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.

Monday, July 20, 2009

As the world turns ...

By Michael Perry

[From a news release dated July 20, 2009:]

On 2 July 2009, the Constitutional Court of Slovenia held that Article 22 of the Registration of Same Sex Partnerships Act (RSSPA) violated the right to non-discrimination under Article 14 of the Constitution on the ground of sexual orientation. The decision was handed down in the case of Blažic and Kern v. Slovenia U-I-425/06-10. The applicants challenged Article 22, which sets out the inheritance regulations for same sex partnerships, on the basis that it regulated inheritance for same sex partners differently, and less favourably, than the Inheritance Act regulated inheritance for opposite sex partners.

The judgment which was adopted unanimously by all nine Constitutional Court judges is the first time that sexual orientation has been confirmed as a protected ground on which discrimination is prohibited under the “any other personal circumstance” clause of Article 14(1) of the Constitution.

In making its decision the Court noted the strong similarity between marriage and same sex partnerships:

“A registered partnership is a relationship which is in content similar to marriage or civil partnership. A stable connection between two persons, who are close to each other, who help and support each other is the key element of both. The ethical and emotional essence of a registered partnership, as stated in Article 8 of RSSPA, according to which the partners have to respect, trust and help each other, is similar to the union between a man and a woman. The legal situation of such a partnership is also similar to marriage. RSSPA also ensures mutual rights and obligations to partners, protects a weaker partner, regulates their legal position towards third parties, the state and the social environment.”  

The decision represents an important victory in combating discriminatory statutory provisions and ensuring the equal rights for same sex couples in Slovenia. Reflecting on the significance of the case, Neža Kogovšek, the Director of the Ljubljana-based Peace Institute who represented the applicants, stated:

“This is a landmark decision that will assist the LGBT community in Slovenia to pursue their equal rights not only in the area of inheritance, but also with respect to other social and economic rights deriving from partnerships. The decision was issued at a moment when the public debate on the necessity for the complete equality of same sex partners with opposite sex partners is particularly burning in Slovenia.”

To read the ERT case summary, click here.

To read the full case (in Slovenian only), click here.

Jimmy Carter on the Religious Subjugation of Women

By Michael Perry

The magisterium of the Roman Catholic Church, with its patriarchal conception of the priesthood, is certainly not immune to Carter's critique, here.  One of the commentators at dotCommonweal writes:

The Bible is meant to be used. but in an enlightened way, under the guidance of the Spirit. The Catholic Church has made the same mistakes as the Southern Baptists, using the Bible to prooftext sexism, homophobia, slavery, rejection of religious freedom. We no longer quote “compelle eos intrare” for the latter purpose, but our current official documents still quote Romans 1 to teach that gays and lesbians are disordered. Of course the Catholic Church claims to be more rational than biblical fundamentalists because its views are ultimately grounded in Natural Law — but here comes another nasty twist: it is the Vatican, self-decreed “expert in humanity” that discovers by oracular means what Natural Law dictates, and then treats its own dictates as Infallible, punishing any who demur. Our game, therefore, is every bit as weird and destructive as that of the Southern Baptists.

And, relatedly, read Fr. Richard McBrien's weekly column, this week titled "U.S. Women Religious and Loyalty Oaths", here.

Ross Douthat on "Race in 2028"

By Michael Perry

I'm inclined to agree with Douthat.  And you?  See what he has to say, here.

More on Health Care Rationing

By Michael Scaperlanda

Responding to my post on health care rationing, Denise Hunnell writes:

 

I responded to Peter Singer's article here.  The problem with rationing is that it judges the patient, not the treatment. Catholic teaching is that we must determine what is proportionate care and what is disproportionate care. This judgment is made from the perspective of the patient or the patient's surrogate. This teaching of distinguishing proportionate vs disproportionate care has been developed in two Magisterial documents. The first is the Pope Pius XII, Address To members of the "Gregorio Mendel" Italian Institute of Genetics on reanimation and artificial respiration (November 24, 1957)  In this document Pope Pius XII states that one is obligated to pursue ordinary or proportionate care.

In the Congregation for the Doctrine of the Faith, Declaration on Euthanasia, (May 5, 1980) n IV, the principles for the determination of what is proportionate care and what is disproportionate care are more clearly stated:

In the final analysis, it pertains to the conscience either of the sick person, or of those qualified to speak in the sick person's name, or of the doctors, to decide, in the light of moral obligations and of the various aspects of the case. Everyone has the duty to care for his or her own health or to seek such care from others. Those whose task it is to care for the sick must do so conscientiously and administer the remedies that seem necessary or useful. However, is it necessary in all circumstances to have recourse to all possible remedies? In the past, moralists replied that one is never obliged to use "extraordinary" means. This reply, which as a principle still holds good, is perhaps less clear today, by reason of the imprecision of the term and the rapid progress made in the treatment of sickness. Thus some people prefer to speak of "proportionate" and "disproportionate" means. In any case, it will be possible to make a correct judgment as to the means by studying the type of treatment to be used, its degree of complexity or risk, its cost and the possibilities of using it, and comparing these elements with the result that can be expected, taking into account the state of the sick person and his or her physical and moral resources

The USCCB ethical and religious directives (ERD) state:  “Proportionate means are those that in the judgment of the patient offer a reasonable hope of benefit and do not entail an excessive burden or impose excessive expense on the family or the community”(ERD 56) and “Disproportionate means are those that in the patient’s judgment do not offer a reasonable hope of benefit or entail an excessive burden or impose excessive expense on the family or the community”(ERD 57)

In the case of your 85-year-old, there is the added complication of a limited supply of organs. It is fair to triage an 85-year-old to lower on the transplant list because his risk/benefit analysis may not be as favorable as someone else's. Then it must be determined if the risk of the treatment in this individual patient is worth the anticipated benefit. Cost can be a consideration. You are not obligated to bankrupt your family to pursue care. The point is, it must always be the treatment that is being judged for benefit and burden, not the patient.

Thanks for continuing this discussion.

More on Health Care Rationing

By Michael Scaperlanda

From a reader, responding to my post on health care rationing.

I think you're correct regarding the rationing question. In my opinion (and in the opinion of others more interesting than myself), the term rationing is being misused. Because resources are finite, rationing
*will* take place one way or another. The question is how those resources are rationed. A quick Google search revealed this linked article by Uwe Reinhardt, economics professor at Princeton. There, I think Professor Reinhardt does a pretty good job explaining the fundamental issue (though not in the most polite way, I'm afraid). In the end, I don't think it makes sense to be critical of rationing, but only of certain forms of rationing, and it's important to be clear what specific form we're being critical of.

Sunday, July 19, 2009

By R.J. Matson of the St. Louis Post Dispatch

By Michael Perry

Saturday, July 18, 2009

the place to be this fall

By Patrick McKinley Brennan

When planning your itinerary (I'm tempted to say itinerarium mentis . . . ) for this fall, don't forget to come to Villanova.  We've got lots of very good stuff on offer, and Philadelphia is especially beautiful in the autumn.

Closest to my heart is the fourth annual John F. Scarpa Conference on Law, Politics, and Culture.  This year the conference will be dedicated to exploring and celebrating the work of Joseph Vining, Hutchins Professor of Law at the University of Michigan.  2009 marks Professor Vining's fortieth anniversary on the Michigan faculty, and those who will gather to pay tribute to his surpassing scholarly contribution -- that ranges from administrative law and animal law to jurisprudence and corporate law -- include Judge John T. Noonan, Jr., James Boyd White (U Michigan), Steven Smith (San Diego), Lee Bollinger (Columbia), Jefferson Powell (Duke), and Jack Sammons (Mercer).  The date for the conference is October 22nd. 

On September 26, we will be hosting our annual conference on Catholic social thought.  The topic this year is Catholic legal education.  Our friend Tom Mengler, dean of the Univ. of St. Thomas School of Law, will deliver the plenary address.  MOJers aplenty will also speak: Steve Shiffrin, Fr. Araujo SJ, Amy Uelmen, John Breen, Rick Garnett, and Susan Stabile.  Other speakers will include William Wagner, Helen Alvare, George Garvey, Eric Claeys, Zach Calo, Greg Kalscheur SJ, Lee Strang, and Lucia Silecchia.


And then there's our annual Law Review symposium, which this year will be dedicated to the topic of sovereignty (and "why you're not the boss of me").  The date for the symosium is September 26th.  Confirmed speakers include Hope Babcock, Kate Struve, Don Doernberg, Doug Enderson, and MOJ's own Greg Sisk.


Details about the events will be available on the Villanova Law homepage as the dates approach, but please plan early to attend.

Abortion-funding and the Health Care Plan

By Rick Garnett

According to the National Right to Life Committee (fact-sheet here), the proposed plan "will result in federally mandated coverage of abortion on demand in virtually all of America's health plans" and could also pre-empt (FOCA-style) many state laws that currently restrict abortion.

Will the House's pro-life Democrats insist that abortions and abortion clinics be excluded from the plan?  I do not see anything about the plan on the website of Democrats for Life, or at the one for Catholics in Alliance for the Common Good.

At America, Michael Sean Winters says that "it is time for Catholic Democrats to lay down some markers."  He adds,

Many of us pro-life Democrats have given the President the benefit of the doubt on the abortion issue because of his repeated commitment to trying to lower the abortion rate, a commitment he reiterated to Pope Benedict XVI last week. All the good will he has earned among Catholic swing voters, and all the arguments on his behalf progressive Catholics have mounted, all could be swept away if abortion is part of a federal option in health care. Politics is the art of compromise, but on this point, there can be none.

Healing Polarization & Focolare’s Economy of Communion

By Amy Uelmen

A few thoughts on John Allen’s “gut check for American Catholicism.”  I know you will all be shocked to read that I’d agree with his assessment that among the “winners” in the encyclical is Focolare and its Economy of Communion project, as “the lone initiative singled our for praise” in Caritas in Veritate.

 

I’d see a further connection within Allen’s roundup: I think the Economy of Communion project and the Focolare spirituality generally also hold much promise for the work of healing the tendency that Allen describes for pro-life and peace-and-justice Catholics to move in separate circles, create their own echo chambers, and as Allen puts is, “travel down separate paths, having separate conversations and investing their time and treasure in distinct, sometimes even opposing efforts.” 

 

Last week I was reflecting on the group of people involved with the Economy of Communion project.  Some of us have been in conversation almost from its inception in 1991.  And as I went through the list of these friends, I realized that for many I could not remember if they were Republicans or Democrats.  I am sure the role of the state and political models has come up in our conversations over the years, but the focus – a common commitment to a concrete project in service to the poor, in the conviction that Gospel values can completely permeate an approach to business life -  has formed such a deep non-ideological bond that political alliances have been completely relativized and accepted among the normal differences in any group.

 

Similarly, what draws people to the Focolare spirituality is not a particular political agenda, but the spirituality of unity, which is grounded in the prayer of Jesus, “that all may be one,” and the conviction that this can permeate their everyday lives.  Especially during presidential campaign seasons, local Focolare communities have not been immune to the political tensions, and have had to work very hard to keep open the lines communication across political differences.  But the common bond in the spirituality lays a foundation for building the kinds of relationships of listening, love and trust that can bridge the political divide. 

 

Before the 2008 election season, in the New York area we did a formation program that we called “Citizens for a United World,” which started, like all Focolare gatherings, with a “pact” of mutual love.  Over the course of studying Catholic social teaching, many were able to recognize the ways in which they may have mischaracterized the “other” (political) side, see that our pro-life and peace-and-justice leanings were all integral to the work of building up the body of Christ, and move toward healing the relationships in tension, within the Focolare community, and also within their families, parishes, and other circles.

 

I agree with Allen that one of our big challenges in the life of the Church here is bring our pro-life and peace-and-justice energies into alignment so as to “breathe with both lungs.”  And I have the sense that in addition to Focolare, other ecclesial movements may have had analogous experiences of creating the kind of non-ideological space that can help to heal the divide.  These may be rare, but perhaps not as rare as we think.

Friday, July 17, 2009

Mountain man or new urbanist

By Michael Scaperlanda

Will the real Rick G., please stand up.  Are you a mountain man or a new urbanist at heart? 

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