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.

Tuesday, November 16, 2004

A "BORN AGAIN" DEMOCRATIC PARTY?

New York Times
November 17, 2004

Some Democrats Believe the Party Should Get Religion

By DAVID D. KIRKPATRICK

Bested by a Republican campaign emphasizing Christian faith, some Democrats are scrambling to shake off their secular image, stepping up efforts to organize the "religious left" and debating changes to how they approach the cultural flashpoints of same-sex marriage and abortion.

Some call the election a warning. "You can't have everybody who goes to church vote Republican; you just can't," Al From, founder of the Democratic Leadership Council, said last week at a forum on the election.

Religious traditionalists including Dr. Richard Land, president of the Ethics and Religious Liberty Commission of the conservative Southern Baptist Convention, and Jim Wallis of the liberal evangelical group Sojourners say Democratic officials are calling them for advice on reaching conservative Christians. And they and some other theologically orthodox supporters of Mr. Bush say it may not take much for Democrats to make inroads among their constituency, if the party demonstrates a greater friendliness to religious beliefs and even modestly softens its support for abortion rights.

"It would not be hard," said the Rev. Richard John Neuhaus, editor of the journal First Things and a conservative Catholic who has advised Mr. Bush on how to handle the issue of abortion.

But Democrats disagree about how to establish the party's spiritual credentials. Some play down the need for changes, saying poorly framed surveys of voters leaving polls are overstating the impact of conservative Christian voters. Others argue that Democrats need to rephrase their positions in more moral and religious language. And an emboldened group of Democratic partisans and sympathetic religious leaders warn that Mr. Bush has beaten Democrats to the middle on social issues like abortion that resonate with religious traditionalists, arguing that the party should publicly welcome opponents of abortion into its ranks and perhaps even bend in its opposition to certain abortion restrictions.

In an interview, Mr. From pointed out that Republicans invited officials who disagreed with the party's position on abortion rights, like Gov. Arnold Schwarzenegger of California and Rudolph W. Giuliani, the former mayor of New York, to speak at their national convention. Democrats should do likewise, he argued.

"I want to win some people who are pro-life, because they probably agree with us on a lot of other things," Mr. From said.

Even that, however, would shock some Democrats. No prominent opponent of abortion has come anywhere near the podium of a Democratic convention since 1992, when abortion rights groups blocked a speech on the subject by Robert P. Casey, the governor of Pennsylvania and an observant Catholic.

"Our platform and the grass-roots strength of the party is pro-choice," said Elizabeth Cavendish, interim president of Naral Pro-Choice America. The party needs more religious language, Ms. Cavendish said, but not new positions.

Many Democrats agree. Citing statistics showing that the incidence of abortion fell under President Bill Clinton and rose under President Bush, they argue that the party can reach religious voters without flinching from its current stance on abortion rights by shifting the debate from the legality to the frequency of the procedure - a reprise of Mr. Clinton's formulation that abortion should be "safe, legal and rare."

"We would like to see fewer abortions and we want our children to learn good values," said Representative Rosa DeLauro, Democrat of Connecticut, a Catholic who has led her party's efforts to reach religious voters and was chairwoman of its 2004 platform committee.

Democrats need to make the case that health care, jobs and sex education can reduce the number of abortion procedures, even without making them illegal, Ms. DeLauro said. At the same time, she said, they need to emphasize the religious imperatives behind "pushing for real health care reform, reluctance before war and alternatives to abortion, such as adoption," as she put it in a letter to Cardinal Theodore E. McCarrick of Washington signed by dozens of Catholics in Congress in the spring.

"An overwhelming number of Democrats are people of faith,'' Ms. DeLauro said. "We need to be more explicit and more public about our convictions and our beliefs."

Democratic partisans are also stepping up efforts begun in the last months of the campaign to rally the churches and religious groups already inclined to take their side. Weekly campaign-season conference calls of progressive Christian leaders have become a forum to plot strategy and coordinate actions, just as they say conservatives have done.

When Mr. Bush named the White House counsel, Alberto R. Gonzales, as his choice for attorney general, for example, liberal members of the Christian clergy immediately convened to plan a statement criticizing Mr. Gonzales for writing memorandums that appeared to support the use of torture, said Tom Perriello of Res Publica, a group that helps organize the calls.

Mr. Perriello said many of the religious leaders involved were also pushing the Democrats to be more assertive in fighting poverty and promoting "social justice" but also to soften their stance on abortion. "There is an interest in finding a middle way," he said. "It predates the election year, but there is a little more willingness to listen to it now."

In the election's aftermath, some Democrats also say their party needs to do more than talk about religion to win more churchgoer votes. They argue that Mr. Bush outflanked Senator John Kerry with carefully drawn positions on abortion and same-sex marriage. Even as Mr. Bush supported an amendment to the Constitution to ban same-sex marriage, he also emphasized tolerance, breaking with his most conservative Christian supporters to repeatedly say he favored allowing states to recognize same-sex couples in other ways, like civil unions.

Mr. Kerry's official position differed only on the need for amending the Constitution, but he seldom brought up the subject. Although few Democrats are ready to give in on the proposed federal amendment, many Democrats and liberal Christians say privately that they may need to distance themselves more forcefully from the idea of same-sex marriage, standing instead near Mr. Bush in support of civil unions.

"Let's not call it marriage," said Mr. Wallis of Sojourners, who addressed religious outreach lunch at the Democratic convention this year. "The culture is not ready for that. The principle is legal protection for same-sex couples. It would take the issue away and that issue wouldn't win or lose elections anymore."

But it is Mr. Bush's careful stance on abortion that has generated the most soul searching. Although he ended federal financing for international groups that provide abortions, he has never explicitly committed to opposing the main abortion rights court precedents. Instead, he refers to the less explicit notion of a "culture of life." And he counts as a major achievement the ban on the type of procedure its opponents call partial-birth abortion, which passed with bipartisan support.

"He lets himself take credit for a hard-line stance on abortion that he has never really endorsed," Mr. Wallis said, arguing that Democrats could "change the whole landscape" by moderating their own position.

Representative Tim Ryan, Democrat of Ohio, argued that in the pivotal Midwest the appearance of inflexibility on abortion rights was a heavy burden on Democratic candidates. Like most Democrats, Mr. Ryan said he supported the court precedents establishing abortion rights, but he argued that the party should relax its opposition to the partial-birth abortion ban, parental notification laws and the bill making it a second crime to harm a fetus when harming a pregnant woman.

"In middle America, how do you argue that killing a pregnant woman is not a double homicide?" he said.

It might take only a few alterations for Democrats to start gaining traction with orthodox Christians, Father Neuhaus of First Things said.

"To be perfectly cynical about it,'' Father Neuhaus said, "what would a leading Democrat, even a Hillary Clinton, have to do? She could come out against partial-birth abortion, she could come out for parental notification. She could begin to represent herself as moderately pro-choice, maybe even with some linguistic sleight of hand, moderately pro-life."

Pollsters say Democrats might well find fertile ground among theological conservatives, if the party could get around those divisive social issues and its secular reputation.

Many conservative Christians who vote Republican because of their views on abortion and same-sex marriage are working class or middle class, and they often hold liberal views on economics, social welfare and the environment, said John Green, a political scientist at the University of Akron who conducts polls on religion and politics. But to reach religious voters, Mr. Green said, the Democrats "have their work cut out for them.''

Some Democrats worry that the party might bend too far to please religious voters. Representative Jerrold Nadler of New York, a Democrat and a Jew, argued that there was no evidence that more people voted "based on faith" this year than four years ago. If Mr. Bush renews his popular calls for federal financing of social services that hired on the basis of religion, Mr. Nadler contended, Democrats still need to oppose it. "If you use federal funding, you can't discriminate," he said. "We can't compromise on that."

Wolfe, Brooks, MacIntyre, and Leff

In today's New York Times, David Brooks reviews Tom Wolfe's latest novel, "I Am Charlotte Simmons," which is about "a young woman who leaves Sparta, a small town in North Carolina, and enters an elite university. She finds all the rules of life there are dissolved: the rules of courtship, the rules of decorum and polite conversation."  Along the way, Brooks observes: 

The social rules have dissolved because the morality that used to undergird them dissolved long ago. Wolfe sprinkles his book with observations about how the word "immoral" now seems obsolete, about how sophisticated people now reject the idea of absolute evil, about a hypermaterialistic neuroscience professor who can use the word "soul" only when it is in quotation marks.

Wolfe describes a society in which we still have vague notions about good and bad, virtue and vice, but the moral substructure that fits all those concepts together has been washed away.

This observation echoes, in a way, the powerful first chapter ("A Disquieting Suggestion") in Alasdair MacIntyre's "After Virtue," in which MacIntyre identified what he regarded as a "moral catastrophe", namely, that the "language of morality is in . . . [a] state of grave disorder," in that, "while "[w]e possess indeed, similacra of morality [and] continue to use many of the key expressions[,]" "we have -- very largely, if not entirely -- lost our comprehension, both theoretical and practical, or morality."  And, turning to this blog's legal-theory focus, both Brooks and MacIntyre would seem to underscore the urgency of Arthur Leff's 1979 essay, "Unspeakable Ethics, Unnatural Law":

All I can say is this: it looks as if we are all we have. Given what we know about ourselves and each other, this is an extraordinarily unappetizing prospect; looking around the world, it appears that if all men are brothers, the ruling model is Cain and Abel. Neither reason, nor love, nor even terror, seems to have worked to make us "good," and worse than that, there is no reason why anything should. Only if ethics were something unspeakable by us, could law be unnatural, and therefore unchallengeable. As things now stand, everything is up for grabs. Nevertheless: Napalming babies is bad. Starving the poor is wicked. Buying and selling each other is depraved. Those who stood up to and died resisting Hitler, Stalin, Amin, and Pol Pot-- and General Custer too--have earned salvation. Those who acquiesced deserve to be damned.  There is in the world such a thing as evil. [All together now:] Sez who? God help us.

Rick

Monday, November 15, 2004

Religion and Politics in The New Republic

Here are two essays, by Gregg Easterbrook and Leon Wieseltier, on the "religion, morals, and the 2004 election" question.  Both are well worth reading.

Rick

DOJ's Annual Capital Punishment Report

Here is the annual report, put out by the DOJ's Office of Justice Programs, on capital punishment in the United States.  (Thanks to the Volokh Conspiracy for the link).  Eleven States and the Federal Government executed a total of 65 persons in 2003 (down slightly from 2002).

Rick

Lawyers, Faith, and Social Justice

I received in the mail today an announcement of an upcoming conference at the Pepperdine University School of Law:  "Lawyers, Faith, and Social Justice:  Our Responsibility to 'The Orphan, the Widow, the Alien,' and 'the Least of These."  (February 4-5, 2005, in Malibu).  The Conference is co-sponsored by Pepperdine's Institute on Law, Religion, and Ethics, and features contributions by, inter alia, MOJers Michael Scaperlanda, Mark Sargent, and Steve Bainbridge -- and also honorary blogger (whether he likes it or not) Tom Shaffer.  Here's an excerpt from the announcement:   

Much of the Mosaic law, the Psalms, and the prophets plead the cause of "the orphan, the widow, and the alien." (Deut. 10:18-19; Ps. 146:9; Jer. 7:6). Indeed, it seems that God judges a nation and its citizens by their care for the neediest among them.

In one of Jesus' last discussions with his disciples, he stated that in the last days, people will be judged by how they care for those in greatest need. "Inasmuch as you have done it unto one of the least of these, you have done it to me." (Mt. 25:40) Other religious traditions have similar admonitions.

Lawyers affect the lives of people at all levels of need. Law practice should lead to greater social justice, but there is a danger that it will lead to social injustice. This conference will explore three ways in which lawyers have a substantial impact on "the orphan, the widow, the alien," and "the least of these."

  • Some lawyers pursue social justice directly, representing those in need in traditional legal aid offices, in criminal defense and prosecutors' offices, and human rights clinics. In an era of shrinking governmental support for such programs, much of the creativity, support, and energy for such programs has come from religious communities. We will hear from lawyers involved, both as volunteers and full-time workers, in some of the most innovative social justice programs created in recent years.
  • In addition, lawyers, as infiuential citizens, officeholders, governmental advisors, and political commentators, have a substantial impact on social policy at local, state, and national levels. They have an opportunity to work for laws that benefit, rather than harm, those in need. We will hear some of the most thoughtful critics of our current social policy discuss directions that might help to empower the weakest among us.
  • Finally, lawyers who represent corporations and other businesses can serve the cause of social justice in their role as wise counselor to their clients, raising social concerns with clients and structuring business arrangements that consider those in need. Might it be that following the lawyer failures of Enron, the corporate bar might return to a day when, as one prominent 1950s Wall Street lawyer said, lawyers were "the conscience of Wall Street?"

For each of these roles, we will consider the life of an historical role model: Dorothy Day, the founder of The Catholic Worker; William Wilberforce, the evangelical member of Parliament who successfully led the fight against the slave trade; and Louis Brandeis, who, prior to his appointment to the Supreme Court, took on many public causes and took, in one client's words, a "judicial attitude" toward his clients.

Rick

Sunday, November 14, 2004

The Election as Viewed From the Vatican

John Allen's on-line report, The Word from Rome, which is part of a regular series on events in the Vatican for the National Catholic Reporter, describes the Vaticans informal talk-around-the-water-cooler reaction to the results of the American presidential election.

First, the election of President Bush, which was brought about at least in part by the approval of voters in key states for his endorsement of moral views that comport with orthodox Christian teaching (i.e., opposition to same-sex marriage and abortion) as sharply (and positively) was viewed by Vatican insiders as standing in sharp and favorable contrast with the apparent European antipathy toward permitting individuals with traditional religious beliefs to hold governmental office. In a recent posting, Rick Garnett noted the recent episode in which Italys minister of European affairs, Rocco Buttiglione, a faithful Catholic who agrees with the Churchs teachings on homosexual conduct as being disordered (while eschewing any legal sanction against it), was excluded from his anticipated appointment to justice minister of the European Union.

Second, Vatican leaders are relieved that the Church will not constantly be confronted by the problems attendant to having a professing Catholic president who by his policies and pronouncements regularly contradicts Church teaching on abortion, stem-cell research, etc. (To the extent that the Vaticans relief is because the Church has been spared the scandal of a pro-abortion Catholic in the White House, I certainly share that sentiment. But the Church is not thereby spared from the difficult work of determining how better to engage with and challenge those politicians who claim communion on Sunday but reject it during the week when faced with sanctity-of-life questions. To be sure, we all now can move forward on those questions with careful deliberation and with somewhat lessened urgency, but the questions cannot be evaded nor in the end are they any less difficult.)

Greg Sisk

Johnson on "the New Gnosticism"

Emory's Luke Timothy Johnson has an article (no link yet) in the current (anniversary edition) of Commonweal.  The article is called "A New Gnosticism," and suggests a "genuine analogy between the situation of the church today and the challenge Gnosticism presented to the church in the mid-second century."  Johnson develops the argument that "four characteristics of contemporary Christian thinking" -- "superior knowledge given by historical consciousness, individualism, preference for the universal over the particular, and for spirituality over religion" -- amount to "a new form of dualism" that "corresponds roughly to the ancient Gnostic dislike of the body."

Obviously, there's a lot more to the article than this summary suggests.  The observation that grabbed my attention, though -- and that seems most relevant to MOJ's subject matter -- is that the "reduced significance of the institutional church in the lives of most Christians" makes the above-mentioned "four characteristics" all the more worrisome.  Certainly, one of the persistent themes in contemporary law-and-religion discussions concerns the role of groups, associations, churches, and institutions in religious-liberty law and discourse.  Johnson's article could add a lot to these discussions.  Find it if you can!

Rick

Consent

Two interesting items on the place of "consent" in legal theory:  First, there is the latest entry in Larry Solum's always enlightening "Legal Theory Lexicon."  Professor Solum explores the reasons why "consent" is thought to have legal and moral force and discusses, among other things, the relevance of virtue theory and "autonomy."

Next (link courtesy of Larry Solum) is this blurb about Peter Westen's book, "The Logic of Consent:  The Diversity and Deceptiveness of Consent as a Defense to Criminal Conduct," which analyzes the varied nature of consent arguments in criminal law and examines the confusions that commonly arise from the failure of legislatures, courts and commentators to understand them.

Rick

Culture Watch

From Zenit:

The Devil and the Deep Blue Sea
Consequences of De-Christianization

LONDON, NOV. 13, 2004 (Zenit.org).- Britain's Royal Navy stirred the waves last month when, for the first time, it gave official recognition to the practice of Satanism. According to an Oct. 24 report in the Telegraph, Chris Cranmer, a naval technician serving on the frigate Cumberland, is now allowed to perform Satanic rituals on board ship. He would also be able to have a funeral carried out by the Church of Satan if he were to be killed in action.

Cranmer is now petitioning the Ministry of Defense so that Satanism can be a registered religion in the armed forces. According to the Telegraph, the Church of Satan was founded in San Francisco in 1966 by Anton Szandor LaVey, author of "The Satanic Bible."

The article quoted a Royal Navy spokesman as saying that Cranmer's unconventional beliefs would not cause problems on board ship. "We are an equal-opportunities employer and we don't stop anybody from having their own religious values," he said.

In an Oct. 26 commentary in the Scotsman newspaper, Bruce Anderson said that naval authorities gave the go-ahead to Cranmer because they feared a lengthy legal action that could have ended up before the European Court of Human Rights at Strasbourg, costing millions of pounds. The government, he said, is at fault for "nervously allowing a rights-based legal culture to intrude upon the armed forces."

Sophie Masson, in a commentary published Oct. 27 in the Sydney Morning Herald, considered the religious implications. The Church of Satan, she noted, says that "we are our own gods." Moreover, they hold that all traditional sins are virtues, that altruism is a myth and that the Christian virtues are just hypocrisy. ...

Any thoughts from our religious freedom scholars?

Saturday, November 13, 2004

Who Is to Judge the Morality of the Iraq War

[From America (americamagazine.org), Vol. 191 No. 15, November 15, 2004.]

Of Many Things

By Drew Christiansen, S.J.

Who is to judge the morality of war? In the lead-up to the 2003 war in Iraq, Catholic proponents of the war, like George Weigel and Michael Novak, repeatedly questioned the right of critics to judge whether the impending war was just. They appealed to the Catechism of the Catholic Church, No. 2309: “The evaluation of these conditions for moral legitimacy belongs to the prudential judgment of those who have responsibility for the common good.”

Though under Catholic social teaching every person and group has responsibility for the common good, the government’s propagandists insisted that the administration alone had the responsibility to judge whether it was morally right to go to war. The opinions of dissenters had no standing. There is an obvious sense, of course, in which public officials bear the primary responsibility to make the key judgments about the morality of a prospective war. Because they exercise the war-making authority, they naturally assume responsibility for moral assessment of the case for war. It does not follow, however, that they are the only ones who have such responsibility.

After World War II, the Holocaust and the Nuremberg trials, we may no longer presume that judgments about the morality of war belong exclusively to those in power. Unquestioning assent to political authority is a vestige of the days when warriors ruled. Just as blind obedience is no excuse for soldiers to fulfill criminal orders, so blind patriotism is no excuse for citizens to go along with a mistaken or trumped-up case for war. Our growing understanding of how the United States and Britain went to war in Iraq suggests that in the future it may be prudent to allow only a weak, prima facie presumption in favor of a government’s moral decision-making role.

The Bush administration’s rush to war, with the complicity of Congress, provides a case study of how incompetence, in the form of poor and mishandled intelligence, combined with ideology, leads to erroneous--if not unscrupulous--moral judgments. As a vehicle for public moral decision-making, our system of government is broken. The reports of the Congressional 9/11 Commission and the Iraq Survey Group have left the central myth used to support the presumption in favor of political authority--that elected leaders know more than informed citizens--in tatters.Millions of people marching in the streets around the world knew better than our elected leaders. Academics and journalists knew better. The pope, the bishops and nearly all the churches in the United States knew better. We must conclude that in the future the presumption for the moral judgment of political authority can be no more than a weak one and that the duty of citizens to make their dissenting judgments public is a weighty one.

At the beginning of the modern era, the Spanish Jesuit theologian Francisco Suárez (d. 1617) argued that military commanders had the obligation to declare their conscientious judgments to the king. In a democracy, we can do no less; and we ought to do more. As Pope John Paul II wrote in his 1982 message for the World Day of Peace, “Rulers must be supported and enlightened by a public opinion that encourages them or, where necessary, expresses disapproval.” The U.S. bishops, in The Challenge of Peace, cited this admonition to urge the public to say no to nuclear war; but the principle has broader application. If we follow the pope’s advice, in the course of democratic policymaking the public has a responsibility to set a limit to the war-making discretion political leaders are allowed.

In light of the war in Iraq, it appears that the catechism’s No. 2309 needs updating. The revision should take into account recent church teaching and the example of the pope, bishops and faithful in opposing war. It should acknowledge the fallibility and the failures of political leaders. Above all, it should affirm the right and responsibility of the public to set a limit in public opinion to the war-making of elected political elites.

Drew Christiansen, S.J., is an associate editor of America.