In the new issue of America (5/11/09): Doug Kmiec, "The Case for Empathy: Why a much-maligned value is a crucial qualification for the Supreme Court" (here).
Friday, May 8, 2009
Empathy and the Supreme Court
Protection for the "well formed" conscience
I do think the point of disagreement between Fr. Araujo and me is coming into focus. I do not think that our law's protection of conscience is based -- or should be based -- on whether the conscience in question is "well formed," particularly if that term is defined to mean conformity with Church teachings. From the time of St. Paul, believers have been asked to defer to the consciences of others, well formed or not. (That does not mean we should not aid in their proper formation.) The reason we do not grant conscientious exemption to murder statutes is because there are certain non-negotiable rules required for any ordered society, not because the conscience of the person seeking such an exemption is poorly formed according to Church teaching. The line of military draft cases cited by Fr. Araujo earlier does not show that courts engage in a normative evaluation of the particular conscience's dictates, nor that conscience-based claims that are consistent with a particular religious tradition are privileged over other claims. In Seeger and its progeny, the courts are focused on the role those dictates play in the believer's life and worldview. That's a very different sort of inquiry. It is an explicitly subjective inquiry.
If we want to secure freedom for Catholic Charities to resist laws compelling the provision of contraceptives or the placement of children with same-sex couples (as I do), our argument cannot be, "these institutional claims are the products of well-formed consciences." That argument prevails only as long as the claims themselves prevail politically (in which case there is no need for a conscience-based exemption). The whole point is that, on an expanding variety of issues, the majority of citizens have decided that consciences reflecting Church teaching are not well-formed. Yes, they may be "well formed" according to Church teaching, but the claim for an exemption does not aim at persuading the legislature to embrace the "well formed" judgment as a normative proposition, but to defer to the claimant's own understanding of "well formed." And, unless we're ready to eviscerate the Establishment Clause, we cannot privilege conscience claims that are well formed according to Catholic teaching over claims that are well formed according to other religious (and, depending on our interpretation of the Clause, moral) traditions. In many areas -- e.g., the use of contraceptives -- those criteria will be in considerable tension.
My response to Steve
I thank Steve for his question and his patience in waiting for my response.
It is clearly possible for the person who considers himself or herself Catholic to form conscience subjectively. But, as I have said before, this is not synonymous with the well-formed conscience that I have spoken of on several occasions here at the Mirror of Justice over the past several years. It may well be that Steve and I disagree on this point (I believe we do), but I understand that the Catholic’s well-formed conscience will reflect the Church’s teachings. I think it is relevant to point out here that this is not something that is forced upon the Catholic, for that would itself be a problem. Nonetheless, the Catholic who exercises the well-formed conscience understands the justifications given for the Church’s teachings and accepts them into his or her views. This is done consistent with the principle: the Church proposes, not imposes. The person is then free to be Catholic or not. If the personal selection is one to be Catholic, then the person’s fidelity would necessitate adopting and following Church teachings. It may be that Steve and I have disagreement on this point. If so, then we disagree.
Steve raises an important point about the Smith (the peyote) case. I am sympathetic to what he says considering the fact that the outcome in the animal-sacrifice case from Florida (Church of Lukumi Babalu Aye) was quite different. But it is relevant here to take stock of the fact that both of those cases principally focused on religious freedom based on the First Amendment. They did not pose the question of conscientious objection (although some references to conscience were made in dicta). Recalling what I said in my second response to Rob posted yesterday afternoon, the draft cases seem to provide an important precedent to the kind of circumstance Steve raises.
I don’t think one could successfully argue conscientious objection to homicide laws if the religious perspective condones or mandates human sacrifice. The exercise of this kind of conscience would be most subjective and would not reflect the teachings of the Church. When it comes to the use of peyote, the response must be more nuanced. The Church does have teachings about substance abuse, but I wonder, given the context of Smith, if the “sacramental use of peyote” is sufficiently similar to the exemptions from the prohibition laws regarding the sacramental use of wine. If so, Steve’s hypothetical arguably falls within the category of the well-formed conscience.
RJA sj
Thursday, May 7, 2009
More on the Fleeting Nature of Life
Michael Scaperlanda’s sobering reminder of the fleeting nature of life was poignantly timely for me. I have been thinking along similar lines over the past couple of days. For me, this increased awareness of mortality began with a comedic error that prematurely announced my passing. But the episode has also unsettled me, forcing a pause in my daily routines and challenging my assumptions that there will always be another day. Although I grew up in Wisconsin (until half-way through my junior year), I actually graduated from Beaverhead County High School in Dillon, Montana. Yesterday, I happened to send a greeting by email to an old friend from my Montana high school days with whom I hadn’t corresponded in a few years. To say that he was “shocked, shocked” to hear from me would be an understatement. To explain the source of his astonishment, he referred me to a classmates update booklet that had been distributed at the 30-year high school reunion held last summer in Dillon. (I had not been invited to the reunion – and now I guess I know why). As you can see in the picture posted immediately below, the second page of the reunion booklet displays my old high school yearbook picture as part of a memorial to “Our Departed Classmates.” (And, yes, that is an accurate depiction of how I looked in high school in 1978 – in fact,I had cut my hair short for graduation picture day).
After confirming this was not a practical joke, I learned that the reunion committee had received a confidently-expressed report that I had passed away. Indeed, I was told that several stories circulated at the reunion about the cause of my death. I wish that those stories of my death had been about how I had dived into a raging river to save drowning children or how I had rushed into a burning building to rescue a trapped person. Instead, as I gather, the story with the most legs was that I had died several years ago after a massive asthma attack. Given that I’ve never had asthma and remain pretty healthy (although I sure could lose a few pounds), I have no idea where or how this tale originated. At first, I saw only the humor in the affair. After all, it allowed me to dust off that classic Mark Twain gem: “The rumors of my death are greatly exaggerated.” The incident also prompted me to touch base with a few others from my Montana days. (And I’m pleased to say that they all were delighted to learn that I remained in the Land of the Living – or at least they were kind enough to say so.) Later, however, I found myself feeling a little disturbed, even queasy about, this episode. It is more than passing strange to realize that, for almost a year, dozens of people have been thinking of me only in the past tense. And reading the reunion booklet was a little like reading one’s own obituary. (In addition to my portrait appearing on the memorial page, the booklet lists all classmates in alphabetical order with information about their jobs, families, and lives. The listing for me reads simply “DECEASED.”) It was all starting to become a little creepy. As Michael well says, we should never forget the “fleeting nature” of our own lives and must come to terms with the fact that, in only a century, little trace is likely to remain of us. As a group of legal professionals and academics whose vocation is to work toward a better world and a stronger society, we are called to think about and plan for the future. But we should also remember to live for today, never missing the daily opportunities to care for the most importantthings in our lives, that is,the people around us. We were never promised an unlimited store of tomorrows. Even if it was premature in my case on this occasion, we all someday will be the subject of a picture on a memorial page or in an obituary. Is it morbid to think along these lines? It certainly can be. And I am not suggesting that we dwell on our inevitable demise (although I could hardly avoid it these past couple of days). Instead, even as we rely upon the promise that death is not the end, we should we recall our mortality for the very purpose of making our days count and for strengthening our daily communion with those brought into our lives. Greg Sisk
The Fleeting Nature of ...
For the past week my wife Maria and I have been in Athens (and now Italy) meeting our youngest at the end of her study abroad experience in Athens. The experience has given me time to reflect on the fleeting nature of political institutions and our own earthly existence. As we walk through the physical remnants of Greek and Roman civilization (and their predecessors), I am reminded that they existed only for a small blip in the earth's chronology. Visiting Pompeii and Herculaneum reminded me how cities could be wiped out in a day. Watching the waves wipe out my footprints in the sand reminded me of the fleeting nature of my own life and how 100 years from now nobody will have any memory (and probably no knowledge) of me. Such is the nature of this human existence. For my light reading, I brought along Robert Harris' wonderful novel, Pompeii. And, for my less light reading, I brought along St. Augustine's City of God. As you probably reminder, Augustine is defending Christianity against the charge that it (and the prohibition against worshiping pagan god's) led to the downfall of the Roman Empire. He charged some with ingratitude for falling to see blessings in the midst of hardship.
I was sitting on the beach near Paestum (Greek temples near Agropoli, Italy) this afternoon thinking about this with a post formulating in my head when we discovered that the bag with our passports, wallets, camera, car keys, etc. was missing - stolen from a nearly deserted beach right from under our eyes. In the midst of the inconvenience, which we are still dealing with, we were sent two angels - a young couple Francesco and Emiliana who were a few yards from us. They called the police, took me to the police station, translated while a filed the report, went back to the car to get the license number, brought me coffee, brought my wife and daughter water, and brought us back to our hotel - basically giving up their whole afternoon for us. How should we react? Upset over our misfortune? Or, thankful for this couple? I choose thanks and may I have the awareness and love to give up my afternoon for someone else in need.
BTW - we are having a great time.
A response to Rob, take two
Thanks to Rob and Steve for their thoughtful views. I will have to defer addressing Steve's posting until tomorrow. But I shall attempt to answer Rob's last posting here. I have tried to present arguments that are legal and meta-legal as to why the well-formed conscience, as opposed to the poorly formed conscience, should be protected. With his clarification, Rob is not asking about how the Church should treat the poorly formed conscience. Rather he is asking whether the conformity of one's conscience to Church teaching should be relevant to its treatment under the civil law. As we have seen in the evolution of the draft cases, the highest court of our land has given favorable treatment to the religious arguments for conscientious objection against combat service as well as secular ones. So, we have judicial precedent taking stock of and respecting the religious argument regarding the taking of life in combat. I think the legal argument to protect the person who objects on religious grounds to the taking of early human life by abortion logically follows. If it does not, then there is a problem not in my argument but with the dispensation of the law.
RJA sj
"A Reprieve on [D.C.] Vouchers"
The President supports extending the program's funding, but for current students only. The Washington Post comments here.
Clarification of my question to Fr. Araujo
To follow up on Fr. Araujo's response (and to underscore Steve's comment), I am not asking about how the Church should treat the poorly formed conscience. I am asking whether the conformity of one's conscience to Church teaching should be relevant to its treatment under the civil law.
Question for Father Araujo on subjective conscience
I understand (but do not agree with) Father Araujo's apparent position that Catholics are required to follow Church teachings regardless of their subjective conscience.
I am still not sure whether he thinks the quality of the formation of one's conscience has anything to do with the question whether legal protection should be afforded to it. So, if a Native American sincerely believes that peyote must be ingested as a part of a religious ceremony, I am inclined to support protection wholly without regard to the theological sagacity of the position. I think that is the message of Vatican II. Leaving aside cases where the government has a compelling state interest, this means, of course, that Vatican II honors subjective conscience (not objective conscience) when the government seeks to force a person to act against his or her conscience. Father Araujo's last post seemed to suggest that the question of whether a conscience was or was not well formed had something to do with the question whether the civil law could impose upon religious freedom. Perhaps I misread the answer to Rob's question on this and, if so, I apologize.
Discussion of SSM, civil unions, and religious liberty at the U of Chicago blog
As I mentioned the other day, Geof Stone, Martha Nussbaum, Doug Laycock, and others (including me) are having an online discussion about Stone's recent op-ed regarding civil-unions and religious liberty. Check out the latest posts by Geof, Doug, and me. While you are at it, take the time to read Dale Carpenter's long post on the matter, here.
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