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.

Tuesday, November 2, 2010

A Flannery fix (updateD)

By Rick Garnett

“If you live today you breathe in nihilism. In or out of the Church, it’s the gas you breathe. If I hadn’t had the Church to fight it with or to tell me the necessity of fighting it, I would be the stinkingest logical positivist you ever saw right now. With such a current to write against, the result almost has to be negative. It does well just to be.”

(August 28, 1955)

 UPDATE:

“I was once, five or six years ago, taken by some friends to have dinner with [a group of their friends]. [One woman had] departed the Church at the age of 15 and is a Big Intellectual…. I hadn’t opened my mouth once, there being nothing for me in such company to say…. The conversation turned on the Eucharist, which I, being Catholic, was obviously supposed to defend. Mrs. Broadwater [the Big Intellectual] said…she thought of it as a symbol and implied that it was a pretty good one. I then said, in a very shaky voice, ‘Well, if it’s a symbol, to hell with it.’ That was all the defense I was capable of, but I realize now that this is all I will ever by able to say of it…except that it is the center of existence for me; all the rest of life is expendable.”

(December 16, 1955) 

Theology, Our Constitution, Islam, and the St. John's Conference

By Steve Shiffrin

I am giving a talk on Friday at St. John’s Religious Legal Theory Conference  on “Theology and Our Constitution.” One of my preliminary points is that it is not possible to interpret the Establishment Clause in a way that would avoid contradicting someone's theology – indeed there is major disagreement within major faith traditions about the relationship between religion and the state. I am still working on Islam in this respect. In the 46 countries with Muslim majorities 26 have something like Establishment. I wonder about inferring anything about the 20 though. In Turkey, for example, the military is largely responsible for the secular character of the state. I have yet to find a good overview about the different positions taken within Islam about the relationship between religion and the state although the Christian Science Monitor published a helpful set of views in 2007.

One of those views comes in a column by Abdullahi Ahmed An-Na`im as a precursor to his book Islam and the Secular State (which I am in the process of reading) in which he argues that “The state should not enforce sharia (the religious law of Islam) because compliance should never be coerced by fear or faked to appease state officials. When observed voluntarily, sharia-based values can help shape laws and public policy through the democratic process. But if sharia principles are enacted as state law, the outcome will simply be the political will of the state.” I am struck by the similarity between his argument and that of Locke though Locke does not appear in the index (perhaps discussion of Locke would detract from the persuasiveness of his book to Muslims who are his primary audience). The Lockean view rules out impingements on religious liberty, but there are some state actions that those on the religious left would see as violations of Establishment (on Roger Williams grounds) that fellow travelers of Locke (think of the Roman Catholic Church - I would be grateful for comments on the differences between Locke and Murray) might see as perfectly appropriate (think of subsidies to private religious schools).

Monday, November 1, 2010

Hello, and a little review

By Marc DeGirolami

Thanks very much to Rick and the other posters here for including me in your discussions.  It is fair to say that I've long admired the writing of many of the blog's denizens (of all political stripes!), and I'm delighted to be here with you.  My own writing interests are, as Rick mentioned, in law and religion and criminal law.  I've also been teaching a seminar in Catholic Social Thought and the Law here at St. John's, and I very much hope to share my approach with MOJ writers and readers and get your thoughts.

One of those folks whose writing I've always found challenging and provocative is Steve Shiffrin.  Here's a short review I just put up considering his thoughtful book, The Religious Left and Church-State Relations.  I noticed just below this post that Rick put up Professor Paulsen's critical take on the idea of separationism.  Somewhat surprisingly, one of the things that I took away from Steve's book is just a hint of nostalgia for the days when separationism ruled the theoretical roost.  I say surprisingly because I'm not generally a separationist.  But of all the ideas which John Rawls made famous among the pointy-headed set, I've always found the idea of restraint -- in one's personal and public expressions -- to be the most attractive.  At all events, I highly recommend the book, even as (or, perhaps better, because) there are points of disagreement between us.

Paulsen on church-state "separation"

By Rick Garnett

Responding to the kerfuffle the other day regarding the disagreement between Mr. Coons and Ms. O'Donnell regarding the constitutional status of church-state "separation", Michael Stokes Paulsen has this characteristically helpful essay.  He writes, among other things, that:

The correct understanding of the First Amendment is not that it forbids contact—and even voluntary cooperation—between church and state. Rather, it protects private religious liberty, but does so in two complementary ways. In a nutshell, government may neither compel nor prohibit religious exercise. The Establishment Clause side of the coin says that government may not prescribe religious exercise; the Free Exercise side says that government may not proscribe, disfavor or otherwise punish or prevent religious exercise voluntarily chosen by the people. But the two phrases are two sides of the same coin. It is little wonder, then, that the Supreme Court has abandoned entirely the misleading metaphor “separation of church and state.” It simply does not help explain the true meaning of the First Amendment.

This is more than a quibble. The different understanding makes a difference in results. Under a separation view, government must discriminate against religion, reject school choice “voucher” plans that include religious options, and extirpate religious references and symbols from public discourse. Under the original meaning of the Constitution, government must protect religious choices and include religious persons, groups, and speakers on an equal basis. It may recognize and accommodate religion, as long as it does not in effect compel persons to engage in religious exercises or practices against their will—the hallmark of what an “establishment of religion” was understood to mean at the time the framers wrote the First Amendment.

Real Clear Religion

By Rick Garnett

For many, the "RealClearPolitics" website is a useful news aggregator (if not an addiction).  There's now a "RealClearReligion" related site, and I think it's great.  Warning:  Do not go to the site if you are on deadline.

A beautiful reflection by a Notre Dame student

By Rick Garnett

As MOJ readers probably know, a Notre Dame student died tragically in an accident last week.  This reflection, by a fellow student, appeared in the student paper today and is, I think, beautiful.

Sometimes, it seems that Notre Dame is noted in the press – especially the Catholic press – primarily when its football team lays an egg, when it is the site of one intra-Catholic fight or another, or when it acts in a way that seems inconsistent, in one way or another, with what the one taking note thinks Notre Dame “ought” to be. 

It would be great, though, if this letter got appropriate attention among Catholics across the “spectrum”. 

Welcome to Marc DeGirolami

By Rick Garnett

I am delighted to welcome Marc DeGirolami (St. John's) to the Mirror of Justice crew.  Marc is, as many MOJ readers and bloggers know, an engaging and gifted scholar of law-and-religion and crime-and-punishment matters.  He has been a contributing blogger at Prawfsblawg, and I recommend his posts highly.  For a taste of his work, check out this, "Recoiling from Religion", and this, "Faith in the Rule of Law."

Welcome, Marc! 

BYU conference on the impact of same-sex marriage on public education

By Richard Myers

I just returned from a conference at BYU on the impact of same-sex marriage on public education. See http://www.law2.byu.edu/organizations/marriage_family/ The conference was organized by my good friend Lynn Wardle and was sponsored by the Marriage and Family Law Research Project at BYU Law School.  

The Marraige and Family Law Research Project is an admirable effort and it seems to me precisely the sort of initiative that religiously affiliated law schools ought to support. The Project has held a series of interesting conferences over the years (I have been involved in several). The conferences and follow-up law review publications have promoted serious thinking about marriage and related issues. The conferences typically include scholars with a range of views and as a result the resulting law review publications help to balance out the scholarly literature on these topics.     

Richard M.

Sunday, October 31, 2010

Parsing a Backyard Chat – Why Should Abortion Be “Rare”?

By John M. Breen

President Obama has, as we know, been campaigning hard to try and rouse support for Democratic candidates in the mid-term elections taking place this Tuesday.  Last month, at a “backyard” meeting in Albuquerque, New Mexico, the President was asked why he was a Christian and what he thought about the absence of legal restrictions on abortion.  A video of the exchange can be found here and a transcript here.

As to the first question President Obama noted that his mother and grandparents hadn’t raised him going to church.  Instead, he became a Christian as an adult “by choice”:  "I came to my Christian faith later in life, and it was because the precepts of Jesus Christ spoke to me in terms of the kind of life that I would want to lead – being my brothers’ and sisters’ keeper, treating others as they would treat me.”  He also said that his public service is “part of that effort to express my Christian faith.”

The President has spoken of his Christian faith in the past, but to no avail.  We can all hope that this will put an end to the scurrilous efforts to portray Mr. Obama as a Muslim for political purposes.  (Followers of Islam and members of other minority religions are of course as free as any other American to seek and hold elective office, though the times and tenor of the nation make a Muslim commander-in-chief unlikely in the foreseeable future).  Regardless of what one thinks of the wisdom of the President’s policies, his remarks should be taken at face value as the sincere statement of a believing Christian.  As such, however, it is also proper to critically review the President’s actions in light of the faith he professes.

As to the second question President Obama assured the audience that “there are laws both federal, state and constitutional that are in place” that “there are a whole host of laws on the books that after a certain period, the interests shift such that you can have some restrictions, for example, on late term abortions, and appropriately so.  So there is in fact a set of rules in place.”

Here the President is guilty of some substantial embellishment concerning the number and extent of laws restricting the abortion license.  The fact of the matter is that there are no enforceable laws that directly prohibit the choice of abortion at any time during pregnancy. 

The President is also guilty of conspicuously omitting the fact that as a legislator and presidential candidate he opposed the very restrictions on late term abortions that he now describes as “appropriate.”  See here, here, here and here.

The President also insisted that we should all recognize that abortion involves a “difficult sometimes, oftentimes tragic situation that families are wrestling with.”  Thus, repeating the words of his predecessor Bill Clinton, Obama said that abortion ought to be “safe, legal and rare.”

This has always struck me as an especially odd statement to come from those who believe that the right to abortion is an enormously important constitutional right – a “fundamental” right, like the right to freedom of speech.  Why should something so important, so precious, be “rare”?  We don’t say this about any other fundamental right.  We certainly don’t suggest that we should “rarely” exercise the right to free speech, or the “rarely” exercise the freedom to worship, or “rarely” exercise the right to vote.  We don’t say that occasions when we exercise the right to buy and sell property or the right to travel should be seldom or few and far between.

Why the difference?  Why should the right to abortion – the cherished freedom to terminate a pregnancy – be any different?  To put the matter in the other language employed by President Obama, what makes abortion “difficult” even “tragic”?

To say that abortion should be “rare” or that it is “tragic” because it involves the loss of “potential life” falls flat.  It doesn’t seem to account for the gravity of the act and how it is experienced.  Indeed, those who claim that the unborn child is only “potential life” also say that sperm and ova are also “potential life” yet they do not say that the use of contraceptives should be “rare” or that the decision to use contraception is “difficult” let alone “tragic.”

A more honest response would be that many women experience the decision to choose abortion as “tragic” – indeed, wrenching and full of anguish – because they know in their hearts that they are choosing to kill their own children, something they know even as the purveyors of abortion services lie to them about the humanity of the victim.  (For undercover films documenting these lies at two Planned Parenthood clinics in Indianapolis and Milwaukee, see here and here).

President Obama doesn’t acknowledge this fact – perhaps because it would be politically dangerous to do so, perhaps for fear that such an honest conversation would expose the flawed premises upon which the current regime of legal abortion stands.  So in saying that abortion should be “rare” President Obama like President Clinton before him, leaves anyone paying attention scratching his or her head and asking “Why should it be rare?”  In the absence of any frank discussion of the question the President’s statement does and should strike the listener as an artifice of political calculation designed to convince others of the speaker’s moderation rather than evidence the sincere, considered judgment of serious reflection.

 

Saturday, October 30, 2010

Bishops, Catholics, Cooperation, Citizenship, and More (“Thomas” or “additional”?)

By Robert John Araujo, SJ

 

Thanks to Steve, Rob, and Rick who have recently posted several contributions that address Catholics—clerical and lay—on the exercise of citizenship, the role of moral deliberation, and, last but not least, the upcoming mid-term election.

I was planning on writing to address some of the points made by Professor Cathy Kaveny in her “Catholics As Citizens” America entry to which Steve kindly directed us. However, Fr. Charles Curran, in a report of his recent October 28th lecture at Southern Methodist University, brings together a few more points worth addressing. Therefore my posting today will be geared more to what he, Curran, appears to have said about why, in his judgment, the response by U.S. bishops to “abortion laws” is “flawed.” Regrettably, I have not been able to find a complete transcript of his lecture yet; however, the National Catholic Reporter has provided some significant coverage of the lecture [HERE], so I shall rely on this periodical’s reporting and the quotations they attribute to Fr. Curran in this post.

This article, signed by Tom Roberts (the NCR editor at large), reports that the efforts to the U.S. bishops to change laws on abortion have been given “preeminence.” Given that we—Curran, Kaveny, others, and I—appear to be addressing issues dealing with the upcoming election on Tuesday, it is unclear if this NCR report is referring to some other position taken by the Catholic bishops after their 2007 quadrennial statement on political responsibility, “Forming Consciences for Faithful Citizenship—A Call to Political Responsibility.” If this is in fact the source of criticism offered by Fr. Curran regarding the bishops and their “flawed” position vis-à-vis abortion, it is important to recall with precision what the bishops did say in this 2007 statement. And what they actually said is this:

There are some things we must never do, as individuals or as a society, because they are always incompatible with love of God and neighbor. Such actions are so deeply flawed that they are always opposed to the authentic good of persons. These are called “intrinsically evil” actions. They must always be rejected and opposed and must never be supported or condoned. A prime example is the intentional taking of innocent human life, as in abortion and euthanasia. In our nation, “abortion and euthanasia have become preeminent threats to human dignity because they directly attack life itself, the most fundamental human good and the condition for all others” (Living the Gospel of Life, no. 5). It is a mistake with grave moral consequences to treat the destruction of innocent human life merely as a matter of individual choice. A legal system that violates the basic right to life on the grounds of choice is fundamentally flawed. (N. 22) 

Furthermore, this quadrennial statement reiterates what the Congregation for the Doctrine of the Faith stated in its Doctrinal Note of 2002 regarding “The Participation of Catholics in Public Life”:

It must be noted also that a well-formed Christian conscience does not permit one to vote for a political program or an individual law which contradicts the fundamental contents of faith and morals. The Christian faith is an integral unity, and thus it is incoherent to isolate some particular element to the detriment of the whole of Catholic doctrine. A political commitment to a single isolated aspect of the Church’s social doctrine does not exhaust one’s responsibility towards the common good. (Doctrinal Note on Some Questions Regarding the Participation of Catholics in Political Life, no. 4) 

It is critical to acknowledge that these statements refer to proper responses by Catholics to laws or law-making rather than to candidates. Regarding candidates, the bishops remarked:

Catholics often face difficult choices about how to vote. This is why it is so important to vote according to a well-formed conscience that perceives the proper relationship among moral goods. A Catholic cannot vote for a candidate who takes a position in favor of an intrinsic evil, such as abortion or racism, if the voter’s intent is to support that position. In such cases a Catholic would be guilty of formal cooperation in grave evil. At the same time, a voter should not use a candidate’s opposition to an intrinsic evil to justify indifference or inattentiveness to other important moral issues involving human life and dignity. (N. 34)

Furthermore, the bishops stated that,

As Catholics we are not single-issue voters. A candidate’s position on a single issue is not sufficient to guarantee a voter’s support. Yet a candidate’s position on a single issue that involves an intrinsic evil, such as support for legal abortion or the promotion of racism, may legitimately lead a voter to disqualify a candidate from receiving support. (N. 42) 

And, finally, one other passage from the 2007 Faithful Citizenship document merits quoting in full:

Our 1998 statement Living the Gospel of Life declares, “Abortion and euthanasia have become preeminent threats to human life and dignity because they directly attack life itself, the most fundamental good and the condition for all others” (no. 5). Abortion, the deliberate killing of a human being before birth, is never morally acceptable and must always be opposed. Cloning and destruction of human embryos for research or even for potential cures are always wrong. The purposeful taking of human life by assisted suicide and euthanasia is not an act of mercy, but an unjustifiable assault on human life. Genocide, torture, and the direct and intentional targeting of noncombatants in war or terrorist attacks are always wrong. (N. 64, bold in the original)

Fr. Curran makes four points why he considers that the bishops’ position regarding abortion is flawed: (1) speculative doubt about when human life begins; (2) the fact that possibility and feasibility are necessary aspects involved in discussions about abortion laws; (3) the understanding and role of civil law; and, (4) the weakness of the intrinsic evil argument.

He was quoted by the NCR in a statement preliminary to the elaboration of his four points where he asserts that, “In my judgment, the U.S. bishops claim too great a certitude for their position on abortion law and fail to recognize that their own position logically entails prudential judgment so that they cannot logically distinguish it from most of the other issues such as the death penalty, health care, nuclear deterrence, housing... Voters should examine the candidates on a full range of issues, and with a consideration for the candidates’ integrity, philosophy and performance. The document lists eight issues in alphabetical order, beginning with abortion, but does not give priority to any of these issues.” With respect, I do not see how these contentions nor his four points are accurate depictions of what the bishops presented in their 2007 statement on Faithful Citizenship. Therefore, I cannot see how his argument that their position [that “abortion is the primary issue”] is “flawed” can be maintained.

Let me very briefly consider each of his four points seriatim.

1. Regarding “speculative doubt about when human life begins.”

Fr. Curran bases much of his argument from the science of the times of St. Thomas Aquinas rather than modern medical science. Although Curran notes that Aquinas’s biology was faulty, he insists that the Catholic tradition “recognizes speculative doubt about when the soul is infused or when the human person comes into existence.” He attributes his error to an imagined error of the bishops and, for that matter, the Universal Church. Moreover, he insists that, “from the beginning, the matter of what we now call the fetus is not apt or suitable for receiving the human soul. Some growth and development are necessary before the human soul can be infused.” It is ironic that he, Curran who is a theologian, fails to take stock of Psalm 139: “You formed my inmost being; you knit me in my mother’s womb.” Hmmmm, sounds like something was going on regarding recognition of the pre-birth human person long before Thomas Aquinas but of which Fr. Curran does not acknowledge.

Moreover, he does not take account of the fact that there is no scientific “doubt about when human life begins.” As O’Rahilly and Műller state in their 1996 Human Embryology and Teratology, “life is continuous, as is also human life, so that the question ‘When does (human) life begin?’ is meaningless in terms of ontogeny. Although life is a continuous process, fertilization is a critical landmark because, under ordinary circumstances, a new genetically distinct human organism is thereby formed.” (p. 8) In a similar fashion, Moore and Persaud, authors of another prominent medical text book on human embryology (2003), note that: “The intricate processes by which a baby develops from a single cell are miraculous… Human development is a continuous process that begins when an oocyte (ovum) from a female is fertilized by a sperm (spermatozoon) from a male. Cell division, cell migration, programmed cell death, differentiation, growth, and cell rearrangement transform the fertilized oocyte, a highly specialized, totipotent cell—a zygote—into a multicellular human being.” [The Developing Human: Clinically Oriented Embryology, Seventh Edition, 2003, p. 2. (Italics in the original)]

Fr. Curran emphasizes the 1974 CDF “Declaration on Procured Abortion” footnote statement that on the ensoulment question to argue that the Church’s teachings are behind the times: “There is not a unanimous tradition on this point and authors are as yet in disagreement.” Ironically, he fails to mention that the CDF also said this to say about the role of modern science in formulating Church teachings:

To this perpetual evidence—perfectly independent of the discussions on the moment of animation—modern genetic science brings valuable confirmation. It has demonstrated that, from the first instant, there is established the program of what this living being will be: a man, this individual man with his characteristic aspects already well determined. Right from fertilization is begun the adventure of a human life, and each of its capacities requires time—a rather lengthy time—to find its place and to be in a position to act. The least that can be said is that present science, in its most evolved state, does not give any substantial support to those who defend abortion. (N. 13)

This statement of the CDF and relied upon by the United States Conference of Catholic Bishops is in accord with my previous references to current texts about human embryology. In this light, I fail to see how Fr. Curran can sustain his critique of the bishops that, “from the moment of conception, each member of the human species must be given the full respect due to a human person is accurate but not totally forthcoming.” It seems that the bishops, the CDF, and medical experts are in accord, an accord which Fr. Curran elects not to join.

2. Possibility and Feasibility.

Here Fr. Curran addresses compromises which elected officials sometimes must make. As he states, public officials “from the president on down have to recognize this reality [of making compromises] and often have to be willing to settle for half a loaf rather than none.” This may be the case when politicians are making the law, but how about when citizens are selecting their representatives who will make the law? I believe that this is the issue which the bishops are addressing, not, as Fr. Curran implies, the need to be flexible in getting “half a loaf rather than none.” I do not think that a candidate can be the subject of compromise in the same fashion as a bill that is on its way to becoming law. Law-making may require the “prudential judgment” of which the bishops speak so that less rather than more harm is result. It may be that a Catholic can elect a candidate—who is clearly pro-life, that is, against abortion—who may have to compromise in order to reduce the spread or expansion of abortion. But this is not the same thing as saying that a faithful Catholic voter can make this compromise. The motivation behind the bishops’ reasoning is that Catholics cannot compromise on the issue of abortion itself—be they voters, candidates for office, or office holders. In the context of office-holders, they may have to “settle for half a loaf rather than none,” but only as a way to reduce the access to abortion and its impact until the law can be revisited again. While referring to Pope John Paul II’s encyclical Evangelium Vitae, Curran fails to state the pope’s pertinent remark, “when it is not possible to overturn or completely abrogate a pro-abortion law, an elected official, whose absolute personal opposition to procured abortion was well known, could licitly support proposals aimed at limiting the harm done by such a law and at lessening its negative consequences at the level of general opinion and public morality. This does not in fact represent an illicit cooperation with an unjust law, but rather a legitimate and proper attempt to limit its evil aspects.” (EV, N. 73) So, it should be clear that the Catholic voter, candidate, and office holder must be opposed to abortion; however, it is the Catholic office holder who has the capacity to enter the compromise, a compromise that involves the law-making but not the position on abortion itself.

3. No claim of certitude.

Here the NCR quotes Fr. Curran making the remarkable statement that, “neither the bishops nor anyone else can claim certitude as to how Catholics should decide about abortion legislation.” Curran appears to rely on the work of the Second Vatican Council to substantiate and justify his claim. As he asserts, “one is not supporting a false religion, but rather the freedom of the person to choose.” He appears to suggest that the Declaration on Religious Freedom would enable a Catholic to have a more flexible position on abortion based on the grounds of religious freedom. Yet, he is not attributed by NCR as referring to any passage in the Declaration on Religious Freedom that would support this contention. However, any view that the Second Vatican Council offered support for abortion or abortion access under some circumstances, such as religious freedom, would be gravely mistaken. As the Council Fathers stated in Gaudium et Spes, “whatever is opposed to life itself, such as any type of murder, genocide, abortion, euthanasia or willful self-destruction, whatever violates the integrity of the human person... all these things and others of their like are infamies indeed. They poison human society, but they do more harm to those who practice them than those who suffer from the injury. Moreover, they are supreme dishonor to the Creator.” (GS, N. 27) Fr. Curran does not appear to take stock of this crucial statement of the Council in his no-claim-of-certitude argument.

4. The weakness of the intrinsic evil argument.

Fr. Curran is, unfortunately, one of the many contemporary moral theologians who dismiss the significance of the concerns about intrinsic evil. He maintains that, at best, it “is a moral term and not a legal term.” But is he absolutely right in making this claim? First of all, we might consider the fact that the Nuremberg trials had to address the commission of terrible things that were evil—evil as inherent, essential, fundamental, real, and genuine—intrinsic evil. If I might present a rhetorical question here: is not the fact that we, as the American people, still suffer over a million abortions every year evidence that intrinsic evil is with us? And, is it not more of an intrinsic evil that we can actually do something by a few strokes of the pen—called legislation—to come to the aid of mothers who consider abortion and their targeted children who presently have little or no legal say in the matter? If wars of aggression, violence, crimes against humanity, torture, human trafficking, etc. are evils and subject to the sanction of the law, so is abortion—for it intentionally targets the most defenseless of the defenseless. Fr. Curran is quoted as saying that the weakness of arguments founded on intrinsic evil, “once again undermines the position of the bishops wanting to see the public policy position on abortion as differing from public policies on most other issues.” He relies on an analogy between adultery and abortion, but the only thing they have in common, other than they are both wrong, is that they begin with the letter “a.”

 

RJA sj

 

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