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.

Thursday, March 26, 2009

What would you fight for?

As MOJ readers know, I am a big fan of Notre Dame's "Alliance for Catholic Education."  The other day, Fr. Tim Scully, the energy behind this great program, sent out, to former A.C.E. teachers and other friends of the program, a great e-mail (which he gave me permission to post), about a vital challenge confronting us today:  

Dear Friends of ACE,

I've been thinking a lot this week about those NBC Notre Dame commercials that ask, "What would you fight for?"  

In ACE, we've always fought for Catholic schools, but the recent debate over the parental choice program in Washington, DC has made it clear to me that the fight for Catholic schools and the fight for parental school choice are, in so many ways, the same fight.  

Today I'd like to ask you to join me in this fight, both to keep the DC parental choice program alive and to expand our capacity to provide educational opportunities to poor families.   The social justice and education teachings of the Church have always courageously asserted that parents are the primary educators of their children, and that parents must have the right to choose the school their children attend.  This is the central value proposition of parental choice.  This is why I am so committed to this battle.

The DC Opportunity Scholarship Program currently allows 1,700 kids in Washington to go to a school chosen by their parents, and many of those families choose Catholic schools.  To qualify for these scholarships, these families’ income must be at or below 185% of the federal poverty line. The average family income is under $23,000, and 99% of recipients are minority.  So we're talking about some of the poorest, most marginalized families in one of the worst school districts in America.  

 

If we're not going to fight for them, then who will we fight for?

I asked you to get involved a few weeks ago when I learned that Congress was threatening to end the DC parental choice program.  I’m deeply grateful that so many of you responded.  We're now gearing up for what's sure to be a long, tough reauthorization process, and we will need your continued help.  Over the coming weeks and months, we need to build a network of friends who will be ready to mobilize to fight for these children.  We need tenacious advocates for kids who will be willing to write and call and e-mail folks in power on behalf of kids who have none.  And we need to leverage every available resource at our disposal to make the case for parental choice to those who will determine its fate.

So what to do?  

We’ve set up two websites to serve as Fellowship HQ on this issue.  You can go [here
or, if you're on Facebook, you can join the ACE Fellowship group there.  These spaces will be updated weekly and will provide news updates, guidance for those of you who are eager to get involved, and resources you can use to learn more about the issue and educate your friends and family.  Most importantly, we’ll use these sites to mobilize our networks, provide direction, and coordinate our efforts when the time is right.

 

 What would you fight for?  I’d love to hear St. Paul answer that question.  Near the end of his life, Paul tells his friend Timothy:

 

I have fought the good fight to the end;

I have run the race to the finish;

I have kept the faith.

 

For me, keeping the faith means fighting for the rights of poor and marginalized parents  to seek better schools for their kids.

 

This is the good fight. I hope you’ll join it.


Fr. Tim

 

* * *

Go the the website.  Get involved.  Fight for Catholic schools, religious freedom, and social justice.

Response to Amy

I just realized that I failed to respond to Amy's question, here.  After presenting, helpfully, different "models" for "engagement", she asked:

My question is whether within the expanse of Catholic education in the United States we might want to encourage a variety of models engagement (perhaps with a baseline and a ceiling, but with quite a bit of room for difference) with the culture.  Rick, do you agree?

I do!  As I see it, though, the debate about Notre Dame's decision to honor President Obama is not a debate about whether Notre Dame should "[e]mphasize dialogue with difference so as to engage the culture from a stance of openness to exchange and growth in mutual understanding."  It is about whether Notre Dame's own purported mission and character, and her aspirations to be true to that mission and character, create -- in Amy's words -- a "baseline" that, in this case, given all the givens, she has not respected.

Duke v. Villanova

At times like this (if only to distract oneself from the painful task of reading the latest press release from the good people at my own University of Notre Dame), one turns, naturally, to college basketball.  Tonight, my own Duke Blue Devils -- if only Notre Dame honor-dispensing mechanism had better aim, and was directed toward Coach K.! -- take on the Villanova whats-its in the NCAA mens basketball tournament.  We'll see if the genius of St. Augustine is up to the task of taming the spirit of yesteryear's tobacco magnates.  

No doubt, brothers Sargent and Brennan take another view of the matter . . .   

More on the poverty of housing for the poor in the USA

This is a disturbing story (here).

When is a health care provider "forced" to kill?

I agree with Richard that we need to have nuanced, substantive conversations about conscience claims when crafting conscience protections.  Too often, "conscience" is invoked as some sort of trump card -- a "black box" that we must either accommodate or refuse to accommodate categorically, without being able to draw any distinctions among its claims.  At the same time, I fear that policy makers will more likely draw those distinctions based on political influence (exempting communion wine during prohibition, but not peyote during the war on drugs), rather than on the centrality of the particular belief to the believer. 


I also agree that forcing someone to kill what she thinks is an innocent human being strikes at the heart of conscience.  I would need a bit of clarification, though, about what we mean by "force."  Certainly if the government uses its coercive power to force me to kill, we're at the heart of what liberty of conscience must protect.  But what if I apply for the job of executioner, then ask to be relieved from the part of the job that involves killing?  Or what if I work as a doctor for Planned Parenthood?  What if I'm a pharmacist working at a university health center, where a huge portion of the revenue stream comes from various forms of birth control, including the morning-after pill?  Should our focus be on the employer forcing me to perform the part of my job description that, in my view, involves killing, or should our focus be on whether I am forced to hold this job in the first place?  Who should bear the burden of my conscience -- me (in the form, perhaps, of having to find a new job) or my employer (in the form, perhaps, of paying to have a second pharmacist on duty whenever I'm on duty, etc.)?  I don't claim to have easy answers here; again, I think we need a more nuanced conversation about conscience than the current culture war rhetoric contemplates.

Wednesday, March 25, 2009

Response to Rob on Conscience

Rob seems to me to make or imply two good points: First, the government should protect conscience only where there is some form of "state action" involved.  Second, not every violation of conscience is equally bad (e.g. forcing Muslim cab drivers to take passengers with bottles of wine is not as bad as forcing them to eat pork).

But without in any way saying that we should be unconcerned about other violations of conscience, can't we all agree that forcing someone to kill (or help kill) what he or she THINKS is an innocent human being is to attack the very heart of conscience for every human being? On the model of "conscientious objection" to the military draft, can't we exempt those who THINK they have a duty not to kill, without yet deciding the further important issue of whether we should exempt someone from all government service because he/she is a conscientious anarchist?

The state's obligation to protect conscience

Over at the always interesting Public Discourse, Christopher Tollefsen has posted a short essay explaining why the government has a duty to protect citizens' consciences, and why President Obama thus should not repeal the Bush Administration's rules forbidding recipients of federal funding from discriminating against employees based on their moral or religious objections to providing certain services or procedures.  He writes:

[T]he protection of the integrity of persons from threats to those judgments of conscience that are articulated essentially in the negative—that I must not do such and such—has a claim to being among the fundamental purposes of the state in a way that the provision of benefits does not. It would, again, be a reversal of the normative order of priorities to compel violations of conscience for the sake of some otherwise foregone benefits.

But in at least some of the actions under consideration in the conscience regulations, health care professionals with certain moral convictions simply could not, consistent with those convictions, participate under any circumstances in the actions in question. A doctor who genuinely believes that abortion is an intentional killing of the innocent, and is always and everywhere morally wrong, cannot, consistently with that judgment, participate in an abortion procedure. Likewise, doctors who believe sterilization to be a form of mutilation simply cannot participate in such surgical procedures.

In these respects, then, were the new understanding of the conscience regulations to involve any weakening of the protections for healthcare professionals who refuse to participate in such procedures, they would constitute a fundamental injustice; a failure to protect against threats to the moral integrity of a large class of persons.

I often wonder in these discussions if much of the heavy lifting is being done, not by our conception of conscience in general, but by our own support for the particular conscience claim at issue: here, the sanctity of life.  What if, instead of talking about a physician forced by an employer to perform an abortion or provide the morning-after pill, we were talking about a Muslim taxi driver who refused to pick up a passenger carrying a bottle of wine, or a Muslim cashier who refused to scan pork products, or an evangelical bus driver who refused to drive a bus with an advertisement for a gay-lifestyle magazine?  Would we, with the same confidence, proclaim that the government's failure to forbid the employer from taking action against those employees was "a fundamental injustice?"  If so, are we really ready for the resulting transformation of our legal system and its definition of "reasonable accommodation?"  If we're not ready to extend liberty of conscience to the taxi drivers and cashiers, why not?  Is it because sanctity-of-life issues are more deserving of legal protection?  Is it a case of professional hierarchy -- physicians and pharmacists deserve moral integrity, but taxi drivers and cashiers don't?  Or is it something else?

Note that we are not talking about the need for self-restraint by the government when it comes to honoring a citizen's conscience, to which the traditional understanding of liberty of conscience referred.  We're talking about bringing government power to bear against non-state entities (including institutions that may seek to cultivate distinctive moral identities of their own) in order to ensure that a citizen can shape her professional role in a way that is consistent with conscience.  To be clear, I am all in favor of encouraging employers to be deferential to conscience.  But the notion that a fundamental responsibility of government is to ensure that citizens can enjoy full moral integrity in the workplace represents a potentially expansive vision of state power and a corresponding threat to intermediate structures.  

Eduardo Penalver on the right to housing

Definitely worth reading:  here.

Money, Power, the Financial Crisis and Disability Rights

Reacting to my post about President Obama's special olympics joke, a reader reflected that he "could not help being struck by the contrast between this comment and Sarah Palin's promise that parents of children with special needs will have an advoate in the White House."  He continued with a line of questioning that I struggle with myself:

. . . the broader--and more important-- issue of why people with disabilities do not have a stronger political voice.  I realize that many such individuals--and of course children--are not in a position to wield political power.  Nevertheless, with rates of autism and other special needs increasing so dramatically, I am frustrated that parents of children with disabilities (let alone the children themselves) are not viewed with more respect in the political process.  . . . I imagine part of the problem is lack of organization, and I had hoped Sarah Palin's statement would energize an effort to empower parents to advocate for their children in the political arena.  Unfortunately, if the remark about the Special Olympics is any indication, I am no longer optimistic about this.

One of the things that's becoming increasingly clear to me about our current financial crisis is the nonpartisan nature of portion of the blame attributable to politicians who buried their heads in the sand as the mortgage bubble expanded and then began to explode.  Members of both parties were equally influenced by the substantial amount of campaign money flowing from the financial services industry. 

Conversely, it seems to me that both parties are equally influenced by the lack of money likely to flow from the coffers of the disability community.  The sad reality is that people with (at least the cognitive) disabilities are not in a position to wield political power.  Since people with cognitive disabilities might not vote, often can't speak for themselves, don't tend to be in a position to donate much money to candidates, and -- if we continue to perfect our technical ability to identify them before they are born -- will continue to shrink in number, politicians really don't spend much time (or political capital) on their needs.

This is what discourages me so much about politicians who take casual swipes at people with disabilities.  I think it reveals an (unconscious, I hope) assessment about the lack of any real political cost.

NDResponse

Here is a link to the website of an ad hoc umbrella organization called "ND Reponse," "a coalition of University-sponsored student groups [that] has been organized to lead student response."  Here is a bit from their statement regarding the University's decision to honor Pres. Obama:

In defense of the unborn, we wish to express our deepest opposition to Reverend John I. Jenkins, CSC’s invitation of President Barack Obama to be the University of Notre Dame’s principle commencement speaker and the recipient of an honorary degree. Our objection is not a matter of political partisanship, but of President Obama’s hostility to the Catholic Church’s teachings on the sanctity of human life at its earliest stages. Further, the University’s decision runs counter to the policy of the United States Conference of Catholic Bishops against honoring pro-choice politicians. We cannot sit by idly while the University honors someone who believes that an entire class of human beings is undeserving of the most basic of all legal rights, the right to live. . . .