Tom asks me to clarify what I mean when I refer to SSM's statist orienation; he's correct that I'm primarily referring to state efforts to impose nondiscrimination norms on conscientious objectors. But I think the tension is broader than that. Heterosexual marriage, as a legal category, encounters relatively little resistance from the citizenry because it is not just a legal institution -- it's a social, cultural, religious, and biological institution. Same-sex marriage encounters huge resistance from the citizenry, in part because it conflicts with the traditional religious conception of marriage, but also because it lacks the broader social/cultural supports that heterosexual marriage has, even outside the religious context. Many religious individuals oppose same-sex marriage for specific religious reasons; some non-religious individuals will also oppose -- or at least not rush to support -- same-sex marriage for non-religious reasons (the lack of procreative capacity, history/tradition, the conviction that children need a father and mother, as well as outright prejudice against gays and lesbians). We can't just answer these various grounds of opposition by saying, "If you oppose same-sex marriage, don't enter into one." The individuals who oppose same-sex marriage operate the organizations and make up the associations that comprise civil society. The state's task is to prudently discern how far to push the legal norms of same-sex marriage (e.g., requiring the extension of employee benefits to same-sex spouses, conditioning authority to perform state-recognized marriages on willingness to perform same-sex ceremonies, conditioning tax-exempt status on inclusion of same-sex couples in associational membership), as well as the moral norms underlying same-sex marriage (e.g., punishing anti-GLBT speech or discrimination). Some of these same questions arise in the context of interracial marriage, but the breadth and depth of the resistance in the same-sex marriage context makes the resolution of these tensions even more difficult. (This is not to suggest that the resolution of these tensions was easy in the racial context -- e.g., I find problematic the premise of the Bob Jones case that tax-exempt status should turn on an organization's furtherance of state policy.)
Monday, June 16, 2008
More on SSM's "statist orientation"
CLT and Boumediene
A few thoughts with respect to Rob's two posts, and Michael's, on the question whether we, or CLT, really have anything useful or illuminating to say about the decision and questions presented in Boumediene.
First, it strikes me as quite unlikely that any particular separation-of-powers arrangement is required by Catholic teaching. It seems a stretch to think that, say, Catholic teaching dictates, with any specificity, the reach of the federal courts' jurisdiction or the content of the judicial power vested in the Court by Article III. Yes, of course, we can find support in Church teaching for human-dignity-promoting rule-of-law norms -- and a meaningfully independent judiciary would certain seem necessary for the vindication of such norms -- but I don't think the passages Rob [Correction: Albert Brooks, who wrote in to Rob] cites put to rest concerns one might (in my view, should) have about Justice Kennedy's opinion, its premises about judicial power, and whether the majority responsibly (or constitutionally) exercised that power, in striking down portions of two acts of Congress without providing meaningful guidance to lower courts and legislators going forward.
Next, we all agree that the Church's teachings rule out torture. That torture is immoral, and should also be illegal, does not answer questions about, say, the sufficiency of the review-process at issue in Boumediene, or about the meaning of the Eisenstrager precedent -- a meaning which, one could reasonably think, the majority evaded, without admitting as much.
That the four dissenting Justices are -- like Justice Kennedy -- Catholic does not suggest to me (as it perhaps does to Rob '[correction: Mr. Brooks]) that they missed or ignored their obligations as Catholics. (Nor do I necessarily take their dissents as reflecting a conscious application of Catholicism-inspired rule-of-law values in the case at hand.) The Faith does not tell us how far the Great Writ reached at the Founding, or how much process is required to substitute adequately for the writ, or whether, in a case like this, where the Executive and Congress are on the same page and therefore, at least since Youngstown, have enjoyed judicial deference, it is appropriate for the Court to nevertheless announce -- without, again, providing much guidance for the future -- that their joint determination is constitutionally invalid. I am inclined to think, that the Faith neither requires nor authorizes willful judging, even in the service of, on balance, wise and humane policies. The dissenters, on my reading, are reacting to what they perceive as willful judging; they are not dissenting from Catholic teaching.
CLT and Boumediene
Albert Brooks responds to my question about MoJ's relative silence regarding the Boumediene case:
In response to your MOJ inquiry about what, if any, the CST perspective on Boumediene should be, I think we absolutely have something to say. First, the Chuch validates the role of the Judiciary as a check and balance on the power of the Executive (with the Legislature's assistance) to imprison and punish individuals:
The Church recognizes the responsibility of the State to defend its citizens, but insists that "In a State ruled by law the power to inflict punishment is correctly entrusted to the Courts; 'In defining the proper relationships between the legislative, executive and judicial powers, the Constitutions of modern States guarantee the judicial power the necessary independence in the realm of law.'" (Compendium of the Social Doctrine of the Church at Para. 402, quoting JPII's Address to the Italian Association of Judges)(emphasis in original).
Further, "In carrying out investigations, the regulation against the use of torture, even in the case of serious crimes, must be strictly observed: 'Christ's disciple refuses every recourse to such methods, which nothing could justify and in which the dignity of man is as much debased in his torturer as in the torturer's victim.' Likewise ruled out is 'the use of detention for the sole purpose of trying to obtain significant information for the trial.' Moreover, it must be ensured that 'trials are conducted swiftly: their excessive length is becoming intolerable for citizens and results in real injustice.'" Id. at Para 404 (emphasis added). Well, you might ask, isn't Terrorism different? NO.
"This right [to defend oneself from terrorism] cannot be exercised in the absence of moral and legal norms, because the struggle against terrorists must be carried out with respect for human rights and for the principles of a State ruled by law. The identification of the guilty party must be duly proven, because criminal responsibility is always personal, and therefore cannot be extended to the religions, nations or ethnic groups to which the terrorists belong.
The recruitment of terrorists in fact is easier in situations where rights are trampled and injustices are tolerated over a long period of time." Id at Para 514. I believe Justice Kennedy's Majority opinion is fully in line with all of these principles that the Church insists upon. The four Justices who dissented? Four Catholics appointed by Republican Presidents.
Answers for Michael S.
1. Yes.
2. No. But the fact that heterosexual coupling is--or, at least, can be--"different in kind" does not entail that same-sex coupling is morally problematic. See generally Margaret Farley, Just Love.
3. Who said "SSM is analogous to interracial marriage"? I didn't. I said that a state's allowing for marriage, understood as a legal category, for same-sex couples is not more "statist" than its allowing for marriage, as a legal category, for interracial couples.
CLT: Wildly Indeterminate
In a recent post, Rob writes: "At MoJ, we tend not to have much to say, for the understandable reason that Catholic legal theory, whatever value it has in some contexts, is wildly indeterminate when it comes to analyzing judicial decisions that do not directly implicate natural law principles (e.g., abortion, marriage, parental rights)."
It may be that CLT is wildly indeterminate when it comes to judging the outcome of a case, order, or piece of legislation, especially in those cases where prudential judgment must be exercised and reasonable people can disagree on how best to proceed. The value of Catholic Legal Theory is not in judging outcomes (although this may be called for in some cases) but in providing a framework for the legal aspects of our common life together; a framework that is built on a sturdier - more real - foundation than the currently prevelant alternative. In other words, our anthropology - our account of the human person - provides a method for judging the method by which judges and others come to their decisions.
Questions for Michael P.
First, do you agree with the way Rob Miller frames the SSM debate in this post? If not, how would you frame it?
Second, do you reject the notion that the biological reality (1+1=1 for heterosexual couples) signifies a deeper reality about the complementarity of the sexes, which makes hetersexual coupling different in kind from same-sex coupling? If so, on what basis?
Third, and this goes back to Tom's question, which you don't really answer here. If SSM is analogous to interracial marriage on what grounds does the state extend its tolerance to religious groups who disagree with the new order of SSM while discriminating against religious groups who disagree with racial integration?
Following in Tony Blair's footsteps?
Rumours from the Telegraph.
Sunday, June 15, 2008
Happy Fathers' Day
one of my favorite stories of fatherhood, from 100 Years of Solitude:
The children . . . insisted that their father take them to see the overwhelming novelty of the sages of Memphis that was being advertised at the entrance of a tent that, according to what was said, had belonged to King Solomon. They insisted so much that José Arcadio Buendía paid the thirty reales and led them into the center of the tent, where there was a giant with a hairy torso and a shaved head, with a copper ring in his nose and a heavy iron chain on his ankle, watching over a pirate chest. When it was opened by the giant, the chest gave off a glacial exhalation. Inside there was only an enormous, transparent block with infinite internal needles in which the light of the sunset was broken up into colored stars. Disconcerted, knowing that the children were waiting for an immediate explanation, José Arcadio Buendía ventured a murmur:
“It’s the largest diamond in the world.”
“No,” the gypsy countered. “It’s ice.”
José Arcadio Buendía, without understanding, stretched out his hand toward the cake, but the giant moved it away. “Five reales more to touch it,” he said. José Arcadio Buendía paid them and put his hand on the ice and held it there for several minutes as his heart filled with fear and jubilation at the contact with mystery. Without knowing what to say, he paid ten reales more so that his sons could have that prodigious experience. Little José Arcadio refused to touch it. Aureliano, on the other hand, took a step forward and put his hand on it, withdrawing it immediately. “It’s boiling,” he exclaimed, startled.
Saturday, June 14, 2008
The death penalty for child rape
In response to Michael's question: First, and contra Bob Abernethy, there is next-to-no chance that the Court is going to "expand the death penalty" in the Louisiana child-rape case. The trend in the Court's death-penalty case-law is clearly in a narrowing, not an expanding, direction. Second, in the transcript which Michael posted, several speakers fail -- as so many do, unfortunately -- to distinguish between "retribution", properly understood, and "revenge" or "vengeance." "Retribution" is an important -- indeed, the crucial -- purpose and justification (and limiting consideration) of punishment; "revenge" has no place in criminal justice. That "vengeance is mine, saith the Lord" has little to do, it seems to me, with the question whether or not "retributive" punishments are justified.
The question, it seems to me, is not whether the death-penalty for child-rapists is "retribution" -- all justified punishment is "retribution" -- but whether, all things considered, it is justifiable (and if so, whether it is wise policy) to execute child-rapists. In my view, it isn't. That said, I do agree with those who criticize the Court's decision in Coker for failing to take seriously the harm that rape causes (re-read Justice White's opinion, and cringe), and I also have no doubt that many who rape are animated by a more blameworthy state of mind than many who commit homicide.
Capital Punishment, Child Rape, and Retribution: Where Do You Stand?
Religion & Ethics Newsweekly (PBS)
June 13, 2008
BOB ABERNETHY, anchor: The Supreme Court ruled this week that all 270 foreign terrorism suspects at Guantanamo have the right under the U.S. Constitution to challenge their detention in federal court. Another High Court decision excepted soon could expand the death penalty. Right now, 36 states permit capital punishment for murder. Should that penalty be extended to those who rape children? Criminologists say people are punished to prevent them from committing another crime, as a deterrent to others, to rehabilitate them and as retribution -- revenge. Does revenge for child rape justify execution? Tim O'Brien begins his report from New Orleans, and his story contains some material that may be disturbing.
VOICE OF FEMALE ANCHOR (ABC 26 News 1998 file footage): Today, safety shattered in a quiet neighborhood. A child raped. The teens who did it: on the run.
VOICE OF MALE ANCHOR (ABC 26 News 1998 file footage): An eight-year-old Girl Scout raped in her Harvey neighborhood is recovering from surgery tonight.
VOICE OF MALE REPORTER (ABC 26 News 1998 file footage): People who live in the Woodmere subdivision are hoping for peace of mind. The thought -- a rapist is on the loose...
TIM O'BRIEN: The brutal rape of a small child galvanized this normally tranquil community just outside New Orleans and horrified the neighbors.
UNIDENTIFIED MAN #1: There's got to be some maniac running around out here.
UNIDENTIFIED WOMAN: I wouldn't have never thought that someone would live on my street and do something like this.
Sheriff HARRY LEE (Jefferson Parish, Louisiana, during 1998 press conference): I'm in my 18th year as sheriff and I've seen a lot of bad things happen, and this is probably the worst.
O'BRIEN: So bad that Jefferson Parish Sheriff Harry Lee put up $5,000 of his own money for information leading to an arrest. In addition to the psychological trauma, the eight-year old girl also suffered severe physical injuries. The city of New Orleans rallied to help, including the New Orleans Saints football team, which launched a fundraising drive to help defray the child's mounting medical expenses.
KAREN TOWNSEND (Reporter, ABC News 26, from 1998 file footage): Sheriff Lee says the prime suspects in this case are two black teens.
O'BRIEN: The manhunt became so intense sheriff's deputies began stopping all young black males in the neighborhood.
UNIDENTIFIED MAN #2: They made me take my shirt off, and, you know, it's cold out here, you know?
VOICE OF FEMALE REPORTER: What were they looking for?
UNIDENTIFIED MAN #2: Just tattoos, any little marks.
O'BRIEN: The victim had told police her attackers were two black teenagers. But the story fell apart, and suspicion began to shift to the child's stepfather, Patrick Kennedy, who had called co-workers on the morning of the rape seeking advice on how to remove blood from a white carpet. It turned out Kennedy also had been accused, although never convicted, of sexually molesting four foster children in his care. They were removed. His eight-year-old stepdaughter eventually said that it was Kennedy -- six-feet-four, 375 pounds -- who had raped her and then told her to blame it on the teenagers.
CHILD VICTIM : First, he told me that he was going to make up a story and I better say it.
O'BRIEN: And, she said, it wasn't the first time Kennedy had sexually molested her.
FEMALE INTERVIEWER: Did Patrick Kennedy do something to you just that one day, or did he did he do anything any other times?
CHILD VICTIM : He did more than once. I think five (holds up five fingers).
PROSECUTOR : More than once? You think five?
CHILD VICTIM : Um-hmmm.
PROSECUTOR : Okay. Do you remember how old you were the very first time he did something?
CHILD VICTIM : (shakes her head "no")
O'BRIEN: Three years earlier the Louisiana legislature overwhelmingly passed a law authorizing the death penalty for anyone who rapes a child under the age of 12. The jury agreed unanimously: Patrick Kennedy deserved nothing less. The law was introduced by then state representative Pete Schneider
(to Rep. Pete Schneider): Is this the kind of guy you had in mind when you passed this law?
Representative PETE SCHNEIDER (Former Louisiana State Representative): Absolutely. Someone who would brutally rape a child -- and rape is wrong no matter whom it is done to, but in a situation like this I believe the death penalty is the appropriate punishment for the crime.
O'BRIEN: Kennedy's court appointed lawyers disagree and have taken their case to the U.S. Supreme Court, arguing if the death penalty for rape isn't cruel, it certainly is unusual, violating the Eighth Amendment to the U.S. Constitution.
BILLY SOTHERN (Capital Appeals Project): Mr. Kennedy is one of only two men on death row in the state of Louisiana for the crime of child rape. Indeed, Mr. Kennedy and this other individual are the only two men in the United States for the crime of child rape who've been sentenced to death.
O'BRIEN: The U.S. Supreme Court, more than 30-years ago, found the death penalty unconstitutional for rape -- that death is disproportionate to the crime.
BARBARA WALTERS (Anchor, ABC Evening News, from 1977 file footage): Good evening. Our top stories: The Supreme Court says the crime of rape should not be punishable by death.
O'BRIEN: But that case involved a 16-year-old married woman. Louisiana contends the rape of a child is much worse and that the Court's earlier opinion shouldn't apply when the victim is so young.
Rep. SCHNEIDER: Twenty-nine percent of the rape cases in this country -- and it's probably underreported -- are committed on 11-year-olds and younger. Twenty-nine percent! And they're horrendous crimes. You steal their childhood. You steal their soul. You hurt the world when you do something like that to a child.
O'BRIEN: We may never know to what extent, if any, the death penalty actually deters, but there's clearly another theory behind this Louisiana law. Call it revenge, or retribution, or a thirst for simple justice which, if left unfulfilled, may encourage others, loved ones, to go out and find it on their own. Sex offenders may be the least likely to be deterred, and their crimes are the most likely to bring retribution. Jeffrey Doucet: suspected of kidnapping and molesting an 11-year-old Baton Rouge boy. When sheriff's deputies brought Doucet back to Louisiana, the boy's father, Gary Plauche, was waiting at the Baton Rouge airport with a gun. Believing they could never get a conviction, prosecutors allowed Plauche to plead guilty to manslaughter with a suspended sentence. The state's attorney general, Buddy Caldwell, says it's the state that must exact the retribution, not loved ones, and that the Louisiana law makes it less likely they''ll try.
(to Louisiana Attorney General Buddy Caldwell): Even if it doesn't deter others -- that's an open debate. Bu even if it doesn't, you say the death penalty in cases like this is justified?
BUDDY CALDWELL (State Attorney General, Louisiana): I believe it absolutely is.
O'BRIEN: Retribution alone is enough?
Mr. CALDWELL : Retribution alone is enough.
O'BRIEN: Some of your opposition, including the Catholic Church, will quote the Bible and say "vengeance is mine, so sayeth the Lord."
Mr. CALDWELL : Well, we see a lot of people that don't have a clue. But I think most people understand, even liberals have children that if they're raped and mutilated, like in a lot of these cases, they would be for the death penalty, whether they say so or not. It's always the other guy.
O'BRIEN: It's a retributive function of the law?
Mr. CALDWELL : I think so.
O'BRIEN: Ironically, a number of child advocacy groups are siding with the defendant in this case, telling the Supreme Court the death penalty for child molesters is counterproductive. Judy Benitez, who heads the Louisiana Foundation against Sexual Assault, says Louisiana's law may discourage children from coming forward and give the molester an incentive to kill his victim.
JUDY BENITEZ: If they're not facing any harsher punishment for killing the child and raping them, then they are for -- and I say this sort of facetiously -- for just raping them, you know, the state can't kill them but once. So what are they going to do? And this way they don't leave a living witness.
O'BRIEN: Patrick Kennedy's lawyer says if retribution is the goal, life in prison is retribution enough.
Mr. SOTHERN: The alternative punishment here in Louisiana for the crime of child rape is life without the possibility of parole at Angola penitentiary. It's "you die at Angola." So it's not like the alternative punishment for this is somehow lenient. The alternative punishment in this instance is extraordinarily harsh.
O'BRIEN: Both sides agree the law does make it easier for prosecutors to negotiate a plea agreement with the defendant for life in prison, sparing the child the trauma of having to testify at a trial. The question for the Supreme Court, however, is not whether this is a wise law or even a good law, or whether it even makes any sense at all, only whether it's such a bad law as to violate the standards of decency of a civilized nation as embodied in the U.S. Bill of Rights.
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