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, April 14, 2013

A plea for mercy for Kermit Gosnell

Abortionist Kermit Gosnell is facing the death penalty if he is convicted of the murders for which he is being tried in Philadelphia. Surely, the heinous acts of which he stands accused are depraved. They probably meet the criteria for capital punishment under Pennsylvania law. However, in the event that Gosnell is convicted, which seems likely, I am asking my fellow pro-lifers around the country to join me in requesting that his life be spared.

Someone might make the case for mercy by pointing out that Gosnell merely carried out the logic of the abortion license that is enshrined and protected in our law. One might note that there is no moral difference between dismembering a child inside the womb (which our jurisprudence, alas, treats as a constitutional liberty) and snipping a child's neck after he or she has emerged from the womb (potentially a capital offense). How can our legal system impose the death penalty on Gosnell, given the arbitrariness and irrationality of the underlying law?

But that is not the fundamental reason for our asking for Gosnell's life to be spared.

Kermit Gosnell, like every human being, no matter how self-degraded, depraved, and sunk in widkedness, is our brother---a precious human being made in the very image and likeness of God. Our objective should not be his destruction, but the conversion of his heart. Is that impossible for a man who has corrupted his character so thoroughly by his unspeakably evil actions? If there is a God in heaven, then the answer to that question is "no." There is no one who is beyond repentance and reform; there is no one beyond hope. We should give up on no one.

If our plea for mercy moves the heart of a man who cruelly murdered innocent babies, the angels in heaven will rejoice. But whether it produces that effect or not, we will have shown all who have eyes to see and ears to hear that our pro-life witness is truly a witness of love---love even of our enemies, even of those whose appalling crimes against innocent human beings we must oppose with all our hearts, minds, and strength. In a profoundly compelling way, we will have given testimony to our belief in the sanctity of all human life.

I do not myself believe that the death penalty is ever required or justified as a matter of retributive justice. Many reasonable people of goodwill, including many who are strongly pro-life (and whose pro-life credentials I in no way question), disagree with me about that. But even if the death penalty is justified in a case like Gosnell's, mercy is nevertheless a legitimate option, especially where our plea for mercy would itself advance the cause of respect for human life by testifying to the power of mercy and love.

I do not expect my request to be met with universal acclaim. Given the horrific nature of the acts of which Gosnell is accused, it is understandable that some, perhaps many or even most, will believe that this is not a case where mercy is appropriate. They will not want to join me. I understand.

However, I ask everyone who reads these words to consider the matter carefully and prayerfully. In 1994, I had the honor of representing Mother Teresa of Calcutta as her Counsel of Record on an amicus curiae brief to the Supreme Court of the United States asking the justices to reverse Roe v. Wade. In connection with that project, I learned that this was not Mother's first intervention in American courts. On a number of occasions, she had asked judges to refrain from imposing the death penalty on a defendant convicted in a capital murder case. She did not question the defendants' guilt, or even the justice of the death penalty. Her plea was always a plea for mercy.

By asking for mercy for Kermit Gosnell, we defenders of human life in all stages and conditions have the opportunity to follow the example of the greatest pro-life witness of the 20th century.

"How Would Jesus Rule on Same-Sex Marriage?"

That is the question Professor Dan Crane asks in a new post over at the Center for Law and Religion Forum.  He offers three interesting responses (and by interesting, I mean interesting).  Here's a bit from the first:

First, Jesus would likely have faulted both sides of the debate for an excessively materialist perspective.  On one side, we hear that marriage is about procreation and child rearing.  On the other, that it’s about love and companionship.  But Jesus did not understand marriage primarily in terms of its temporal or material effects.  For Jesus, marriage was a spiritual representation of divine relationships.  According to Jesus, God created man and woman—male and female—in the image of God, mirroring the unity and diversity within the Godhead.  Jesus and later apostolic writers referred to Jesus as a bridegroom and the Church as his bride.  Jesus explained that in Heaven people would not be married to one another, since they would be in perfect union with God.  Thus, the ultimate good of marriage was not that it served immediate material needs but that it celebrated the eternal nature of God.

This understanding of marriage has precious little purchase in the contemporary, hyper-materialist world.  Even those who recognize marriage’s “spiritual” component usually mean that psychosomatically—marriage feeds long-term emotional and pyschological needs.  We’ve lost any sense of human institutions as good because of their correspondence to divinity.  Across the ideological spectrum, we’ve given in to Richard Posner’s wish of “unmasking and challenging the Platonic, traditionalist, and theological vestiges in Enlightenment thinking.”  It’s safe to say that Jesus would have had a different take.

More Complicated

In chapter 6 of The Tragedy of Religious Freedom, I discuss Cass Sunstein's work on judicial The Tragedy of Religious Freedom minimalism and focus on a particular variation--Burkean minimalism.  The method that I adopt for resolution of various religious liberty disputes draws on Burkean minimalism in several respects, but also departs from it in significant ways.  My differences with Professor Sunstein are summed up in the aphorism, "Less Burkeanism, More Burke," and the discussion in that chapter considers the ways in which Sunstein's views about minimalism--which are pragmatically grounded--differ from my own--which are grounded in the reality of the complexity of political affairs, the conflict of human aspirations, and the irreducibility of human interests to any overarching theory.  The method that I describe and defend is motivated, in part, by these complications.

Notwithstanding my admiration for judicial minimalism--and, indeed, for minimalism as a general Simpler guiding ethic of political life--I am not the first to suppose that Sunstein's attachment to it was always less than entirely secure.  It was, as he himself acknowledged, strategic and instrumental.  This is why I am somewhat disappointed, but not very surprised, to see that Sunstein has recently published Simpler: The Future of Government.  Of course, the book is not about the judiciary; it describes Sunstein's time at the head of OIRA.  Its overall claims seem to rest on the assertion that government has become simpler during the last four years, that it will or ought to become simpler still, and that this is a wonderful thing.  I have not read the book, and will of course defer to Professor Sunstein on the question whether the government has issued fewer regulations as a numerical matter.  Government during the last four years does not seem so very much simpler to me than it was before, but I'm prepared to be persuaded otherwise.  But apart from these descriptive issues, I have the distinct feeling that I will resist in particularly strong terms the normative claim--which seems to be made in the book--that the simplification of government is for the best.  Indeed, it seems to me that a true minimalist would press just the opposite point: we are complex, and we need a government that can account for, and accommodate, that complexity.  We don't need simpler; we need more complicated.  

Four Pinochios for Obama on infanticide . . . five years too late

With Barack Obama safely elected and re-elected as President of the United States, the Washington Post Fact Checker has finally gotten around to a serious examination of the question whether Obama opposed (as an Illinois state senator) legislation to deny legal protection to infants born alive after a failed attempt to kill them by abortion (or delivered with the intention of killing them in so-called "live-birth abortions").  http://www.washingtonpost.com/blogs/fact-checker/post/did-obama-vote-to-deny-rights-to-infant-abortion-survivors/2012/09/07/9852895a-f87d-11e1-8398-0327ab83ab91_blog.html  Better late than never, I suppose---though in this case merely marginally so. The American people deserved to know the truth before making a decision about Barack Obama's fitness to serve as President. The media blackout of the question was not unlike what we have witnessed in recent days with the Gosnell infanticde trial. Yuval Levin and I did our best to get the facts out in our article "Obama and Infanticide," posted at Public Discourse in October of 2008:  http://www.thepublicdiscourse.com/2008/10/282/. We produced evidence to show that Obama's claim to have opposed the Illinois Born Alive Infants Protection Act on the ground that it lacked "neutrality" language on the abortion question was false. He had in fact voted against the legislation despite the inclusion of "neutrality" language that had been insisted on by supporters of abortion who nevertheless were prepared to vote for legal protection for infants who were born alive.

So what does the Washington Post Fact Checker conclude? 

Are you ready?  Here goes:

"Obama swore during the 2008 election that he would have supported the federal Born-Alive Infants Protection Act, prompting the National Right to Life Committee to issue a scathing white paper that pointed out how he had contradicted himself by voting against the Illinois measure while backing the older federal version in retrospect during his presidential campaign.

Obama denied any contradiction during an interview that year with the Christian Broadcasting Network, accusing the antiabortion committee of lying about the circumstances of his vote. Here’s what he said: “I hate to say that people are lying, but here’s a situation where folks are lying. I have said repeatedly that I would have been completely in, fully in support of the federal bill that everybody supported — which was to say — that you should provide assistance to any infant that was born — even if it was as a consequence of an induced abortion. That was not the bill that was presented at the state level. What that bill also was doing was trying to undermine Roe vs. Wade.”

From what we can tell, Obama misrepresented the facts during this interview. The 2003 bill addressed his concerns about undermining Roe v. Wade, and it matched the federal legislation that he supported virtually word for word. PolitiFact determined that the claim about a neutrality clause in the federal legislation was True. FactCheck.org said “Obama’s claim [about the committee lying] is wrong.”

For what it’s worth, The Fact Checker in 2008 appears to have overlooked the neutrality clause while awarding Two Pinocchios in a column that examined a separate claim from then-GOP vice presidential candidate Sarah Palin . . . .

The evidence suggests we could have awarded Four Pinocchios to the former Illinois senator for his comments to the Christian Broadcasting Network, but that interview is several years old now, and it’s not the focus of this particular column. The president’s campaign did not respond to requests for comment on the matter of whether Obama’s 2008 comments on the Christian Broadcasting Network contradicted his 2003 vote against Illinois’s Born-Alive Infants Protection bill."

Four Pinocchios. Five years too late.

NARAL recycles the old myths

Brother Rick and others have taken note of the "media blackout" of the homidice trial of Philadelphia abortionist Kermit Gosnell. Grassroot efforts to shame the journalistic establishment into at least mentioning the trial seem to be working, however. Now, in a rather transparently desperate ploy, the President of NARAL Pro-Choice America is trying to spin the coverage her way by claiming that the gruesome practices that went on in Gosnell's abortion clinic give us a "window into the world before Roe v. Wade." http://www.huffingtonpost.com/2013/04/12/kermit-gosnell-ilyse-hogue_n_3071797.html This picture of the "world before Roe" is a recycling of long exploded myths confected by the abortion movement in its early days. The late Dr. Bernard Nathanson, a founder of the movement (and himself an abortionist) who later became a pro-life champion, spilled the beans many years ago in his memoir. I discuss the matter a bit in the tribute I did to Dr. Nathanson shortly after his death: http://www.thepublicdiscourse.com/2011/02/2806/

Saturday, April 13, 2013

'Outrage,' 'Forgiveness,' and 'In-Groups'

All right, let us please dial it down again, continue to keep our heads about us, and ascertain whether we might learn something worth learning from the 'outrage' occasioned by this silly slide that first appeared in an isolated lecture given by a low-placed consultant to some Army Reserve personnel, then was excised and repudiated once brought to the attention of the higher-ups.  I believe that there is in fact something very important to learn here - something about our true calling.

I start by restating two questions, then draw what seems to me a single important lesson upon which what strike me as the right answers to these questions converge.

My questions, originally for Patrick but really for all of us, are basically two. 

The first is, what will or ought dissipate one's outrage, assuming one experiences it, over the Army Reserve lecture incident that has been under discussion these last several days?  If the category of forgiveness isn't thought applicable here, even after the offense in question has been corrected and repudiated, I am happy to hear what other category or categories might be.  Ultimately, though, I want to know simply what can or ought bring the evident rage in the outrage, which I do not think helpful and do think 'extreme,' to an end.  I hazard my own suggestion, which does indeed sound in forgiveness as well as in cognate categories, below.  

The second question is, in what, if any, ways should the standard of outrage (or 'accountability') to which we hold higher-ups in a hierarchy, when an offense occurs lower within the hierarchy and the higher-ups do not at first know about it, differ between important institutions in which all of us have stakes?  My own view is that the standard should probably be more or less the same - and, again, sound in forgiveness - again for reasons I offer below.-

It is in connection with both of these questions that the two case studies - that involving the Army Reserve and that involving the Church - strike me as worth comparing.  

As I see it, both in the military case that has Patrick outraged, and in the Church child abuse scandals that have others outraged and have Patrick 'grieve[d]' (more on which grief below), wrongs were done lower down, and higher-ups were then called upon to put things to rights.  From the looks of things thus far, the wrong in the second case was immeasurably more grave than that in the first case, while, ironically, the higher-ups in the second case showed scandalously less alacrity about putting things right than did those in the first case.  That seems to me important in a number of ways, but for present purposes I take it for important only inasmuch as it underscores the suggestion that I shall offer about grief, forgiveness, and 'in-group' and 'out-group' psychology below.  

Now, Patrick might disagree with me about the comparative gravity of the offenses in the two cases ('raping priests are relevantly different from officials [i.e., an outside lecturer] lying [i.e., lumping Catholics together with al Qaeda operatives as 'extremists'] in their official capacity').  And I take it he disagrees with me also on the comparative alacrity question (though no one has yet asserted that the military was particularly slow to correct the error that outrages him).  I would of course find that troubling, but as suggested above, what ultimately interests me here is something a wee bit more general - viz., again, whether the same 'outrage' or 'accountability' standard should apply between cases.  Should it?  Does it? 

Patrick says, 'I grieve that our bishops did not do more to root about the evil of abuse of children.'  He does not profess 'outrage.'  In order to get at my 'should it?, does it?' question, I would like first to know why.  Is the outrage/grief distinction here inadvertant and not intended to suggest mutual exclusion, or is it deliberate and indeed meant to suggest mutual exclusion?  This question is not simply for Patrick.  It is for all of us.  It is ultimately the question that prompts this post and yesterday's posts.  And it is the question whose answer, I think, counsels against rage. 

Here's what I'm driving at:  I can understand how the category of grief might initially strike one as more immediately salient than outrage if one feels in a certain sense personally implicated in a wrong via one's actual participation in the institution whose personnel have more proximately committed it and whose hierarchy has at least initially missed it or hidden it.  But if that's what's at work here in underwriting rage in Case 1 and mere grief in Case 2, then it seems to me ultimately untenable.  For surely the message of the Gospel is that we are all of us implicated in all offenses committed by all of our sisters and brothers.  We are, that's to say, our brothers' and sisters' keepers.  And if that is so, then it seems to me grief is more apt than is outrage in both cases here under consideration - as well as, I take it, in most if not all other cases.  That's not to say remonstrance isn't likewise called for in most cases.  It's only to say grief is more apt than rage in all cases. 

The Church is not and cannot be a sociological 'in-group' in which the category of 'grief' rather than 'outrage' is salient, while other institutions such as our nation's military are 'out-groups' in connection with whose errors we entertain only 'outrage.'  Insofar as we treat the Church as an in-group, we render it incoherent and impossible.  We render it self-undermining.  For its very existence is predicated on the proposition that there are no 'out-groups.'  It is the institutional emodiment of the proposition that we are all of us, all of humanity, one Lord-beloved in-group.  I propose, then, that we endeavor to emote accordingly.                            

 

 

More nonsense

Bob Hockett asks with *obvious* generosity of spirit: "What must these people do to earn Patrick's forgiveness?"

Did I speak a word about "forgiveness"?  No. Bob's just makin' that up. False start.

"Forgiveness" is not a relevant concept, Bob.  The reasons for its irrelevance are here:  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1428512

I am not interested in the hypothetical of "forgiving" the military. I condemn my government's speaking -- no matter the spokesperson or his/her level -- falsesehoods, *especially* about the Church. Don't you?

'The Point'

Ah, so this is Patrick's point: not, after all, that the Army is plotting war upon Catholics, not that Catholics are uniquely entitled to state promotion of our religious beliefs among our non-Catholic fellow citizens, but 'the need for hierarchical accountability.'

Fair enough.  Two remaining questions, then:

1)  What more is the Army Reserve chain of command, having repudiated and excised the dopey slide of which it was apparently unaware, now to do in order to satisfy Patrick?  And how far up the chain of command does Patrick recommend that what ever he has in mind by 'accountability' reach?  Will he be content with the Chairman of the Joint Chiefs of Staff?  The Secretary of Defense?  Or will he reach all the way up to the Commander-in-Chief or the voters?  What must these people do to earn Patrick's forgiveness?  

2)  Back to the gander's sauce, what manner of accountability does Patrick demand of the hierarchy of that Church to which he, if I understand his earlier posts correctly, believes that our nation's Constitution should ultimately guide the full citizenry?  As serious an offense as a single anomalous slide ascribing, my goodness, 'extremism' to Catholics admittedly is, I can't help but think that repeated, systematic, and apparently conspiratorially concealed child abuse is a matter of some concern too.  And, to complete the parallel with Question (1), how high up this 'chain of command' does Patrick recommend that his brand of accountability reach?  The Bishops?  The College of Cardinals?  The Pontiff?  What must these people do to earn Patrick's forgiveness?

The US military is, in my view, much overused.  But it is in many ways a distinguished institution in which most people learn to control excesses and, notwithstanding periodic scandals, to comport themselves with restraint.  Much the same can be said of the Church - the non-'militant' Church, at any rate.  The apt response to cockupery of the sort that has exercised Patrick is dignified remonstration of the sort registered by the AMS (USA), to which Patrick helpfully links and to which it is difficult to imagine anyone in the military not being receptive.  Shrill professions of 'outrage,' conspiracy-'theorizing,' and militant clamoring befits only fanatics and, yep, extremists, ultimately making even the silliest of slides look a good bit less silly.           

 

Friday, April 12, 2013

Getting (back) to the point

Bob Hockett persists in obscuring my principal point.  The offense that I am complaining about (here) is that an official U.S. Army document [mysteriously, that document, which I just tried to reach again, can no longer be reached from the link I have] spoke grave untruth about the nature of the Church.  (Bob, do you deny that?)  An army author/presenter and publication, the job of which included officially reaching and officially sharing true judgments of fact (no?), told falsehoods about the Church.  Whether the offence occurred intentionally or whether it occurred unintentionally is not material to my present point, about the need for hierarchical accountability for false statements of fact.  The Army was quick to say that this falsehood came from "outside" of "the chain of command."  Good, but too little too late. Let's be clear about the inappositeness of the question Bob won't (he says) bring himself even to type. When a priest or other "responsible" official in the Church rapes a child, such a crime is not perpetrated within the perceived scope of the criminal's office. That's obvious. The lie told by the Army official and publication about the Church -- equating her with al Qaeda, for relevant purposes -- was, by contrast, told within the scope of the official's putative office.  I do indeed expect the Army to repudiate lies told in its official name. I do also expect the hierarchy of the Church to repudiate lies told in her name.  And, needless to say, I grieve that our bishops did not do more to root about the evil of abuse of children.  But raping priests are relevantly different from officials lying in their official capacity.  Doesn't matter how lowly the *government* official is.   

I am gratified that the Archdiocese for Military Services (USA) made the following statement, here. Perhaps Bob considers the Archdiocese's statement unwarranted?

 

 

We Are the 32%

If I read him correctly, Patrick is somewhat put out by the fact that '[t]he Framers knew what they were doing, alas, when they sought to make it virtually impossible to amend their godless Constitution.'  For it turns out that '[t]hirty-two percent of Americans want a Christian constitutional amendment, according to a Huffington Post/You Gov poll.' 

There is a fellow I sometimes see in my current DC neighborhood, where I have been residing while back at old IMF stomping grounds during sabbatic, who is similarly displeased.  He is pretty sure that he alone knows the identity of the One True God, and that all of the rest of us are walking in darkness.  He would accordingly like to amend our Constitution, in order that he might then adapt the apparatus of state to his evangelical purposes.  But it seems that the Framers have left it even more difficult for him to commandeer our shared government for purposes of pushing the other 99.999967% of the citizenry toward his faith, than they did for the 'Christian constitutional amendment wanters' to do so for purposes of pushing the other 68% of the population toward theirs. 

As for me, I feel for these people, but I must also confess that I thank God for 'our godless Constitution.'  And I'm pretty confident that people and institutions who have real, meritorious claims to the Truth will generally be able to convince us without coercive assistance from instrumentalities that properly belong to us all.