Public Discourse has posted part two of Sherif Girgis's interview with leading liberal bioethicist Art Caplan of the University of Pennsylvania and me. The focus of this part is on eugenics. Here's a portion of the exchange:
Robert George: The problem with eugenics is eugenics itself. It’s not just that the eugenics practiced by the Nazis was coercive. The idea predated the Nazis. The book Die Freigabe der Vernichtung Lebensunwerten Lebens (Allowing the Destruction of Life Unworthy of Life) was not written by Nazis. It was written by German progressives in the Weimar period, Karl Binding and Alfred Hoche, who were, respectively (as I recall), a jurist and a medical doctor. And they weren’t thugs like the Nazis; they were well-educated, well-intentioned, polite people. . . . But I believe they embraced a very bad idea that was easily taken by the Nazis as a justification for the atrocities that they committed. So I would like to see eugenics itself, and not just the Nazi version of it, relegated to the ash-heap of history. Today we are seeing a revival in eugenics, this time under the cover of (and often in the name of) autonomy. People say, for example, that so long as it is parents who are choosing to abort a Down syndrome baby, or failing to treat a handicapped newborn, and it’s not the state mandating it, then it’s okay. That, I believe, represents the abandonment of something precious in our civilization and in our polity. And that’s the idea of the equality and dignity of all human beings. This treasure of our civilization is the idea that, in some fundamental sense, all of us are created equal.
Art Caplan: I think that the coercion is, historically, really what made the Nazis’ position absolutely wrong. They practiced government-mandated negative eugenics. They killed involuntarily as social policy to improve the German genome. So put that aside, that’s just an issue of making sure you know when you’re going to use the metaphor—it’s not just eugenics, it’s that kind of eugenics. So to me, I think that intervening to try to improve health and function is part of what medicine does. And there’s some role for medical engineering and cellular engineering to achieve those goals. I think when you start to slide into the aesthetic and cosmetic improvements—I’m not sure that’s something that society or the public has to fulfill. But do I think we will someday try to alter a genetic message to get rid of certain diseases? Yes. Do I think that we’re likely to see the selection of certain types of gametes that might avoid certain clear-cut disease states? Yes. Do I think that the state has to be in the business of affording the opportunity for everyone to have a 6’5” basketball-playing mathematician? No. For me, there is some role for what I’ll concede as eugenics—if you want to take eugenics as just trying to improve the overall hereditary health of the public. For example, if you could fix the child with Tay-Sachs, I don’t think it takes away from the dignity of the child with Tay-Sachs.
RG: I agree. But would you draw the line at trying to enhance intelligence?
AC: I do. I think intelligence is so complicated that you don’t know what the hell you’re doing. If someone came to me and said, “Well, I’m going to try to enhance memory,” that may be good and that may be bad. It’s tricky business, number one. And number two, that isn’t a disease. So I’ve never been a proponent of allowing sex selection. We don’t allow it at Penn, actually. We could do it instantly. It’s not that hard. And other places do it. But gender is not a disease. If you come to us and say, “Could I use gene therapy”—as I said, “for Tay-Sachs, or to try to improve muscular dystrophy”—I’d be first in line to say, “I think that’s great, and we have to test it, and there may be some risk to that, but I’m okay with it,” even though some in the disability community might say, “Well, then, your goal is to get rid of disability, isn’t it?” And I might concede at that point, “Yes—if I could do it.”
RG: But not by getting rid of the disabled.
AC: Oh, no, no, no.
RG: Because that’s the key distinction.
(The complete transcript is available here: http://www.thepublicdiscourse.com/2011/04/3156)
Friday, April 15, 2011
Caroline Corbin has a third post at Concurring Opinions arguing against the ministerial exception to anti-discrimination laws. The post makes a couple of claims. One is that many discrimination suits do not raise religious questions:
For example, imagine a church fires a teacher who has an extramarital affair, arguing that she violated the church’s proscription against sex outside marriage. In a sex discrimination case, the issue of whether sex discrimination has occurred depends on whether the school applies the religious policy equally to male and female teachers. The court will not have to resolve any doctrinal dispute or otherwise evaluate the religious merit of the proffered reason: no one questions the school’s religious belief that sex outside of marriage is forbidden.
I still think this doesn't acknowledge the real-world problem of plaintiffs arguing "pretext." The facts above are simple and clean, but most real cases are more complicated. Either the church's proferred reason for dismissing the plaintiff is more nuanced--an asserted judgment call about his or her suitability or performance--or the church tries to distinguish other instances (say, the male ministers who weren't dismissed) on some ground. Even in the case of the extramarital affairs, for example, if the church says that other ministers were sufficiently repentant while the plaintiff was not, the court now faces religious questions: is there a difference concerning repentance in the two situations; did the church have a reason for starting to emphasize repentance more than in the past; etc.
There are hypotheticals--and some cases--that don't raise religious questions. But one ground for the ministerial exception is that most real-world cases will involve some such question. To some extent it's a prophylactic rule, I suppose, but that doesn't make it unjustified.
Second, Prof. Corbin's premise is that "no religious determinations by courts" is the only ground for the ministerial exception. And in her argument, "no religious determinations" operates as a freestanding, disembodied principle. I think that's wrong. The rule against religious determinations, while correct, is part of a broader notion of church-state separation as autonomy of religious life from government involvement. If the rule is not embedded in such a broader vision, I don't see why we should care about it. Overriding religious organizations' decisions on clergy is, at least presumptively, a violation of that broader vision of separation/autonomy.
Focusing only on "no religious determinations," and treating it as a stand-alone rule, leads Prof. Corbin to conclude that it's the ministerial exception, not the involvement of government in a clergy dispute, that violates the Establishment Clause--because to apply the exception, the court has to make a religious judgment about who is a "minister." Of course, the same is true any time the court has to define what's "religious" and therefore falls under the Free Exercise or Establishment clauses. To me, this shows that the "no religious determinations" principle can't stand alone; taken by itself, it makes the Religion Clauses themselves unconstitutional. The "no religious determinations" rule works together with other principles against government involvement in religious life--like the principle that government should not decide who will serve as clergy. It does not work by itself and in conflict with those other rules.
Thursday, April 14, 2011
MOJ friend and Notre Dame philosopher John O'Callaghan has posted some thoughts, at the website of (the excellent) Notre Dame Magazine, on the latest installment of the "God Debate" at the University of Notre Dame. (This time, it was Sam Harris v. William Lane Craig.) A bit:
On April 7, a sold-out audience in Notre Dame’s Leighton Concert Hall watched this year’s edition of “The God Debate.”Before a packed house, “New Atheist” Sam Harris and philosopher of religion William Lane Craig argued whether God is the source of morality.
Oddly, whenever I think of Harris in this debate, I think of St. Augustine’s Confessions. Specifically this passage comes to mind: "I was glad, if also ashamed, to discover that I had been barking for years not against the Catholic faith but against mental figments of physical images. My rashness and impiety lay in the fact that what I ought to have verified by investigation I had simply asserted as an accusation.”
St. Augustine wrote those words in midlife, reflecting on that time in his youth just before he entered fully into the Catholic faith of his mother, St. Monica. I won’t suggest that Harris is at a similar point in his life. But someone so obsessed with religion, even if negatively, is surely wrestling with the angel of God.
Still, my first and less-than-charitable thought involving Harris is ad hominem abusive. He is so uncomprehending of Catholicism that for a Christian to debate him at Notre Dame is like a physicist debating a Flat Earth theorist at Cal Tech. . . .
As the blogfather might say: "Heh."
My friend and colleague, rock-star sociologist Christian Smith, just won a fancy award (the "2010 Cheryl Frank Memorial Prize from the International Association for Critical Realism") for his book, What is a Person?: Rethinking Humanity, Social Life, and the Moral Good from the Person Up (University of Chicago Press). Not too many questions sit closer, it seems to me, to the core of the Catholic Legal Theory project than does the one posed by Chris's title.
A long essay, well wroth reading, by Wilfred McClay, on the connections between our "built environments" and our souls. I'm reminded of the work -- for example, "Til We Have Built Jerusalem" -- of MOJ-friend (and my colleague) Philip Bess. The essay begins:
Even with all our prosperity and freedom, there is much that is amiss in the ways we live today—not only in our individual lives, but in the larger patterns of habitation that we have devised for ourselves. The built environment matters, not only for our bodies but for our souls, and the souls of our brothers and sisters and neighbors.
Somehow we all know this to be the case. And yet Christians, as Christians, seem to have had very little that is useful or insightful to say about these matters. This represents a serious failure on our part. . . .
More:
The great cautionary example here is the urban-renewal movement of the postwar era, a well-intentioned but disastrous effort undertaken with all the arrogant blindness of which high-minded social engineers and visionaries are capable. They “knew” what was best for the urban poor, and in forcing it upon them, demolished countless acres of existing historically rooted neighborhoods in favor of grim and soulless housing projects. These “improvements” uprooted and decimated countless human lives, depriving them of nearly every vestige of what was familiar to them. We should not romanticize the difficult conditions of the slums they replaced. But the wanton erasure of memory wrought by “renewal” was perhaps the greatest indignity of all—by robbing the inhabitants of their sense of relationship to their own past, they robbed the city of a piece of its very soul.
Our reflections need to begin, then, with a consideration of what cities are, and are for, what they accomplish that can be accomplished no other way. Indeed, given the strong emphasis on the individual in our times, we would do well to begin with an even more fundamental question. Do we really need to dwell together?
That's easy: Yes, we do. It is a fundamental part of our nature. . .
It is Freedom From Religion Foundation v. Obama, decided by the Seventh Circuit (Judge Easterbrook). The case involves the issue whether citizens have a claim that the law (36 U.S.C. section 119) asking the President to proclaim a national day of prayer violates the Establishment Clause. Plaintiffs don't have standing, according to the court. The President would but, as the court says, he "is not complaining."
Nate Oman has posted a very interesting looking paper (h/t Larry S.) that attempts to revive and update a theory of honor to explain and justify private law. A while back, Paul Horwitz tried to do something similar in the realm of public law for oaths (see here and also in this little review of Philip Hamburger's Law and Judicial Duty).
Putting aside their substantive merits (both papers have a lot to offer), these assays to reconstruct honor for modern sensibilities are interesting as a sociological matter -- just as a matter of mapping the moods and movements of academic thought. Oman quotes a piece by Peter Berger from the late '80s that I remember reading a while back called, "On the Obsolescence of the Concept of Honor," but it seems that obsolescence may be a cyclical rather than linear phenomenon. Likewise, and as Oman notes, Charles Taylor in Sources of the Self describes a transition from 'honor' societies to societies of 'dignity.'
All of this leads to a question: in what way (if at all) does the concept of honor figure into Catholic writing and thought? If it is right that a dignitarian outlook has largely replaced the honor ethic (pace the good efforts of folks like Oman), was it always the case that Catholic writers spoke in terms of dignity? And are there Catholic writers who rely explicitly on ideas of honor (and not dignity) to explain their views?
Sherif Girgis recently interviewed the prominent liberal bioethicist Art Caplan and me for Public Discourse. The first part of the interview was posted this morning, and is available here: http://www.thepublicdiscourse.com/2011/04/2490. The second part is scheduled to appear on Friday of this week.
MoJ readers who are interested in bioethics might find the interview interesting for several reasons. It turns out that Professor Caplan and I agree on quite a number of points. And even on points on which we disagree, some of the disagreements are less sharp than one might have predicted. Far more importantly, Professor Caplan severely criticizes many of his fellow supporters of embryonic stem cell research for the tactics they used (and still use) in the debate about federal government funding of biomedical research involving the deliberate killing of human embryos. He explicitly accuses them of dishonesty in hyping the therapeutic potential of embryonic stem cells: "Embryonic stem-cell research was completely overhyped, in terms of its promise. And people knew it at the time." Condemning a claim made by many, including Ron Reagan, Jr., the liberal son of the late president, when he was given the stage at the 2004 Democratic National Convention to attack opponents of embryo-destructive research and promote the idea of a "Republican war on science," Professor Caplan is brutally blunt: 'Here's an assertion that you hear all the time: "Stem-cell research will help Alzheimer's." But stem cell reserach had no possibility of helping Alzheimer's."
Opponents of embryo-destructive research have long contended that many of its supporters, including prominent scientists and politicians, were saying things they knew at the time to be false in order to achieve their political goal of embryonic stem-cell research funding. They were callously elevating the hopes of suffering people and their families for political reasons. But, of course, the critics were dismissed as "religious fanatics" and tools of a “Republican war on science.” But Professor Caplan is himself a supporter of embryonic stem-cell research (because he believes it is useful in basic science, not because he supposes it will produce miraculous cures), and he is anything but a religious fanatic or a Republican. He is a leading figure on the liberal side in bioethics (he very prominently supported Terri Schiavo's husband in the debate about removing her feeding tube) and is Director at the University of Pennsylvania of what is probably the most important academic bioethics center in the country. What matters most, is that he is an honest and forthright man who will not compromise his integrity in the pursuit of political goals, and who refuses to countenance such conduct by anyone, including people on his own side in important debates. We need more people like him---on both (or all) sides.
