The recent legislation in New York opening the door to legally sanctioned unions of same-sex couples (by fiat of positive law) raises the question about whether those Catholic public officials of New York who supported the new law in some fashion acted in conformity with the Church’s teachings on Catholics in public life. It may be that those public officials who voted for this proposal or who signed it into law did not consider what the Church asks of her members who are public officials and engaged in actions which conflict with the Church’s teachings.
And what are those teachings regarding this matter. Well, both Blessed John Paul II and the Congregation for the Doctrine of the Faith have set them out clearly. I have recently addressed the importance about values in the exercise of the state’s authority [HERE], so I shall not replicate that discussion here. But what needs to be considered today is the essential question regarding what the Church expects of her members who exercise public responsibilities in formulating the laws by which society is governed.
Here is what the Church asks of them:
First of all Catholics—regardless of whether they hold public office or not—are obliged to pursue the common good as the Church defines it.
Second, if there is law already made that conflicts with the Church’s teachings, then Catholics have the responsibility of registering their disagreement with it and, then, doing what they can to enact restrictions to limit the extent of the mischief that has been or may be generated by the original law especially when there is an effort to amend or renew funding for such a law. This assumes that it would not be possible to repeal such a law upon its being revisited by those whose office it is to re-examine the legislation.
However, this was not the case in New York since the legislation of New York had until a few days ago only permitted the union of one man and one woman, not two men or two women. What did the Church’s teachings mandate in this context?
Catholics—especially those whose responsibility it is to make law—have the duty as a member of the Body of Christ to (1) express opposition clearly and publicly to proposals that would acknowledge homosexual unions, and, then, (2) do what is necessary to defeat the proposal by voting against it and by encouraging others to do the same not only on the grounds of faith but also on the foundation of objective reason.
For those Catholics who believe, perhaps quite earnestly, that the recent legislation of New York redefining marriage “feels good” need to re-examine why they think this and why they believe it is consistent with the teachings of their Church. To believe that the cause of equality has been protected or that fairness and civil rights are enhanced are false foundations for supporting the new definition of marriage. When these arguments are made by Catholics in support of the new law defining marriage, they demonstrate by word and deed that they know not who they are when the claim the moniker Catholic.
On a more technical legal issue, it is interesting to note that the legislation contains a provision that if any element of the act is declared invalid as a result of the judicial process, the entire act will be invalid. This may well suggest that public officials who supported the legislation in some form may not be so confident about that which they undertook in seeking its passage.
I just finished attending a two day seminar on Woman in the Church and in the World, sponsored by the Siena Symposium for Women, Family, and Culture. The seminar included some wonderful sessions on the problems confronting women, the Marian Dimension of the Church, the family as "domestic Church," the mission of the laity, among others. Among the other participant attendants were MOJ'er Lisa Schiltz and MOJ friend Teresa Collett.
While are many substantive issues I could write about (and perhaps Lisa will blog on one or more of those), one of the things that came up for me is something we also touched on (albeit in a different context) at the recent Law and Religion Roundtable that several of us have written about here on MOJ - the need for care in the language that we employ.
One of the symposium participants leveled the criticism that secular feminists buy into a mindset of male normativity (not her term). That is, they accept a male hierarchy of values and seek to have women embody those values as well or better than do men. (In fact, I don't think that is an accurate characterization of most secular feminist thought, but that is beside the point of my thrust here.) The suggestion is that Catholic thought brings a better approach to the table in its notion of complementarity, which does not demand of women that they try to “be men.”
My concern is not with the notion of complementarity but in how it is discussed. As I listened to a number of comments, rather than promoting a notion that women’s talents and gifts were as important as men’s, some of the language seemed to replace one hierarchy of values with another. Thus, for example, one person spoke of having a child as involving a total lifegiving sacrifice that is fuller than any other possible sacrifice of self humans are capable of. (What does that say, not only to males, but to women without children?) Another made a comment suggesting that there is a preference for the contemplative over the active, suggesting that female receptivity was of a higher value than male action. Complementarity, it seems to me, ought to be about dumping the idea of ranking of male and female gifts/talents, not about replacing one ranking of values with another.
It may be that neither of the comments I gave as examples (nor several others of a similar ilk) were intended to suggest this, but that is how it sounded. Hence my admonition that we all need to be careful in how we discuss these issues if we want to persuade that they offer a better way of thinking about issues.
A New York town clerk takes her stand, though perhaps she should have waited until she had an actual case before her. I consider myself to be a strong advocate for rights of conscience, but I think those rights are much more difficult to defend for state actors (not necessarily impossible, but much more difficult).
Earlier this week, Ross Douthat wrote a column lamenting sex-selective abortion based on Mara Hvistendahl's new book, "Unnatural Selection: Choosing Boys Over Girls, and the Consequences of a World Full of Men." He concluded:
[T]he sense of outrage that pervades her story seems to have been inspired by the missing girls themselves, not the consequences of their absence.
Here the anti-abortion side has it easier. We can say outright what’s implied on every page of “Unnatural Selection,” even if the author can’t quite bring herself around.
The tragedy of the world’s 160 million missing girls isn’t that they’re “missing.” The tragedy is that they’re dead.
Hvistendahl now responds, and wisely (in my view) points out that "[r]eproductive rights in the United States have been positioned around the notion of absolute choice, and facing advances in reproductive technology like early and easy sex determination involves addressing the question of whether there may in fact be some limits to the reach of choice." Prochoice advocates have been unwilling to tackle that question, and thus prolife advocates have an advantage in the debate because sex-selective abortions are so morally troubling to most Americans. But that's as far as the prolife advantage goes, according to Hvistendahl. After all,
Women make the decision to abort because women know best how difficult it is to be female. Further reducing a woman's rights would only make her more wary of having a daughter.
Hmmm . . . we face a pressing problem of girls being targeted for abortion, but we should not use the law to curtail abortion rights because that will just make women more likely to target their daughters for abortion, knowing how much more difficult life will be without a robust set of abortion rights? I agree that a person can oppose a right to sex-selective abortions without necessarily opposing a right to abortion more broadly, but Hvistendahl's logic is a bit of a stretch, it seems to me.
Mike Dorf has an excellent post at Dorf on Law on the video games case, but I want to modify his terminology (and I am sure he would agree with most of what I say here). Mike describes the position of Justice Breyer favoring the constitutionality of violent video game regulation as "breaking conservative" and Justice Scalia and Kennedy's position arguing that such regulation was unconstitutional as "breaking liberal." This terminology is quite common and has been for more than half a century, but I do not think it is useful. The underlying assumption is that favoring the First Amendment position is liberal and opposing it is conservative.
But, on this view, Cass Sunstein and I are conservatives. I could accept the view that we are not "liberals." But I think of us as progressives, not conservatives. Sunstein and I and many others do not believe the First Amendment is a barrier (with exceptions) to campaign finance regulation, commercial speech regulation, pornography regulation, attempts to protect privacy and human dignity and the like. We do believe in strong protections for political speech (Sunstein's emphasis) and dissent (my emphasis). As my colleague, Aziz Rana observes, it has long been part of the progressive tradition to nurture a particular kind of culture.
At the same time, I do not believe Scalia and Kennedy "broke liberal." There is a well-known split on the right between Libertarianism and Burkean Conservativism. I would say that Scalia and Kennedy broke libertarian. In results, Kennedy is far more libertarian than Scalia (consider the latter's views on the state's regulation of sexuality and sexual speech).
From my perspective, the free speech approach of the Court is bleak, but it is nice that the liberals sometimes "break progressive" in some of the campaign finance cases, and Alito's Burkean conservatism overlaps the progressive view in cases involving depiction of animal cruelty and demonstrations at military funerals calculated to inflict emotional distress.
This is a well written and interesting extended review by John Gray of David Brooks's apparently avidly consumed book, The Social Animal. I've admired some of Gray's work very much, particularly his superb treatment of Isaiah Berlin (which is in some ways as much Gray as Berlin). It is sometimes supposed that "progressivism" correlates with optimism, and "conservatism" with pessimism, but this review is interesting in part because it pits two strains of contemporary conservatism against one another -- Brooks's optimistic, cog-sci, evolutionary-psychology-can-save-us, let's-mine-the-unconscious-for-political-wisdom variety (which Gray, interestingly, associates with Sam Harris's book, The Moral Landscape: How Science Can Determine Human Values), against Gray's pessimistic, declinist, no,-we're-actually-not-so-much-more-advanced-than-Freud-that-we-can-dispense-with-reading-him brand. Here's the conclusion of Gray's piece:
Brooks cites Michael Oakeshott’s observation that in politics we “sail a boundless and bottomless sea; there is neither harbor for shelter nor floor for anchorage, neither starting place nor appointed destination.” It is a refreshing reminder of what conservative thinking might once have been. But Brooks would have done better to cite another passage from the same volume, where the skeptical British philosopher notes that
there seems little to stand in the way of the appearance of a vulgar counterpart to this literature of political inquiry. . . . A little book on How to Restore old Cottages may be flanked on the bookstalls by one on How to Restore old Monarchies; an article on “A face-lift for the kitchen: new and exciting materials” in a Do It Yourself magazine will be followed by others on “Dos and Don’ts in making a Revolution,” “How to win an Election.”
Oakeshott comments that “writings of this kind (with perhaps less obvious titles) have been available for more than a century.” It is doubtful, though, whether Oakeshott envisioned a book like The Social Animal: an instruction manual for politicians, the chief virtue of which is that it is practically useless.
This appealing emptiness will not ensure the book’s longevity, however. Soon enough, Brooks’s manual of positive thinking will be consumed and discarded. History will move on and yesterday’s gurus will be remaindered and forgotten. But if Brooks’s book will hardly be remembered, the reverence with which it has been received tells us something important about how we have come to be ruled. The Social Animal is an exemplar of political discourse as we know it today; the chief function is to distract attention from intractable realities, which governments and those they govern prefer not to think about.
Terrence Malick's masterpiece The Tree of Lifeis a stunningly beautiful film, but be forewarned that it doesn't have a straightforward plot insofar as it's about...well, everything from the origin of the universe through the evolution of life on Earth to the end of matter, with a lingering pause on a Catholic family in 1950s Waco, Texas. The otherwise gushing reviews from critics have largely missed the film's Augustinian themes: nature and grace ("The nuns taught us there were two ways through life, the way of nature and the way of grace."), interiority and the second-person dialogue with God that echoes Augustine's Confessions ("I didn't know how to name You then. But I see it was You. Always You were calling me."), love (“The only way to be happy is to love. Unless you love, your life will flash by.”), and the surd of human sinfulness in a "Pear Tree"-like incident. Terrence Malick is an eccentric genius, but he's made the most overtly theological major American motion picture since Bruce Beresford's Tender Mercies in 1983.
I'm grateful to Tom as well as Michael for highlighting my work. It isn't often that a junior person is blessed with as acute, thoughtful, and learned an audience as what I had at the ALRR.
Tom raises what I take to be one of the most powerful criticisms of my book project. I want to step back for a moment in order to address Tom's question properly. I adopt a specific variety of value pluralism for religious liberty questions. That approach is skeptical about accounts of religious liberty which rely on one or even several discrete values to work out religion clause conflicts. Some of these single value accounts acknowledge the costs of their view; others do not. But even those accounts which admit the possibility of loss or cost when some values are chosen over others (Tom's letter b) nevertheless believe that it is possible and profitable to justify in a systematic way ex ante which values ought to win in any given conflict. And they use that specification to construct comparatively hard rules that lead to certain outcomes -- certain in both senses of the word: (1) specific outcomes that elevate the selected value to overriding status; and (2) predictable outcomes, because people come to know that, say, the Establishment Clause is guided by a norm of state neutrality which will control in all cases.
The question that Tom asks is, how do the clearly important and worthwhile aims of predictability of outcome and legal stability figure into an account which does not start from the position that values can be systematized or rank ordered? I agree with Tom that these rule of law values are deeply important, and I think it would count very much against any approach that it sacrificed stability and predictability. Another way to ask this might be to wonder whether it is possible to disaggregate (1) and (2) above -- is it really true that the only way to achieve stability and predicability in the law is by elevating a single value (or small set of values) to master status? Or can we achieve many of the advantages of (2) without (1)?
I think that we can, by adopting a comparatively strong and binding approach to precedent. We can give rule of law values their due and adopt the position that value pluralism is the order of the day when it comes to religious liberty conflicts, by keeping a close eye on precedent and hewing to a minimalist and gradualist view of legal change. That common law sensibility will get us many of the advantages of predictability and stability without making the mistake of believing that we can conclusively systematize the values often in play. In fact, over time, a judicial culture which adopts a tragic view as well as a strong reading of precedent will, I believe, create a predictable and stable system. But its stability and predictability will derive not from theoretical system, but from a close examination of the particular facts for similarity or difference with past decisions.
Admittedly, and as was pointed out to me gently at the ALRR, my approach might seem inelegant from a theoretical perspective. Indeed, to the extent that my view is persuasive, it persuades exactly because it is theoretically unsystematic and (for some) dissatisfying. I will quote from one of Tom's excellent pieces on a related subject: "[T]here is a fairly widespread view . . . that if judges cannot find a coherent single principle – or at least a rather small and manageable set of principles – on a subject, they should exit entirely and let the politically accountable branches decide such questions prudentially." Berg, Religion Clause Anti-Theory. I guess I don't agree with that widely shared view, and I suppose if I were forced to choose between simple and predictable single-value rules that mutilate the conflicts of religious liberty for the sake of cohesion and an inelegant approach that permits judges to aspire to analyze the conflicts as they actually are, I would go for the latter. But the reality is that this is a false choice because my approach depends to a great extent on the constraining quality of precedent to shape judgment -- not by giving judges a quick and easy rule to apply, but by focusing their attention on fact specific inquiries within which multiple values (though certainly not an infinite number of them) compete for dominance. We can have (2) without (1) -- and courts often decide cases believing just this (and...if I had to predict the way Hosanna-Tabor will be written, it will reflect something like my approach!).
Thanks again, Tom, for the terrific and difficult question, which I've only sketched an answer to here.
There has been lots of debate within the gay and lesbian community about whether the embrace of marriage represents a loss of something significant for the community. One article on the debate contained a quote from Laurie Essig that concisely captures the sentiment:
"In the past, we queers have had to beg, cheat, steal and lie in order to create our families. But it's exactly this lack of state and societal recognition that gave us the freedom to organize our lives according to desire rather than convention."
Social convention may not always provide the best framework for organizing one's life, but I'm pretty sure that desire is an even more dangerous candidate for that function.
