I think I’m less confident than Kevin Lee seems to be that Catholic social thought and the words of Pope John Paul II speak to the AMP v. USPTO case, which was argued Monday in the Federal Circuit (summary of the issues here). I think one can agree with John Paul that the “biological cannot be separated from the spiritual, family and social dimensions” of the person without coming to any firm views about the correct understanding of the Patent Act’s limitations on patenting “products of nature,” which involves some thorny issues of statutory interpretation and striking the right policy balance between encouraging competition while also properly incentivizing biotech research. There is also the troubling fact that DOJ’s current position is a significant departure from the longstanding position of the USPTO and the National Institutes of Health on the patentability of isolated DNA. Finally (and nicely following on earlier posts about the Supreme Court’s standing decision on Monday in Winn), it appears doubtful that the plaintiffs in AMP v. USPTO meet the controversy or particularized harm requirements for standing because they have no legal interests adverse to the patent holder. While I can hardly disagree with Pope John Paul II that “man goes beyond the sum of his biological characteristics,” I’m reluctant to trample the Article III limitations on standing or the settled expectations of scientific researchers to make the point.
Tuesday, April 5, 2011
Doubts about CST and Gene Patents
Monday, April 4, 2011
Patenting Genes
Here's a case where Catholic Social Thought might be in agreement with the ACLU and the Obama administration. Association for Molecular Pathology v. USPTO, which was argued today in the DC Circuit, involves a patent held by Myriad Genetics for the isolated BRCA gene, a risk factor for breast cancer. The ACLU filed an action against the USPTO claiming that the Myriad patent is in contravention of the Patent Act and, that in granting the BRCA patent, the Patent Office exceeded the Constitutional mandate to Congress for creating intellectual property. The Obama Justice Department has sided with the ACLU on this.
Patenting isolated human gene sequences would seem to comodify the person, making the physical body a mere accessory to the spiritual dimension. Several years ago, John Paul II gave an address to the Pontifical Academy of Sciences which cautioned:
The ability to establish the genetic map should not lead to reducing the subject to his genetic inheritance and to the alterations that can be made to it. In his mystery, man goes beyond the sum of his biological characteristics. He is a fundamental unit, in which the biological cannot be separated from the spiritual, family and social dimensions without incurring the serious risk of suppressing the person's very nature and making him a mere object of analysis.
At issue in this case is whether, as the Justice Department brief argues, the patent grants exclusivity to "The chemical structure of native human genes" even when it is isolated from its natural environment. If the structure of the BRCA gene is "native" then it is presumably not patentable.
The case is worth watching.
Savings Lives at Home
A few days ago, I posted a message of appreciation to President Obama for his controversial but, in my view, morally well-justified actions in saving lives by preventing an impending massacre in Libya. Now if only he would take steps to save unborn lives here at home -- or at least not threaten to veto or shut down the government to ensure continued federal funding for Planned Parenthood and to prevent any restrictions on abortion. Note this story from Politico:
“We have a positive relationship with the Obama administration, and we applaud its strong commitment to reproductive health, family planning and preventive health care,” Dawn Laguens, executive vice president of public policy and advocacy for Planned Parenthood, said in a statement to POLITICO. “President Obama has reinforced this commitment by calling for an increased investment in an essential women’s health care program” in his latest budget
* * *
[I]n a news conference on March 11, Obama signaled he would not accept a budget proposal that included any provisions slashing the budgets for federally funded programs that social conservatives don’t like, including Planned Parenthood.
* * *
Rep. Diana DeGette (D-Colo.), co-chairwoman of the Congressional Pro-Choice Caucus, told POLITICO the group has consulted with the White House on a “regular basis” and expressed confidence the administration is committed to blocking any bill that includes abortion restrictions. “The White House has been steadfast in its position,” she said.
* * *
Marjorie Dannenfelser, president of Susan B. Anthony List, which opposes abortion rights, said the strategy reveals “without question” that Obama “is the most important ally that Planned Parenthood has."
Greg Sisk
O'Neill on the "ministerial exception"
Here's MOJ-friend, Aidan O'Neill, writing on the "ministerial exception."
Winn and the Move to Standing
Rick has noted the Winn decision and offered a per usual smart and nuanced rapid reaction. I agree with Rick that the Flast exception is problematic (I am still not quite clear about the "logical link" and "nexus" tests...Justice Scalia notes that the majority and the dissent "struggle" to decide whether this case is in or out), and I, too, might have liked to see this case develop the Zelman line (however that development took shape). But I'm not sure about that. For a very nice piece on the beneficent move of the Court to standing doctrine to resolve some of these cases, see Steve Smith's excellent piece, Nonestablishment, Standing, and the Soft Constitution.
I also note that this is the first (I think?) major Religion Clause decision in which we can see how Justice Kagan's mind operates in these cases, as she wrote the quite lengthy dissent. Rick was perspicuous here too.
The Court's decision in Winn (Arizona school-choice case)
The Supreme Court's (5-4) decision in Winn is available here. (Thanks to Howard Bashman for the link.) I've read the decision quickly, and want to do so again, but the bottom line seems clear: The Ninth Circuit's decision, which badly misapplied Zelman, is reversed, on standing grounds. Because the tax-credit mechanism is one that involves not government expenditures (of the kind that worried James Madison in his Memorial and Remonstrance), but instead allows people to keep, and direct, their own money, the Flast exception to the no-taxpayer-standing rule does not apply.
I'm torn: I think Flast was probably a mistake, because I don't think (with all due respect!) that there's anything about the injury to a taxpayer who objects to public funds being spent on (say) a school-voucher program that distinguishes it, constitutionally, from the injury to a taxpayer who objects to public funds being spent on (say) a bridge in Alaska. (I argued, in this short paper, that the Establishment Clause does protect "conscience", but not in the way that the Flast exception presumes.) At the same time, I would have liked a majority opinion clearly rejecting, on the merits, the Establishment Clause challenge to the Arizona program.
"Ideology all the way down"? Sisk and Heise on Establishment Clause decisions
Our colleague Greg Sisk, and Cornell law prof Michael Heise, have a paper on SSRN called "Ideology All hte Way Down? An Empirical Study of Establishment Clause Decisions in the Federal Courts." Here is the abstract:
In our ongoing empirical examination of religious liberty decisions in the lower federal courts, we studied Establishment Clause decisions by federal court of appeals and district court judges from 1996 through 2005. The powerful role of political factors in Establishment Clause decisions appears undeniable and substantial, whether celebrated as proper integration of political and moral reasoning into constitutional judging, shrugged off as mere realism about judges being motivated to promote their political attitudes, or deprecated as a troubling departure from the aspirational ideal of neutral and impartial judging. In the context of Church and State cases in federal court, it appears to be ideology much, if not all, of the way down.
Alternative ideology variables of Party-of-Appointing-President and Common Space Scores were highly significant (at the p < .001 level) and the magnitude of the effect on case outcomes was dramatic. Holding other variables constant, Democratic-appointed judges were predicted to uphold Establishment Clause challenges at a 57.3 percent rate, while the predicted probability of success fell to 25.4 percent before Republican-appointed judges. Thus, an Establishment Clause claimant’s chances for success were 2.25 times higher before a judge appointed by a Democratic President than one appointed by a Republican President. Using Common Space Scores as a proxy for ideology, the more liberal judges were predicted to approve such claims at a 62.5 percent rate, compared with acceptance by the more conservative judges only 23.2 percent of the time.
A religious-secular divide that has become associated with the two major political parties increasingly characterizes our national political discourse about the proper role of religion and religious values in public life. The federal courts may be sliding down into the same “God Gap” that has opened and widened between left and right and between Democrat and Republican in the political realm. Because of the notorious lack of clarity in the Supreme Court’s Establishment Clause jurisprudence and a consequent low level of law formality, the door has been thrown wide open to unrestrained political judging. Sadly, the Supreme Court’s Establishment Clause doctrine has become an attractive nuisance for political judging.
Fortunately, our study provides an empirical basis for hope that clarification and tightening of doctrine in the Establishment Clause field may constrain judicial discretion and suppress political judging. With the significant impact on lower courts of a precedential shift by the Supreme Court included within our study, the empirical evidence suggests that clearer legal parameters can make a meaningful and measurable difference and lead to a more legally grounded approach to adjudication.
In this (very) short essay, I suggested -- in keeping with the last paragraph (above) -- that judicial enforcement of the Establishment Clause should be limited to core, "Murder in the Cathedral"-type violations, and (most) of the rest left to politics (and the Free Exercise Clause).
Sunday, April 3, 2011
Marci Hamilton on the "ministerial exception"
Readers familiar with Prof. Hamilton's work will not be surprised by this piece, at Patheos, in which she takes a dim and disapproving view of the "ministerial exception." As I suggested in an earlier post, this "exception" is, in my view, a crucial -- and, indeed, perhaps the most obvious -- implication of our commitment to religious-freedom-under-law-and-through-church-state-separation-correctly-understood.
Prof. Hamilton assures her readers "[r]eligious organizations obviously should have a right to choose their clergy according to their own lights" but then goes on to indicate disagreement with the result in a relatively recent Third Circuit decision called Petruska, in which the plaintiff was a "chaplain" at a religious university. The "right" she concedes, then, appears to be a very narrow one.
Near the end of the piece, she writes, "If the church school wins this case . . . I think that Congress and the state legislatures owe it to potential employees of religious institutions to warn them of their lack of protection from invidious discrimination." Now, as it happens, it strikes me as a good idea for religious institutions to incorporate into their employment contracts and related materials, to the extent possible, clear indications regarding the religious nature (if any) of their employees' duties and positions. Prof. Hamilton's suggestion, though, that they should be required to "warn" employees is curious, to me, for at least two reasons:
First, we don't usually require people to "warn" others that they have constitutional rights which they plan to exercise; the "ministerial exception" reflects the First Amendment right of religious communities to be, well, religious communities, and to not have secular courts interfere in religious decisions and relationships. Second, while it is certainly true that religious institutions (like all others) can and do behave badly, it is not the case that there is necessarily anything "insidious" about a religious institution making decisions about religious doctrine and positions using criteria that we do not think governments and non-religious employers should not use. That said, even if a religious institution acts badly in selecting or terminating a ministerial employee -- say, by doing so for reasons that actually have nothing to do with religion and reflect simply petty spite, or worse -- it is still the case that a secular government committed to church-state separation will recognize that it cannot tell a religious community -- even a bad-acting one -- who will be its clergy, ministers, or teachers.
Saturday, April 2, 2011
Campbell Law Review symposium on Christianity and Liberalism
The annual symposium issue of the Campbell Law Review will go to press this month. It contains articles on the relationship of Christian thought to liberalism by a number of MOJ authors and friends, including Bob Cochran, Michael Scaperlanda, John Breen, John Inazu, Scott Pryor, Anthony Baker and Bruce Frohnen.
What is cura personalis?
Over the years some Catholic institutions of higher learning have been offering programs, lectures, and instruction and have welcomed initiatives that appear to conflict or do conflict in some manner with Catholic teachings and beliefs. In other cases, some of these institutions have engaged in actions that appeared to or did sponsor positions which contravene Church teachings. Examples quickly come to mind: lectures by Larry Flynt, the publisher of Hustler magazine; the production of Eve Enslers’s Monoglogues; including “reproductive health services coverage” (i.e., abortion, artificial contraception) in healthcare benefits for employees; granting honors and podiums to politicians who advocate stands that contravene Church teachings; and providing internships with problematic organizations such as Planned Parenthood. The list does not stop here.
Quite recently Marquette University announced in March of 2011 that it would include “domestic partner benefits” for its employees beginning in 2012. [here] Marquette describes itself as “a Catholic, Jesuit university dedicated to serving God by serving our students and contributing to the advancement of knowledge. Our mission, therefore, is the search for truth, the discovery and sharing of knowledge, the fostering of personal and professional excellence, the fostering of faith, and the development of leadership expressed in the service of others.” [here] The mission statement continues by elaborating excellence, faith, leadership, and service. Moreover, the mission statement further develops its representation of the school’s Catholic identity.
The new Marquette program does not cover all domestic partnerships according to one news source (above). It applies only the homosexual domestic partnerships. As this news source states:
Officials [of the University] said they’re still working out details, but medical, dental and vision benefits currently offered to married couples and their dependents will be extended to registered domestic partners. The couples receiving the benefits must share a residence, must be of the same sex. The declaration of domestic partnership may be initiated by an application filed with the clerk of the county in which an individual resides. (italics added)
In his comments on this initiative, the University’s president was quoted as saying:
If we are truly pastoral in our application of the Jesuit principle of cura personalis, I asked myself if I could reconcile that with denying health benefits to a couple who have legally registered their commitment to each other.”
The president also explained that cura personalis is Latin for “care for the entire person.”
I am gravely concerned by this decision taken by and about to be implemented by an institution that claims Catholic and Jesuit identity. If the University is in fact concerned about authentic cura personalis, and it should, what approach ought it take? I would suggest the foundation of the Society of Jesus would be a good place to start in constructing a benefits package that takes care of the entire person in a Christian, Catholic manner:
Whoever desires to serve as a soldier of God beneath the banner of the cross in our Society, which we desire to be designated by the name of Jesus, and to serve the Lord alone and the Church, His spouse, under the Roman pontiff, the vicar of Christ on earth, should, after a solemn vow of perpetual chastity, poverty, and obedience, keep what follows in mind. He is a member of a Society founded chiefly for this purpose: to strive especially for the defense and propagation of the faith and for the progress of souls in Christian life and doctrine, by means of public preaching, lectures, and any other ministration whatsoever of the word of God, and further by means of the Spiritual Exercises, the education of children and unlettered persons in Christianity, and the spiritual consolation of Christ’s faithful through hearing confessions and administering the other sacraments. Moreover, this Society should show itself no less useful in reconciling the estranged, in holily assisting and serving those who are found in prisons or hospitals, and indeed in performing any other works of charity, according to what will seem expedient for the glory of God and the common good. (italics added)
I do not see how Marquette’s plan to offer domestic partner benefits in the fashion described, or for that matter in any other fashion, serves the Lord and the Church under the Roman Pontiff—the Vicar of Christ on earth. Nor do I see how this decision strives to defend and spread the faith or how it aids in the progress of souls in Christian life. Sadly, this decision seems to do just the opposite of what a Jesuit institution is supposed to do.
RJA sj
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