Susan Stabile said she found that what was missing in some of the critical responses to the Roche editorial in the NYT was the issue of the effectiveness of means. That is, it is one thing to talk the language of life and another thing to enact policies that work to bring down the number of abortions. She also claims that none of the responses in the blog addressed Roche's point that some of the highest rates of abortion are found in countries where abortion is illegal. Both of these points warrant additional discussion.
I disagree with Susan's assessment on several grounds. First, the relationship between the frequency of a certain form of conduct and its legal prohibition is complex. Murder is against the law here in Chicago, but that hasn't kept the Windy City from claiming the dubious distinction of being the nation's murder capital. The country's freeways generally forbid driving over 65 mph, but speeding is common as are the accidents that such behavior causes. Although the exact correlation between an act and its prohibition is inexact, one thing seems to be fairly certain, at least intuitively, and I would venture to say empirically, namely, that if there were no legal prohibition against murder in Chicago or speeding on the highways we would see an even greater occurrence of both. Part of this would have to do with the absence of fear of punishment by the state, part of it would have to do with didactic role of law, a role made all the more significant in a pluralistic country like our own.
Surely other means in addition to legal prohibition are needed if we are to reduce the level of abortion in this country, just as means other than strict murder statutes and speed laws are necessary to reduce murder rates and driving deaths. The issue is truly a cultural one and not merely a legal one. If reducing the number of murders and speeding deaths is truly one's goal, however, it makes little sense to endorse a candidate unwaveringly committed to making murder and driving over the speed limit a constitutional right.
Second, I thought there was a frankly devastating response to Roche's point that one must look at how a candidate proposes to achieve a moral aim that one supports. He pointed out that abortion rates have been lower under pro-choice administrations and that, bearing in mind a candidate's positive qualifications, this effectiveness could lead one to again support a pro-choice candidate for president notwithstanding his pro-choice credentials. The devastating response to this as I understood it was to point out the logical fallacy, post hoc ergo propter hoc. Just because lower rates of abortion have coincided with pro-choice administrations does not mean that the policies of those administrations were responsible for these welcome changes. As Richard Myers noted, a number of other causal factors could better explain this phenomenon.
Moreover, even if this is not the case, isn't it worth asking if being effective is all it’s cracked up to be? Sometimes, isn't it more important to be faithful than to be effective? That is, because we are dealing in the case of abortion with the foundational issue of who counts as a member of our society (i.e. who is a person) perhaps our vote should stand on the principle of the matter rather than on causal arguments open to serious challenge.
Third, Kerry's failure to vote in favor of the ban on partial birth abortion has nothing to do with Roche's argument. More importantly, his point in the second debate that he voted against the legislation because it failed to contain a health exception was pure casuistry. It was the skillful maneuver of a debater, not the clear and principled stand of a politician, even a pro-choice one. His point was "valid" as Susan suggests only if one accepts wholeheartedly the logic and meaning of Roe and its companion case Doe v. Bolton. The statute in question did contain a health exception. It did not contain a health exception as broad as "health" is defined in Doe. As anyone knowledgeable about Roe and its progeny know, Doe eviscerated the seemingly reasonable second and third trimester restrictions on abortion that Roe allowed. Under Doe, "health" includes "age" such that if an eighteen year old says she's too young to have a child, that qualifies as a "health" exception that the Constitution mandates.
Kerry also said in both the second and third debates that abortion is a constitutional right under Roe and that he will only appoint judges that will uphold the Constitution. With this jurisprudential polestar to guide him, one can only guess at the kind of judges Kerry would appoint if we still lived in the age of Plessy v. Ferguson.
Fourth, Susan began her post with the claim that surely no one disagrees with the claim that if one professes the Catholic faith, one must evaluate her political choices in light of that faith. I trust that is true for members of this blog. It remains, however, very much an open question with respect to Senator Kerry. References to his days as an altar boy aside, an honest assessment of his voting record in the Senate indicates that his faith is completely irrelevant to him with respect to this issue. Indeed, far from trying to reduce the number of abortions, he has worked to expand their number, by supporting federal funding of abortions, by trying to make them more widely available for military personnel, by his support of RU486 and in countless other ways. Indeed, an honest assessment of his voting record would lead one to conclude that, notwithstanding the claim that he thinks abortion is a bad thing, he never met an abortion he didn't like. So the problem with Senator Kerry, if we put to one side his rhetorical surplice and cassock, is that he doesn’t share the very goal on which our whole conversation is premised, namely, that reducing the number of abortions is a worthy goal to which we should all be committed.
Here (thanks to ZENIT) is a news account of a "congress held Oct. 7-10 in Bologna" dealing with "the complex and often controversial relationship between politics and faith." The participants included Cardinal Camillo Ruini:
The principal contribution Catholics can make to democracy today, noted Cardinal Ruini, is to defend the transcendence of the human being, notably the transcendence that implies our capacity to know and transform reality. In this sense it is a mistake to imagine that the Church is opposed to scientific progress, as it is often accused of being in conflicts over bioethical questions. But scientific progress should not cut itself off from ethical principles, he added.
Liberty is another important dimension of human transcendence. This liberty, the cardinal said, must respect the principle that the person is an end in himself and should never be reduced to a means. Only by respecting this principle does it make sense to talk of the rights that are common in modern democracy.
Pope John Paul II also contributed to the discussion:
A current threat to this authentic democracy is the tendency to relativism, added the Pontiff. This relativism can lead to the error of thinking that adhering to the truth is an obstacle to the democracy. But the truth as revealed by Christ is a guarantee for the human person of a full and authentic liberty, the Holy Father said. This truth, he continued, is the best antidote against ideological fanaticism, be it of a scientific, political or religious nature.
And, "the common good" was a central theme for the congress:
At another round-table discussion, Ornaghi called on Catholics to contribute to this reorientation of democracy. His call was echoed by another ex-president of the Constitutional Court, Cesare Mirabelli. In an interview Wednesday with Italy's Catholic daily, Avvenire, he explained that Catholics can play an important role by ensuring that democracy pursues the common good of society, rather than the more-limited interests of partisan groups.
Milan's archbishop, Cardinal Dionigi Tettamanzi, also called for a greater attention to the common good in the political process. In his speech the archbishop explained that the Church's social doctrine, based on the Gospel, has an important role to play in providing an anthropological base for democracy.
This anthropological foundation is needed so as to avoid false ideas about the human person, social relations, sexual matters and relations with the world. Democracy should be centered on the person, he argued, but too often it seeks to manipulate or even destroy, instead of fomenting, personal development.
Cardinal Tettamanzi also spoke of a number of dangers for democracy. Among the threats he identified were ethical relativism, populism, and an excessive concentration of media and economic power. He called upon Catholics to help renew the moral and civil conscience of Italy by means of the promotion of values such as solidarity, subsidiarity and respect for the law.
The lay movement, Communion and Liberation, has published a statement on the election, "Elections 2004: A Call to Freedom." (Thanks to Amy Welborn for the link). Here is a taste:
As Americans who have encountered Christ’s victory in the life of the Church, we ask our leaders to guarantee the freedom to make our contribution to the common good, working together with all other citizens of our country through a respectful dialogue. We ask from those in power to allow—if not facilitate—the various societies to exist, flourish, and prosper. The first among these societies is the family and we support and advocate those policies that protect the family, such as respect for human life in all of its dimensions.
From this point of view, we also identify four sacred values that must be respected. First, we seek the freedom of association: the freedom to build structures, places, and institutions where members of our society can live, gather, and be educated. Next, we insist upon the freedom of education, that freedom that breaks every ideological imposition. We seek the freedom to establish relationships of solidarity with others, assisting all those in need. And we desire that our state recognize the principle of subsidiarity: giving the richness of society the first opportunity to establish structures and associations designed to respond to human needs.
Very well stated, in my view. It strikes me that, long after Election 2004 is over, these "four sacred values" will be helpful touchstones in any effort to think about the possibility and content of "Catholic Legal Theory."
I'm re-reading our co-blogger Kathleen Brady's paper, "Religious Organizations and Free Exercise: The Surprising Lessons of Smith," and I've been talking about it with a student of mine. I commend the paper to MOJ readers' attention. Here is the SSRN abstract:
Much has been written about the protections afforded by the Free Exercise Clause when government regulation impacts the religious practices of individuals, and if one looks for guidance from the Supreme Court, the rules are fairly clear. Prior to 1990, the Supreme Court had long employed a balancing approach that afforded - at least in theory - significant relief. Under this approach individuals were entitled to exemptions from laws which substantially burdened religious conduct unless enforcement was justified by a compelling state interest. In 1990, in Employment Division v. Smith, the Supreme Court abandoned this balancing test for all but a few categories of cases. Under the Court's new rule, the Free Exercise Clause does not excuse individuals from compliance with neutral, generally applicable laws that are not intended to burden religious exercise. Relief is only appropriate where laws are designed to thwart religious exercise.
The judicial landscape is much different when one turns to the free exercise rights of religious organizations. Government regulation frequently impacts the activities of religious groups, and clashes between religious organizations and regulators are common. Surprisingly, however, the Supreme Court has never directly addressed the scope of free exercise protections when government regulation interferes with the internal affairs of religious groups. There are cases involving religious organizations, to be sure, but in none of these cases has the Court addressed neutral government regulation that directly impinges upon internal church affairs.
This article begins by identifying three possible approaches to such regulation, all of which can be supported indirectly by Supreme Court precedent. The article then examines the Supreme Court's decision in Smith for guidance in choosing from among them. For some courts and scholars, the meaning of Smith for religious groups is simple: Religious groups, just like religious individuals, are not entitled to special exemptions from neutral state action. For others, however, Smith is not relevant at all to the free exercise rights of religious groups, and they look to other lines of Supreme Court precedent for appropriate standards. My examination of Smith reveals that Smith is not only relevant to an analysis of religious group rights but is also very helpful for choosing among the available options. The opinion in Smith raises a number of issues that clarify what is at stake in making this choice, and its lessons are surprising. When read carefully, Smith supports a broad right of church autonomy that prohibits government interference with internal church affairs regardless of whether the interference is intentional and regardless of whether the activities affected are religious in nature or more mundane matters.
This last claim -- i.e., that "Smith supports a broad right of church autonomy that prohibits government interference with internal church affairs regardless of whether the interference is intentional and regardless of whether the activities affected are religious in nature or more mundane matters" -- is a bold and important one. It also runs, as Kathy recognizes, against the grain of most scholars' understanding of Smith. I need to study the argument more closely, but I'd welcome any additional thoughts that Kathy has on the matter.
Of particular interest (to me) is the focus in this paper on the freedom (and freedoms) of association (and associations), and on the role that mediating institutions play in constructing a "landscape" within which persons can flourish. In fact, Kathy makes a very interesting move, from the Smith decision's focus on the importance of democratic processes in the accommodation and protection of religious, to a discussion of the conditions -- including a vibrant civil society, thickly populated with associations -- that are necessary for such processes to work well. It is also worth noting that the paper closes with several beautiful and evocative paragraphs about religious freedom.
Tne New York Times reported this morning that New York State's Comptroller, Alan Hevesi has ruled that the state's pension system will "recognize a same-sex Canadian marriage in the same manner as an opposite-sex New York marriage.'' Since NY already allows employees to name same-sex partners as pension beneficiaries the practical impact of the ruling is that certain benefits that go to spouses (automatic cost-of-living increases and accidental death benefits) can now be claimed by same-sex couples married in Canada.
Although several municipalities in NY have already determined to recognize Canadian marriages, this is the first statewide program to do so.
I suspect no one here disagrees with the statement of Cardinal George that if one professes the Catholic faith, one must evaluate her political choices in the light of that faith. But what I found missing in some of the responses critical to the Roche editorial is the issue of effectiveness of means, the discussion thread of last week that occasioned my posting of the editorial. Part of the evaluation of political choices in light of faith must be a consideration of how a candidate proposes to achieve the moral aims one supports.
None of the responses, for example, address Roches’s point that some of the highest rates of abortions are in countries where abortion is illegal. If that is true, how can one make the argument that faith compels one to vote for a candidate that proposes to make abortion illegal rather then seeking other means to attempt to bring an end to abortion?
Similarly, pointing to Kerry’s failure to vote for the partial-birth abortion ban (as one of piece cited in response did) ignores the valid point Kerrry made in the second debate. In that debate he expressed his opposition to partial-birth abortion but said he voted against the legislation because it did not contain even a narrowly defined exception for the physical health of the mother, something he believed to be required by the Constitutions. He is not alone in that belief - the three federal courts that have thus far addressed the statute have each held the statute unconstitutional on exactly those grounds.
The point here is not to defend the position of one candidate or the other, but merely to suggest that there is a real evaluative process here that can’t be short-circuited by simply looking at labels and who calls themselves pro-life the loudest.
Still more on issue of Catholics in political life, from Chicago's Cardinal George. Here are (just a) few interesting paragraphs:
The Church’s moral teaching therefore shapes a believer’s conscience as he or she participates in political life. Both officeholder and voter, if they profess the Catholic faith, evaluate their political choices in the light of that faith. Nevertheless, the faith is not sectarian; it supports moral positions in matters of life and death, war and peace, wealth and poverty that can be come to by people of no faith, positions that rely upon the light of right reason.
Catholic concern for the defense of human life, the safeguarding of global peace, the protection of the poor and similar concerns construct what Catholic moral teaching calls “the common good.” It’s a phrase that captures what the preamble to the United States Constitution speaks of when explaining the purpose of the federal union: to “establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare and secure the blessings of liberty.”
Here is a short news article about the Court's decision to review a case involving the constitutionality of the Religious Land Use and Institutionalized Persons Act (RLUIPA). The case presents several interesting questions about enumerated powers and constitutional structure (i.e., questions involving the scope of Congress's Spending and Commerce Clause powers), but also an important and interesting Religion Clause question: Does the Constitution's no-establishment command preclude government from specifically accommodating religion when such accommodations are not (and, they rarely are) themselves constitutionally required? Several scholars, and also Justice Stevens, have expressed the view that such a discretionary accommodation of religion is, in fact, an unconstitutional establishment of religion. This view is, in my judgment, quite mistaken. For a good read on the matter, see Michael W. McConnell, "The Problem of Singling Out Religion," 50 De Paul L Rev 1 (2000). See also this helpful post by Lyle Denniston, at SCOTUS Blog.
Here is the essay referenced by Richard (below), in which Gerry Bradley and Robert George respond to Dean Roche's New York Times op-ed, "Voting Our Conscience, Not Our Religion."
Zenit reported recently that the "Compendium of the Social Doctrine of the Church" will be published on October 25 by the Pontifical Council for Justice and Peace.
