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.

Wednesday, August 31, 2011

More on natural law and judging: Baur replies to Arkes

The conversation continues.  Prof. Michael Baur wrote, here, about the role of natural law in the work of judges; Prof. Hadley Arkes responded, here; and now Prof. Baur replies (most of his reply is after the jump):  

. . . I am grateful to Rick Garnett for facilitating this discussion, and to Hadley Arkes for offering his own input and for inviting a further response from me.  I am pleased to join the company of those who find themselves in “heated agreement” with Prof. Arkes, but I would be even more pleased if we together might also convert at least some of this thermal energy into light.

 

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Ad Contra

Thanks to Rob for his posting yesterday on Professor Laurence Tribe’s recent SCOTUSblog contribution entitled “The Constitutional inevitability of same-sex marriage.” The Tribe post is a withering critique of a method of legal reasoning that has been and remains crucial to law making—be it law making by the legislature or by the judiciary: the natural law. Of course, Professor Tribe is no friend of the natural law [HERE Download Tribe on Natural Law] and scorns its use. Yet, without the natural law, we would not have the Declaration of Independence and the fundamental law of this country, the Constitution of the United States of America.

Professor Tribe also makes passionate arguments for the “constitutional inevitability of same-sex marriage,” and some of them are based on polls, evolving consensus, and the transformation of culture. In this context, he asserts that arguments contrary to his on these points necessitate “the Court to cut this baby in half.” I wonder if he would employ this phrase in the arguments he has made in defense of abortion (for there, the baby—millions of them—has been and is plainly cut in half)? He also derides the use arguments against same-sex marriage that rely on what he labels “pseudo-scientific claims.” He does not identify the reasoning underlying these claims, but I wonder how he would consider this argument: Let us assume that two planets which have not yet been inhabited by humans are to be colonized by them; on Planet Alpha, heterosexual couples only are assigned; on Planet Beta, only homosexual couples. In one hundred years, will both islands be populated assuming that reproductive technologies are not available to either group? I suggest that Planet Alpha will be; but Planet Beta will not. Why? The basic answer is to be found in the biological complementarity of the heterosexual couple necessary for procreation that is absent in same-sex couple. This is a scientific argument, but perhaps it is, in Tribe’s estimation, counterfeit.

Professor Tribe’s legal justification for same-sex marriage is established on liberty and equality arguments. I have addressed those in an essay that will be published soon [I hope] by our friends at St. John’s University. The text of the argument is HERE Download St. John's Essay November 2010.

Professor Tribe is a highly regarded advocate and professor of law, and he is a formidable challenger. But I say that on his Constitutional arguments of liberty and equality, he is mistaken.

 

RJA sj

Of Amusement Parks and Head Scarves

This controversy hit extremely close to my home.  A fight broke out yesterday at Rye Playland Park when a number of Muslim women were told by park staff members that they would not be permitted to wear their head scarves on certain rides.  The park had received a number of Muslim visitors who were celebrating the end of Ramadan.  A scuffle broke out after the refusal to allow some of the women to ride without removing their hijabs, and there was also some kind of report that a park employee touched one of the women.

The park has a safety policy against the wearing of any "headgear."  I've been to Playland a number of times with my own family, and I've been required to take off my hat when I went on some of the faster rides. 

What makes this a possible constitutional question is that Playland Park is government owned and operated.  It is, in fact, the only such amusement park in the United States!  But I cannot see any way in which, should a law suit be brought against Westchester County, the plaintiffs would win.  This policy is clearly a law of general application, it is not targeted at any group, and it is overwhelmingly justified by serious safety concerns.  The rides to which the policy applies (and those that the Muslim customers report being barred from  riding) are extremely fast moving and jerky (I hate "Crazy Mouse" for this reason).  Any First Amendment claim would almost surely fail.  A sad episode nonetheless. 

(Picture of the wonderful 1929 "Dragon Coaster" at Rye Playland Park) (x-posted CLR Forum)

Tuesday, August 30, 2011

Who decides when "Roman Catholic" applies?

Get Religion offers a helpful thought experiment to capture how misguided some of the media coverage of "Roman Catholic" groups can be:

Let’s say that a bunch of retired journalists from the Los Angeles Times got together and, with a few converts who yearn for the good old journalism days in that great city, form a news organization that we will call, oh, the Society of St. Otis Chandler. This group rents itself some printing presses and, using a template of a vintage masthead of the Los Angeles Times in 1965 or so, start publishing a newspaper that they call — wait for it — the Los Angeles Times.

This makes some people confused, especially when the leaders of this new-old Los Angeles Times start making pronouncements that directly contradict those made by the leaders of the real Los Angeles Times.

Is everyone following this? Good. Hang on.

Now, the leaders of the actual Times clearly have the right — like it or not — to say who works for the real Times and who is aligned with this pretend Times. So how would these editors feel if major news operations kept writing stories about statements by the Society of St. Otis Chandler and calling its members Los Angeles Times journalists in good standing?

Now, unfortunately, there is one more complication. Suppose that some of these splinter Times people decide that the leadership of the Society of St. Otis Chandler have not gone far enough. Suppose that they start yet another group, one that claims that the leaders of the new-new Los Angeles Times are not only wrong on key issues, but that they are not even journalists in the first place.

Now, do you think mainstream journalists would go so far as to say that these people, the members of the splinter group that left the larger splinter Times, are, in fact, Los Angeles Times journalists?

Is a constitutional right to SSM inevitable?

Lawrence Tribe says yes:

The case for same-sex marriage follows directly from Lawrence’s potent recognition of the right to dignity and equal respect for all couples involved in intimate relationships, regardless of the sex of each individual’s chosen partner.  Sounding in the constitutional registers of due process and equal protection, Lawrence sought to secure a fundamental and yet fragile dignity interest whose boundaries necessarily extend far beyond the bedroom door.  Notwithstanding a few half-hearted qualifications that Justice Scalia quite rightly dismissed as inconsistent with its underlying reasoning and as trivial barriers to same-sex marriage rights, Lawrence is thus incompatible with state and federal laws that refuse two men or two women the full tangible and symbolic benefits of civil marriage.

He may be right, though I still think that there is potential ground on which courts can choose to distinguish between the liberty interest presented by intensely private conduct (Lawrence) and more "public" child-rearing relationships (marriage).  The "child-rearing" nature of marriage and the empirical basis for preferring the child-rearing facilitated by traditional marriage versus same-sex marriage present their own disputed questions, of course.

The Talking Cure

Jacques Lacan's famous discussion of Freudian psychoanalysis as a form of talking cure, in which the analyst is able to shape the meanings of the subject's hangups and mental infirmities, came to my mind during the recent exchange between Rick, Paul, Rob, and others (see below) on the issue of quizzing political candidates about how their religious beliefs will affect their decisions.  Yesterday, as my colleague Mark Movsesian notes, Ross Douthat had a column on the issue, with a number of interesting recommendations for journalists.

But I had a thought that may strike some here as perhaps a little heterodox.  I want to make a point in (partial, limited) defense of the Rortian "religion as conversation-stopper" view (which Rorty only really very partially revised after an elegant intervention by Jeffrey Stout a few years ago).

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Sunday, August 28, 2011

Patrick Riley on Justice for Augustine and Leibniz

"The Art of Theory," A student-run political theory journal at Yale, publishes "Convienent, short" essays  (their ideal is Kant's "What is Enlightenment?" which is about 2500 words). In their current issue they have a brief piece by Patrick Riley on the ideal of justice as universal charity. Riley points out that this approach to thinking about justice has its roots in Christian neo-Platonism, but was eclipsed by Enlightenment thinkers, notably Hume and Kant.

Riley's focus is on Leibniz, drawing out the connections not only to Augustine, but to an important and enduring tradition of jurisprudence. He writes:

Leibniz did not write in vain when he insisted that the just person will be “wisely loving” and universally benevolent: in that he eloquently re-stated a tradition founded by Plato, Cicero, St. John, the young Augustine, and Dante and agreed with what is best in his Christian-Platonist contemporaries Pascal, Malebranche, and Fénelon. But he also looked forward: “[I]n the world of justice and love . . . . [l]et us never subordinate to a duty which is abstruse, remote and uncertain, an explicit and immediate duty to deal justly and to love mercy.” That is Marcel Proust, writing in 1900 in a language at once neo-Leibnizian and proto-Freudian.† The continuity between Plato and Proust, in making caritas and philia “wise” through sentiments de perfection and affection, places Leibniz on an infinitely graded continuum, which stretches spatially from Athens to Rome to Hannover to Proust’s Paris and to Freud’s Vienna, and temporally from the death of Socrates to the end-of-life triumph of Freud over cruelty and malevolentia.

 

 

Saturday, August 27, 2011

Michael New: Selective Reduction Reveals a Weakness in the Armor of Choice

At NRO the formidable Michael New comments on the reaction of pro-choice bloggers to the recent story in the New York Times discussing the case of women who conceive twins or other multiples through IVF and then opt to “selectively reduce” the pregnancy to a single developing child.  New’s remarks are here.  The Times story is here.  I previously posted on the Times piece here

As New observes, these otherwise adamant proponents of abortion – including the likes of Frances Kissling, William Saletan, as well as commentators at RH Reality Check and Jezebel – “expressed a considerable amount of unease with women who reduce their [multiple] pregnancies to singletons.”

While New does not deny that these expressions may be sincere on some level, he does suggest that they may be strategic.

I think that something different is at work here.  Supporters of legal abortion typically do not argue that they want abortion to be common or widespread.  They make the case that it should be a legal option for women facing unique or difficult circumstances.  They are also aware of polling data that shows that while majorities of Americans think abortion should be a legal option in cases of rape, serious health risks to the mother, or fetal deformity.  However, they are also aware that most Americans disapprove of abortion in cases of economic hardship or a desire to have fewer children.

Now, since abortions are done in private, the rationale for most abortions will remain unclear.  But women who choose to bear only singletons are seeking abortions out of convenience in a very visible way.  Pro-choice activists realize that if this practice is seen as commonplace, that could weaken support for legal abortion.

Given the sensitive subject matter, the New York Times did its best to put a nonjudgmental spin on this.  But the reaction of ardent pro-choice activists is very telling.

Put a bit more cynically, pro-choice advocates feign a kind of understated revulsion at the practice of “selective reduction” where the pregnancy is anything but unintended.  This is done, notwithstanding the logic of abortion, which provides no principled basis for such opposition, but so as to appear moderate and reasonable in order to preserve an unbounded right  to abort for any reason whatsoever.

The reaction of ardent pro-choice activists is, as Michael New says, “very telling” because, as with partial-birth abortion, “selective reduction” reveals a weakness in the armor of choice.  The revulsion that most people feel in response to the procedure is not feigned but genuine.  What those who value unborn human life must continue to do is ask the question: “Why?  Why do you feel this way?  Why do you recoil in horror at this particular choice?”  If the question is pressed, and one is honest with oneself, the person who began as troubled only by “selective reduction” may find him or herself questioning the entire abortion regime.

"Hayeswater"

Mood music by Matthew Arnold for this soppingly bleak day.

Hayeswater

A region desolate and wild.
Black, chafing water: and afloat,
And lonely as a truant child
In a waste wood, a single boat:
No mast, no sails are set thereon;
It moves, but never moveth on:
And welters like a human thing
Amid the wild waves weltering.

Behind, a buried vale doth sleep,
Far down the torrent cleaves its way:
In front the dumb rock rises steep,
A fretted wall of blue and grey;
Of shooting cliff and crumbled stone
With many a wild weed overgrown:
All else, black water: and afloat,
One rood from shore, that single boat.

Friday, August 26, 2011

More analysis, and critique, of the contraception-coverage mandate's exemption

Chris Haley has a very good essay, "Creating a Catholic Ghetto," at the First Things blog, in which he focuses nicely -- in a way that complements the Alvare essay to which I linked in an earlier post -- on the marginalizing (and, therefore, socially and otherwise undesirable) effect that the mandate (with its at-present very narrow exemption) would have on Catholic institutions . . . and not only, it should be emphasized, on Catholic hospitals:

The actions of the administration are in keeping with the prevailing secularist ideology: religious beliefs, practices, and institutions are seen as essentially private matters, best kept out of public discourse and away from the public sphere. While I have focused here on the Catholic Church, this mandate would affect not only the Catholic Church, but every church, every religious community, every individual believer. It must be opposed.

And, as it happens, it is being opposed, and also by Catholics who otherwise have been supportive of President Obama's election and Administration.  As Michael Sean Winters reports, here,  a number of "prominent Catholics [including many who had supported Sebelius's nomination and many who signed a letter, a while back, criticizing Speaker Boehner for, in the signers' view, not adhering closely enogh to Catholic Social Teaching] released a letter to Health & Human Services Secretary Kathleen Sebelius recommending that she amend the proposed rule on mandated health care coverage to provide for more expansive conscience protections for religious organizations."  The letter says, in part:

Catholic charities and Catholic hospitals do not fit the rule’s definition of religious organization. Catholic schools, colleges, and universities also might not fit the current definition. In light of the First Amendment’s protection of religious practice and of the 1964 Civil Rights Act’s forbidding of discrimination for religious belief and insistence on accommodation of religion in the workplace, we propose expanding the definition of religious organization in the final rule to extend conscience protection to religious charities, religious hospitals, and religious schools in regards to mandated health insurance coverage. . . .

Kudos to Prof. Schneck for organizing the letter, and to the signers for signing it.  I hope Sec. Sebelius listens.  I confess, though, to not being very optimistic.  She is, after all, almost certainly also receiving letters (or has received letters) and lobbying to the effect that exemptions for religious organizations and believers from generally applicable mandates -- think, for example, of non-discrimination mandates -- are inappropriate, even pernicious.  Unless one believes that religious freedom is a positive good, and not merely a concession one makes, when not too inconvenient, one is not likely to see why an otherwise good law (which the Secretary believes, I assume, the contraception-coverage mandate is) should yield to the preferences or prejudices of those who don't like it.