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.

Monday, February 6, 2012

What We Get When We Talk About Religion and Politics

I found this piece by Frank Bruni in Saturday's New York Times to be interesting in several respects.  One of Bruni's claims is that we have not yet really tried to explain the various character flaws and other personality quirks that we (by which I mean the Times writers) see in Mitt Romney by reference to his religious background.  It is important that we do this, says Bruni.  So, for example, we should try to understand Romney's "muffled soul" by engaging in some extended religious psychology about Mormonism.  Here's a bit from Bruni:

One longtime Republican strategist I talked with predicted that Gingrich would broach Romney’s Mormonism yet, with the aim of mobilizing the Mormon-wary evangelicals who vote in southern primaries on March 6, “Super Tuesday.”

That’s a regrettable motive. But there are valid reasons for the rest of us to home in on Romney’s religion, not in terms of its historical eccentricities but in terms of its cultural, psychological and emotional imprint on him.

His aloofness, guardedness and sporadic defensiveness: are these entwined with the experience of belonging to a minority tribe that has often been maligned and has operated in secret? Do his stamina and resilience as a candidate reflect his years of Mormon missionary work in France, during which he learned not to be daunted in the face of so much resistance that he won a mere 10 to 20 converts . . . .

And what of his sometimes huffy expectation that voters accept his current stances against abortion and gun control, to name two flips, and stop fussing over so many contrary positions in the past? Does that track with Mormonism’s blithe reluctance, according to its critics, to explain controversial tenets that it has jettisoned, like a ban on black clergy members that was in place until 1978?

I've noted before that I am increasingly skeptical that encouraging the drawing of these connections is worthwhile -- that the rhetoric of "talking" about religion in these contexts is at all helpful.  Bruni's column does little to dissuade me from that view.  Just as it would be inappropriate to understand, say, Secretary of HHS Kathleen Sebelius's decisions to do away with conscience protections on the ground that she is a lapsed Catholic with a deep-seated animus toward the Catholic Church based on some strategically chosen anecdotes about her early upbringing which, it is claimed, illuminate her "muffled soul" for the voting public to see in its full journalistic nakedness, and to draw a general connection between lapsed Catholics and support for the HHS mandate, so, too, ought it be inappropriate in this case. 

More generally, though, this is precisely the sort of low-level partisan psychologizing that we are likely to get by imagining that we can explain personality flaws on the basis of religious association.  Aloofness?  Well, sure, that's a Mormon trait.  Opportunistic waffling on the issues, coupled with inexplicable indignation?  Yes, Mormons do that.  It's part of their psychology, you see.  And if you pay attention closely enough, we the press will bare a person's soul to you.  We will explain them to you by recourse to their religious commitments, all the while reinforcing our (and, now, your) suspicions about them.  I think this is a mistake, but perhaps one which ought to have been predictable to those who advocate greater public discourse about religion.  To be clear, I am proud to be part of that group.  But increasingly I see definite costs to that approach, too.

Federal vs. State Laws on Contraception Coverage

Rick's post links to the comment letter submitted by the USCCB back in August regarding the (then) proposed regulations as a source for more information about the difference between the HHS regulations and the existing state law.

As I've argued before, I believe the HHS regulations contain too narrow a definition of exempt religious employers. And I don't disagree that the federal mandate is broader than that in most states.  But let me correct one factual inaccuracy in the USCCB letter.

It is incorrect to say that "State contraceptive mandates generally exclude self-insured and ERISA plans."  Because of ERISA's preemption of state law, state laws that mandate coverage are framed as insurance regulations that require that plans sold/purchased in that state provide the coverage.  They are drafted that way precisely so that they avoid preemption by ERISA, which excepts from its preemptive scope laws that regulate insurance.  Thus, if an ERISA plan self-insures, it is not subject to the state mandate.  (That part of the USCCB sentence is correct.)  However, if an employer with an ERISA plan uses insurance, that ERISA plan is subject to the state law contraception mandate contained in its insurance code.

 

USA Today on the HHS mandate

USA Today editorializes against the HHS mandate, here.  Kudos to the paper (and to The Washington Post) for -- unlike the New York Times -- embracing the correct position on this issue.  Secretary Sebelius defends the mandate, here, but follows those who have misleadingly suggested that the religious-employer exemption in the HHS mandate is more generous than several states'  and is based on the ones adopted in, e.g., New York and  California.  This claim fails to take account of the fact that, in those other states, other avenues are available for religious employers to avoid the force of the mandate.  Such avenues are not available with respect to the HHS mandate; the only way to avoid the mandate is to fit within the very narrow religious-employer exemption.  Learn more here.

Charles Dickens and the Catholic Legal Imagination

This week marks the bicentenary of Charles Dickens’s birth. When my law students ask for a summer reading recommendation, I tell them to read Bleak House, one of the great novels about law and arguably Dickens’s masterpiece. Of course, Bleak House is hardly a Grisham-esque celebration of lawyers, and perhaps for that reason it’s an especially worthwhile novel to read amid times of economic turmoil and cynicism about legal education and the legal profession. As he did to Utilitarianism in Hard Times, Dickens attacks the corruption, pettiness, and self-importance of law in Bleak House, vividly depicting the shrunken soul of Mr. Tulkinghorn and the buffoonish legalese of Mr. Guppy. Consider this passage describing Tulkinghorn’s chambers, replete with images of law's obscurantism:

The day is closing in and the gas is lighted, but is not yet fully effective, for it is not quite dark. Mr. Snagsby standing at his shop-door looking up at the clouds sees a crow who is out late skim westward over the slice of sky belonging to Cook’s Court. The crow flies straight across Chancery Lane and Lincoln’s Inn Garden into Lincoln’s Inn Fields.

Here, in a large house, formerly a house of state, lives Mr. Tulkinghorn. It is let off in sets of chambers now, and in those shrunken fragments of its greatness, lawyers lie like maggots in nuts. But its roomy staircases, passages, and antechambers still remain; and even its painted ceilings, where Allegory, in Roman helmet and celestial linen, sprawls among balustrades and pillars, flowers, clouds, and big-legged boys, and makes the head ache — as would seem to be Allegory’s object always, more or less. Here, among his many boxes labelled with transcendent names, lives Mr. Tulkinghorn, when not speechlessly at home in country-houses where the great ones of the earth are bored to death. Here he is today, quiet at his table. An oyster of the old school whom nobody can open.

But the most lasting characters in Dickens are those, such as Esther Summerson and John Jarndyce in Bleak House, whose kindness and generosity endure amid the dehumanizing world around them, another lesson I would hope a law student or lawyer would take from reading Bleak House to set off any despair about law's purposes. Catholic critics from G.K. Chesterton to Peter Ackroyd have rightly seen in Dickens a reflection of merry English Catholicism, summarized in this bit from Chesterton’s Charles Dickens (1906):

If we are to look for lessons, here at least is the last and deepest lesson of Dickens. It is in our own daily life that we are to look for the portents and the prodigies. This is the truth, not merely of the fixed figures of our life; the wife, the husband, the fool that fills the sky. It is true of the whole stream and substance of our daily experience; every instant we reject a great fool merely because he is foolish. Every day we neglect Tootses and Swivellers, Guppys and Joblings, Simmerys and Flashers. Every day we lose the last sight of Jobling and Chuckster, the Analytical Chemist, or the Marchioness. Every day we are missing a monster whom we might easily love, and an imbecile whom we should certainly admire.

This is the real gospel of Dickens; the inexhaustible opportunities offered by the liberty and the variety of man. Compared with this life, all public life, all fame, all wisdom, is by its nature cramped and cold and small. For on that defined and lighted public stage men are of necessity forced to profess one set of accomplishments, to rise to one rigid standard. It is the utterly unknown people who can grow in all directions like an exuberant tree. It is in our interior lives that we find that people are too much themselves. It is in our private life that we find them swelling into the enormous contours, and taking on the colours of caricature. Many of us live publicly with featureless public puppets, images of the small public abstractions. It is when we pass our own private gate, and open our own secret door, that we step into the land of the giants.

Charles Dickens's work is one of the high achievements in our English language of the human spirit. For that reason, everyone—even lawyers, whom he subjected to such searching criticism in Bleak House—has reason to celebrate tomorrow the comradeship and joy that Chesterton offered as his final word on Dickens:

The hour of absinthe is over. We shall not be much further troubled with the little artists who found Dickens too sane for their sorrows and too clean for their delights. But we have a long way to travel before we get back to what Dickens meant: and the passage is along a rambling English road, a twisting road such as Mr. Pickwick travelled. But this at least is part of what he meant; that comradeship and serious joy are not interludes in our travel; but that rather our travels are interludes in comradeship and joy, which through God shall endure for ever. The inn does not point to the road; the road points to the inn. And all roads point at last to an ultimate inn, where we shall meet Dickens and all his characters: and when we drink again it shall be from the great flagons in the tavern at the end of the world.

Vanderbilt is wrong

Justin Gunter explains, here, why Vanderbilt is wrong to insist that recognized religious student organizations not take religion into account for purposes of membership and leadership.

Saturday, February 4, 2012

Embryo: A Defense of Human Life 2nd Edition

Embryo: A Defense of Human Life, which I wrote with moral philosopher Christopher Tollefsen, and which was published by Doubleday in 2008, is now available in a (very affordable) Second Edition.  It includes an Afterword which reports significant developments in science, and an Appendix containing an important New York Times review of the First Edition by liberal bioethics writer Will Saletan, and a series of exchanges with Saletan in which Chris and I respond point by point, and in detail, to his efforts to find a scientific or philosophical weak point in our argument for the intrinsic worth and dignity of each and every member of the human family, irrespective of age, size, location, stage of development, or condition of dependency.  Here is the link to the Amazon page for Embryohttp://www.amazon.com/Embryo-Defense-Robert-P-George/dp/0981491154/ref=sr_1_2?s=books&ie=UTF8&qid=1328383403&sr=1-2 

Charitable Balance

Robert Hockett is rather more charitable in his interpretation of the Boston Globe story about the supposed similarity between Governor Romney's position on Plan B for sexual assault victims in emergency rooms and the HHS mandate. On a different front, Robert is also charitable in predicting that the Obama Administration will reverse itself on the mandate. I hope he's right on both scores. I also take his point that critics of Governor Romney on conscience protection--who, as I suggest below, are conflating important distinctions in law and bioethics--come from some unexpected quarters, but such are the confusing political times in which we live.

Friday, February 3, 2012

(Boston) Global Balance

Somewhat to my surprise, I find the Boston Globe story referenced in Michael M's post just below to be rather more balanced than I'd expected.  I would encourage all who read Michael's post to read the Globe story, to which Michael helpfully links, as well. 

I am led by my reading of the Globe piece first to make a few observations, then a tentative suggestion. 

On the observations score, first is that it seems to me not the Globe that is claiming Romnobama equivalence here, but C. J. Doyle of the Catholic Action League.  Mr. Doyle figures prominently in a large photograph accompanying the story and is quoted, quite early on, as saying that '[t]he initial injury to Catholic religious freedom came not from the Obama administration but from the Romney administration.'  Of course we hear cognate remarks all of the time from other conservatives, who routinely point to 'Obamacare's' precedent in 'Romneycare' and surely are not taken for defenders of Mr. Obama on that account.  

Second, and in keeping with that last observation, is that there seems to me no defense of Mr. Obama at all in this article.  Mr. Doyle himself indeed goes on to say, in the paragraph just cited, that 'President Obama's plan certainly constitutes an assault on the constitutional rights of Catholics.'  It's just that Mr. Doyle is 'not sure Governor Romney is in a position to assert that, given his own very mixed record on this.'  Mr. Doyle seems to me to be neither impugning Mitt Romney nor defending the Obama Administration's attack on religious freedom in the HHS decision. He's simply invoking a variant of the Clean Hands Doctrine in questioning an attack leveled by Mr. Romney against Mr. Obama, and again is far from the only conservative doing that these days.       

The third thing I note is that the Globe story also makes plain at the outset that Mr. Romney sought first to veto the legislation upon which he was acting in requiring Catholic hospitals in 2005 to provide emergency contraception to victims of sexual predation, and that he 'angered reproductive rights advocates' in so doing.  That almost reads to me like a defense of Mr. Romney in face of the all too familiar conservative line taken against him.

Fourthly the story (a) notes conspicuously that plenty of conservative Catholics as prominent as Mr. Doyle give Mr. Romney the benefit of the doubt where his positional shifts on life questions are concerned, and (b) leaves the distinct impression - surely accurate - that the weight of American Catholic opinion is very much opposed to the Obama HHS's recent decision.  If there's any 'negative focus' at work here, then, it seems to me it is fixed at least as (or more) directly upon Mr. Obama as (or than) it is upon Mr. Romney.

Finally the Globe story also, mais oui, quotes the reliably and, apparently, now likewise obligatorily quotable 'zany' new Catholic Newt Gingrich, who levels charges agains Mr. Romney more or less identical to those leveled by the Catholic Action League's Mr. Doyle and other conservatives. The only surprise occasioned by this particular quote is its not turning up until near the end of the story.  Were the story meant for a hatchet job on Mr. Romney, a puff piece on Mr. Obama, or an equivalence piece on both, one might have expected the reliably incendiary Gingrich quote to figure more prominently at the beginning of the story, perhaps under a headline announcing that 'Gingrich Denounces "Massachussetts Moderate" Romney's Hypocrisy.'  Accompanied, of course, by the mandatory photo of white-haired Newt at the podium, mouth obligingly open and brows suitably furrowed, pointing or wagging a finger toward the camera lens in the accustomed 'J'accuse' manner.       

On balance, then, it doesn't seem to me that we ought to be indulging suspicions of the Globe for this story. Indeed if anything, it is rather refreshingly more balanced than much of what we find in the more familiar news organs, and worthy of praise on that account. Certainly it rides far lighter on the oft-purportedly opportunistic Mr. Romney than most 'liberals' and 'conservatives' tend to do.

What affirmative suggestion does all of this lead me to?  Let's try this:  If we can at all plausibly, let's assume that the journalists out there on balance are trying to be fair.  Let's assume good faith in all cases save those where there's no plausible explanation save bad faith.  After all, there is no shortage of good explanations for bad journalism.  There is, for example, the all too familiar tendency to notice and play up events that play into some dopey demotically popular narrative.  That's mediocrity, to be sure, but mediocrity's seldom bad faith.  What is more, if we call journalists out on cliche and  predictability, they're more apt to try to do better; for their pride in their craft, rather than their need to believe in their decency, will be what's evoked.  Attributing bad faith, one suspects, is more apt to raise hackles and, with them, an unrepentent defiance. 

A final point on my own state of faith here, for what little it might be worth:  It happens that I am among those inclined to take Mr. Romney at his word when he speaks of his relatively recent 'life issues epiphany,' even finding the tale moving.  That is so even as I literally pray Mr. Romney be far less sincere in his professions of new faith in the 'old religion' of 1928-style economic policy, which would be  altogether calamitous for our nation and the world and accordingly must - must - be prevented.  I am also among the many who were surprised by the recent HHS decision, which I believe Mr. Obama soon will recognize for the uncharacteristically oafish and destructive blunder that it was.  I have no interest here, then, in either criticizing Mr. Romney or defending Mr. Obama.  I've little doubt there'll be occasion enough for that soon.  

Mitt Romney, Conscience, and the Boston Globe's Mistakes

The Boston Globe is apparently so intent on impugning Mitt Romney and defending the Obama Administration's attack on religious freedom in the HHS mandate that it isn't letting facts get in the way. Today's Globe has a story about Governor Romney's support in 2005 of a requirement that all hospitals, including Catholic hospitals, provide sexual assault victims in an emergency room with Plan B contraception, which the Globe says is "similar" to the Obama Administration's current policy under the HHS mandate. The only problem with that charge of hypocrisy against Governor Romney is that the two policies are about entirely different things. When a number of states enacted requirements that all hospitals provide Plan B to sexual assault victims in the ER, the Catholic response was somewhat divided (summary article here), with the bishops of New York and Connecticut issuing statements agreeing to permit Catholic hospitals to follow the requirement. The USCCB Ethical and Religious Directives clearly permit administration of drugs to sexual assault victims to prevent pregnancy ("A female who has been raped should be able to defend herself against a potential conception from the sexual assault. If, after appropriate testing, there is no evidence that conception has occurred," no. 36), though there has been considerable debate about whether hospitals should administer both an ovulation and a pregnancy test and whether Plan B acts as an abortifacient. See Daniel P. Sulmasy, “Emergency Contraception for Women Who Have Been Raped: Must Catholics Test for Ovulation, or Is Testing for Pregnancy Morally Sufficient?” Kennedy Institute of Ethics Journal 16, no. 4 (December 2006): 305-31, and Nicanor P. G. Austriaco, OP, “Is Plan B an Abortifacient? A Critical Look at the Scientific Evidence,” National Catholic Bioethics Quarterly 7.4 (Winter 2007): 703–707. What is clear is that the HHS mandate isn't about emergency care of sexual assault victims in Catholic hospitals but is instead a requirement that a range of Catholic institutions cover contraceptives (including Ella, a drug with undisputed abortifacient properties) and sterilization procedures in their health insurance plans. The underlying issues in disputes about conscience protection are important, and obfuscating the facts in different cases doesn't help.

Liz Lev in Zenit on Down Syndrome

The brilliant Liz Lev has written a great piece in Zenit about modern schizophrenic attitudes towards people with Down Syndrome.  On the one hand, "we" want to eradicate them.  Liz writes:

The subject of Down syndrome has appeared many times in this column, much to do with the fact my son has Trisomy 21. The stories have rarely been cheerful, mostly because the prognosis for the future of people with Trisomy 21 is poor. With an 80% abortion rate for children detected with the condition in the womb, it seems that the modern world believes it can eradicate Down syndrome as if it were small pox or the bubonic plague.

My own experience in Italy is that doctors and institutions keep poor records of how people with Trisomy 21 develop. They seem uninterested in learning how to help future generations, and I fear that this is because they believe there won't be future generations.

ZENIT published a very worrisome interview last week with Jean-Marie Le Méné, president of the Jérôme Lejeune Foundation. Mr. Le Méné participated in the March for Life in order to draw attention to the plight of the unborn with Trisomy 21 in France, which now has a 96% abortion rate for children with Down syndrome.

On the other hand, though, "we" increasingly accept and embrace the physical beauty and charisma of kids with Down Syndrome in our cultural icons -- as fashion models and T.V. stars.  Liz discusses a number of examples, writing:  "But over the last few months I have heard several stories that bring promising news, perhaps a sign that Down is not out yet." She talks about the adorable six-year old star of Target & Nordstrom's ads, Ryan Langston; the Glee star Lauren Potter; and movie projects involving actors with Down Syndrome and celebrities such as Martin Scorsese, Roberto Benigni, Vanessa Paradis and Eva Longoria.

In my forthcoming article in Duke's Journal of Law and Contemporary Problems:  Exposing the Cracks in the Foundations of Disability Law, I explore these sorts of "puzzling inconsistencies in contemporary society's attitudes towards the disabled," as diagnosed by Stanley Hauerwas:  revealing "the pretensions of the humanism that shapes the practices of modernity."