Mirror of Justice

Tuesday, May 24, 2011

Ryan, Dolan, (and Rand) on budgets and Catholic teaching

Here is Rep. Paul Ryan's April 29 letter to Archbishop Dolan; here is Archbishop Dolan's reply. The exchange is well worth reading, I think, especially as a follow-up to the much remarked public letter to Speaker Boehner, which was signed by a number of Catholic academics. (As I indicated, in an earlier post, I thought the letter to Boehner overstated the alleged conflict between his voting record and "the Church's most ancient moral teachings", but that's water under the bridge.)

Speaker Boehner reponded, in a statement, to the Ryan-Dolan exchange:

“I welcome Archbishop Dolan’s letter and am encouraged by the dialogue taking place between House Republicans and the Catholic bishops regarding our budget, the ‘Path to Prosperity.’ Our nation’s current fiscal path is a threat to human dignity in America, offering empty promises to the most vulnerable among us and condemning our children to a future limited by debt. We have a moral obligation as a nation to change course and adopt policies that reflect the truth about our nation’s fiscal condition and our obligation to future generations, and to offer hope for a better future. Our duty to serve others compels us to strive for nothing less. As Chairman Ryan notes in his letter to the archbishop, Americans are blessed to have the teachings of the Church available to us as guidance as we confront our challenges together as a nation.”

Michael Sean Winters, at NCR, and others are underwhelmed by Ryan's letter and -- in Winters's case -- skeptical about the possibility for consonance between the vision proclaimed in the Church's social-teaching tradition and that on display in the work of Ayn Rand. I don't share (what seems to be) Winters's view that Ryan's reported interest in the (banal and turgid) writings of Ayn Rand has, in his budget, simply been translated into proposed policy. (By the way, for Rand-haters, David Hart's essay on the occasion of the "Atlas Shrugged" movie is a must-see.)

One does not have to like Ayn Rand (and I don't), or to be a "Catholic neo-con", to think that (a) it is both profoundly immoral and stupid to continue accumulating debt burdens at our current rates, (b) deep cuts in spending are required, and (c) these cuts require more than the usual promises of increased attention to "waste, fraud, and abuse" and "corporate loopholes" and will have to touch popular social-welfare programs (and defense spending). Winters is right, of course, to say that Rand's vision is less attractive (because it is unsound) than is Pope Benedict's; but this fact does not eliminate the need to attend more seriously than, say, Sen. Reid has been willing to do to the need to cut spending and to design carefully any tax increases so as to avoid stunting growth.

Fr. John Coughlin on human dignity, human rights, and being "a different kind of lawyer"

By Rick Garnett

This past Saturday, my friend and colleague, Fr. John Coughlin, having been named by the graduating class the "Distinguished Professor of the Year", gave a wonderful commencement address. I think it's a must-read for anyone who is interested in the kinds of things we try to do and talk about here at Mirror of Justice. Here is just a taste:

. . . The regular practice of selflessness transforms one’s soul. In the transformation, one becomes more aware and respectful of others. For the lawyer who takes this path of human flourishing, it nourishes a deeper respect for each person’s fundamental human rights. The right to life is the most fundamental of human rights. All other rights depend on the right to life. The Torah contains many provisions about the right to life. In the development of Western culture, the Jewish respect for life stood in contrast to the pragmatic brutality of Greek and Roman antiquity. The Talmud famously states: “one who saves a single life, saves the world.” (Talmud, Sanhedrin, 4:5). The way that a society treats the child in the womb, the severely challenged human being, and the elderly and infirm is the measure of that society’s commitment to fundamental human rights. It follows that a different kind of lawyer serves as the advocate for society’s poor and powerless and especially for those whose very right to life is questioned. Imbued with the sense of justice that derives from self-donation, a different kind of lawyer knows that there are no disposable human beings. . . .

Read the whole thing (after the jump) . . .

The Rest of the Church

By Elizabeth Schiltz

My friend Mary Leary of Catholic Law School passes along these interesting observations about the mainstream media's uneven coverage of issues in the Church, prompted by her attendance at a conference last week in Rome on Ending Modern Day Slavery:

"Whether the media coverage, or its absence, is a product of actual hostility or ignorance is surely a matter of debate. Whichever the case, my own observation is that the problem is twofold. First, it does appear that more often than not our scandal hungry 24/7 news cycle clamors more for stories of tragedy that triumph. A scandal, poor conduct, or misstep by a clergy member or some sort of “official” in the church hierarchy is what is largely covered by the media. However, the positive examples of faith in action occurring daily throughout the globe are ignored. Secondly, the media use of language is misleading and fails to do justice to the faithful. There is confusion in the media as to who “the Church” truly is. Often it seems that when the media references “the Church,” it intends to include only the church hierarchy and its structures. This misnomer creates the same response in me as when the media lets a commentator speak as to what “the women’s” view is on any given political issue, as if the “women’s view” is something that actually exists. So often forgotten is the rich diversity of the congregation and the triumphs of its individual members, as well as the eternal truths pronounced by the hierarchy.

Last week I had the pleasure of witnessing such a triumph. In Rome, the United States Embassy to the Holy See and St. Thomas University in Florida co-hosted an excellent conference entitled Building Bridges of Freedom: Public-Private Partnerships to End Modern Day Slavery. This conference displayed much of what is good about both the institutional Church and congregations: its diversity, openness, commitment to serving our vulnerable brothers and sisters, and support for the suffering members of the Body of Christ. Collectively, the conference provided a reminder that as an institution, the Catholic Church has been an important voice in the modern anti-slavery movement. Institutionally, the publications from the Holy See and the work of its organizations such as the Office of Migration, Talitha Kum of the International Union of Superiors General, and St. Thomas University’s Program in Intercultural Human Rights have long provided a voice for those destroyed by the scourge of human trafficking . Similarly, the conference reflected the long practice of an ecumenical approach embraced by the institution. The conference featured speakers from all faiths brought together for a productive dialog about conquering the problem. The speakers were not invited due to their status or fame, but due to their subject matter expertise.

However, the more compelling story was not the institutional one. Rather it was the individual one. This conference reflected the individual efforts of so many who combat human trafficking on the front lines in the name of their faith. Sister Estrella Castalone reminded us of the thousands of sisters throughout the world providing protection and care to these victims. Dr. Eleanor Gaetan pointed to the parallels between the feminist work in this area and the direct work of religious orders throughout the world with victims, both drawing from a deep recognition of the inherent dignity of women not to be sold. The meeting also reflected numerous individuals who are leading voices against Trafficking in Persons who openly discuss their motivation is influence by their Roman Catholic faith, such as United States Ambassador to the Holy See Miguel Diaz, Representative Chris Smith (R-NJ), United States Ambassador to Combat Trafficking in Persons, Luis CdeBaca, Baroness Mary Goudie from The House of Lords, to name just a few.

Unfortunately, this significant event which focused on important discussions of combating modern day slavery did not get the coverage it deserved. To their credit, the wire services (which were indeed picked up by a handful of national media outlets), as well as Italian, French, and Catholic news services gave it coverage. However, compared to the scandal of the day, the mainstream American media gave it inadequate recognition. This conference provided a candid assessment of one of the most significant affronts to human decency of our time and necessary steps forward. It was ecumenical and located within one of the few organizations with global reach to many regions of the world affected by this trade. It featured all that is good about the institutional Church as well as its individual members and members of other faiths. Unfortunately, it, like so many other efforts of the faithful, went somewhat unnoticed. Today, more people are estimated to be enslaved than at any other time in our history. Yet, somehow, that tragedy is not worthy of massive American press coverage. Perhaps, the true scandal is in that."

Christian Colleges and GLBT issues

By Rob Vischer

The treatment of GLBT students and faculty by conservative Christian colleges is going to continue to be a major point of contention between those colleges and the broader academy for the foreseeable future. Joshua Wolff has written a provocative essay, "Where 'Don't Ask, Don't Tell' Remains," for Inside Higher Ed. Much of it consists of his own story struggling with his sexual identity in an environment that seemed to suggest he didn't belong. But when he gets to recommendations for remedying the situation, things get a little ominous. An excerpt:

[A]ccrediting bodies that govern colleges and programs must step in and say “enough” when schools use religion to hide from accountability for policies and programs that can cause psychological harm. Religious freedom is essential and part of the backbone of this country. Yet, religious freedoms do not give leeway for one group to be oppressed or discriminated against, especially when such individuals may experience harm as a result (e.g., depression, anxiety, bullying, etc.) and are already marginalized.

Well, I think sometimes religious freedom actually does permit one group to be discriminated against by another. Putting barriers on religious freedom whenever a person experiences harm is dangerous, especially when the harm can largely be avoided by choosing one of hundreds of other colleges in a robust marketplace. On the broader point, though, about the nature of Christian colleges' treatment of gay students and faculty, Wheaton College provost Stan Jones has written a response. An excerpt:

Based on this understanding of the morality of homosexual conduct, many religious traditionalists question the formulation of sexual identity implicit in Wolff's argument. On the one hand, we dissent from the presumption that one’s sexual attractions and identifications must be lived out in behavior to have meaning. Thus, an individual can both have a stable sense of same-sex attraction and a commitment to chastity based on choosing compliance to the moral teachings of Scripture. We have just, on this basis, welcomed back to campus our alumnus Wesley Hill to address our entire student body, who describes himself as "a nonpracticing but still-desiring homosexual Christian." Such individuals are not required to lie about themselves.

On the other hand, traditionalists also dissent from the inclination so common today to accept the anchoring of one's entire identity around sexual orientation. The very depiction in Wolff's article of GLBTQ individuals as a discrete class, as if their sexual inclinations and orientations were the linchpin of their very being, is made problematic in the context of religious commitments that demand higher allegiance.

Both essays are well worth reading.

University Faculty for Life conference schedule

By Richard Myers

Here is the schedule for the 2011 University Faculty for Life (UFL) annual conference. The conference, which will be held on June 10-11, 2011 at the University of Notre Dame, is being supported by a very generous grant from Our Sunday Visitor Institute. Conference speakers include David Solomon (Notre Dame), Sam Calhoun (W & L), John Breen (Loyola Chicago), Tom Cavanaugh (University of San Francisco), Michael New (Alabama), Teresa Collett (St. Thomas), Clarke Forsythe (AUL), Father Kevin Flannery SJ (Gregorian), Father Thomas Berg (St. Joseph's Seminary), Mark Rienzi (Catholic U), Bill Saunders (AUL), Chris Kaczor (Loyola Marymount), Richard Stith (Valparaiso), Gerry Bradley (Notre Dame), and John Keown (Georgetown).

The local hosts for the conference are the Notre Dame Center for Ethics and Culture, the Notre Dame Fund to Protect Human Life, and UFL's Notre Dame chapter.

Richard M.

Monday, May 23, 2011

Circumcision and Hybrid Rights

By Marc DeGirolami

Michael Helfand has a very thoughtful discussion of this (in my view) misguided piece of legislation (it looks like a ballot proposal). Calvin Massey also comments perceptively here. I do not think that the ban would violate the rule of constitutional free exercise as interpreted by Employment Division v. Smith -- that neutral laws of general application are constitutional so long as no religion is being specifically targeted (as in the Lukumi-Babalu case). With respect (Professor Massey knows more about constitutional law than I hope to know 10 years from now), I do not think that the legislative exception for "physical health" and concomitant statement that "custom or ritual" is not a basis for exemption rises to the level of targeting contemplated by Smith. Certainly it's nowhere near the sort of record of specific targeting that existed in Lukumi-Babalu.

Suppose a locality forbade the drinking of liquor for health reasons, and in the legislation there was a statement that "custom or ritual" shall not be a basis for exemption from the law. Without any more evidence, I do not think that, under Smith, Catholics would be able to raise a free exercise claim (it might be different, though I am not certain, if a locality banned the drinking of wine only, and not other liquor, for health reasons). At the very least, I'd like to see a whole lot more evidence of the reason that the legislature included the "custom or ritual" proviso before relying on the Smith holding. A case like this one is one reason (among many) that I oppose Smith.

Faith and physicians in the U.K.

By Rob Vischer

Can a Christian physician discuss his faith with a patient? There's a case making the news today in England about a general practitioner who has refused to accept a formal warning from the Medical Council after he suggested, after a lengthy consult with a patient, that the patient's struggles might have a spiritual dimension to them as well. The Guardian reports that:

[The physician] argues that he acted within official guidelines, having asked if he could talk about his Christian beliefs to the patient, who is of a different faith, and having ended the conversation as soon as he was asked to.

The conversation only turned to religious matters after they had fully explored the medical options, according to Dr Scott. “He viewed his problem as purely medical issue and I said it might be more than that,” he said. “It was a consensual discussion between two adults.”

The patient did not file a complaint with the Medical Council -- his mother did. Also significant (to me, anyway) is that the doctor practices with other Christian physicians, and the partnership advertises the fact that they might discuss spiritual issues in the context of providing care. Of course bringing faith into the physician-patient conversation will not always be appropriate, but I have a hard time seeing why this case should be a matter for formal discipline unless we're ready to embrace a categorical ban on the introduction of faith into medical practice.

Saturday, May 21, 2011

Villanova Law Commencement

By Michael Moreland

I returned from Oklahoma in time to attend Villanova Law's commencement on Friday. One of the highlights was an elegant and self-reflective commencement speech by US Senator Kelly Ayotte of New Hampshire (Villanova Law Class of 1993 and pictured here with Father Peter Donohue, OSA, President of Villanova). Senator Ayotte discussed her career path from a case as a court-appointed defense lawyer to becoming a homicide prosecutor, New Hampshire Attorney General (where she successfully argued Ayotte v. Planned Parenthood at the US Supreme Court), and US Senator. To a class entering a tough job market, Senator Ayotte's message about persistence and overcoming challenges in a legal career was pitch-perfect. Senator Ayotte joined the graduates and their families at the reception afterwards and showed why she won 60% of the vote in last year's New Hampshire Senate race. (Next year's Republican presidential nominee should take note when selecting a running mate.) Other highlights included seeing my former student Megan Schmid, an Air Force officer from Nebraska who gave birth during law school, walk across the stage with her daughter and graduate summa cum laude as she prepares to head off to the Air Force JAG Corps, and visiting with Timothy O'Meara, the Provost of Notre Dame during my time as an undergraduate there, whose grandson (Timothy O'Meara Bransfield) was in the graduating class. Congratulations to the Villanova Law Class of 2011!

Sooner Catholic Conference

By Michael Moreland

I want to second the other comments about the fantastic conference of Catholic legal scholars at the University of Oklahoma this past week. As Lisa notes, it was especially nice to be in the company of Paul Griffiths and Steven Smith, whom so many of us admire for the insight and clarity of their work. As a faculty member at Villanova, I was delighted by the Augustinian theme that pervaded the conference. Augustine is the dominant figure of Western Christianity, but it's particularly challenging, I think, to plumb the depths of Augustine's thought (partly because he wrote so much over such a long period!) for contemporary legal scholarship other than a vague idea about the corruption of human nature. May this conference and others to come help remedy that.

I offered some brief comments in response to Steve's book, which I also reviewed in Commonweal a couple months ago. I have some mild Catholic reservations about Steve's skepticism about the plausibility of the principle of double effect in Vacco v. Quill, but I am a great fan of The Disenchantment of Secular Discourse. Put it on your summer reading list.

Many thanks to Michael Scaperlanda for his organization of the conference and to Michael and Brian McCall for their hospitality in Norman.

The Meaning of Person

By Robert John Araujo, SJ

I would like to thank Rick for his posting regarding his post on Christian Smith’s new book What Is A Person? A few years ago, I had the wonderful opportunity to address a similar question at St. Thomas University where I was graciously hosted by several of our Mirror of Justice friends at that fine institution. On that occasion, I acquainted the audience with the words of Blessed John XXIII who stated in Pacem in Terris, N. 9,

Any human society, if it is to be well-ordered and productive must lay down as a foundation this principle, namely, that every human being is a person, that is, his nature is endowed with intelligence and free will. Indeed, precisely because he is a person he has rights and obligations flowing directly and simultaneously from his rights and obligations flowing directly and simultaneously from his very nature. And as these rights and obligations are universal and inviolable so they cannot in any way be surrendered.

I have the impression that these words in the legal academy of today—and much of the rest of enlightened society—would sound strange. While there may be agreement on what is a human being, it appears that there is disagreement on what is a person. But the disagreement should not exist.

Why?

Blessed John has it right, and his words provide the means for understanding who is/what is the human person. As legal academics, we know that the positive law recognizes that there are two kinds of persons before the law—juridical and natural. In the context of the matter investigated by the Smith book, the inquiry concentrates on natural persons—you and me.

But what constitutes this entity we call the natural person?

Lawyers and the rest of society, surely since the 1973 decision in Roe, have been arguing over this and related issues for some time. It would also seem that the connection between rights or claims and obligations or responsibilities identified by Blessed John confound many, including some members of the academy. Of course the debates and disagreements that emerge from the juxtaposition of these two subjects, i.e., rights and obligations, were brought to a head in Dred Scott. There was no question that in reality Dred Scott was a person; however, the law, as formulated by five of the seven members of the Supreme Court (who, by the way were also persons) said otherwise. We sort of get that same conclusion, albeit in different wording, in Roe v. Wade from the majority opinion. What rights can a human being/human person claim, and what obligations are owed to this claimant? That is the question.

It took the Civil Rights amendments to the Constitution to address and correct Dred Scott. It will take something else to rectify Roe. While the law can define/redefine the juridical person which is, in essence, a legal fiction, should it be able to do the same regarding the natural person? In this context, the dissenting opinion of Judge Adrian Burke in Byrn v. New York City Health & Hospital Corp. explains well the limitations on the state to determine the reality of who is a natural person and therefore who should be such a person before the law. The implication of his dissent was that if the state could determine this matter by ignoring the reality of the human being, the basis for fundamental human rights would eventually be undermined by human whim and caprice. That is what happened in Roe. This is also what happened in the Germany of National Socialism and in the United States of the ante-bellum era. These historical contexts demonstrate how human law, when detached from right reason, can betray recognition of who is and must be considered a person. The failure to acknowledge the reality of the human being who is the human person brings to a head the relationship between rights and responsibilities noted by Blessed John.

The failure to understand this relationship which is crucial to answering who is the human person continues to the present day. What is needed to rectify this failure? The wisdom of right reason and objectivity to illuminate and chart our course so that we might better understand who is person is essential, and John XXIII understood this well and shows the path necessary to protect the most vulnerable members of our human family.

Why should we worry about them? Because they are us, and we are they. The right reason of the Silver and Golden Rules merge, make sense, and apply here: “Do to no one what you yourself dislike,” and “Do to others whatever you would have them do to you.” This is the complementarity of rights and obligations noted by Pope John. With these two rules and the assistance of John XXIII in mind, the convergence of God’s desires for the natural person and the human law will enable those engaged in the debates about who is person understand with greater wisdom what is at stake.

RJA sj