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, May 19, 2008

Politicians to Watch

Here are two politicians that almost make me want to move to the West Coast, just so I could vote for them:  Congresswoman Cathy McMorris Rodgers, WA:  (watch the whole clip -- it's adorable:  http://www.youtube.com/watch?v=WfNAiBj-Hvs&feature=related ) and the Governor of Alaska, Sarah Palin:  http://www.breitbart.com/article.php?id=D90EECIO0&show_article=1

Why should a Catholic vote against same-sex marriage (in 2038)?

I've been listening to conservative talk radio again, and after hearing another caller announce his plan to move out of California so his marriage is not associated with what the California Supreme Court hath wrought, it can be hard to keep sight of the line where reasonable argument ends and irrational prejudice begins.  I'm trying to separate out the various strands of opposition to the ruling.  I understand (and am highly sympathetic to) the democratic legitimacy argument, so let's put that to the side for now.  Let's flash forward in time.

Imagine it's the year 2038.  Same-sex marriage has been legalized by a combination of judicial rulings and legislation in every state except Kansas, and now Kansas voters face a referendum on the issue.  Let's assume, for the sake of this exercise, that many studies conducted over the previous 30 years have established, to a reasonable degree of certainty, that:

  • children raised in households headed by same-sex couples are indistinguishable from children raised in traditional households in terms of emotional and intellectual development, rates of physical and sexual abuse, self-esteem, and other measures of well-being;
  • children raised in households headed by same-sex couples are no more likely to exhibit same-gender attraction than the general population is, and that the overall percentage of gays and lesbians in society has remained fairly constant;
  • rates of sexual promiscuity among gays and lesbians have been reduced in states legalizing same-sex marriage, and rates of committed, monogamous relationships have correspondingly increased in the GLBT community;
  • marriage and divorce rates in the general population have not been impacted by the legalization of same-sex marriage;
  • state legislatures and courts legalizing same-sex marriage have uniformly rejected calls to extend the concept of marriage to encompass multiple partners.

These are big assumptions, I realize.  But if the experience of same-sex marriage ends up eviscerating the usual consequentialist arguments against same-sex marriage, what are the reasons why the Catholic voter in Kansas should reject same-sex marriage?  Is the ontological argument the only fall-back?  If so, what does that ontological argument look like -- given ancient societies' embrace of polygamy and 2038 America's apparently successful embrace of same-sex marriage -- and why should a Catholic voter find it persuasive?  Does it come down to Church authority, or is there something else?

UPDATE: Just to be clear, I'm not asking why the Catholic voter should support the Church's understanding of marriage.  I'm asking why the Catholic voter should vote to extend the Church's understanding of marriage to the entire society through the civil law, assuming the state of knowledge as it might exist in 2038. 

Notre Dame honors (inter alia) Michael McConnell

At yesterday's Commencement ceremonies at the University of Notre Dame, the University awarded an honorary degree to (among others) Judge Michael McConnell, one of the leading law-and-religion scholars, and religious-freedom advocates, of our time.  Well done.

Friday, May 16, 2008

"Jesus Christ? Barack Obama!"

NARAL Pro-Choice’s Endorsement of “Fully Pro-Choice” Obama

The abortion lobby calls it as they see it. You can view the video announcement here of this endorsement of Senator Obama as “fully pro-choice” with a 100 percent NARAL voting record, as contrasted with Senator McCain's 0 percent NARAL voting record. Rather than add any further comment at this point, I'll simply cite res ipsa loquitur.

Greg Sisk

lifted from dotCommonweal

Sebelius and Kmiec

One of the unexpected bits of news yesterday was Douglas Kmiec’s report that he (a pro-life, conservative, law professor who is supporting Obama) had been barred from Communion. He joins Kathleen Sebelius in the small but growing group: “not at my Communion rail.”

Here is a response by Catholic Democrats.org on these two most recent outcasts.

“So, with the Democratic governor’s political star rising, the registered Republican Archbishop of Kansas City revived the use of Holy Communion as a political weapon to take her down. He publicly called on her to stop taking Communion with her Catholic community, because of her widely-known opposition to the use of criminal law in dealing with abortion. In a Catholic newspaper column, Archbishop Joseph Naumann indicated that he had made the request because he had been angered by her vetoes of several Republican bills restricting abortion in Kansas. In her most recent veto message, Gov Sebelius offered a detailed description of the lengths to which she had gone to address the abortion issue constructively, and lauded the success her administration had achieved in decreasing its incidence.

“Coincidentally, a California law school professor and Constitutional scholar, Douglas Kmiec, who is one of the country’s most outspoken opponents of abortion, found himself denied Communion because of his public support for Senator Obama. Prof Kmiec was attending a Mass prior to giving a speech to a group of Catholic businessmen, and reported on the website CatholicOnline that he was singled out because of his prominence as an Obama supporter. By this standard, anyone who expressed public support for President Bush could be excluded at Communion, given Mr Bush’s support for torture and the Bishops’ recent inclusion of torture (along with abortion) in their Faithful Citizenship document as ‘an intrinsically evil act.’

“The common thread in these two stories is that individual Catholic authorities took it upon themselves to judge that an association with a Democratic presidential candidate was sufficient cause for a subtle form of excommunication from the Catholic community. ”

Catholic dems here:

http://www.catholicdemocrats.org/news/2008/05/conservatives_gear_up_again_to.php#more

Kmiec’s piece here:

http://www.catholic.org/politics/story.php?id=27956


[To see the comments on Peggy Steinfels's post, click here.]

 

Truth? Truth? I don't need your stinkin' truth!

Published on National Catholic Reporter Conversation Cafe (http://ncrcafe.org)

Atheist scholar is ally (with reservations) in Benedict’s fight against relativism

By John L Allen Jr Weekly

All Things Catholic by John L. Allen, Jr.
  Friday, May 16, 2008 - Vol. 7, No. 28 

Ever since his famous warning about a “dictatorship of relativism” shortly before his election three years ago, Pope Benedict XVI has been trying to kick-start a global conversation about truth. In particular, Benedict yearns for a new look at truth within the Western secular academy, that exotic region where Jacques Derrida’s relativist maxim “there is nothing outside the text” has, ironically, achieved the status of a near-absolute.

This weekend, in the enchanting Alpine setting of Lugano, Switzerland, a cross-section of prominent Western intellectuals is taking up the papal challenge. Organized by the Balzan Foundation, which each year awards the Swiss-Italian equivalent of the Nobel Prize, this unique gathering of scientists, philosophers, and eggheads of all stripes, most of them without any specific religious conviction, is titled, simply, “The Truth.”

I’m in Lugano covering the event. In effect, the two-day summit represents the most intriguing test to date of how Benedict’s effort to restore confidence in truth is playing among secular makers of opinion.

The guest list features a constellation of intellectual heavy-hitters: Simon Blackburn, an atheist philosopher from Cambridge, who literally wrote the book on truth -- 2005’s best-selling Truth: A Guide; Geza Vermes, a New Testament exegete born to Jewish parents in Hungary, sometimes called the greatest Jesus scholar of his day; Dominique Schnapper, a French sociologist and the daughter of famed French philosopher Raymond Aron; Bengt Gustafsson, a Swedish astronomer and a popular writer on matters of science and faith; and Emanuele Severino, Italy’s most famous living philosopher, described somewhat colorfully as a “neo-Parmenidian.” The Vatican is represented by Swiss Cardinal Georges Cottier, former theologian of the papal household, and Bishop Marcelo Sánchez Sorondo, an Argentine who serves as chancellor of the Pontifical Academies of Science and of Social Sciences.

Despite the presence of two prelates, this is definitely not an “orthodox” crowd. Severino, for example, was fired back in 1970 by the Catholic University of the Sacred Heart in Milan, following an investigation by the Vatican’s Congregation for the Doctrine of the Faith of his belief in “the eternity of all being” -- which, among other consequences, renders the idea of a Creator God obsolete. Vermes is a former Catholic priest who left the church in 1957. His scholarship, while widely respected, wouldn’t pass Vatican muster either. In his latest book, Vermes speculates that Jesus didn’t physically rise from the dead, but rather his followers had visions that account for the resurrection narratives in the New Testament.

As for Blackburn, he regards religion as a delusion. He actually wrote a paper three years ago defending his refusal to put on a yarmulke when invited by a Jewish friend to Friday dinner, on the grounds that it would express a respect for religion he doesn’t feel. (He complained about “respect creep,” saying that he’s willing to tolerate religious believers, but that doesn’t mean he’s obligated to treat their beliefs as anything other than nonsense.)

Yet philosophy, a bit like politics, tends to make strange bedfellows. At least on the subject of truth, Benedict and many of the luminaries in Lugano seem to have some common ground.

Blackburn offers an interesting case in point. In his book Truth, Blackburn acidly denounced “something diabolical in the region of relativism, multiculturalism or postmodernism, something which corrodes and corrupts the universities and the public culture, that sweeps away moral standards, lays waste young people’s minds, and rots our precious civilization from within.”

It’s language that, in another context, easily might have flowed from the papal pen.

In his keynote address this morning, Blackburn returned to the theme.

“Relativism attracts suspicion and hostility for a good reason,” he said. “Suppose I voice an honest and heartfelt opinion about anything, from mathematics to aesthetics. The conversation stopping remark ‘that’s just your opinion’ is not only beside the point, but more importantly dehumanising. It signals that your words do not deserve to be taken seriously, but only taken as symptoms, like signs of a disease.”

“It is not only the conservative half of each of us who cannot stand this patronage,” Balckburn said. “It is each of us in toto, agents attempting to reason our way through the practical problems with which life tries to trip us up.

On the other hand, Blackburn was not ready to sign up for Benedict XVI’s muscular sense of absolute truth, and certainly not truth rooted in a personal deity. Instead, he advocated a position known in the philosophical guild as “deflationism.”

In essence, deflationism declares the “truth wars” over on the grounds that there’s nothing to fight about in the first place. Both relativism and “realism,” the belief in absolute standards of truth, presume that truth is a substantial property that either exists or not. In reality, deflationists say, it’s no such thing.

Take any propositional statement, such as “water is formed by hydrogen and oxygen.” It contributes nothing to the content of that statement, deflationists say, to rephrase it as “it is true that water is formed by hydrogen and oxygen.” Truth is “invisible,” or “transparent” -- it is not a lofty Platonic form, but rather a simple generalization about individual statements that are supported by convincing evidence.

Deflationism thereby refutes relativism, because it holds that statements can be either right or wrong -- not “for you” or “for now,” but right or wrong, period. It breaks with more robust forms of realism, however, in rejecting the need for an abstract metaphysical theory to support that position. “Truth” is nothing more than a linguistic label given to accurate claims -- not a property or a “meta-reality.”

Thus Blackburn’s advice is to forget the debate between realism and relativism, and just get on with analysis of specific questions. He offers the example of capital punishment: “If we hammer this out, and decide that it should be [abolished], then we do not increase the theoretical temperature by adding ‘what’s more, that’s true.’ ”

Blackburn is aware that the deflationist position is likely to seem a bit, well, deflating for realists such as Benedict XVI -- a thin gruel, compared to the meaty stew of absolutes which the pope likes to dish up.

Yet Benedict may take comfort that even someone like Blackburn, obviously worlds away from Catholic thought on most matters, is nevertheless on his side in opposing a “dictatorship of relativism.” Many thinkers here seem to share a similar sense; after all, they have spent lifetimes arguing passionately for particular views of the world, and don’t appreciate the suggestion that their conclusions are the result of nothing more than chemical processes in the brain, or psychological and cultural forces. While many aren’t persuaded by the content of the Catholic catechism, they nevertheless grudgingly admire Benedict’s defense of truth. Indeed, it may be the first papal cause in a while some of them even noticed, let alone endorsed.

Improbably enough, therefore, the conversations unfolding this weekend in Lugano could betoken a new chapter in the oft-strained relationship between church and culture. Stimulating reflection on truth, in a way that softens the normal divide between theists and secularists, could turn out to be Benedict XVI’s most important legacy in the realm of Western intellectual life.

What’s more, that’s true!

* * *

I had the opportunity to sit down with Blackburn on the margins of the Lugano symposium this morning. The following are excerpts from our conversation.

[The interview is worth reading, here.]

Pluralism run amok

Anyone interested in parental rights, civil society, or subsidiarity should read Laura Rosenbury's paper, Between Home and School.  It's a fine and creative paper (selected for the Stanford/Yale junior faculty forum), but its conclusions are troubling.  Prof. Rosenbury laments the law's focus on parents and school as the only relevant child-rearing authorities, and she works to expand the law's vision to include sites "between home and school" that are part of the child-rearing project -- e.g., Boy Scouts, summer camps, religious activities, youth sports.  She asserts that, while the state should let these groups operate as they wish for the most part, the state should step in to foster certain key child-rearing values.  The problem she identifies is our half-hearted embrace of pluralism:

Pluralism currently exists only between families . . . . Our society is pluralistic because many types of families are permitted to exist largely free from state indoctrination.  In contrast, pluralism rarely exists within families.  Children are generally exposed to just one belief system within the family, or at most two.  Therefore, although children may not be standardized by the state, they often are standardized within their own families.  Pluralism may exist on a broad, societal level, but children rarely experience pluralism on a micro level, within their own families.

And to drive the point home:

[B]ecause the space between home and school often provides the most meaningful opportunities for children to experience pluralism, these actors would not be permitted to operate completely outside the zone of state power.  Rather, the state should intervene in a limited way to ensure that the actors do not thwart the potential of these spaces to expose children to diverse ways of life within the broader civil society.

My second-grader has been reading her Children's Bible a bit too much lately, I confess; tonight I think I'll supplement it with some Nietzsche.  Pluralism demands no less.

What is marriage?

I have read with great interest yesterday’s California Supreme Court decision In Re Marriage Cases to which Rob Vischer called our attention. I have also reread Goodridge v. Department of Public Health, the late 2003 decision of the Massachusetts Supreme Judicial Court that legalized same sex marriage. I think that both of these decisions have provided the legal foundation for not only same-sex couples to enter civil marriage but any group of people—regardless of age and regardless of degrees of consanguinity—to do the same under the equal protection of the laws.

In disclosure of my own views that are pertinent to this posting, I contend that the majority opinions in both of these state supreme court decisions from Massachusetts and California are wrong. Moreover, I think polygamy is wrong. I consider that marriage is the union of one man and one woman. Lastly, I see that these two state supreme court decisions have the potential to alter marriage so that it is whatever individuals and groups of individuals want it to be rather than what the law—as defined by competent authority—says it is.

When one studies the legal justifications relied upon by the Massachusetts and California courts that supply their bases for same-sex couples to be married and receive the same benefits conferred or mandated by the state for heterosexual couples who are married, several ideas emerge, which are critical to the core arguments of these judicial opinions: liberty; autonomy; dignity; and, equality.

In addition, these two state courts’ understandings of liberty and autonomy are grounded on the “right” of the individual to rely on the problematic reasoning of Justices O’Connor, Kennedy, and Souter in Casey: “Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education… Our cases recognize the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child… Our precedents ‘have respected the private realm of family life which the state cannot enter.’… These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”

Prior to the Goodridge decision being handed down, I argued in the Wardle-Strasser-Duncan-Coolidge anthology Marriage and Same-Sex Unions: A Debate, which was published in early 2003, that there was no discrimination, no inequality in the laws that restricted marriage to the union of one man and one woman. These laws applied equally to all persons regardless of their sexual orientation. But now, with Goodridge and In Re Marriage Cases, the meaning of equality has been given a skewed definition. Thus, I think it is now possible to expect that the actions of states which target those in committed polygamist relationships will face challenges based on parallel liberty, dignity, autonomy, and equality arguments. These arguments will be founded on the interesting but flawed judicial interpretations of the Goodridge and In Re Marriage Cases majority opinions. Moreover, I think that those states which have recently targeted polygamists with the compulsion of their regulatory authority can expect legal challenges to their actions which contravene the liberty, dignity, autonomy, and equality of polygamists.

These challenges will be the fruits of Goodridge and In Re Marriage Cases that likely were not intended but will follow if the concepts of liberty, dignity, autonomy, and equality defined by these decisions and granted to some persons are to be granted to all. It will be interesting to see what others think about these matters.      RJA sj

Thursday, May 15, 2008

Who says "it can't happen here"?

The latest episode of the ABC series, "Boston Legal" -- another project of the reliably and tediously anti-Catholic David Kelley -- was called "The Gods Must Be Crazy", and was about (among other things) a woman who sues the Archdiocese, seeking to have the Church's tax-exemption pulled, because the Church has discriminated against her, by not ordaining her a priest.  She wins.  Relevant to her argument are assertions regarding executing witches, condoning slavery, running the Inquisition, etc.

But, this won't happen in the real world . . . right?