I returned from my summer travels to find the winter 2010 issue of Communio in my mailbox. It is devoted to Caritas in Veritate, with some valuable articles. I particularly appreciate Nicholas J. Healy', Jr.'s article, "Caritas in Veritate and Economic Theory," in which he discusses three common objections to the idea expressed in the encyclical that "gratuity and reciprocity are essential to economic practice and theory."
Tuesday, June 28, 2011
Communio Issue on Caritas in Veritate
Another Recurring Theme in the Law and Religion Roundtable ...
... was the idea that Religion Clause doctrine ought to reflect multiple principles and considerations: various doctrinal principles like liberty, equality, and separation, as well as other considerations like history, pragmatic effect, etc. Both Marc deGirolami and Alan Browstein presented significant projects from this perspective. Both of them recognized, I think, that multi-factor approaches give up a degree of predictability (and discretion-constraining force?) compared with approaches that emphasize one or two factors. But they emphasized that such approaches (a) take into account more relevant values and also (b) make plain the costs that are involved when judges choose some values over others (as they must) in any particular case.
Conference participants said very good things about both projects but also raised some good questions for the authors. Here's a question for Marc: I get the sense that in your calculus of factors among which judges must inevitably (and "tragically") choose in a given case, you don't give a lot of weight to the factor of having a predictable, clear rule for future cases. Why shouldn't that be an important consideration? Or am I wrong that it doesn't figure in or emerge from your approach?
Tom
Amicus Brief in Ministerial-Exception Case: Institutional Church-State Separation and the History of Disputes over Clergy Selection
Rick Garnett, Carl Esbeck (Missouri Law), Kim Colby (Christian Legal Society), and I filed this amicus brief last week in Hosanna-Tabor Lutheran School, the pending Supreme Court case about the "ministerial exception" from antidiscrimination laws. Two of the brief's important points are: (1) There is a core meaning of "separation of church and state" that ensures separation and distinction between the institutions of church and state and autonomy for the church (and for the state, actually) in its core functions. (2) This arrangement of freedom/autonomy/separation for religious institutions is inseparable from the long history of disputes over government efforts to take a role in the selection of clergy -- from the investiture controversy to today's ministerial-exception issue. (We also have something to say about why teachers at religious schools should, in a great many cases, be treated as "ministers.")
We think that the separation-of-institutions argument may appeal to justices, and others, across the spectrum of views on the contested issues of church and state. We're encouraged in that by the fact that our brief has as signatories the National Association of Evangelicals, the strict-separationist Baptist Joint Committee on Religious Liberty, and Professor Eugene Volokh, who is no automatic vote for the religious institutions' side in Religion Clause cases. (Ours and other briefs in the case so far are posted here.)
Here's an excerpt from the summary of argument:
The ministerial exception, at issue in this case, is a clear and crucial implication of religious liberty, church autonomy, and the separation of church and state. Reasonably constructed and applied, the ministerial exception not only helps civil decision-makers to avoid becoming entangled in essentially religious questions; it also, and even more importantly, protects the fundamental freedom of religious communities to educate and form their members. Although this may prevent individuals in some cases from suing for discrimination, it rests on the overriding principle that there are some questions the civil courts do not have the power to answer, some wrongs that a constitutional commitment to church-state separation puts beyond the law‘s corrective reach. The civil authority lacks competence to intervene in such matters, not so much because they lie beyond its technical or intellectual capacity, but because they lie beyond its jurisdictional power.
Tom
Why Does Obama Make It So Darn Hard to Defend His Foreign Policy on Moral Principle?
Over the past few months, I’ve crossed party lines, readily upset conventional assumptions, and taken heat from friends and allies to express qualified but genuine support for President Obama’s foreign policy in many respects, especially with respect to the use of American military force. I have spoken in favor of Obama’s military intervention in Libya to prevent a civilian massacre, his willingness to hold strong (up until now) on the American military presence in Afghanistan to build opportunities for a new generation there (especially as to the prospects for women and children in that country), and his bold leadership in presiding over the raid to remove Osama bin Laden as the world’s most notorious figure of terrorism.
In each case, I’ve been willing to voice my support because I thought President Obama had not only made the right decision but had done so for reasons of principle. Recognizing that reasonable people could disagree, I nonetheless believed that these difficult choices were consistent with Catholic teaching about the regrettable but sometimes necessary use of military force and also with the highest ideals for American moral responsibility in the world.
So why does President Obama make it so darn hard to continue to defend that foreign policy?
On Afghanistan, Obama now has chosen to withdraw American troops on a scale and at a rate that overrides the better-informed advice of military leadership and that makes success in that country, on any measure and even in a limited manner, far less likely. Obama’s speech announcing the draw-down of troops from Afghanistan lacked any specific rationale for his actions beyond platitudes. He appeared to many observers as trying to have it both way, gesturing to the left with a (partial) end to a long war, while dodging criticism from the right that he was simply retreating. As a result, we now have an Afghanistan policy that makes no sense militarily, economically, or otherwise—too big to simply prevent it from becoming again a base to international terrorism but too small to give a chance to rebuilding a society. One cynically wonders whether Obama’s decision to withdraw 30,000 soldiers from Afghanistan by the particular date of September 2012 is designed to serve any purpose other than to coincide with the Democratic National Convention in September 2012.
On Libya, Obama has adopted the truly laughable (see Stephen Colbert video excerpt posted here) argument that the United States in launching cruise missiles, flying high altitude bombing strikes, and unleashing drone aircraft against the Gaddafi regime has not engaged in “hostilities” within the meaning of the War Powers Resolution. Even setting aside the fact that American forces were placed at risk in this episode (remember that at least one American aircraft crashed in Libya, with both servicemen fortunately being quickly rescued) and that American personnel appear to have been on the ground in an advising capacity to Libyan rebels, no one is buying the argument that America is not engaged in hostilities.
As Senator Bob Corker puts it: “If dropping bombs and firing missiles on military installations are not hostilities, I don’t know what is. The president’s actions on Libya are nothing short of bizarre." More importantly in its moral implications, as Notre Dame Professor Mary Ellen O’Connell reminds us, if the United States is not engaged in “hostilities” in Libya, then our country’s armed “forces are engaged in unlawful killing. The U.S. has deployed manned and unmanned aircraft to fire missiles and drop bombs—the type of weapons only permissible for use in armed conflict hostilities.”
There were two principled paths that Obama could have taken on Libya, but he chose neither. First, he could have shown real leadership by making the moral case to the American people for continued participation in the NATO action in Libya, rather than leaving that task to his former opponent, Senator John McCain. On this path, Obama would have forthrightly sought congressional approval (as have Obama’s predecessors, including President George W. Bush, in every similar past case). Second, Obama could have argued that the War Powers Resolution is an unconstitutional intrusion on presidential powers and forthrightly said he would not comply with its requirements (again, a position taken by Obama’s predecessors of both parties). Right or wrong on the substance, either position had the merit of integrity. Instead, Obama appears to want to avoid any responsibility by pretending nothing really is happening (just move along, nothing to see here).
Sadly, I now am beginning to believe that Obama’s foreign policy is driven by political expediency rather than motivated by moral principle. I worry that our foreign and military policy will fail to have a plausible moral justification while simultaneously sending a dangerous message of weakness and lack of resolve to the rest of the world. And I am beginning to wonder whether I and others (especially those of us not of the President’s party) who have supported these foreign policy steps have been played for chumps here. Tell me, am I wrong?
Greg Sisk
The Dynamo, the Virgin, and Justice Breyer
I see that this website has an interview with Justice Breyer where he lists and comments on several books that have influenced him. The list is interesting and, at least to me, somewhat surprising. I would not have expected The Education of Henry Adams to appear on it. Indeed, I wonder about Justice Breyer's view that the book is about the survival of democracy, let alone the view expressed by the interviewer that Adams in The Education "was both sceptical and optimistic about the constitutional system . . ." I'm not sure that's how I read, say, this memorable bit from the penultimate chapter, "A Law of Acceleration":
At the rate of progress since 1800, every American who lived into the year 2000 would know how to control unlimited power. He would think in complexities unimaginable to an earlier mind. He would deal with problems altogether beyond the range of earlier society. To him the nineteenth century would stand on the same plane with the fourth--equally childlike--and he would only wonder how both of them, knowing so little, and so weak in force, should have done so much. Perhaps even he might go back, in 1964, to sit with Gibbon on the steps of Ara Coeli.
Meanwhile he was getting education. With that, a teacher who had failed to educate even the generation of 1870, dared not interfere. The new forces would educate. History saw few lessons in the past that would be useful in the future; but one, at least, it did see. The attempt of the American of 1800 to educate the American of 1900 had not often been surpassed for folly; and since 1800 the forces and their complications had increased a thousand times or more. The attempt of the American of 1900 to educate the American of 2000, must be even blinder than that of the Congressman of 1800, except so far as he had learned his ignorance. During a million or two of years, every generation in turn had toiled with endless agony to attain and apply power, all the while betraying the deepest alarm and horror at the power they created. The teacher of 1900, if foolhardy, might stimulate; if foolish, might resist; if intelligent, might balance, as wise and foolish have often tried to do from the beginning; but the forces would continue to educate, and the mind would continue to react. All the teacher could hope was to teach it reaction.
Violent Video Games and Constitutional Madness
The Supreme Court continued its flight into First Amendment madness yesterday when it held that retailers had a First Amendment right to sell or rent violent video games to minors. Justice Scalia's majority opinion maintained that categories of unprotected speech such as this could only be justified if they are "historically unprotected" or meet a compelling state interest test. In this respect the Court continues its unprecedented foray in United States v. Stevens where the Court invented the same approach in the process of invalidating a statute proscribing depictions of animal cruelty. Prior to that, it is clear that the Court's categories of unprotected speech were created by balancing the interests in free speech against order, reputation, intellectual property and the like. Last year in Stevens, the Court announced without a scintilla of historical support that this process was "dangerous."
This approach matches the interpretive approach of none of the justices who signed the opinion. Kennedy, Ginsburg, Sotomayor, and Kagan do not confine themselves to historical approaches in other areas of the Constitution or even in other pockets of free speech interpretation. Even Scalia has purported to be bound by the original understanding of the Constitution, but the historic test he employs calls for a long historic tradition that may or may not stretch back to the framers. Moreover, it is doubtful that any of the unprotected categories as now defined match the understanding of the framers. Scalia suggests for reasons he does not disclose that it is permissible to make changes within unprotected categories without a historical basis, but not to create new categories of unprotected speech (despite our history of doing so).
Without a justification in hand for the historical test, the Justices turn to the impossibly high standards of the compelling state interest test. This is an appropriate test for those with a First Amendment fetish and those who are blind First Amendment cheerleaders, so blind that they cannot distinguish between violent video games for children and literary, artistic, scientific, or political speech. In applying the test, the Justices think there is not a sufficient showing of harm despite the conclusions of the American Academy of Pediatrics, the American Academy of Child & Adolescent Psychology, the American Psychological Association, the American Psychiatric Association, and the American Medical Association.
Justice Clark once said that there is no war between the Constitution and common sense. Well the Supreme Court has declared such a war and there is no end in sight.
cross-posted at religiousleftlaw.com
comments open, but I will probably not have time to respond
Powerful New Contribution to Pro-Life Feminism
While so many of my friends were enjoying the congenial company of like-minded scholars last weeks at the Law and Religion Roundtable, I spent two days last week with mostly other-minded scholars at the AALS's Workshop on Women Rethinking Equality, presenting some thoughts on the gender theory of complementarity on a panel entitled "Theorizing Gender." (A glance at the program for this workshop will give you some sense of how well-receive was my suggestion that many women's religious faith will be an important influence on their views on gender theory.)
That experience caused me to appreciate even more getting the announcement yesterday of the posting of a truly extraordinary article on SSRN: Erika Bachiochi's just-published Embodied Equality: Debunking Equal Protection Arguments for Abortion Rights, 34 Harvard Journal of Law & Public Policy 889 (2011). It's a tour de force of pro-life feminism -- a creative and powerful piece of scholarship. This article is truly an invaluable resource for anyone teaching Con Law or feminist legal theory who wants to do justice to all sides of these arguments.
I'm posting the abstract below, but one thing you'll notice if you pull up the article (which you should definitely do) is that Erika lists no "institutional affiliation." Anyone reading MOJ who doesn't know Erika already should get to know her. Erika graduated from Boston University Law School in 2002. (She also has an M.A. in theology from B.C.). Since graduating, even though she hasn't been the member of any law school faculty, she's managed to edit two fantastic books of "new feminist" writings: The Cost of Choice: Women Evaluate the Impact of Abortion (2004) and Women, Sex and the Church: A Case for Catholic Teaching, (2011) and publish a number of articles, including this latest in the Harv. J. of L & Pub. Pol. She lectures & speaks all over the country on these sorts of topics -- see her website. The Murphy Institute has commissioned her to draft a Teacher's Manual for anyone wanting to supplement a course on feminist legal theory with a Catholic perspective, using chapters from Women, Sex and the Church. I just read a draft of this Teacher's Manual, and it is going to an extremely important contribution to Catholic feminism in its own right. We'll publish it on-line and let you know when it's ready.
Oh, and the deadline on her work for the Murphy Institute has been governed this summer by the impending birth of Erika's sixth child......
Here's the article abstract:
Within legal academic circles and the general pro-choice feminist population, it is axiomatic that women’s equality requires abortion. Indeed, pro-choice legal scholars, foremost among them Justice Ruth Bader Ginsburg, have argued that the Equal Protection Clause provides a far more appealing constitutional justification for the abortion right than the roundly criticized right to privacy offered in Roe.
This article seeks to systematically engage, on feminist grounds, the leading pro-choice feminist legal literature, detailing why sexual equality need not—indeed, should not—include a right to abortion. I critique popular scholarly equality arguments from both a constitutional perspective (i.e., why abortion ought not be protected by the Equal Protection Clause) and a philosophical perspective (i.e., how autonomy arguments fail to understand the actual biological dependency relationship that exists between mother and unborn child, and the affirmative duties of care that follow).
I thus challenge the assumptions underlying the idea that pregnancy and motherhood necessarily undermine equality for women. I argue instead that abortion rights actually hinder the equality of women by taking the wombless male body as normative, thereby promoting cultural hostility toward pregnancy and motherhood. In a legitimate attempt to get beyond the essentialist idea that women’s reproductive capacities should be determinative of women’s lives, pro-choice feminist legal scholars have jettisoned the significance of the body. In rightfully arguing that pregnancy is more than just a biological reality, they discount the fact that pregnancy is a fundamental biological reality. I will show that acknowledging this biological reality—that the human species gestates in the wombs of women—need not necessitate the current social reality that women are the primary (and, too often, sole) caretakers of their children or the social arrangements in which professional and public occupations are so hostile to parenting duties.
Easy access to abortion serves to further discharge men of the consequences that sometimes result from sexual intercourse and so places responsibility for unintentional pregnancies solely on pregnant women. Rather than making significant demands on men who sire children, current law encourages women to mimic male abandonment. Concomitant with the proclivity to view male sexual autonomy as the standard for human reproduction is an embrace of a male-centered sexuality that ignores the procreative potentialities inherent in the sexual act. I will conclude by outlining the contours of a pro-woman sexuality and an embodied equality that takes the male and the female body seriously and affirms their shared capacities for full human development.
Monday, June 27, 2011
Fetal pain laws
The New York Times ran a story today on new state fetal pain laws banning abortion after 20 weeks. My colleague Teresa Collett comments here.
Christian Perspectives on Law: Cases and Materials
Speaking of important books coming out in law and religion . . . . Please pardon the (intended) slight immodesty, but a book of possible interest and value to those engaged in matters discussed on MOJ is officially on the way. A number of MOJers and friends of MOJ may recall that, back in January, 2011, at the annual meeting co-sponsored by the Law Professors' Christian Fellowship and the Lumen Christi Institute in San Francisco, I outlined the manuscript on which Bill Brewbaker (U of Alabama) and I were at work: Christian Perspectives on Law: Cases and Materials. I am happy to report that the book will be published by Foundation Press.
The animating principle of the book, which is intended for classroom use (in law schools and beyond), is that Christian theology and philosophy are (at least) every bit as able to provide a critical perspective on law as literary theory, queer theory, analytic jurisprudence, economics, and the rest can offer. Christian thought -- not economic theory or sociological jurisprudence -- is the "lens" Bill and I mean to offer on law and legal practice. We intend, moreover, to make the scope of the Christian perspective we offer as wide as possible, with clear indications of where we discern that individuals and groups across the Christian spectrum agree or disagree.
The comments Bill and I received back in January and shortly thereafter were extraordinarily helpful and encouraging of the value of the project, and we're drafting with all of them in mind. We aim to produce a book that is useful to as many potential teachers in this area as possible. The start-up costs for a course like this are huge, which is why we are not only writing the book but also preparing a teachers' manual that will be quite elaborate.
Please email Bill and/or me with suggestions, ideas, etc. Our devout hope is that a serviceable book of this sort will increase the frequency with which the Christian perspectives on law are offered, both in Christian law schools and elsewhere. We are grateful to the editors of Foundation Press for their willingness to publish a book that Hart & Wechsler, whatever their amazing strengths and contributions, never could have imagined.
The Pluralism of Law and Religion
I want to echo the comments from others about the interesting Law and Religion Roundtable at Northwestern. Thanks again to Rick Garnett, Paul Horwitz, and Nelson Tebbe for organizing the roundtable and to Andy Koppelman for his generous hospitality. I was struck by the number of important books in law and religion that are in the pipeline and were presented by Brian Leiter, Andy Koppelman, John Inazu, Kathleen Brady, and our own Marc DeGirolami, all of whom are tackling issues--such as toleration, secularism, and tragedy--in law and religion beyond mere constitutional doctrine. Adam Samaha from Chicago also presented a superb set of readings he's assembled for a course in law and religion.
Following on Marc's point about the remarkable pluralism (that's the sanguine term, as Marc says) of views in the field, an offhand thought is that in law and religion, perhaps more than in most fields, the tradition-dependent character (to use Alasdair MacIntyre's term) of one's commitments is squarely on display, whether one is an egalitarian liberal, a Thomist Catholic, an evangelical Protestant, or whatever. So maybe we can set aside our fundamental disagreements when we're talking about the UCC, but that's virtually impossible when we're talking about God, religion, conscience, and toleration--when the quest for a view from nowhere is an idle project. As MacIntyre puts it in Whose Justice? Which Rationality? (p. 346):
The fact that liberalism does not provide a neutral tradition-independent ground from which a verdict may be passed upon the rival claims of conflicting traditions in respect of practical rationality and justice, but turns itself to be just one more such tradition...provides the strongest reason that we can actually have for asserting that there is no such neutral ground, that there is no place for appeals to a practical-rationality-as-such or a justice-as-such to which all rational persons would by their very rationality be compelled to give their allegiance. There is instead only the practical-rationality-of-this-or-that-tradition and the justice-of-this-or-that tradition.
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