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.

Thursday, June 23, 2011

General Discrimination vs. Religiously Based Moral Objection to an Act: A Question for Steve Shiffrin

In his discussion of religious exemptions to same-sex marriage legislation (here) Steve Shiffrin draws a distinction between “general discrimination” on the one hand, and on the other hand “declining to participate in an act that you think is immoral.”  Employing this distinction, Steve says that one could adhere to some foundational principle of equality such that a caterer would be prohibited from refusing to serve gays and lesbians generally but would be allowed to abstain from providing catering services at a same-sex wedding based on a conscientious, religious objection.

Steve foresees that adhereing to this distinction might lead to the case in which a caterer might refuse to participate in an inter-racial wedding.  Steve would allow a religious exemption in such a case, though he would demand the satisfaction of some kind of religious sincerity test – while acknowledging the likely difficulties in  implementing such a test.

My question, however, is whether the distinction between impermissible “general discrimination” vs. permissible discrimination based on sincere religious objection to an act can be maintained.  Does the school which does not wish to admit black students object to African-Americans “in general” or do they object to the “act” of inter-racial education?  Do the owners of a lunch counter which is happy to serve African-Americans in a designated space but unwilling to seat them next to white customers discriminate against blacks “in general” or do they object to the “act” of inter-racial dining?

Moreover, if the distinction can be maintained – if discrimination against the person as such can be distinguished from moral objection to the act that the person engages in – isn’t this precisely the distinction employed by opponents not only of same-sex marriage but of intimate same-sex relations?  If so, then doesn’t the question become whether such moral objections can be founded on non-religious premises in a way that is convincing to a broad public?

No one is more keenly aware than am I that there are many honorable, fair-minded, and non-fanatical liberals. Since there were very few conservatives at Princeton when I was hired, granted tenure, and installed in the professorial chair I hold (and since my socially conservative views were at no point a secret), I know that I am the beneficiary of the honesty and integrity of many liberal colleagues. But I worry, as I know some liberals themselves do, that there is an authoritarian impulse in some liberal circles that threatens to undermine the historic commitment of liberalism to individual and institutional freedom and the rights of conscience.

Traditional liberals, such as the late John Rawls, viewed liberalism as a "political" doctrine--one that did not propose and seek to impose what he called a "comprehensive view," that is, an integrated set of beliefs about the human good, human dignity, and human destiny.  It's role was not to compete with the various comprehensive doctrines held by citizens in a pluralistic society, or to attempt to undermine reasonable comprehensive doctrines (such as Catholicism, as Rawls explicitly noted) or displace them.  Its ambition was to establish a framework in which "deeply opposed though reasonable comprehensive doctrines may live together and all affirm the political conception of a constitutional regime."  Although I have in my own writings criticized various aspects of Rawl's theory of justice (especially his conception of of "public reason"---a conception I believe is too narrow to be compatible with his notion of liberalism as a political, rather than comprehensive, doctrine) this central ambition represents, I think, something laudable in the liberal tradition.

But as liberals around the country---not all, but many, and indeed increasingly many, it seems---abandon support for conscience protection and seek to force pro-life and pro-marriage citizens and institutions to comply with liberal ideological beliefs by, for example, referring for or even participating in abortions and providing facilities or services for celebrations of same-sex sexual partnerships, it seems clear that the Rawlsian ambition has been thrown over in favor of a crusade to establish what might be called (following Rawls himself) "comprehensive liberalism" as the official pseudo-religion of the state.  The impulse to crush the rights of conscience (where conscience is considered in its classical sense of what Newman called a "stern monitor," and not in the degraded sense of a faculty for writing moral permission slips) to ensure conformity with what have become key tenets of the liberal faith (abortion, "sexual freedom," "same-sex marriage") is the authoritarian impulse I mentioned.  (I want to emphasize the words "have become." Such ideas were no part of the liberalism embraced by such great figures in the tradition as Cesar Chavez, Hubert Humphrey, or Sargent Shriver, just to name some leading liberals from the quite recent past.)

Am I exaggerating the worry?  Is the word "authoritarian" or the phrase "crush the rights of conscience" out of line in this context?  Well, perhaps we have a test case emerging.  A George Washington University law professor who is well-known for bringing law suits to advance liberal causes has given notice to the Catholic University of America that he will be suing the university under the District of Columbia Human Rights Act.  And what is alleged to be Catholic University's mortal sin against human rights?  Are you ready?  It is the decision of CUA president John Garvey (himself an eminent legal scholar in the field of religious liberty and human rights, as MoJers know) to shift the university from co-ed dormitories to single-sex dorms. President Garvey's objective (of which this particular change of policy is only a small piece) is to promote moral integrity as the Catholic Church understands that virtue and to combat the culture of promiscuity and alcohol abuse on campus.  And what could possibly be wrong with that?  Well, for "comprehensive liberals," it seems, having separate dorms for young men and young women is "discrimination" based on "sexual stereotypes."  It simply can't be tolerated.  Institutions that would separate the sexes in living quarters are practicing the equivalent of racism by imposing on their students the equivalent of the Jim Crow system in the segregated South.  Oy vey.

So we'll see where liberals in general line up on this.  It will, I predict, be instructive.  Some, I hope and trust, will sniff the odor of authoritarianism and perhaps even speak out publicly against this effort to whip a private religious institution into line with liberal ideological tenets.  But how many?  Where will Catholic liberals (especially Catholic liberal academics) come down?  Will they speak out? 

Same-Sex Marriage and Religious Exemptions

In a recent column here, Susan Thislethwaite (suggests that the push to provide religious exemptions in same-sex marriage legislation may simply be attempts to bog the legislation down. I do not doubt that some of that is going on. But it is possible to support same sex marriage and want to support freedom of conscience for those who oppose it, and many of the proponents of the exemptions that I know fall in that camp. The easy case is that ministers opposed to same sex marriage should not have to perform them.

But Thislethwaite focuses on a harder case: Should caterers who object to same sex marriage be exempt from providing food for them? She says no. Doing so would simply “cater to bigotry.” I do not agree. To be clear, I would not permit caterers or any other business to discriminate against gays or lesbians generally even if they claimed religious objections. In my view, businesses should be open to the public and permitting such discrimination on religious grounds would too frequently ratify prejudice. Setting up an administrative apparatus to sort through sincere religious claims and mere prejudice is a game not worth the candle.   

But there is a difference between general discrimination of this kind and declining to participate in an act you think is immoral. In this kind of case, it is likely that the religious claim is sincere (and misguided). Moreover, if challenged, I think the caterer should have to meet a sincerity test just as conscientious objectors were required to satisfy. Does this mean that a caterer should be permitted on religious grounds to refuse participation in an interracial wedding? I think so. But the suspicion of naked prejudice is greater here, and meeting a test of religious sincerity would be more difficult.

cross-posted at religiousleftlaw.com

Wednesday, June 22, 2011

"His majesty's good servant, but God's first"

Here's the final scene from "A Man for All Seasons", when More expresses his confidence that God "will not refuse one who is so blithe to go to Him."

St. John Fisher, pray for us

Here's the scene, from "The Tudors", of the execution of St. John Fisher.  And, a prayer he wrote:

A prayer by St John Fisher

Good Lord, set in thy Church
strong and mightly pillars
that may suffer and endure great labours,
which also shall not fear persecution,
neither death,
but always suffer with a good will,
slanders, shame and all kinds of torments,
for the glory and praise of thy holy Name.

By this manner, good Lord,
the truth of thy Gospel
shall be preached throughout the world.

Therefor, merciful Lord,
exercise thy mercy,
show it indeed upon thy Church.

Amen.

 

Finnis on marriage

In addition to the papers mentioned in my previous posting, I would recommend John Finnis's paper "Marriage: A Basic and Exigent Good," from the 2008 volume of the philosophy journal The Monist, to anyone interested in the deeper arguments that can be made in support of Archbishop Dolan's position and against the redefinition of marriage being promoted in New York by Governor Cuomo, Mayor Bloomberg, and others:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1392288

Dolan and double standards

Eduardo:

I don't see why Timothy Dolan should be held to higher standards of argumentative depth and analytical rigor than those to which Andrew Cuomo, Michael Bloomberg, and John Shelby Spong, for example, are held by those sharing their belief that marriage should be redefined in such a way as to include same-sex partners.  Do you?  I would note that, like Archbishop Dolan, those seeking to refedine marriage did not seem to take Father's Day off from their crusade against traditional norms of sexual morality.  What you say of the Archbishop, one could with equal or greater justification say of his opponents in this debate:  Perhaps if they put a bit more thought into their comments, and paid more attention to the arguments on both sides, it would help those of us who are struggling to understand their panic in the face of the possibility that American law could continue to honor the historic definition of marriage as a male-female partnership.

One searches the comments of the Cuomos, Bloombergs, and Spongs in vain for reasoned arguments (as opposed to slogans or question-begging claims) or for answers to the very specific challenges to their position that defenders of conjugal marriage have advanced.  Instead we find a series of conclusory zingers (such as "love makes a family," or "you had better get on the right side of history") and defamatory insinuations (e.g., those who disagree with us are "haters" and "bigots").

I can't pretend to speak for Archbishop Dolan, but if you're interested in how defenders of conjugal marriage might answer the central questions you pose in your post, you might have a look at an article I've written with Sherif Girgis and Ryan Anderson entitled "What is Marriage?" (available here:  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1722155).  If you can identify errors in our premises or fallacious inferences towards any of our conclusions, I would be grateful to you for pointing them out.  Some of the most able scholars supporting the redefinition of marriage, including Kenji Yoshino of NYU and Andrew Koppelman of Northwestern, have labored to find defects in our arguments.  You can judge for yourself whether they've succeeded.  While you're at it, perhaps you could form a judgment as to whether they have met---or have even attempted to meet---the specific challenges we have put to them in Section I.E. of our paper.  Have they, for example. been able to identify a principle consistent with their premises that explains why marriage is the union of two people, and not three or four or more in a polyamorous sexual partnership?  Can they explain why marriage is a sexual partnership at all, as opposed to a parternship that could equally well be integrated around tennis-playing, or bird-watching, or some other shared interest or activity?  Have they identified a principled basis for marriage as an exclusive (as opposed to open) sexual partnership?  I think you will find that they have failed---or failed even to try.  (Koppelman ends up claiming that marriage is a "social construct" that has no essential properties---such as monogamy as opposed to polyamory, fidelity as opposed to sexual "openness," etc.---at all.  Yoshino, it turns out, signed a statement urging that we go "beyond same-sex marriage" to embrace the idea of marriages that include multiple sexual partners.)

Here are links to Kenji Yoshino's attempts to refute our arguments, followed by links to our replies:

http://www.slate.com/id/2277781/

http://www.thepublicdiscourse.com/2010/12/2217

http://www.slate.com/id/2278794/

http://www.thepublicdiscourse.com/2011/01/2295

Here are links to Andrew Koppelman's efforts, followed by links to our replies:

http://balkin.blogspot.com/2010/12/what-marriage-isnt.html

http://www.thepublicdiscourse.com/2010/12/2263

http://balkin.blogspot.com/2010/12/that-elusive-timeless-essence-of.html

http://www.thepublicdiscourse.com/2011/01/2350

In defense of the view that marriage is intrinsically related to procreation, but not as mere means to an end, here are links to a two-part analysis I did with Patrick Lee and Gerry Bradley:

http://www.thepublicdiscourse.com/2011/03/2638

http://www.thepublicdiscourse.com/2011/03/2637

Again, I am not pretending to speak for Archbishop Dolan.  But I hope these articles prove that a great deal can be said in support of his position.  In fairness, it could be pointed out that the writings of serious intellectuals like Yoshino and Koppelman (and Bill Eskridge and others) can be cited in support of the position being advanced by Governor Cuomo, Mayor Bloomberg, and Archbishop Spong, though they themselves clearly do not attempt to provide analysis of the sort that their scholarly supporters offer.  In truth, I don't blame Cuomo, Bloomberg, or Spong for making their arguments at the level of depth at which they make them, even though their arguments (or assertions) seem straightforwardly question-begging to those of us who don't share the presuppositions they leave undefended (and unacknowledged).  But I really don't think we should demand that public figures, including Catholic bishops, who defend the opposing point of view meet a different standard.  To be sure, the deeper and more compelling their arguments, the better.  But that's true for people on both sides. 

Tuesday, June 21, 2011

On Blogs and the Meaning of Marriage

 

Thanks to Patrick for his insightful remarks about the issues surrounding blogging. I think all of us who contribute to web logs and those who offer comments to authors’ postings can take stock of what you said. Of course, this is a prevalent means of communicating ideas today. This does not mean that it is a good or desirable method, but it is one that exists and its impact cannot be underestimated.

I am also grateful to Eduardo for his posting entitled “Dolan on Gay Marriage.” There are many things that can be said about the Archbishop’s post and Eduardo’s commentary on it. Today I’ll restrict my commentary to Eduardo’s thesis that Archbishop Dolan about the definition of marriage. But before I do, I think it important to take stock of this reality about blogging to which Patrick has referred: is the medium of the web log the place where any of us really expect a detailed analysis of every nuance, no matter how important, in a few hundred words? I for one think that it would be impossible to achieve this, and, therefore I do not expect in-depth discussion in blogging. Web logs are better as providing catalysts for discussion and debate, but they are not the substance of the detail that must inevitably accompany discussion and debate. Justice to the positions that emerge in blog posts and the justifications that should undergird the positions presented require more than a few paragraphs that are the limit of blogging. I also think that Archbishop Dolan realizes that detailed argument is necessary on this vital subject and on many other issues, and that is why he can and does write pastoral letters where sufficient detail can be mustered in explaining the views which he is proposing. I don’t think that Eduardo believes that the Archbishop is incapable of “reasoned argument”; moreover, I am sure he shares with me the perspective that Archbishop Dolan has demonstrated that he, like us, would be dissatisfied with “conclusory zingers”.

So, on to one of Eduardo’s contentions that “Dolan himself can hardly make up his mind on the subject of marriage’s meaning.”

Now I must get to his principal critique. Eduardo makes the point that the Archbishop is inconsistent in the three definitions that he, the Archbishop, has provided in the postings to which he, Eduardo, refers. The definitions of marriage provided by Archbishop Dolan to which Eduardo refers are these:

 

  • marriage is “one man, one woman, united in lifelong love and fidelity, hoping for children”
  • marriage is “a loving, permanent, life-giving union to pro-create children”
  • marriage is “loving, faithful union between one man and one woman leading to a family”

 

At this point, it might be helpful to take stock of how the Church teaches what marriage is and is not:

Marriage is explained in some detail in Part Two, Section Two, Chapter Three, Article Seven, in the Catechism of the Catholic Church. It is evident that what the Archbishop asserted in his several postings does not deviate from the Catechism.

Moreover, the Archbishop’s formulations are consistent with the lengthy discussion of marriage in the Compendium of the Social Doctrine of the Church.

In the 1983 Charter of the Rights of the Family, the Church more succinctly defines marriage as: “that intimate union of life in complementarity between a man and a woman which is constituted in the freely contracted and publicly expressed indissoluble bond of matrimony and is open to the transmission of life... [and it] is the natural institution to which the mission of transmitting life is exclusively entrusted”. Once again, the Archbishop, using various formulations, captures this.

The Code of Canon Law specifies that marriage is the “matrimonial covenant, by which a man and a woman establish between themselves a partnership of the whole of life and which is ordered by its nature to the good of the spouses and the procreation and education of offspring, has been raised by Christ the Lord to the dignity of a sacrament between the baptized.” Again, I think that the Archbishop is faithful to this formulation.

In spite of what Eduardo contends, I think that the Archbishop has capture accurately the essence of what the Church teaches not only for Catholics but for the good of civil society and, therefore, the common good. And he does this using an economy of words that is vital to the medium that he used in his blog.

I share Eduardo’s point that the Archbishop did not address the perils of divorce. But that is not the subject which the New York lawmakers are presently considering, and, therefore, this grave issue is not treated in the Archbishop’s postings. Neither is abortion. Ditto with euthanasia and assisted suicide. All of these issues have some bearing on marriage and family, but they are not what are at the heart of the present legislative debate. The legislators are, however, contemplating a radical redefinition of marriage, and that is the issue to which Archbishop Dolan is responding.

I disagree with Eduardo that the Archbishop has authored “unconvincing screeds aimed at producing nice sound-bites for the press.” By contrast to Eduardo, I think the Archbishop has distilled for a particular medium (i.e., blogging that does not favor detailed discussion) the essence of important moral teachings that have a bearing on not only where Catholics should go with the legislative proposals but where the entire state of New York ought to proceed. Eduardo confuses the issue addressed by the Archbishop and the legislature by introducing another matter dealing with what is the family. While they are related, they are not the same; moreover, the legislature is not defining the family—yet. But it is considering redefining what constitutes a marriage. I am confident that the Archbishop is capable of addressing the family definition issue elsewhere, but that is not what the New York legislature is now in the processing of attempting to redefine.

If Eduardo is dissatisfied with the Archbishop’s efforts in explaining marriage, I think many would point out that the Marriage Equality movement which favors the redefintion of marriage for “equality’s” sake has failed to demonstrate what is equality, first of all, and why the union of a man and a man or a woman and a woman is the same as, or is equal to a union of a man and a woman who, by themselves, have a far greater chance of procreating children than any same-sex union, by themselves, of doing the same.

As this is a blog entry, I guess this enough for one posting...

 

RJA sj  

 

"Becoming a Catholic . . . in 95 steps"

My friend and colleague, rock-star sociologist of religion Christian Smith, recently came into full communion with the Catholic Church and has a new book, available at Amazon, called "How To Go from Being a Good Evangelical to a Committed Catholic in Ninety-Five [get it?] Difficult Steps."  I read the book in draft, and loved it.  It has, I think, as much (maybe more) to teach (or remind) and challenge Catholics as it does to help curious Evangelical Protestants.  It's not a polemic, by any stretch, and isn't really "apologetics", though it does have an Apologia Pro Vita Sua dimension.  Highly recommended.  

Monday, June 20, 2011

Cesar Chavez's California

To steal a line from Stanley Hauerwas, I don't really believe in California. But even I will admit that California in the decades following World War II was about as ideal a time and place as American life can offer. Caitlin Flanagan has a nice essay in the current Atlantic about the California of her childhood and one of its sainted heroes, the devoutly Catholic Cesar Chavez. Flanagan winsomely recalls the labor activism of her Berkeley English prof father ("In the history of human enterprise, there can have been no more benevolent employer than the University of California in the 1960s and ’70s, yet to hear my father and his English-department pals talk about the place, you would have thought they were working at the Triangle shirtwaist factory."), but she's especially perceptive about Chavez:

To understand Chavez, you have to understand that he was grafting together two life philosophies that were, at best, an idiosyncratic pairing. One was grounded in union-organizing techniques that go back to the Wobblies; the other emanated directly from the mystical Roman Catholicism that flourishes in Mexico and Central America and that Chavez ardently followed. He didn’t conduct “hunger strikes”; he fasted penitentially. He didn’t lead “protest marches”; he organized peregrinations in which his followers—some crawling on their knees—arrayed themselves behind the crucifix and effigies of the Virgin of Guadalupe. His desire was not to lift workers into the middle class, but to bind them to one another in the decency of sacrificial poverty. He envisioned the little patch of dirt in Delano—the “Forty Acres” that the UFW had acquired in 1966 and that is now a National Historic Landmark—as a place where workers could build shrines, pray, and rest in the shade of the saplings they had tended together while singing.

For much of the twentieth century, California was a parable for America, including American Catholicism. But the story doesn't end on a happy note:

Growing up here when I did meant believing your state was the most blessed place in the world. We were certain—both those who lived in the Republican, Beach Boys paradises of Southern California and those who lived in the liberal enclaves of Berkeley and Santa Monica—that our state would always be able to take care of its citizens. The working class would be transformed (by dint of the aerospace industry and the sunny climate) into the most comfortable middle class in the world, with backyard swimming pools and self-starting barbecue grills for everyone. The poor would be taken care of, too, whether that meant boycotting grapes, or opening libraries until every rough neighborhood had books (and Reading Lady volunteers) for everyone.

But all of that is gone now.