Thursday, June 5, 2008
I thank Rick and Richard and, indirectly, Cathy for their respective contributions on the issues that are emerging from the York University student government’s plan to ban pro-life, specifically the critique-of-abortion, speech.
I would like to respond to several of the ideas presented so far.
First of all, many of us who contribute to the Mirror of Justice have taught courses in which the legal issues surrounding abortion are addressed. I suspect the discourse has been robust. Moreover, many of these discussions and debates have occurred in university law schools where the host institution holds itself out to be Catholic. As one who has thought about and embraced freely the Church’s teachings on this particular subject, I do not see the problem of discussing and debating the matter with those who hold different views in the context of the pursuit of truth. This brings me to my second point.
A distinction needs to be made between the situation in which the academic institution allows free and vigorous debate in the pursuit of truth and where the institution is asked to support, financially and otherwise, a voice that conflicts with the first principles of its founding. To cut to the chase, should a Catholic institution be asked to permit an honest debate on issues that raise questions about the Church’s teachings? Yes. Then, should a Catholic institution be required to support a perspective that conflicts with the Church’s teachings? I answer no. And I do so in the context of reflecting on the following situation: should a traditionally Black college or university be expected to have fora in which the institution of slavery, views about race, and events that were the catalyst of the civil rights movement be discussed? Of course. Then, should such an institution be required to support organizations whose views sympathize with racial supremacists and conflict with the foundation of these institutions? No. This brings me to a third point that is raised by Cathy’s important commentary.
Assuming as she does that we are talking about a private but secular institution, are we further to assume that every person on this campus believes in the view that he or she cannot discuss what is constitutive of human autonomy so that questions about physical autonomy, contraception, abortion, fetal life, human embryology, etc. cannot be discussed and debated fully? While the student government at York has decided to ban student organizations that are opposed to abortion, I must ask what is there in the foundation of York University and the first principles that established its foundation that would necessitate this quarantine of views that do not endorse abortion? Was York founded on so-called “pro-choice” first principles? I don’t think so. It is the view of Ms. Gilary Massa, vice-president external of the York Federation of Students, who has unilaterally asserted that student clubs will be free to discuss abortion in student space, as long as they do it “within a pro-choice realm,” and that all clubs will be investigated to ensure compliance. For those interested in free speech and debate, her approach has more than a chilling effect on the exchange of some ideas and perspectives that are found in all free societies. I think her policy constitutes a classic prior restraint that is impossible to justify. This brings me to the fourth point I wish to raise.
York University has a law faculty in which I am certain the current cases of the day are explored in depth and from the perspectives of all the litigants. Is it presumed by the vice-president external of the York Federation of Students that the examination of cases dealing with abortion, be they from Canadian or other jurisdictions, may proceed only if they do so “within a pro-choice realm”? If her presumption provides the normative framework for teaching, it seems to me that many aspects of these cases cannot be addressed because they would run afoul of her mandate. I note, by the way, that York’s mission statement asserts that the institution exists to preserve, pursue, and disseminate knowledge; it exists to test the boundaries and structures of knowledge; it exists to cultivate the critical intellect; it is open to the world; it explores global concerns; and, it is committed to academic freedom and social justice. Knowing that these are noble but ambiguous elements of a university mission statement, it still appears to me that Ms. Massa’s policy will stop the discussion and debate that is crucial to the raison d’être of York University as defined by this general mission statement. And this brings me to a fifth point.
That a liberal institution must sacrifice objective debate and examination of issues in order to preserve the autonomy of women, or for that matter, anyone else would be a counterintuitive and a contradiction. In order to preserve the identity secular-humanist, would an institution have to silence views that offer a critique of abortion? If so, they would not be capable of providing an environment that stimulates critical thinking or, for that matter, any kind of thinking. This brings me to my sixth point raised by Rick’s discussion of his representation of the Orthodox Jewish students at Yale who did not have a choice to live in alternative residences.
It is clear that Yale had only one model of student life: it did not offer, contrary to its assertion, diversity and multi-cultural habitats. Those who did not accept the one life-style student residence did not have a choice and were, like Ms. Massa’s policy, required to live in a realm where their life-style and alternative culture were forbidden. The reality of the Yale policy pays lip service to diversity and multi-culturalism while, in fact, eradicates them. The life-style and culture of the Ortodox Jews were not only not tolerated, they were expunged from the campus as long as the “one-model-fits-all” was the implementation of diversity, etc. And this brings me to my seventh point.
There are occasions where “liberal neutrality” is practiced so that it is not only not conducive to “wide-ranging tolerance,” it is not tolerant of anything that departs from its mandate for uniformity of practice and belief. To assume without question that “liberal neutrality” is, in fact, both liberal and neutral is not a prudent course to pursue. Taking into consideration my first point, I just wonder if the freedom to discuss abortion that existed in my classroom would be tolerated in Ms. Massa’s classroom should she one day be a university professor? Would my views be tolerated, or would they be silenced? Judging from what the student government at York University has concluded, I believe I have my answer.
RJA sj
One of my 3L students, Ivan London, a non-Catholic, wrote an interesting paper (title above) applying – as an academic exercise – Catholic perspectives to questions surrounding the environment and economic growth. He focused on the controversy surrounding Sunflower Electric’s plan to build new coal-fired plants (the Holcomb Expansion) in western Kansas. Kansas’ governor three times vetoed legislative action to approve the project. His paper
focuses on the difficult decisions facing legislators and adjudicators who seek to regulate or to willfully refuse to regulate the pollution caused by energy production. Legislators and adjudicators not only will make many tough decisions, but also they must make these decisions. On the one hand, modern society demands production and consumption of energy and energy should not only be available to the wealthiest members of society. On the other hand, the processes that create energy often also create pollution. This paper will provide a decision framework that is founded upon “the transcendent and common nature of humanity,” giving primary consideration to the Catholic Church’s recent commentary.
* * *
The Catholic Church has frequently commented on economic development and environmental protection in the past two years. In October 2007 and February 2008, Archbishop Celestino Migliore addressed sustainable economic development before the United Nations General Assembly. Pope Benedict XVI included a discussion of environmental protection in his “Papal Message for ’08 World Peace Day.” … Recently, Pope Benedict Addressed the General Assembly of the United Nations on his apostolic journey to the United States, and the Holy See submitted a Note to the United Nations Trade and Development Conference in Accra, Ghana. While not exhaustive, this list shows that environmental protection and economic development stand at the forefront of modern Catholic dialogue.
A fundamental approach to solving [the Holcomb Expansion question] pervades the Catholic Church’s commentary. The approach requires that the parties involved remove the antagonism from the problem. Too often, as illustrated in Kansas, parties embrace either economic development or environmental protection as warring opposites. “Protecting the environment implies a more positive vision of the human being, in the sense that the person is not considered a nuisance or a threat to the environment, but one who holds oneself responsible for the care and management of the environment.” Statement by H.E. Archbishop Celestino Migliore Apostolic Nuncio, Permanent Observer of the Holy See, 62nd Session United Nations General Assembly ¶2 (Oct. 29, 2007). Legislators and adjudicators must approach economic development and environmental protection in human terms.
Economic development and environmental protection do not compete solely to the battlegrounds of reason; they are matters of love for humanity. See Randy Lee, Epilogue, in Recovering Self-Evident Truths: Catholic Perspectives on American Law, supra 341.
More specifically, environmental protection and economic development reflect integral components of the human being, the family, and the community. In the Catholic legal tradition, legal analysis should start with the proposition that “the infinite value of the human person” is the keystone self-evident truth. Lorenzo Albacete, A Theological Anthropology of the Human Person, in Recovering Self-Evident Truths. In this light, “economic development” is a misnomer. “Economic development” is not about developing an economy. Rather, economic development “is about the development of the human being” in the families and communities in which the human lives. Holy See Secretariat of State, Note to U.N. Trade and Development Conference 5 (Apr. 24, 2008). “[D]evelopment is not a target to reach; it is rather a path to follow: we can say that there is true development when persons are put in a position to follow their most important desires and ends.” Id.
London continues his analysis applying the doctrines of solidarity and subsidiarity, recognizing the need for state-wide and regional coordination while rejecting the Kansas legislature’s unsuccessful attempt at a cram-down. In his view Rod Bremby’s (Secretary of the Kansas Department of Health and Environment) “decision, after long deliberation with the Holcomb Expansion’s proponents, the KDHE staff, the Kansas governor, and the Kansas attorney general, represents the careful weighing of economic development and environmental protection urged by both the Catholic Church and the U.S. Supreme Court [Mass. v. EPA, 127 S.Ct. 1438, 1463 (2007)]. The Kansas legislature’s kneejerk, bullying reaction is the opposite.”
Any reaction?
Assuming that a university bases its exclusion of pro-life groups on an overtly moral position, rather than on moral neutrality, Cathy asks "Is there anything that can be said to that?"
Well, yes, much could be said. The whole natural law tradition could be said, for example.
The elimination of moral neutrality in favor of substantive claims regarding the good leaves "nothing to be said" only if we adopt the notion that claims about human good are not debatable.
But since just such a vacuum might follow from a secular university's abandonment of neutrality, we ought to be quite cautious in encouraging such a university to stake out a self-consciously substantive moral position. We might be eliminating our one last basis for dialogue with said institution.
A few days ago, I blogged about the efforts of student-government leaders at a Canadian university to silence pro-life speech and groups. Fr. Araujo followed-up, here. Now, my colleague down-the-hall, Cathy Kaveny, sends in this:
What happens if we take Canada--and a state run American university -- out of the picture and focus it this way?
. . . [W]e both teach at a Catholic university which will not allow a pro-choice group to be formed on campus, because it is inconsistent with Catholic values.
Suppose a private university said this: "Okay, okay, we realize MacIntyre is right. We realize liberalism is not an un-tradition, over and above every tradition, but is itself a tradition with substantive moral commitments to freedom and equality, which require women to have physical autonomy--contraception and abortion access. We think a pro-life group threatens those values.
Why shouldn't we, as a private secular institution, maintain our secular humanist values on campus as part of the great diversity of institutions? In fact, we'll structure it parallel to Notre Dame's structure--we'll allow pro-life speakers, and pro-life books, but not pro-life groups."
In a nutshell, suppose secular private universities stop pretending that they're morally neutral. They are in favor of a certain set of values, and it is out of those values that pro-life groups are banned. Is there anything that can be said to that?
As Cathy and I discussed, my sense is that -- putting aside questions of any regulatory strings attached to public money, or non-discrimination laws that are construed to apply to decisions like this -- a private, secular university that was willing to do this (i.e., to stop pretending to be morally neutral) could do this. Years ago, when I was in law practice, I represented some Orthodox Jewish students who objected to Yale's policy of requiring students to live in on-campus dormitories, which were co-ed. The response to the objection often took the form of "we're a diverse, multi-cultural place, and we think it is a crucial part of what we offer to expose students to difference," etc. Fair enough. The problem (as I saw it) was, Yale also purported to liberal neutrality and wide-ranging tolerance. I think Notre Dame, and Yale, should be not only permitted, but encouraged, to think about the values and commitments for which they stand, and to act / regulate accordingly, even if doing so distinguishes them from the institutions that are bound by the norms that constrain government action.
Rob . . . what do you think?
Another student in my Jurisprudence Seminar wrote:
[T]hroughout my reading of the Compendium in this class, I was so surprised and refreshed by the ideas expressed! My experiences coming from a Southern Baptist background have been all about fire and brimstone. Not so with the compendium, it’s very rational and logical thoughts and arguments that hold true to all people, regardless of their religious beliefs. I found myself asking why other denominations don’t discuss issues the way the compendium does.
I think this course really opened up the question of how does Catholic legal thought affect how we practice law? Law school teaches us to detach ourselves from strong beliefs or opinions, and only look at the issues in a rational and logical manner. I’ve often compared the rigors of law school to sucking the soul dry. It tends to make you forget your passions, and beliefs, and why you came to law school to begin with. I came because I had strong beliefs and wanted to make a difference. I think Catholic legal thought and the book “Recovering Self-Evident Truths” re-instates those passions that many law school students lose along the way. It reminded me that the practice of law does not have to be cold and detached, but can be meaningful and pursue ethical goals. For example, every first year law school student learns in torts that there is no legal duty to save a person from drowning if you have not already undertaken a duty. But really, is that ethical? As Abraham Lincoln stated, “Some things legally right are not morally right”. I believe that Catholic legal thought and this book is trying to teach that just because we may choose to practice law as a profession, it does not mean that we have to accept the black letter law as the final say and not question it. Perhaps, as an ethical lawyer, we should push to set new precedents that take into account the dignity of every human being and try to impose higher ethical duties within the law.
MOJ readers may be interested in this Pew Forum Q & A on "Assessing a More Prominent 'Religious Left'", here.
Thanks to Michael for forcing my paper on his captive audience. As for his student's suspicion that my espousal of solidarity is "utopian," I disagree to the extent that "utopian" refers to an unrealistic vision for an entire society. Solidarity is not premised on the likelihood of its universal adoption. The Catholic notion of reciprocity does not hold that I should resist living out the truth of the Gospel until those with whom I interact also agree to live by that truth. I am called to live out that truth regardless of consequences. That's where subsidiarity comes in -- solidarity is so radically opposed to prevailing social norms (and fallen human nature?) that the best we can hope for from the state is freedom to strive to act according to solidarity's call. (The state can and should act consistently with solidarity, but state action will never fully embody solidarity.) Reciprocity requires me to recognize that my invocation of rights only makes sense if it occurs against a backdrop of corresponding responsibilities. Of course I should encourage others to recognize, and act according to, this notion of reciprocity, but reciprocity does not function as some sort of trigger without which I'm relieved of observing other social principles that flow from human dignity.
So will the solidarity-observing human person lose out to the self-preferring person on a regular basis? I suppose it depends on how we understand what it means to "lose out," but there will undoubtedly be times when the other-focused person misses out on some of the trappings of "success" and "enjoyment" in this life. Some examples are easy -- who hasn't thought of really fun ways to spend the money that goes into the offering plate at church? More generally, though, I agree with the student that the cost of solidarity is clearly a buzzkill in many areas of life where preferring the self is seen as a ready vehicle for pleasure maximization. The legal academy is undoubtedly one of the more self-aggrandizing professions that I have encountered, and I think it makes the practice of solidarity significantly more difficult, at least for me. I tell myself that I'm just promoting my ideas, not myself, but I'm dubious.
In any event, you can download the paper in question here. In fact, please download it! Get your friends to download it! Repeatedly! Boost my SSRN numbers our society's understanding of solidarity!
