The Supreme Court recently heard oral argument in FCC v. Fox, for the second time. The first time the Court heard the case, it denied relief on administrative law grounds: the agency's changing a rule (regarding the censorship of expletives and nudity on public broadcasts) did not require that the agency *explain* why it considered the new rule to be better than the former rule. This time the First Amendment issue in the case seems unavoidable: what is the constitutional authority of the FCC to regulate indecency on broadcast media? Some of my thoughts on that question are on this recent podcast.
Wednesday, February 1, 2012
FCC v. Fox -- the "fleeting expletives" case
Catholic Government Officials and Same Sex Unions
I've a good deal of sympathy with the concerns to which Robby gives characteristically eloquent voice in his 'Which Side Are You On' post yesterday. I've also no doubt that he is right about at least some, perhaps even many Catholic politicians, in surmising that their views and voting behavior might be shaped and guided by some form of expressive individualism. Finally, I've also little doubt that some if not most forms of the latter are, at a minimum, in tension with the Catholic and natural law traditions, as well as with what are probably the most widely accepted understandings of the Jewish and Christian, not to mention Islamic, ethical traditions. I wonder, though, whether a somewhat more charitable interpretation - in a 'giving the benefit of interpretive doubt' understanding of 'charity' here - might not be available to us in the case of some Catholic or otherwise religiously committed government functionaries or political figures.
What I have in mind here is this: Perhaps some religiously committed functionaries or political figures attempt in good faith, how ever successfully or otherwise as an analytic or conceptual matter, to draw a sharp distinction between matters of church (or temple or mosque or ...) on the one hand, and matters of state on the other hand. (Perhaps they've not yet read, or not yet read and found persuasive, Robby's own acute writings on the subject, or any of the other great scholarly work plying the natural law or even 'communitarian' traditions in querying the ultimate tenability of the distinction as a conceptual or as a practical matter.) Marriage these people might in turn find to constitute a strictly sacramental or ecclesial category, while finding something like dyadic 'domestic partnership' to constitute all that there is by way of analogue in the realm of legitimate state categories.
These people, if such exist, might then also firmly subscribe and commit to, and with sincere hearts defend and act in accordance with, their congregations' understandings of marriage, while at the same time believing that state functionaries would be abusing state office, state sanction, and state power were they to employ identical criteria in framing the conditions of state-recognized domestic partnership as they do in framing the conditions of marriage within their ecclesial traditions. One such criterion that they might then in good faith find legitimate in the first case but not in the second case might speak to the genders, as distinguished from the ages, competences, and cognate contract-relevant characteristics of the would-be spouses or partners. So far as legitimate state interests are concerned, they might reason, reasonably (but secularly) qualified dyadic partnership is what warrants state recognition and favor of various sorts, while sexual complementarity, ultimate sameness of flesh, and like matters of profound metaphysical significance are matters of ecclesial but not legitimate state competence.
It is true, of course, that the word 'marriage' is used, at least in the U.S., in respect of both of the categories I mention - ecclesial and state. In that sense, our legal terminology, admittedly and perhaps regrettably conflates the two categories. But of course it need not; it could be reformed. And it seems to me that in the meanwhile a, say, quite seriously devout Catholic legislator might prefer globally to change the legal terminology where state-recognized domestic partnership is concerned, while at the same time being willing, until such time as that happens, to approve legislation that ends the state's making what amount to ecclesial decisions concerning the substantive criteria upon which state-recognized and -encouraged dyadic domestic partnership is to be determined. Could s/he not?
Now assuming that the charitable interpretation of at least some actual or possible tradition-faithful state functionaries' or political figures' decisions and actions in respect of 'same sex unions' here offered is plausible, it should go without saying that it does not carry over, at least absent further elaboration and argumentation, to the case of such persons' decisions or actions in respect of abortion. For that latter, of course, involves not only two acting partners of one sort or another, but innocent third parties as well - or at the very least critically implicates precisely that fateful question, as even 'pro-choicers' would be bound in candor to admit.
(Cross-posted at ReligiousLeftLaw)
A follow-up to the “HHS ‘Power Grab’”
In the words of John Paul II (Veritatis Splendor, N. 101)
Today, when many countries have seen the fall of ideologies which bound politics to a totalitarian conception of the world — Marxism being the foremost of these — there is no less grave a danger that the fundamental rights of the human person will be denied and that the religious yearnings which arise in the heart of every human being will be absorbed once again into politics. This is the risk of an alliance between democracy and ethical relativism, which would remove any sure moral reference point from political and social life, and on a deeper level make the acknowledgement of truth impossible. Indeed, “if there is no ultimate truth to guide and direct political activity, then ideas and convictions can easily be manipulated for reasons of power. As history demonstrates, a democracy without values easily turns into open or thinly disguised totalitarianism”.
RJA sj
Gerson on the HHS "power grab"
It's tough-talk, but I think it's true, what Michael Gerson writes: The HHS mandate, coming as and when it did, despite the efforts of more than a few of his Catholic supporters to stop it, is an "edict delivered with a sneer." This is also right, I think:
Obama’s decision also reflects a certain view of liberalism. Classical liberalism was concerned with the freedom to hold and practice beliefs at odds with a public consensus. Modern liberalism uses the power of the state to impose liberal values on institutions it regards as backward. It is the difference between pluralism and anti-clericalism.
An attractive liberalism is one that does not insist on liberalism "all the way down."
Coke on the Common Law
Today is the 460th anniversary of Sir Edward Coke's birth. Coke is widely known in part for his role in the prosecution of the Gunpowder Plot. But Coke was also an astute student of the law. Here's a memorable passage from Coke's report of Bonham's Case, which involved the question whether a London physician could be prevented from practicing medicine and imprisoned pursuant to the newly formed charter of the Royal College of Physicians -- and later ratified by an act of Parliament -- which altered the common law practice. The "censors" of the College had acted as both party and judge in the case, contravening the ancient rule. As those more learned than I have observed, Bonham's Case has almost nothing to do with the contemporary power of judicial review and everything to do with the power of the common law to control the unfettered will of decision-makers -- to restrain the rule of men by the common law, not to unleash it:
The censors cannot be judges, ministers, and parties . . . . And it appears in our books, that in many cases, the common law will controul Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such Act to be void.
West on Waldron on the Rule of Law
Robin West has written an interesting critique of Jeremy Waldron's take on the rule of law. (HT: Solum) The abstract:
This article presents four major objections to Jeremy Waldron’s claim that for “Rule of Law” to exist it we must move beyond basic formal requirements that laws be general and knowable rules we can all comply with, towards substantive requirements that when the law imposes its censorial and punitive will upon us, it is applied in a way that acknowledges our intelligence and respects our individual dignity. After challenging Waldron’s claim, the author suggests that if Rule of Law theorizing is intended to capture our ideals of law, then the three paradigms of Rule of Law scholarship that Waldron has usefully identified and distinguished — formal, procedural, and substantive — need to move beyond identifying the Rule of Law as a means to counter the pernicious abuse of power by a too-fierce state besotted by its own political will, and acknowledge the ways in which the law expresses the will of the state to protect weaker parties harmed not by the state but by powerful private entities.
Tuesday, January 31, 2012
E.J. Dionne on the "Utterly Botched" Contraception Mandate
From Commonweal:
One of Barack Obama's great attractions as a presidential candidate was his sensitivity to the feelings and intellectual concerns of religious believers. That is why it is so remarkable that he utterly botched the admittedly difficult question of how contraceptive services should be treated under the new health-care law. His administration mishandled this decision not once but twice. In the process, Obama threw his progressive Catholic allies under the bus and strengthened the hand of those inside the church who had originally sought to derail the health care law.
I don't find the question whether to broaden the exemption difficult, but otherwise: Ditto!
E.J. also mentions as a compromise the idea of expanding the exemption but requiring objecting employers to notify employees that they do not cover contraceptives and to inform employees of alternate ways they can obtain coverage. But for many organizations this won't reduce the conflict much, since they'd view providing information about specific alternatives--essentially, referrals--as likewise material cooperation with evil. And there's the rub that the mandated contraceptives include some that may act as abortifacients, which widens the duty not to cooperate.
As I finish this, I've caught Rick's post linking to the very interesting discussion among moral theologians about the cooperation-with-evil analysis of this.
Let's have the same rule for both parties on filibustering judicial nominees
Speaking of the editorial board of the New York Times, are its members for or against the use of the filibuster in confirmation fights against judicial nominees? Well, as the indispensable Ed Whelan of the Ethics and Public Policy Center shows, it all seems to depend on whether the president making the appointments is a Republican or a Democrat: http://www.nationalreview.com/bench-memos/289719/nyt-goes-full-circle-filibusters-ed-whelan. Like Ed Whelan, I'm no fan of the use of the filibuster in judicial confirmation proceedings. But I think the same rule---whatever it is---should apply to Republicans and Democrats. It matters less, I think, what that rule is, than that it apply in the same way to both parties. The editors of the New York Times should settle on a principled position, one way or the other---a position they are willing to stick to whether a Republican or a Democrat occupies the White House.
Religious liberty and SSM in Maryland
Here is a letter to officials in Maryland (Download Maryland letter), from Prof. Robin Fretwell Wilson, Tom Berg, Marc Stern, Carl Esbeck, and me, urging the inclusion of meaningful religious-freedom protections, for individuals and institutions, in any legislation that changes the definition of marriage to include same-sex couples.
Which side are you on, boys, which side are you on?
Back in the 1990s, when I was working for Governor Robert P. Casey of Pennsylvania, he used to lament the fact that Catholic politicians---mostly Democrats---were in the vanguard of pushing legal abortion and its public funding and resisting all efforts to protect the fundamental right to life of children in the womb. Casey knew that one didn't need to be a Catholic to understand that unborn children, like all members of the human family, deserve the full and equal protection of the laws. But he believed that Catholics had no excuses for failing to understand that, and that Catholic political leaders had no excuses for failing to act on that understanding. That is why he had nothing but contempt for Mario Cuomo's famous (or infamous) speech at Notre Dame arguing that one could be a good Catholic who "personally opposed" abortion, while at the same time supporting "a woman's right to choose."
If Governor Casey were still with us, no one would be less suprised than he that it is again Catholic politicians---mostly Democrats---who are leading the charge to abolish the conjugal understanding of marriage as a one-flesh union of sexually complementary spouses and replace it with a revisionist understanding of marriage as a romantic-sexual domestic partnership. Predictably, it is the pro-abortion Catholic politicos---people like Andrew Cuomo, Martin O'Malley, and Christine Gregoire---who are in the forefront of the movement to redefine marriage. That, I believe, reveals something rather significant: The philosophical tradition that shapes the reasoning and actions of these people is expressive individualism, or what is sometimes called "life-style liberalism"; it is not Catholicism, or the Judaeo-Christian ethic, or the natural law tradition. Whatever is to be said for and against that tradition, it is deeply alien (and hostile) to the Catholic tradition's commitments to the sanctity of human life in all stages and conditions and the dignity of marriage as a conjugal partnership.
Somehow, when politicians like Cuomo, O'Malley, and Gregoire go about the business of discerning their obligations on issues of profound moral significance on which Catholicism teaches one thing, and the editorial board of the New York Times teaches something else, they are always led by the spirit to side with the Times. Funny, how that is.
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