the stage of development it is. If it were not such an identifiable kind of life, the scientist would not be studying it.

If someone who happens to be a biologist says that what he is studying is a "mere cluster of cells," he is not speaking or acting as a biologist when he does so. No biologist studies "mere clusters of cells." He is speaking and acting politically. And the history of our culture tells us that when someone starts saying that a living thing is "a mere X" we should watch our wallets, and even more so our backs.

Wednesday, November 17, 2004

Communion and Politicians

Cardinal Theodore McCarrick, who oversees the USCCB Task Force on Catholic Bishops and Catholic Politicians, issued a statement today indicating that the Conference has agreed to take up the matter of Church teaching on the proper disposition for politicians and others to receive communion.  I confess to not being overwhelmingly sympathetic to his complaint about criticisms of the bishops' behavior during the presidential campaign.  To say that "bishops can come to different prudential and pastoral judgments about how to apply our teaching to public policy," is not to say that every public statement made by the various bishops during the campaign is defensible and one can see how the media and the public could have legitimate concern about some of the statements that were made.   

Susan

What Moral Dilemma?

Sometimes it's a bit too easy to pick on the New York Times, but I couldn't let this editorial pass without comment. In urging the UN to reject a proposed comprehensive ban on human cloning, the Times offers the following insight into the debate:

The United States, the Vatican and a slew of developing countries have endorsed a resolution put forth by Costa Rica that would outlaw all cloning, whether for reproductive, therapeutic or research purposes. That is an extreme measure that seeks to snuff out all research on microscopic entities that religious conservatives consider potential babies but scientists consider mere clusters of cells in a laboratory dish.

Under these terms, what right-thinking person could possibly object to the manufacture of embryos for research purposes? After all, embryos are simply "microscopic entities." True, some (crazed) "religious conservatives" consider them "potential babies." (How exactly are embryos not potential babies?) Thankfully, though, "scientists" (that's right, every single one of them) know that these entities are "mere clusters of cells in a laboratory dish." No worries. Don't let the Bush Administration, the Pope, and the "slew of developing" (i.e., backward) countries fool you. Listen to the Times, and let your moral dilemmas melt away . . .

Rob

PARENTS v. THE STATE

[This notice appeared in the online Chronicle of High Education this morning.]

A glance at the November 11 issue of
"The New England Journal of Medicine":
An exception to parental rights in health care

Parents generally have the right to make medical decisions for
their children, but a recent ruling by the Texas Supreme Court
provides a notable exception, says George J. Annas, a professor
of health law at Boston University.

"In the absence of child neglect, parents have the right to give
or withhold consent for medical treatment for their children,"
he writes, but in the case of "Miller v. HCA," the court ruled
that physicians may treat extremely premature newborns without
the parents' consent.

The case concerned Sidney Miller, who in 1990 was born after
only 23 weeks of gestation, barely half the normal term of 40
weeks. Her parents requested before the birth that "no heroic
measures" be taken to save her life, Mr. Annas writes, but the
hospital insisted that it had to wait until she was born and to
allow a neonatologist to decide whether to intervene.

The physician successfully resuscitated the infant, but a few
days later Sidney suffered a brain hemorrhage that left her
severely impaired, both mentally and physically. The Millers
sought damages from the hospital for refusing to respect their
wishes, and a lower court ruled in their favor. But the verdict
was reversed on appeal, and that decision was upheld by the
Texas Supreme Court in September 2003.

"The court concluded that the circumstances of extreme
prematurity were unique because a decision about resuscitation
could not reasonably be made before birth," Mr. Annas writes.

Although Mr. Annas finds the ruling reasonable, he says it is
also troubling because it "implies that life is always
preferable to death for a newborn and thus could be interpreted
in the future to support the neonatologist who always
resuscitates newborns, no matter how premature or how unlikely
their survival is without severe disabilities."

The article, "Extremely Preterm Birth and Parental Authority to
Refuse Treatment -- The Case of Sidney Miller," is online for
subscribers and for purchase here.

RELIGION IN POLITICS

I appreciate Rick's mention, in his posting last night, of my book Under God?  Religious Faith and Liberal Democracy (Cambridge, 2003).  Let me seize the opportunity to say that in my judgment, the best book to date on the subject--the book that comes as close to achieving closure on the relevant issues as any book could--is my friend Chistopher Eberle's Religious Convictions in Liberal Politics (Cambridge, 2002).  No one interested in the "religion in politics" controversy--a group that I now know includes Eugene Volokh--should fail to read Chris's book.  By the way, Chris is spending this year at Notre Dame, writing his second book.  Those of you at Notre Dame should track Chris down and say hello.

Michael P.

Volokh on Religion and "Reasonable" Public Arguments

My friend (and UCLA law professor) Eugene Volokh has two very thoughtful posts (here and here) up about the use of "religious" arguments in the "political" arena, and responding to the (often advanced) argument that only "reasonable" arguments and justifications are legitimate in political debate.  Much of what Eugene has to say is, I think, consonant with the line of argument in Michael Perry's recent book, "Under God."

Rick