Over at Public Discourse, William Jeynes argues that "the surge of non-traditional family structures has unleashed deleterious forces upon the American economy for nearly five decades." The essay's title and intro emphasize the relationship between economic prosperity and "the two-biological-parent family." The essay itself, though, focuses on broken homes and the rise of single parenting. The essay reflects, in my view, a recurring flaw of many anti-SSM arguments, as there is a tendency to be a little too quick to use evidence of ills associated with single parenthood as evidence of ills associated with all non-traditional family structures. There is no dispute that single parenthood creates economic hardships for the kids and the broader society. But we need additional evidence to make the jump that families headed by a same-sex couple create the same economic hardships.
Wednesday, July 20, 2011
Economic prosperity and "the two-biological-parent family"
Will the Catholic Church have to cover contraceptives?
I'm wondering if the new mandatory contraceptive coverage for health insurance plans creates even starker requirements than I contemplated in my earlier post. The California and Massachusetts statutes mandating contraceptive coverage included exemptions for religious organizations, but the exemptions weren't broad enough to cover Catholic Charities. If the new health care law mandates coverage of contraceptives for all health insurance plans not "grandfathered" under the law (i.e., pre-existing plans with no major changes), then won't every employer, including any Catholic Archdiocese, eventually be covering contraceptives? Is there any mechanism by which to opt out? Doesn't the health care law apply to self-insured plans as well? I hope that my concerns are misplaced -- could someone identify the path by which a church could avoid covering contraceptives five years from now?
Will Catholic Charities have to cover contraceptives in all 50 states?
I know a bit about the liberty of conscience, but I don't know much about how health insurance works, and I know even less about how health insurance will work under the new federal health care law. Assuming that HHS adopts the Institute of Medicine's recommendations regarding mandatory coverage of contraceptives, what will that mean for a religious entity's ability to withhold coverage of contraceptives? I know that most health plans will eventually fall under the requirements of the health care law, but will there be any sort of opt-out provision by which Catholic Charities could cover its employees with a plan that is exempt from the federal requirements, or are we now basically confronted with the same regime that California and Massachusetts imposed on Catholic Charities several years ago?
How the mind must work?
Here is how Steve Shiffrin insists the mind must work -- it's an exhaustive trllemma that he liberally asserts: "People either need to accept forced arguments, follow deliberative intuitions, and/or be comfortable with ambiguity."
Steve thus offers three and only three epistemic possibilities. I am not persuaded. The consequences of the argument, in the context Steve means to address in his post, are the reality of "human rights." Needless to say, there are additional important consequences that would follow from alternative possible resolutions of Steve's trilemma.
Steve's first possibility = "accept forced arguments." The meaning of this proposition is unclear, but surely no one reasonably defends "accepting" what is "forced."
Steve's second possibility = the actual possibility of "deliberative intuitions." The question on this is the one Lonergan raised: Are there "intuitions" that *I* can validate? Lonergan's own recovery of his own epistemic functioning discarded the reality of intuition. He could only validate experience, understanding, judgment, and love. I cannot do better.
The final possibility Steve offers = "comfort[] with ambiguity." I have intellectual reason to prefer clarity concerning the conditions of judgment based on understanding and rooted in data, and full scope for probable but precise judgments.
Tuesday, July 19, 2011
Human Rights: Divinely Grounded?
Yesterday, at religiousleftlaw.com, Michael Perry referred to a column by Anat Biletski here that argued against the idea that human rights have a divine foundation. Bietski maintains that grounding human rights in divine authority drains the humanity from human rights. Thus, Abraham would have killed Isaac if angels had not intervened says Biletski (Should Abraham have tortured Isaac if God asked him to?).
At some points Biletski seems to be disagreeing with Ronald Dworkin, but they are both working the same side of the street - except Dworkin is at pains to argue that grounding human rights outside the divine is not inconsistent with the Divine or even with Divine authority though the Divine cannot on Dworkin's account command violations of human rights. In a very interesting discussion (at least to me), Dworkin says that he is "taking sides in an ancient theological controversy. Is a god good because he obeys moral laws, or are certain moral laws moral laws only because god had commanded them?" Justice for Hedgehogs 341 (2011). Dworkin suggests that the "familiar idea that a god is the ultimate source of morality is confused: the old churchmen who said that his goodness reflects some independent moral law or truth had the better of the argument." Id. at 342. If one accepts Dworkin's account, what is one to say of the Abraham/Isaac story?
Beyond the divine grounding of human rights (or not), I wish that Dworkin had convincing arguments for his conceptions of the ontology, epistemology, or structure of moral rights (all of which are detailed in his book). In the end, I do not believe that the grounding of human rights can be justified with knockout arguments, nor do I believe that there are knockout arguments for human rights across the many contested areas involved (in fairness, Dworkin does not think so either). People either need to accept forced arguments, follow deliberative intuitions, and/or be comfortable with ambiguity.
cross-posted at religiousleftlaw.com
The Complex Legacy of Alexander Bickel
Perhaps folks here will have seen Adam White's fine essay on Justice Alito. Adam focuses on Justice Alito's recent and emerging free speech jurisprudence, and along the way, he notes that Justice Alito has referred to Alexander Bickel as a strong influence on his views, particularly in those writings where Bickel emphasizes judicial restraint and the passive virtues. I've always found Bickel admirably difficult to pin down -- I think easy descriptions of him as a conservative or liberal are mistaken. For at least the early part of his career (including that part where he authored The Least Dangerous Branch), he was a committed political liberal. On the other hand, there are strains of conservatism that permeate his thought, particularly as he became older, though it is not the currently predominant strain of legal conservatism.
Take a look, for example, at this interesting exchange, "On Pornography," from 1971 (toward the end of Bickel's life) in The Public Interest (this is when Daniel Bell was heavily involved with PI, before it moved rightward). The issue is framed by two lead essays by Walter Berns and James Q. Wilson, with shorter "concurring and dissenting opinions" by Stanley Kauffmann, Wilson Carey McWilliams, Marshall Cohen, and Bickel.
Monday, July 18, 2011
West on judicial empathy
Robin West's new article, The Anti-Empathic Turn, looks fascinating. A bit from the abstract:
Justice, according to a broad consensus of our greatest twentieth century judges, requires a particular kind of moral judgment, and that moral judgment requires, among much else, empathy - the ability to understand not just the situation but also the perspective of litigants on warring sides of a lawsuit.
Excellent judging requires empathic excellence. Empathic understanding is, in some measure, an acquired skill as well as, in part, a natural ability. Some people do it well; some, not so well. Again, this has long been understood, and has been long argued, particularly, although not exclusively, by some of our most admired judges and justices.
Somehow, however, this idea, viewed as so utterly mainstream for much of the last century’s worth of writing about judging, has, in the first decade of the twenty first century, become positively toxic, at least in the context of confirmation battles to the Supreme Court. What was once regarded as non-problematically central to good judging is now regarded as antithetical to it. No one challenged this claimed antipathy between empathy and judicial excellence. How did that happen?
She sees a broader move from moral judging to scientific judging, which is itself a topic that warrants sustained conversation. I don't agree with Prof. West on all of the issues, but I have found her to be insightful even where we disagree.
Saturday, July 16, 2011
Religious Reasons and Cultural Reasons
What is the legal distinction between a religious reason and a cultural reason when, say, one seeks an exemption from a generally applicable law? For example, if a circumcision ban were passed in Town X, but Town X included a provision for religious exemption, how would Town X know deep down whether the reason that someone wanted to circumcise their child was really religious as contradistinguished from cultural. What criteria would Town X use? It's easy enough if the basis for the requested exemption shows up in the (or a?) core text of the religion, but what if it is more in the nature of a historical accretion to a religious tradition? Or a (contested) interpretation of the core text? I can understand the reason that people want to rely on the distinction between religion and culture, because if there is no distinction at all, then protections for religious liberty come to encompass far too much. But my own view is that the distinction is often at best a matter of degree or perhaps of emphasis, rather than a difference in kind, and that it is a mistake to make it bear any serious weight.
Some of these problems appear in an interesting recent district court decision, EEOC v. Abercrombie and Fitch, where the plaintiff, a young Muslim woman, alleged that she was not hired as a sales associate because she wanted to wear her headscarf, which (said A&F) did not comport with its "Look Policy." Likewise, she was not granted an exemption from the Policy. The feature of the case that interested me most is A&F's claim that the plaintiff wanted to wear the head scarf for cultural, rather than religious, reasons. This looks like it's an important component of the legal analysis that courts have to undertake -- if it's religious, the discrimination claim survives; if it's cultural, no dice.
Friday, July 15, 2011
Anderson on Brooks and the "Good, Short Life"
Ryan Anderson has a nice response, at NRO, to David Brooks's column on "The Good, Short Life." Among other things, Anderson observes:
One can recognize that rising health-care costs, particularly at the end of life, are bankrupting our nation and thus failing to serve the common good without concluding that this entails that the lives of those with terminal diseases are no longer worth living. Between the two extremes of intentionally killing and prolonging life at all costs lies a virtuous mean of accepting death when the alternatives prove disproportionate.
In fact, this is just what Pope John Paul the Great, in his last act of public teaching, taught the world as he humbly accepted his death — neither deeming life with Parkinson’s disease unworthy of living (and thus killing himself) nor demanding every life-sustaining treatment (irrespective of cost, likelihood of success, and alternative uses for scarce resources).
As we continue our national discussion about the cost of care at the end of life, we should keep these distinctions in mind.
Garnett on Employment Division v. Smith
Just want to flag an accessible and trenchant piece of Rick's dealing with the Smith decision. As the readership here will know, Rick is a supporter of Smith, but (and) he believes that in order for the regime of Smith to operate properly, American political and constitutional culture must truly take the protection of institutional religious liberty to heart. He describes in this piece (especially in part III) some of the ways in which it should do this.
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