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.

Sunday, September 19, 2004

When You Care Enough to Send the Very Best

If you're harboring any doubts over the degree to which Planned Parenthood relishes the opportunity to transform the culture, check out the organization's suggested paths of individual activism in the abortion rights battle for hearts and minds. (Thanks to Evangelical Outpost for the link.) These are among the more egregious suggestions; I couldn't let them pass without some interpretive commentary:

"Talk to your clergy about pro-choice topics; encourage them to play a leadership role on these issues in the community and suggest they give a sermon on the ethical value of choice on every Mother's Day or Roe anniversary." (The tough part for ministers, of course, is finding a Gospel passage on which to build this particular Mother's Day sermon.)

"Bring up reproductive rights with your friends and family, including your children. Be loud and proud in your perspective." ("See Johnny? Now do you understand how lucky you are to have been born at all?")

"Ask obstetrician/gynecologists whether they provide abortions and patronize only those who provide the full range of care to their patients." (Individual choice is sacred, of course, except when it comes to physicians, for whom there is only one acceptable choice.)

"Send pro-choice greeting cards for holidays, birthdays, Mother's Day." (Nothing says "I love you, Mom" like a Mother's Day card extolling the virtues of abortion on demand.)

Rob

Friday, September 17, 2004

A Quick Thought on Myers's Statement

I am sympathetic to Archbishop Myers's position, and agree with him that it is probably a mistake to conclude that a candidate's support for abortion rights, and for public funding of abortion, can be excused, or outweighed, by his right stand on, say, social-welfare policy, capital punishment, military action, or health care. That said, I wonder if the Archbishop is right to omit from the candidate-selecting calculus the likelihood that the candidate's right (or wrong) position on abortion will "make a difference" in the real world of policy-making?

For example, I've heard people say (things like) "I will overlook my candidate's wrong position on abortion because there's no hope of changing things in a pro-life direction, but I can still hope for more family-friendly workplace programs or a more peace-oriented foreign policy." Similarly, one could imagine overlooking an otherwise attractive candidate's pro-abortion views in a mayoral or school-board election. It seems to me there should be some room in a conscientious Catholic citizen's decisionmaking for such prudential and predictive considerations. (On the other hand, such a citizen might also want to consider the "message" that an abortion-rights candidate -- particularly an abortion-rights Catholic candidate -- sends, or that a pro-life candidate sends, even in a situation where the legal regime governing abortion is not likely to change).

Now, in my view, it is not the case (except in the most local election) that a candidate's position on abortion makes no difference. Still, I would have liked for Archbishop Myers to address this additional factor.

Rick

Agree? Disagree?

[From today's Wall Street Journal.]

Pro-choice candidates and church teaching.

BY ARCHBISHOP JOHN J. MYERS
Friday, September 17, 2004 12:01 a.m. EDT

Amid today's political jostling, Catholic citizens are wondering whether they can, in conscience, vote for candidates who support the legalized killing of human beings in the embryonic and fetal stages of development by abortion or in biomedical research.

Responding to requests to clarify the obligations of Catholics on this matter, the Congregation for the Doctrine of the Faith in Rome, under its prefect, Joseph Cardinal Ratzinger, released a statement called "On Worthiness to Receive Holy Communion." Although it dealt primarily with the obligations of bishops to deny communion to Catholic politicians in certain circumstances, it included a short note at the end addressing whether Catholics could, in good conscience, vote for candidates who supported the taking of nascent human life in the womb or lab.

Cardinal Ratzinger stated that a "Catholic would be guilty of formal cooperation in evil, and so unworthy to present himself for Holy Communion, if he were to deliberately vote for a candidate precisely because of a candidate's permissive stand on abortion." But the question of the moment is whether a Catholic may vote for a pro-abortion candidate for other reasons. The cardinal's next sentence answered that question: A Catholic may vote for a pro-abortion Catholic politician only "in the presence of proportionate reasons."

What are "proportionate reasons"? To consider that question, we must first repeat the teaching of the church: The direct killing of innocent human beings at any stage of development, including the embryonic and fetal, is homicidal, gravely sinful and always profoundly wrong. Then we must consider the scope of the evil of abortion today in our country. America suffers 1.3 million abortions each year--a tragedy of epic proportions. Moreover, many supporters of abortion propose making the situation even worse by creating a publicly funded industry in which tens of thousands of human lives are produced each year for the purpose of being "sacrificed" in biomedical research.
Thus for a Catholic citizen to vote for a candidate who supports abortion and embryo-destructive research, one of the following circumstances would have to obtain: either (a) both candidates would have to be in favor of embryo killing on roughly an equal scale or (b) the candidate with the superior position on abortion and embryo-destructive research would have to be a supporter of objective evils of a gravity and magnitude beyond that of 1.3 million yearly abortions plus the killing that would take place if public funds were made available for embryo-destructive research.

Frankly, it is hard to imagine circumstance (b) in a society such as ours. No candidate advocating the removal of legal protection against killing for any vulnerable group of innocent people other than unborn children would have a chance of winning a major office in our country. Even those who support the death penalty for first-degree murderers are not advocating policies that result in more than a million killings annually.

As Mother Teresa reminded us on all of her visits to the U.S., abortion tears at our national soul. It is a betrayal of our nation's founding principle that recognizes all human beings as "created equal" and "endowed with unalienable rights." What evil could be so grave and widespread as to constitute a "proportionate reason" to support candidates who would preserve and protect the abortion license and even extend it to publicly funded embryo-killing in our nation's labs?

Certainly policies on welfare, national security, the war in Iraq, Social Security or taxes, taken singly or in any combination, do not provide a proportionate reason to vote for a pro-abortion candidate.

Consider, for example, the war in Iraq. Although Pope John Paul II pleaded for an alternative to the use of military force to meet the threat posed by Saddam Hussein, he did not bind the conscience of Catholics to agree with his judgment on the matter, nor did he say that it would be morally wrong for Catholic soldiers to participate in the war. In line with the teaching of the catechism on "just war," he recognized that a final judgment of prudence as to the necessity of military force rests with statesmen, not with ecclesiastical leaders. Catholics may, in good conscience, support the use of force in Iraq or oppose it.

Abortion and embryo-destructive research are different. They are intrinsic and grave evils; no Catholic may legitimately support them. In the context of contemporary American social life, abortion and embryo-destructive research are disproportionate evils. They are the gravest human rights abuses of our domestic politics and what slavery was to the time of Lincoln. Catholics are called by the Gospel of Life to protect the victims of these human rights abuses. They may not legitimately abandon the victims by supporting those who would further their victimization.

Archbishop Myers heads the archdiocese of Newark.

Bainbridge on Ackroyd on More

Check out fellow blogger Professor Bainbridge's post on Peter Ackroyd's (wonderful) biography of St. Thomas More. (I liked Ackroyd's book a little more than Steve did, but I share his view of the book's strengths).

Rick

Thursday, September 16, 2004

Steve Smith on "Conscience"

In light of Rob's posts (below) about "conscience clauses", I note that Larry Solum links to (yet) another interesting-sounding paper by Steve Smith, "The Tenuous Case for Conscience":


If there is any single theme that has provided the foundation of modern liberalism and has infused our more specific constitutional commitments to freedom of religion and freedom of speech, that theme is probably "freedom of conscience." But some observers also perceive a progressive cheapening of conscience– even a sort of degradation. Such criticisms suggest the need for a contemporary rethinking of conscience. When we reverently invoke "conscience," do we have any idea what we are talking about? Or are we just exploiting a venerable theme for rhetorical purposes without any clear sense of what "conscience" is or why it matters?

This essay addresses two questions. The first is discussed briefly: what is "conscience"? What do we have in mind when we say that someone acted from "conscience"? A second question receives more extended discussion: granted its importance to the individuals who assert it, still, why should "conscience" deserve special respect or accommodation from society, or from the state? That question forces us to consider the metaethical presuppositions of claims of conscience. The discussion suggests that claims to conscience may be defensible only on certain somewhat rarified moral and metaethical assumptions. The discussion further suggests that shifts in such assumptions have transformed the meaning of claims to "freedom of conscience," so that such claims typically now mean almost the opposite of what they meant when asserted by early champions of conscience such as Thomas More, Roger Williams, and John Locke.

Rick

Conscience Clauses and Institutional Autonomy

My post on conscience clauses (below) prompted this response from my colleague Susan Stabile:

I read with interest both Rob’s comment and the CNN report on conscience clauses in the health care industry. I have taken the position that Catholic employers should not be forced to provide contraception coverage for their employees. (I published an essay on this issue in the Spring 2004 issue of The Catholic Lawyer and have recently completed a longer treatment of the subject.) However, as I read some of the examples in the CNN article and Rob’s comments about moral responsibility of professionals, I have some misgivings. It seems to me that it is one thing to say that a Catholic organization should not be forced to violate its (institutional) conscience by paying for its employees to do something the organization believes to be a moral wrong. I’m less comfortable saying that an individual Catholic employee opposed to birth control who works for a profit (nonreligious) pharmacy is entitled, based on his/her individual beliefs, to not provide a service the employer makes available to its customers. What I’m struggling with is where one draws the line (if at all) and would be interested in hearing other people’s thoughts.

I think Susan raises a good point. Normally I'm concerned with our society's elevation of individual autonomy over associational autonomy. Are conscience clauses part of that trend? If we defend the right of Catholic organizations to carve out a pro-life identity for themselves, should we be more hesistant before requiring other organizations to sacrifice their own institutional priorities to the individual consciences of their employees?

Rob

Wednesday, September 15, 2004

Conscience Clauses on the Rise

CNN has a not especially sympathetic report on the growth of "conscience clauses" in the health care industry. Here's an excerpt:

In Congress and states nationwide, anti-abortion activists are broadening efforts to support hospitals, doctors and pharmacists who -- citing moral grounds -- want to opt out of services linked to abortion and emergency contraception.

A little-noticed provision cleared the House of Representatives last week that would prohibit local, state or federal authorities from requiring any institution or health care professional to provide abortions, pay for them, or make abortion-related referrals, even in cases of rape or medical emergency.

In Mississippi, a bill became law in July that admirers and critics consider the nation's most sweeping "conscience clause." It allows all types of health care workers and facilities to refuse performing virtually any service they object to on moral or religious grounds.

And in states across the country, anti-abortion organizations and a group called Pharmacists for Life are encouraging pharmacists to refuse to distribute emergency contraceptives, which they consider a potential form of abortion.

"We've seen increasing organization and networking to get more pharmacists to refuse to provide EC -- not just in the Bible Belt but all over," said Gloria Feldt, president of the Planned Parenthood Federation of America. "It's part of the anti-choice arrogance in which they believe they have the right to impose their ideology on everyone else."

I've addressed this issue previously on this blog. The 20th century offered a parade of harms spawned by the failure to assume moral responsibility for one's conduct, a failure exacerbated by the rise and narrow conception of professional roles. As such, it should not be tremendously controversial to ensure that professionals maintain their moral agency. It should be of far greater public concern that Ms. Feldt and Planned Parenthood would require that professionals forfeit their own moral identities whenever they enter the marketplace and function simply as empty vessels for whatever goods or services are permitted by law and desired by the consumer. Perhaps even more remarkable is that Ms. Feldt can complain about the imposition of ideology with a straight face.

Rob

"Polycentric Law"

Law Professor Randy Barnett has an interesting post over at the Volokh Conspiracy, discussing "polycentric legal orders. Barnett discusses what he regards as the advantages of a polycentric order in his book, "The Structure of Liberty." My own interest in the subject was sparked by Professor Harold Berman's phenomenal "Law and Revolution." , which explored the roots in the 11th-12th Century "papal revolution" of the western legal tradition. MOJ readers and bloggers will likely appreciate the connections and consonance between defenses of "polycentric legal systems" and the principle of subsidiarity.

Rick

More "On Legislating Morality": Fornication in Virginia

Following up on Michael's post (below) about adultery laws in Turkey, here is a recent Washington Post article, by law professor Jon Turley, called "Of Lust and the Law." Discussing (and criticizing) anti-fornication laws, Turley writes:

Last month, John R. Bushey Jr. was finally brought to justice in a small courthouse in Luray, Va. Bushey, the former town attorney, stood before the court as an accused criminal with reporters from all over the state in attendance. The charge was adultery. Like 23 other states, Virginia still might prosecute if a husband or wife has consensual sex outside the marriage. Ten states, including Virginia, have anti-fornication statutes as well, prohibiting sex before marriage. Like many fundamentalist Islamic states, the United States uses criminal penalties to police the morality of its citizens.

These morality laws go back to the church-based "bawdy courts" of 13th-century England. Yet, the Bushey case illustrates that there are prosecutors today who remain eager to perform this quasi-ecclesiastical role -- to publicly defend the institution of the monogamous marriage, and the unwed, from the ravages of lust and desire. Because these are often unrecorded misdemeanor cases, the specific number of prosecutions is impossible to determine. However, the Bushey case is far from unique. . .
This latest adultery prosecution, in a county circuit court in Virginia, should motivate us to finally ban our American version of bawdy courts and force ambitious prosecutors to focus on our courtrooms rather than our bedrooms.

For 32 years, John Bushey, 66, served as the attorney for Luray -- a small Shenandoah Valley town of 4,500 people. He had been married for about 18 years to Cindy Bushey, the town's clerk. John Bushey, however, had an affair with Nellie Mae Hensley, 53, and after the affair ended, Hensley seemed to prove the adage "scratch a lover, find a foe." Instead of going to the betrayed spouse or to her minister, she went to the police. While Hensley was divorced, Bushey was married and therefore subject to a criminal adultery charge, a misdemeanor.

The Bushey case seemed like the perfect vehicle to get the U.S. Supreme Court to finish work that it began in the 2003 case of Lawrence v. Texas, when the Court struck down anti-sodomy statutes. At one point, Bushey agreed to pursue such a course, and the American Civil Liberties Union took up his case. He kept changing his mind, however, first pleading guilty, then withdrawing the plea and pledging to fight as a matter of principle. Finally, in August, he surprised many observers by accepting 20 hours of community service as punishment for his offense. (His former lover publicly expressed outrage that
Bushey would not receive a criminal record for his adulterous affair with her.)

Unfortunately, with his last-minute acceptance of punishment, Bushey implicitly accepted that the state of Virginia has a right to punish him for his moral failings. The far more important question is not Bushey's faithfulness to principle (or to marriage), but the continuation of this archaic criminal provision . . .

A famous 1953 study by Alfred Kinsey found that 50 percent of married men and 26 percent of married women had engaged in adultery by age 40. A recent study by Ball State University reported that women under 40 have caught up to men in adulterous affairs. Other studies have shown that between 5 to 15 percent of married couples have "open marriages." If Virginia were going to prosecute evenly, untold married couples in the state could be subject to prosecution when a former lover opted for the satisfaction of a public charge to heal private injury. . . .

It should be obvious that such laws governing private, consensual acts are no longer valid after the Supreme Court decision in Lawrence, but the Court did not actually set these laws aside when it ruled anti-sodomy statutes unconstitutional, even though it stressed that anti-sodomy laws further "no legitimate state interest which can justify its intrusion into the personal and private life of the individual." While the Court did not address anti-fornication or adultery statutes, the dissenting justices specifically noted that the decision placed such laws in jeopardy. Self-described "morality advocates," however, have resisted. Thus, Virginia cannot criminalize the act of sodomy between consenting adults but can often prosecute the same adults for having sex in any form under the adultery law.

Del. David B. Albo (R-Fairfax), who is in charge of streamlining Virginia's criminal code, doesn't approve of outsiders tampering with morality laws. The Lawrence decision, he complained, is "a perfect example of how the Supreme Court is inserting its own views into Virginia law." Of course, Albo appears to have less of a problem when inserting his own moral views into the bedrooms of Virginia adults. Virginia, which is seeking to repeal its anti-fornication and anti-sodomy statutes, decided to keep adultery a crime.

Del. Brian J. Moran (D-Alexandria) insists that adultery must remain a crime because "adultery is wrong, and we were not going to eliminate a criminal action even though it has been infrequently prosecuted." While many would agree adultery is wrong, there are plenty of things that are "wrong" but not crimes, such as betraying boyfriends or girlfriends in unmarried but monogamous relationships. Finally, the law is currently applied in a ridiculous fashion with only Bushey and a few others pulled out for prosecution from a virtual sea of adultery. . . .

Citizens should be able to police their marriages without the help of the Commonwealth of Virginia or the other 23 states. These laws have not deterred many adulterous spouses. They invite arbitrary prosecutions in courtrooms replete -- it is statistically certain -- with adulterous prosecutors, cops, jurors, clerks or judges.

And, these same courts are inundated with divorce cases of proven and admitted adultery by individuals who are never prosecuted -- making such prosecutions as random as a societal drive-by shooting.
Since the days of the bawdy courts, women are no longer deemed chattel and towns no longer maintain a "whore's chair" for public humiliation of adulterers and fornicators.

Bawdy courts have no place in a nation that cherishes individual choice and privacy. Let's put an end to them -- and leave morality prosecutions as a matter of historical interest for 13th-century scholars.

Now, I usually enjoy and learn from Turley's commentary, and I agree that anti-fornication laws are unwise. Still, what I take to be the premise of Turley's critique -- namely, that criminal laws that enforce traditional morality are, for that reason, unconstitutional and unjust -- strikes me as quite mistaken.

Turley says (unfairly, in my view) that "like many fundamentalist Islamic states, the United States uses criminal penalties to police the morality of its citizens." But all political communities "use criminal penalties to police the morality of [their] citizens." The question is not, in my view, whether the criminal law should reflect and protect "morality"; the (harder) question is to what extent the criminal law should do this.

There are, as MOJ readers and bloggers know, all kinds of good, prudential reasons to avoid excessive legal moralism. The criminal law need not and should not codify morality wholescale. Not every sin or vice is or should be a crime. Maybe Turley is trying to say not that criminal law should not enforce "morality", but that it should not enforce sexual morality. I tend to agree with this latter proposition, if only because -- in light of the dominant views on these matters -- it is probably not feasible or cost-effective (as Turley discusses) to criminalize sexual immorality. But I wish that Professor Turley had taken more care to avoid sweeping claims about "morality prosecutions." Aren't all prosecutions, in the end, "morality prosecutions"?

Rick

Tuesday, September 14, 2004

On Legislating "Morality": "Christian" Europe v. "Muslim" Turkey

[An item of interest from tomorrow's New York Times.]

Adultery a Crime? The Turks Think Again and Say No
By SUSAN SACHS

Published: September 15, 2004

VAN, Turkey, Sept. 14- After suffering a wave of criticism from European Union officials, women's groups, newspaper columnists and finally from its own members, Turkey's governing party abandoned a proposal on Tuesday to criminalize adultery.

Even so, the party, which has sought for two years to reassure Turks and foreigners that it had no Islamic fundamentalist agenda, may have lost important political good will at home and abroad.

"Especially now, when Turkey is doing so much for E.U. membership, the fact that they're trying to bring in this law raises questions about them," said Gulseren Demir, a caseworker at the Women's Association in Van, in southeastern Turkey.

"To tell you the truth," a co-worker, Alev Sahar added, "we never trusted them."

The proposed adultery law had been debated in the news media during the past month, while Parliament was in summer recess, and Prime Minister Recep Tayyip Erdogan had repeatedly said he endorsed it as a way to preserve the family.

His Justice and Development Party had been expected to introduce it on Tuesday when the deputies reconvened to vote on a voluminous new penal code. But by the end of the day, with protesters in the streets and some European officials darkly warning that it smacked of fundamentalism, the proposed law had not made an appearance. No one even stepped forward even to claim ownership.

Party officials said the proposal, once fiercely defended by some deputies, had won few supporters during a closed party meeting the night before.

"There is general agreement that we will not propose that kind of thing right now," said Reha Denemec, a deputy chairman of the party. "We've got something like 340 different articles to get passed - we did 60 or so in four hours - and it's very important to do these things right now."

During its brief and contentious public life, however, the adultery proposal shone an unwanted spotlight on the backgrounds of the party leaders. Most are veterans of Welfare, a more militantly Islamist party that briefly ruled in a coalition government in the mid-1990's. The army removed it from power in 1997.

Mr. Erdogan was a senior Welfare member and a former mayor of Istanbul who spent time in jail in 1999 for reciting a poem in public that talked of mosque minarets as bayonets. His action has not been forgotten by the powerful military establishment, which sees itself as the guardian of Turkey's secular system.

But since sweeping into power nearly two years ago after his party won nearly two-thirds of the seats in the Parliament, the prime minister and his party aides have generally sidestepped issues that might make the military and the nationalists bristle.

Instead, he has shuttled continuously between Turkey and European Union countries, vigorously promoting Turkey's bid to begin accession talks leading to membership. He has also presided over wholesale changes in the Constitution, a rewrite of the administration law, revisions of the civil code and, now, some hundreds of proposed amendments to the penal code - all to bring the country's laws in conformity with European Union standards.

The European Commission in Brussels is expected to decide whether to recommend a date for accession talks at its meeting on Oct. 6. European Union leaders are expected to vote on the matter at their summit meeting in mid-December.

A number of those leaders have already expressed doubts about whether Turkey, a majority Muslim country, belongs in Europe. In the face of those misgivings, the sudden appearance of the adultery proposal last month brought a sharp warning from Günter Verheugen, the European Union's enlargement commissioner.

During a visit to Turkey last week, he said, he bluntly asked Mr. Erdogan why the adultery issue was being raised now, and he warned the Turkish leader that it would undermine its campaign for acceptance in Europe.

Suspicion about the intentions of the party, which is known by its Turkish abbreviation, A.K.P., has never really evaporated, despite its general popularity as a can-do government and its near-total dominance of Turkish politics since its success in municipal elections around the country six months ago.

Even the party's supporters appeared puzzled at the attempt to legislate morality - adultery is forbidden in Islam, as it is in most religions - at a time when Turkey has been trying to prove its European credentials.

"It's true that people's suspicions about the A.K.P. were awakened," said Selahaddin Direck, a contractor and businessman in Van who has been an enthusiastic supporter of the party and Mr. Erdogan.

Even though the region is conservative and might have favored outlawing adultery, he added, there was no particular demand.

"Maybe another time, or on another platform or in another presentation, the issue can be put on the agenda again," Mr. Direck said. "But at the moment, E.U. membership is more important than such debates. So it was very unfortunate. I don't think there could have been a worse time to introduce such a debate."

Criminalizing adultery could bring more harm to women in a country where honor killings, the murder of women who are suspected of dishonoring their families through their sexual conduct, are still not uncommon, according to the Women's Association.

"There is already lots of violence against women," Ms. Demir said. "This law would endow the man with even more authority and power, and could increase the number of crimes against women."

A previous adultery law in the criminal code punished a man if it was proved that he had set up housekeeping with a woman or installed her in a house. But it punished a woman simply for having sexual relations with a man other than her husband. Turkey's highest court ruled that law unconstitutional eight years ago, saying it discriminated against women.