Nathaniel Peters asks, at First Things, "Should Christians Be Wary of Conscience Talk?" (Others have suggested that, for example, the deployment of "conscience talk" by the Bishops, in their efforts to resist the unjust HHS contraception-coverage mandate, puts them in a position of sounding more "Protestant" than "Catholic.") Worth a read.
Sunday, March 4, 2012
Concerns about Conscience?
Bradley on "Retribution and Overcriminalization"
My friend and colleague, Gerry Bradley, has a new paper up, called "Retribution and Overcriminalization," at the Heritage Foundation's site. Here is the abstract:
From the ever-expanding number of federal criminal laws to prison sentences that are too numerous or too long, there are many promising bases for criticizing overcriminalization. One such basis, however, has yet to be fully considered: the fact that too many criminal offenses today are malum prohibitumoffenses—that is, they criminalize conduct that is morally innocuous—and do not contain an adequate mens rea (criminal-intent) element. In order to limit the growth of laws criminalizing morally innocuous conduct—a development that, in turn, would curb overcriminalization—the U.S. legal community would be well-served to explore the concept of retribution and the manner in which it provides an account of how punishing those convicted of criminal offenses is morally justified. Punishment without a firm basis in retribution is unjust and therefore should be avoided.
Bradley makes points, I think, that are particularly important for Catholics to engage. Too often, "retribution" is rejected, or pushed to the side, by Catholics in discussions of criminal justice, perhaps because it seems -- if not correctly understood -- mean, harsh, unforgiving, etc., etc. In fact, though, retribution is central to a Christian understanding of the nature of, justifications for, and limits to punishment.
Shinar & Su on Analogies Between Foreign and Religious Law
Adam Shinar and Anna Su, both SJD students at Havard Law School, have written a provocative paper, Religious Law as Foreign Law in Constitutional Interpretation. Unfortunately only the abstract is available at present, but those wishing to see the paper in full should contact the authors. The abstract is below, followed by some little thoughts about the piece.
This article challenges the conventional understanding of the separation of church and state by arguing that there is no analytical or constitutional problem with using religious law for the purpose of constitutional interpretation. We situate our arguments within the context of the broader debate on the use of foreign law in constitutional interpretation, and the more recent controversy surrounding the proposed bans on the use of religious law in U.S. state courts. By examining the arguments for and against the use of foreign law, we show how they equally apply to the use of religious law. More importantly, we conclude that differences between foreign law and religious law are, at best, differences of degree rather than kind, and thus do not militate against the use of religious law in constitutional interpretation. The article demonstrates that religious law can be used, and in fact, has already been used by the Supreme Court for four limited purposes, none of which, we argue, offends the principles underlying the Establishment Clause.
The paper begins by considering several criticisms that are made of the use of foreign law in constitutional adjudication — relevance, selectivity and accuracy, and political legitimacy – and it argues that each of these criticisms is equally applicable conceptually to religious law. The paper then addresses each of these criticisms as applied to foreign/religious law; it takes a quite strong view that each of the criticisms misfires.
The most interesting and effective part of the paper (for me) deals with the possible Establishment Clause distinction between reliance on foreign law and reliance on religious law. The authors write:
[N]otwithstanding the recent shift from the strict separationist view that was the logical byproduct of the Jeffersonian wall to the accomodationist view that started with the move to the endorsement theory of the Clause, it did not stop the often obscured fact that the Supreme Court has regularly referred to religious laws in its decisions. Thus, the Court could cite both the New Testament and Mosaic Law in interpreting the Treason Clause, the Sixth Amendment, the Fourth Amendment,the Due Process Clause,and also for prescribing guidelines for criminal sentencing. In the controversial case of Miranda v. Arizona,the Court traced the roots of the privilege against self-incrimination, and cited the teaching of Maimonides, a 13th century rabbi and one of the greatest exponents of Jewish law, tounderscore its historical importance.
The authors then list four possible uses to which religious law might be put in a judicial opinion — to show historical genesis, as interpretive reinforcement, for evidentiary purposes, and as persuasive authority. They claim that none of these uses – even the last — is problematic under the Establishment Clause.
Friday, March 2, 2012
The Catholic Church's Mediating Role in Cuba
Here's a very interesting piece about the relations between Cuba and the Catholic Church. It highlights the mediating role that the Church has taken with the Castro regime, and how taking "the long view" seems to have been both shrewd and effective in various political and cultural ways. A bit:
When Pope Benedict XVI visits Cuba next month, he will once again reinforce a strategy that the Vatican has allowed the local Catholic Church there to pursue for more than three decades: diligently avoid any political confrontation with the Castro regime, collaborate with Havana to combat the U.S.-led embargo, and support the Cuban government's incremental economic reforms. In exchange, the Church has been able to maintain a certain amount of autonomy on the island, allowing it to rebuild its presence and position for the possible post-Castro economic boom times to come.
It is a controversial balance. Cubans in the exile community vigorously criticize the Church because they think Church leadership on the island should challenge the dictatorship. But the Vatican takes the long view. Rather than overtly push for change, the Church has come to pursue a strategy of "reconciliation." It has inserted itself as mediator between the regime and its most daring opponents, both those imprisoned and those out in the streets. The Church is present and persistent, but it is nonpartisan. The attitude harkens back to the ostpolitik it practiced during the Cold War -- in most communist countries, especially in those where Catholics were a minority, clergy hunkered down, ministered to the faithful, and survived. Today, in countries ranging from Albania and Montenegro to Romania and Ukraine, Catholic communities are thriving.
Wednesday, February 29, 2012
Hat-Tip in re 'Our Bodies, Ourselves,' and Today's Posts
This will not be what one would call a 'substantive' post, as I'm a bit spent today; but I cannot resist the temptation to send a hat-tip along to Robby, whose 'Our Bodies, Ourselves' post, unsurprisingly, says it all fully, powerfully, and with great economy. Amen, Brother!, indeed.
Thanks also to all for today's very nourishing posts. More on such matters tomorrow.
Blessings, B.
Sullivan on "The Church"
At The Immanent Frame, Winnifred Fallers Sullivan this interesting post, "The Church," about the Hosanna-Tabor decision and other things. Her basic point: The idea of "the church" does a lot of work in the case but . . . "what is the church?" In her view, the Court's discussion of the relevant history is too "breezy" in its dealings with the different ecclesiologies that were in play in the historical events discussed by the Court. (I think the breeze-level was about right, given that this is a Supreme Court opinion about how to operationalize, through doctrine, the commands of a particular positive-law text, but that's not the point.) Here is the last paragraph:
Alito, with the EEOC, sees the rights of religious organizations with respect to ideological control of their members as similar to that of all other voluntary associations, a right founded in the freedom of association expressed in the First Amendment, not in the rights of religion: “Religious groups are the archetype of associations formed for expressive purposes, and their fundamental rights surely include the freedom to choose who is qualified to serve as a voice for their faith.” This turn to the voluntariness of American religious life corresponds much more closely to what disestablished religion looks like in the United States today and to how most Americans understand their relationship to religious communities, one not of top-down hierarchy but one of bottom-up participation. It is also rooted in another reading of the history the Majority tells, one that tells a story of the freedom of Christians, and eventually of non-Christians as well. It is an understanding that sees Ms. Perich as the possessor of rights, not “the church.”
As MOJ readers know, I think it is (obviously) true that Ms. Perich has rights (though she does not have, in my view, a legal right to serve as a called minister in any particular ecclesial body), and also clearly true that "the church" does, too, against the state.
Religious Freedom as Confrontation and Inflammatory Rhetoric?
On February 14 of this year, a group of faculty of John Carroll University in Cleveland led by Professor Lauritzen (a professor of religious studies and an individual who has disagreed with Church teachings on marriage, human sexuality, and embryonic stem cell research in the past) wrote a letter to the President of the University calling for a stand against the Church’s authority by John Carroll University and other Catholic and Jesuit universities “in the face of the bishops’ unwillingness to accept the accommodation offered by the Obama administration” regarding the HHS mandate. The faculty letter contends that the stance of the bishops regarding the HHS mandate, which in part addresses free contraception coverage, is confrontational and inflammatory given the Obama administration’s effort to accommodate both religious freedom and the “access to contraception [that] is central to the health and well being of women and children.” Via dotCommonweal, the faculty letter can be found here.
These faculty members at John Carroll claim they are committed to the freedom of conscience and religious freedom, but like many who advocate for human rights, it becomes clear that, in their views, some “rights” trump others. Notwithstanding their recognition that the “bishops have the right to proclaim Catholic teaching vigorously and loudly” (which, incidentally would imply that the clerics, religious, and faithful have the right to believe in Catholic teachings and exercise them in accordance with the law of the Church, the international order, and the First Amendment of the United States Constitution), they contend that anything (including authentic religious freedom and rights of conscience) that conflicts with “access to contraception” that “is central to the health and well being of women and children” is of lesser importance.
In short, their recognition of religious freedom—for individuals, for groups of believers, and for the Church herself—will have to be sacrificed when the issue of the “rights of reproductive health” is on the table.
First of all, there are several matters contained in the letter that necessitate comment. The first is this: why is contraception central to the health and well being of children? Is it because they would be at risk if they did not have access to contraception? But this prompts the anticipated question, why should children have access to contraception? Is sexual encounter the only thing they will do that may endanger their lives? Should we not be more concerned about pre- and post-natal care for them? For essential vaccinations? For basic and good health-care in their formative years? Why should only contraception for children be the only health-care issue which the John Carroll faculty are concerned? Perhaps the letter’s signatories had in mind something else and that the reason why children’s interests are at stake is because if contraception were not made available to adults, the children who result from the “unprotected” sexual encounters may be threatened by other factors such as a difficult life or abortion. The latter point about facing abortion is presented elsewhere in the letter when its authors state that “unplanned pregnancies harm the health of women and children and lead to more abortions.” So, the reasoning seems to be this: if contraception is not paid for by John Carroll University, children’s health will be compromised because they will be aborted if free contraception is not made available to the employees of this Catholic and Jesuit institution. Thus, why can’t John Carroll University go along with everyone else who believes in “family planning services as a part of preventive health care for women”? One answer quickly comes to mind: it is attempting to preserve its Catholic identity which is guarded by the non-derogable right of religious freedom.
But there is a second group of issues that this letter prompts about the bishops’ “resistance” to the “accommodation” and their playing “politics with women’s health.” In this second category of considerations, a central item deals with the Christian Catholic understanding of the nature of the human person. At the Second Vatican Council, the Fathers asked on occasion the fundamental question: quid est homo (what is man; what is the human person)? Is the human person first and last a corporeal entity primarily concerned with sexual encounters at any time with anyone for any or no reason? Or is the human person something else? The bishops and many Catholic faithful have argued otherwise and continue to assert otherwise. If there is a theology of the body as Blessed John Paul II spoke of so often and eloquently, there is surely a theology of the human person which addresses the person’s raison d’être: to live a good, i.e., virtuous, life in preparation for union with God—each person’s undeniable destiny as understood from the Catholic perspective. Unfortunately, the faculty letter addressed to the head of a Catholic university reveals none of this. Moreover, the text echoes the voice too often heard today in human rights discourse that sexual autonomy will always trump the long-established and non-derogable rights which include religious freedom—the right to believe in the question quid est homo and to exercise the answer that inevitably follows.
A principal hallmark of Catholic education has traditionally been that it is the place where God-given human intelligence comprehends the intelligible reality that surrounds the human person and human society so that what is good (i.e., what enables all human persons to flourish on the path to their destinies) can be pursued and what is not can be avoided. The John Carroll University faculty letter does not reveal this fundamental quality of education that employs the moniker “Catholic.” As it does not, there is reason to recall the series of addresses Archbishop Michael Miller delivered in the United States in 2005 and 2006 when he was the Secretary for the Congregation of Catholic Education and where he suggested that there might be need for a kind of “evangelical pruning” for those educational institutions which have compromised their Catholic identity, an identity that clearly and centrally is concerned with the question of what is the human person. I join the many who do not think that this is the right path for John Carroll University to take. Since the authors of the letter upon which I have been offering some comment have urged other institutions to follow their counsel, I do not think that the fruits of their advocacy constitute the proper path for any Catholic institution to pursue unless it wishes to cede its soul, its identity, by casting off the banner of Christ and accepting whatever accommodation might be offered so that “confrontation” and “inflammatory rhetoric” may be avoided.
RJA sj
Joseph Weiler at St. John's Law School
The Center for Law and Religion is delighted to announce that Professor Joseph Weiler (NYU) will visit us at St. John's Law School next Monday, March 5, at 5:30 pm. His is the third session in our ongoing seminar, Colloquium in Law: Law and Religion. Professor Weiler will be presenting a paper dealing with the case of Lautsi v. Italy, which involved the display of the crucifix in Italian public schools and in which he was an advocate for several intervening European states. Academics in the New York area and beyond are welcome to attend. Please contact me if you wish to do so.
Tuesday, February 28, 2012
Kevin Walsh on the Catholic Justices on the Rehnquist and Roberts Courts
Kevin Walsh is guest blogging at CLR Forum over the next few weeks about, among other subjects, a paper he presented at the Pepperdine conference dealing with Catholic Supreme Court Justices on the Rehnquist and Roberts Courts. His first couple of posts are up -- stop on by to take a look.
Our bodies, our selves
I appreciated, as always, Bob Hockett's post (and his fascinating conversion story). The money quote, it seems to me, is this:
"Our embodiment is essential to who we are, and what has value in our judgement, it would seem to me, must accordingly itself relate back to embodiment."
Amen, brother!
In thinking about human dignity and human rights, it is critical, in my view, to avoid the mistake of supposing that the human "person" is a non-bodily substance (a mind, a consciousness, a spirit, a soul) that inhabits and uses (as if it were an extrinsic instrument of the non-bodily self) a non-personal (and, thus, subpersonal) body. If we avoid that error, we are unlikely to embrace propositions whose logic takes us down the road to infanticide and euthanasia. We will avoid the idea that there are human beings---living members of the species Homo sapiens---who (1) are not, or (2) are not yet, or (3) are no longer persons. Rather, we will affirm that every member of the human family, irrespective of age, size, location, stage of development, handicap, or condition of dependency, possesses (if any member possesses) inherent worth and dignity. None lack a right to life; none may justly be treated as less than equally worthy of respect and concern.
Of course, that leaves the question of what, if anything, makes human beings special as bearers of a unique dignity, such that we are (to borrow Kant's formulation) morally obligated to treat ourselves and others as ends, and never means only. The answer, it seems to me, has to do with our nature as rational creatures---creatures possessing the (quite literally God-like) capacities for deliberation, judgment, and choice. The error made by many who defend abortion, infanticide, and euthanasia, it seems to me, is to suppose that the relevant "capacities" are the immediately exercisable capacities for characteristically human mental functions, as opposed to the basic natural capacities for reason and freedom--capacities that human beings come to possess in radical (=root) form simply by coming into being, and which they do not lose except by ceasing to be (by dying). The principle of the radical equality of all human beings, which is at the heart of the sanctity of life ethic and much more in our culture, and which, in my opinion, is the glory of our civilization, reflects the insight that it is indeed the basic natural capacities, and not their full flowering in the form of immediately exercisable capacities, that is the ground of our dignity.
I defend these claims, and respond to what strike me as the strongest arguments against them, in an article entitled "Embryo Ethics" that appeared in the Spring 2008 issue of Daedalus. Here is a link:
http://www.mitpressjournals.org/doi/pdf/10.1162/daed.2008.137.1.23
Recent Posts
Categories
Monthly Archive
StatCounter
PageViews
Since February 19, 2008
