Are those who work prudently and persistently "to impress the divine law on the affairs of the earthly city" culture warriors? The task in the quotation marks is one the Second Vatican Council assigns to the laity. (See Gaudium et spes no. 43. See also Lumen gentium no. 31). The Council fathers were of course aware of the fact of moral disagreement in the modern world to which they were speaking.
Tuesday, December 8, 2009
Culture warriors?
"Exposing the Underground Establishment Clause" in the abortion decisions
Justin Murray has posted a paper on SSRN that might be of interest to readers. Here is the abstract:
In Roe v. Wade, the Supreme Court held that women have a constitutional right to abortion based on the Due Process Clause. To arrive at this conclusion, the Court implicitly relied on concepts that properly belong to the Establishment Clause - in particular, the Establishment Clause requirement that all laws must be supported by secular purposes, not religious ones. This Article is the first attempt to describe and critically evaluate the Court’s use of Establishment Clause ideas in Roe and later abortion cases.
Some brief background is essential in order to grasp the structure and significance of the underlying Establishment Clause dynamic of Roe. The Due Process Clause allows the government to restrict fundamental constitutional liberties (such as abortion) if it has a compelling reason for doing so. States have defended their abortion laws by arguing that protecting unborn human life against homicide is a compelling reason to restrict abortion. This argument, advanced in Roe, directly presented the Supreme Court with the question of whether fetuses are human beings entitled to protection against homicide.
The Court, however, refused to answer the question and provided a convoluted, ambiguous explanation for its refusal. Careful interpretation of these ambiguous passages reveals the Court’s underlying concern that neither the judiciary nor the legislature may decide the question of fetal humanity because it is a controversial religious question. When the Court’s rationale is clarified and plainly stated in this way, it becomes clear that Roe’s method of analysis - rejecting the state’s interest not because it is false or unimportant, but because it is religious and therefore an inappropriate basis for political judgment - is identical to the Establishment Clause requirement that legislation must be based on a secular purpose.
However, the Court’s analysis is problematic, because Establishment Clause principles are consistent with governmental protection of fetal life. The humanity of the fetus can be plausibly supported, not only on religious grounds, but also on the secular grounds of philosophical, historical, and experiential reasoning. To be clear, I do not argue that these secular grounds prove beyond dispute that fetuses are human beings. Instead, I defend the more modest proposition that a debatable secular case can be made for viewing fetuses as human beings. This conclusion is not strong enough to justify criminalization or restriction of abortion (which is beyond the scope of this Article), but it does prove that such criminalization or restriction would not violate the Establishment Clause. Thus, the Court should revisit the fundamental question that it evaded in Roe and later cases: is the fetus a human being, such that legislatures have a compelling interest in protecting fetal life against abortion?
Paul Horwitz on the NYT's error
MOJ-friend Paul Horwitz writes:
Professor George, writing about a reporter's (serious) error in a story quoting Chip Lupu, says that the reporter "manufacure[d]" the quote from Lupu "in order to present him as impugning other people's motives." He adds that this conduct is "outrageous," and that surely "not a single participant or reader of this blog would disagree with me about that." I am a loyal MoJ reader. I respectfully disagree.
Perhaps my own past experience as a journalist colors my views here, but I believe most reporters are conscientious and that even the best reporters are all too human. The reporter in question surely made a serious mistake; journalists, I can attest from my own experience, take very seriously what falls inside the quotation marks and what falls outside them, and even if the sense of the quote were right, one should feel awful about getting the letter of the quote wrong. This reporter does not appear to have acted recklessly; Professor Lupu says she read the relevant portions of her notes back to him, even if the mistake nevertheless occurred. Still, mistakes can enter in when one takes written or typed notes on an interview. Sometimes, the mistake is introduced not by the reporter but by the editor, and I do not know whether that is the case here, although I would still hope a reporter would take it upon herself to secure a correction in that event. But we are all human.
Is there an MoJ-related point here? You bet. Reporters, like everyone else, make mistakes, even when they are trying their best not to. If enough of them are made, we can start questioning the reliability of that reporter. But I don't think we should rush in civil dialogue to assume that someone -- even someone at the dreaded New York Times! -- has deliberately "manufactured" a quote, let alone done so with a deliberate and malicious end in mind. Most faiths distinguish between intentional and inadvertent wrongs. Some law students (and professors!) sometimes place the quotation marks wrongly in a piece of writing, even when they are on a deadline that stretches to weeks and months rather than mere hours, and we do not assume they always do so deliberately. Even the law believes in excusable error, and on the level of day-to-day practice lawyers regularly make mistakes and forgive each other's errors without assuming some evil intent on anyone's part; have not most of us gotten filing extensions and continuances, made allowances for other's need to reschedule, agreed to the filing of amended briefs or complaints, and so on? Surely we can extend the same forgiving spirit outside our own profession without rushing to assume that this reporter acted out of bad motives. To err is human. . . .
Response to Kaveny on framing, "culture wars", etc.
My down-the-hall Notre Dame colleague Cathy Kaveny says that an earlier blog of mine shows that I have "too much energy." If only! (Readers familiar with Cathy's up-to-the-minute Colbert-blogging will know that hers is high praise.) I'm glad that Cathy found my post "interesting" but worry that she might have read it as questioning the merits of "neutral framing", or as reflecting an inability to "see how someone who is reasonable could take the position that they take", or (worst of all) reasoning "instrumentally" in accord with a "culture war mentality."
A few thoughts: First, I am happy to agree with Cathy that it can often be illuminating "to frame legal and jurisprudential questions in a general way", and to highlight the "structural similarit[ies]" between arguments. I am not "uncomfortable" with "neutral framing" (How could I be? After all, like Cathy, I'm a law professor.) Sometimes, though, such similarities can be more apparent then real. And yes, of course, the "merits matter . . . to everyone not just to you and me." Still, "as . . . Catholic scholar[s]", Cathy and I will sometimes need to evaluate carefully the merits of structurally similar (or apparently structurally similar) arguments; in doing so, we are not (and should not) refusing to see how someone who is reasonable could take the position that they take, but are instead trying to determine which position we should take.
Next, Cathy asks whether the "actions of religious groups [are] deserving of special consideration when they break with the common morality?" For starters, I guess I would say (in keeping with our constitutional traditions) that, as a general matter, religious claims for exemptions are stronger than other such requests. But, I'd also say (in keeping with, say, Dignitatis humanae) -- and I'm sure Cathy would, too -- that the public authority need not and should not comply with every request for religiously motivated exemptions. With respect to the particular debate Cathy is addressing -- the applicability of nondiscrimination laws to religious institutions -- it does seem to me (for plenty of reasons that I and many other religious-liberty scholars have elaborated elsewhere) that we can and should distinguish discrimination in employment and benefits by government and commercial entities (which conflicts with the liberal norms that do and should govern such entities' operations) from religious institutions' efforts to operate in accord with the different norms that might govern theirs. (Obviously, there are limits; there always are. The content and implications of these different norms will matter. We can take seriously this distinction in our public policy without endorsing religiously motivated human sacrifice.)
On the matter of the "culture war mentality" and "instrumental analysis." Culture-warring sounds bad. Like Cathy, I worry about the tone and rigor of "public moral deliberation" and so about any "mentality" that undermines it. I worry also, though, that it might be easier for all of us to see public-deliberation-undermining habits of mind, and purely instrumental deployment of lawyerly arguments, in others' interventions than in our own. As Cathy says, no place on the political spectrum is safe from this temptation. Cathy worries that "culture warriors make an argument because it advances their view of the way things should be –the merits — on an ad hoc basis–and make a different argument on a different issue." Maybe "culture warriors", and lawyers generally, do this (we shouldn't, and I didn't); however, they also sometimes move too quickly from the merits of particular arguments to higher-than-warranted levels of generality.
Finally, with respect to the Stupak Amendment: Cathy is quite right that the "money is fungible" argument could be (and has been) used to "stop students taking Pell Grants to Catholic colleges, or to stop the funding of faith based initiatives – or even to stop the funding of Catholic Charities." It is not, however, necessarily "inconsisten[t]" to think that money's fungibility (i) warrants support for the Stupak Amendment but (ii) does not provide a good reason to oppose the President's funding of faith-based social-welfare agencies. It would be inconsistent, I think, if the principle doing the work were "public funds ought never to be used to support of advance activities to which some taxpayers are opposed"; or "even indirect public funding makes taxpayers' complicit in those activities that are so funded, and taxapyers ought not to be forced to be complicit in activities they oppose." Cathy is right -- a Catholic scholar (like any scholar) should point out such inconsistencies. My own view on the matter, though, is that the Stupak Amendment is welcome not because it protects the consciences of taxpayers (I do not believe, generally speaking, that public funding of X should be regarded as wrongfully burdening the consciences of taxpayers who oppose X) but because (i) it puts law's pedagogical function to work in the right direction and (ii) it will probably result in fewer abortions.
So much for "too much energy." I need an espresso. . .
James Capretta responds to Bob Hockett on health care legisaltion
A little whle back, Bob Hockett helpfully offered a spirited defense of the proposed health care legislation favored by most congressional Democrats against Charles Krauthammer's scathing criticisms. James Capretta, a health care policy specialist at the Ethics and Public Policy Center and a former Associate Director of the United States Office of Management and Budget, defends Dr. K. against Bob's criticisms. Bob and Mr. Capretta know a great deal more about this very important subject than I do, so I'm grateful to both of them for their efforts to inform the rest of us. Disagreement on a subject this complex and difficult, even among people who share the same goal of insuring the uninsured while maintaining the quality of healthcare, honoring the principle of subsidiarity, and eliminating inefficiencies and other factors that unnecessarily boost costs, is anything but surprising. The fact that it is a debate about means, rather than ends, makes it, in principle, less intractable than some of the other issues we discuss on MoJ, though its unavoidable complexity and the necessarily speculative nature of some of the economic and sociological judgments that end up determining one's position make it unlikely that a consensus will emerge.
A Response to Robert Hockett
December 7, 2009
At the Mirror of Justice website, Robert Hockett takes exception to columnist Charles Krauthammer’s arguments against the current health-care bills being considered in Congress.
First, Hockett objects to Krauthammer’s accusation that the bills are sprawling, inelegant, 2,000-plus page behemoths. Hockett argues that this is the norm whenever Congress attempts a large-scale reform of a complex sector of American society. To condemn the current health-care bills on this score would be to suggest that no health reform legislation should be considered — because any credible one would look equally unwieldy once the congressional sausage-making process got a hold of it.
But Hockett misses Krauthammer’s larger point. Yes, the bills under development in Congress are unwieldy messes partly because the subject is health-care. But the bills are much more unwieldy, complex, and bureaucratic because the authors start from the premise that the federal government has the capacity to centrally plan one-sixth of the American economy from
Krauthammer is also right that, if enacted, all of this complexity would create perverse incentives and unintended consequences. For instance, as this paper from the Heritage Foundation demonstrates, the Senate bill would create powerful financial incentives for employers to discriminate against low-wage workers from low-income households. Employers that hired teenagers from poor neighborhoods could face penalties for not complying with the government’s new health insurance requirements, but they would face no such penalties if they hired teenagers from more well-to-do families.
Moreover, the bills would create massive inequities by treating households with identical incomes very differently depending on where they got their health insurance. At a recent session at the American Enterprise Institute, Eugene Steuerle of the Urban Institute presented data which shows that a family of four with $42,000 in compensation from an employer in 2016 would get $7000 more in governmental subsidization if they got their insurance through an “exchange” instead of at the workplace. This massive disparity is created by the complex rules in the bill which were written into it to artificially hold down costs. But, if enacted, it would only be a matter of time before Congress greatly increased the cost to the government by giving the same subsidy to everyone with the same income.
Krauthammer is also correct that many of the fines and fees are arbitrary. For instance, the fine for not obtaining health insurance is set at $750 in the Senate bill. Was this picked because it was found to optimize coverage at the lowest possible amount? No. As Jon Gabel explains in this Health Affairs blog post, no effort has been made to calibrate where the fine should be set to induce robust participation without being overly punitive. What’s happened instead is that Congress picked an arbitrary number for the fine and crossed their fingers that it would result in favorable budget and coverage numbers. There wasn’t any sophisticated modeling of the effectiveness of the $750 fee. It’s a guess, and nothing more.
Finally, there is the issue of what Krauthammer proposes as an alternative. For starters, Hockett says that savings from tort reform are overblown, but the Congressional Budget Office disagrees. CBO’s latest estimate shows the federal government alone would save $54 billion over ten years from a serious reform plan. Private costs would fall even more. In addition, Krauthammer’s proposal to convert today’s tax preference for job-based insurance into something that is fair, uniform, and limited — a proposal also suggested by Senator John McCain in his presidential campaign last year — would have dramatic implications in the health sector. All American households would have access to an equal level of insurance subsidization, thus solving the uninsured problem. In addition, there would much more pressure for decentralized efforts to control costs, without any need for clumsy governmental efforts which always lead to queues and lower-quality care. Yes, such a reform would be difficult to pass. But mainly because President Obama and his allies oppose it. They want a reform that is centered on full governmental control of health care. That’s why the bill is 2,000 pages and filled to the brim with governmental micro-management of every corner of the health sector. It doesn’t have to be so.
Robby responds to Chip (again)
I don't want to be too rough on Chip Lupu, but things get curiouser and curiouser, don't they? Let's review the history. A seasoned New York Times reporter quotes Chip making an accusation that impugns the motives of people whose views he disagrees with: they are "fear-mongering." I pointed this fact out in response to a post by Michael P. which asked: "If [Chip] is wrong--as Robby asserts--why is he wrong?" Michael P. then invited Chip to respond. Chip submitted a comment saying the following:
"I was not happy with the attribution of the word "fear-mongering" to me in that story. I never used it in talking to the reporter. I did say, as I do believe, that the concerns and fears of the anti-same sex marriage movement are vastly overstated—that's an objective reference, relating their statement to the actual state of the law, and is not a subjective imputation of motives."
Having plenty of experience myself of being misrepresened and even misquoted by reporters, I immediately accepted Chip's account of the facts, expressing frustration, which I said I'm sure Chip shares, that a reporter would manufacture a quote from him in order to present him as impugning other people's motives when he had done nothing of the kind. I said that such conduct on the part of a reporter is outrageous. We have lots of disagreements on MoJ, but I suspect that not a single participant or reader of this blog would disagree with me about that.
But now Chip steps forward with another comment, one that begins by saying "[t]here is no point beating up on the New York Times." And why should the Times reporter be given a pass when she manufactured a quote to present a source as impugning the motives of others? Well, a bit more information now surfaces. Chip reveals that the reporter actually read to him in advance the language she was attributing to him. He was given full notice that he was being presented as impugning other people's motives, but he did not object. In defense of his permitting the reporter to present him as doing something that his first comment assured us he was in no way intending to do, he says "I did not know that 'fear-mongering' was in quotation marks." But surely that doesn't matter. If Chip didn't mean to impugn others' motives, he would have objected to being characterized as doing that, whether the word "fear-mongering" was in quotation marks or not. But then Chip says that he "did not focus on the offending word until it was too late." Well, okay, but it was rather a big thing to miss, and he obviously noticed that the term was being used in characterizing his view since he himself reports that he did not know or suppose that it was being put in quotation marks. So, as I say, things get curiouser and curiouser.
Enough of that, though. Let's turn to the substantive issue of laws that would, for example, force physicians and other health care providers who object to the taking of innocent human life to refer for abortions and even perform or assist in them in some circumstances. Now, I don't want to question Chip's motives, because I know he is an honorable man, But it seems to me that his argumentative strategy for justifying his endorsement of such impositions boils down to an effort to depict those on his side of the debate as sensible moderates standing aloof from the substantive moral disputes, who are objectively "balancing" competing "rights and interests." (Of course, "balancing" of this sort will necessarily be by reference to some standard that will itself reflect a moral position; and that position will, in the end, dictate the result of the "balancing." But lay that aside for now.) Those of us who believe that doctors and others have a right not to be forced to implicate themselves in killing unborn human beings, and that entire fields of medicine should not be "cleansed" of Catholics and other pro-lifers who simply cannot, in conscience, comply with laws that would mandate them to participate in feticide, are depicted as "utterly insensitive to competing rights and interests." It's the oldest rhetorical maneuver in the book. And how convenient for abortion supporters, too. Pro-life physicians, nurses, pharmacists, are left with the following options: violate your consciences or leave your professions.
The final paragraph of Chip's most recent comment presents liberalism's "old time religion" on the role of religion and religiously informed moral judgment in public life and the formation of public policy. It rehearses various implausible liberal dogmas, including the one that claims that deviations from liberal beliefs about sexual morality and marriage represent sectarian views that cannot be rationally defended apart from appeals to revelation and religious authority. The truth is that there is a serious rational debate among intelligent and intellectually sophisticated people of goodwill about the morality of various forms of sexual conduct and the nature of marriage. Religions have something to say on the subject; and religious people have every right to enter the public square and make their arguments in the languages of their traditions--just as they have done on everything from gladiatorial contests, to feuding, to slavery and civil rights. Not just conservatives, but also liberals who recognize the flaws of their tradition's "old time religion"--I have in mind scholars such as Michael Sandel and Bill Galston--recognize that liberal views about sex and marriage have no right to prevail in the domain of policy or anywhere else by the dubious expedient of ruling competing views out of bounds. Liberals, no less than conservatives, have an obligation to make their arguments about sex and marriage and answer the counterarguments advanced against them.
More on Cathy Kaveny's Argument (c) re. Conscience
I'd like to second Bob Hockett in arguing that there's more to what Cathy labels argument (c) for accommodation of conscience than she gives it credit. Cathy writes:
c. You could make an analogy to the Americans with Disabilities Act. You could say, "we have an objection to performing an act which is not an essential act of the job, and you should treat it like a moral disability--make reasonable accommodation." This would get you coverage for the pharmacists, and most doctors--not OB/GYNS, probably. And people would have to admit their moral beliefs were a disability--that's a huge problem.
It seems to me that this conflates two analogies, or two components in the analogy, to disability/ADA. One is the use of "reasonable accommodation" as the governing standard for conscienctious-objection claims as for disability claims. The other is the use of disability as the analogy for why conscientious objections should be accommodated in the first place. One can appeal to "reasonable accommodation" as a good standard for handling these cases (analogy #1) without thereby committing oneself to saying that the only normative ground for treating conscience as worthy of accommodation is that it's a disability (analogy #2, which Cathy finds "a huge problem").
"Reasonable accommodation" as a standard is simply the method of giving weight to a claim for accommodation (disability or conscience) but not absolute weight over other interests. In this context, as Bob observed, it means something like, "Make accommodation unless the objection is to a substantial or essential element of the job" (as perhaps carrying a weapon is to policing, while performing abortions is not to medicine). But the reasons why conscience is worthy of being accommodated are hardly limited to (although they might include) "conscience is like a disability." The multiple reasons for accommodating conscience can include (i) the idea that it's at least partly involuntary ("I can do no other," which is sort of analogous to disability); but also (ii) people suffer particularly severely when pressured to give up or violate their conscience, especially religious conscience, because of the pervasiveness of religion to personal identity; and (iii) respecting conscience is an important way for the state to acknowledge its limited status. (There are likely other reasons; and this is to say nothing of Cathy's argument (d), that the particular conscientious objection may be a reminder of a value that society wants to affirm even if it doesn't agree that the particular objection necessarily reflects that value.)
Whatever you think of arguments (ii) and (iii) above, the point is they are independent of the disability analogy. But they might show that conscience is presumptively worth accommodating, and that we should draw on the disability standard as a workable one for calibrating the competing interests.
Monday, December 7, 2009
Hastings and the Christian Legal Society
Just a few points to add to Tom's brief description of the case. The Christian Legal Society and any other student organization (even though not "recognized") is permitted to have access to the classrooms for meetings and the like, but it is not eligible to receive subsidies and a variety of other benefits so long as it discriminates on the basis of religion or sexual orientation. The district court maintained that Hastings was regulating conduct not speech. It admitted that the CLS was particularly hard hit, but argued that the purpose of Hastings did not involve viewpoint discrimination and that it was reasonable to require that organizations receiving subsidies be open to all students. It distinguished the expressive association cases on the ground that subsidies were involved here not a direct regulation of membership. It distinguished Rosenberger on the ground that viewpoint discrimination was present there.
"The Pro-Life Movement and Obama’s New Bioethics Commission"
Promising blog. Thanks, Rob. Interesting post, here.
"No Hidden Magenta" (new blog)
Fordham theology prof Charles Camosy's new blog, "No Hidden Magenta: Bridging the Polarized Gap Between 'Red and Blue State' Groupthink," is worth checking out. Early posts address health care reform, abortion, and President Obama's new Bioethics Commission.
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