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.

Saturday, August 30, 2008

Peter Steinfels interviews Doug Kmiec on Kmiec's support for Obama

New York Times, August 30, 2008

For Ex-G.O.P. Official, Obama Is Candidate of Catholic Values

By PETER STEINFELS

When Douglas W. Kmiec endorsed Senator Barack Obama for president last spring, it made waves, especially among Roman Catholics.

A constitutional scholar who headed the Office of Legal Counsel under Presidents Ronald Reagan and George Bush, Mr. Kmiec was well known as an articulate opponent of abortion.

He explains his current stance in “Can a Catholic Support Him? Asking the Big Question about Barack Obama,” which will be published in two weeks by Overlook Press. But reached this week in Denver, Mr. Kmiec agreed to give necessarily brief replies to questions sent by e-mail.

Q. What is your position on the morality of abortion, and how is it related to your religious faith?

A. I fully accept the teaching of the church that participating in an abortion is an intrinsic evil. My acceptance of abortion as a grave, categorical wrong is one part respectful deference to authoritative Catholic teaching and one part reasoned deduction from our scientific knowledge of genetics and the beginning of an individual life.

Q. Would you like to see Roe v. Wade overturned?

A. Yes, but not on the terms usually suggested by Republicans. Roe is mistaken constitutional law not just because it invalidated state laws on the subject but because it is contrary to what is described as a self-evident truth in the Declaration of Independence, namely, that we have an unalienable right to life from our creator. It may surprise the general citizenry that not a single sitting justice utilizes the declaration as a source of interpretative guidance.

But even employing the jurisprudential methods applied by the modern court, there is no satisfactory showing that abortion as a matter of custom and tradition was properly found to be an implied aspect of the liberties protected by the 14th Amendment.

Q. Given those views, why do you support Barack Obama?

A. There is a widespread misconception that overturning Roe is the only way to be pro-life. In fact, overturning Roe simply returns the matter to the states, which in their individual legislative determinations could then be entirely pro-abortion. I doubt that many of our non-legally-trained pro-life friends fully grasp the limited effect of overturning Roe.

Secondly, pundits like to toss about the notion that the future of Roe depends on one vote, the mythical fifth vote to overturn the decision. There are serious problems with this assumption: first, Republicans have failed to achieve reversal in the five previous times they asked the court for it; and second, it is far from certain that only one additional vote is needed to reverse the decision in light of the principles of stare decisis by which a decided case ought not to be disturbed. Only Justices Thomas and Scalia have written and joined dissenting opinions suggesting the appropriateness of overturning Roe.

So given those views, the better question is how could a Catholic not support Barack Obama?

Senator Obama’s articulated concerns with the payment of a living wage, access to health care, stabilizing the market for shelter, special attention to the needs of the disadvantaged and the importance of community are all part of the church’s social justice mission.

Applying this to the issue of abortion, the senator has repeatedly indicated that he is not pro-abortion, that he understands the serious moral question it presents, and, most significantly, that he wants to move us beyond the 35 years of acrimony that have done next to nothing to reduce the unwanted pregnancies that give rise to abortions.

Q. But all the same, isn’t your support at odds with Catholic teaching?

A. Quite the contrary. Senator Obama is articulating policies that permit faithful Catholics to follow the church’s admonition that we continue to explore ways to give greater protection to human life.

Consider the choices: A Catholic can either continue on the failed and uncertain path of seeking to overturn Roe, which would result in the individual states doing their own thing, not necessarily, or in most states even likely, protective of the unborn. Or Senator Obama’s approach could be followed, whereby prenatal and income support, paid maternity leave and greater access to adoption would be relied upon to reduce the incidence of abortion.

It is, of course, not enough for a Catholic legislator to declare himself or herself pro-choice and just leave it at that, but neither Senator Obama, who is not Catholic except by sensibility, nor Joe Biden, who is a lifelong Catholic, leaves matters in that unreflective way.

In my view, Obama and Biden seek to fulfill the call by Pope John Paul II, in the encyclical “Evangelium Vitae,” to “ensure proper support for families and motherhood.” It cannot possibly contravene Catholic doctrine to improve the respect for life by paying better attention to the social and economic conditions of women which correlate strongly with the number of abortions.

Q. You have been fiercely attacked by some Catholic abortion opponents and in one instance barred from receiving communion. How do you feel about that?

A. To be the subject of an angry homily at Mass last April 18 and excoriated as giving scandal for endorsing Senator Obama and then to be denied communion for that “offense” was the most humiliating experience in my faith life.

To be separated in that public manner from the receipt of the eucharist, and to be effectively shunned or separated from the body of Christ in the sense of that particular congregation, has left, I very much regret to say, a permanent spiritual scar. Thankfully, it has also given me a new appreciation for the significance of the sacrament in my daily worship. And the priest, having been called to order by Cardinal Roger Mahony, sent me an apology, which of course I have accepted.

Nonetheless, I remain deeply troubled that other church leaders not fall into similar traps. That would do untold damage to the church within the context of American democracy.

There are clearly partisan forces that want nothing more than to manufacture or stir up faith-based opposition to their political opponents. The church has been careful to underscore that Catholics have unfettered latitude to vote for any candidate so long as the intent of the Catholic voter is not to express approval of a grave evil.

Wednesday, August 27, 2008

On Abortion ... from dotCommonweal

“New study finds finds social and economic supports for women significantly reduce abortions”

Posted by David Gibson

That’s the promise of the new study released today by Catholics in Alliance for the Common Good. According to the group’s news release, the study is the first of its kind and looks at the “long- and short-term effects of public policy on the abortion rate over a twenty-year period. The findings reveal that social and economic supports for women and families dramatically reduce the number of abortions. As Democrats gather in Denver for their national convention, and as Republicans prepare to gather next week, the study offers compelling findings that pro-life and pro-choice leaders from both political parties can unite behind to reduce abortions.”

Indeed, if this holds true, the findings would (I would think) provide ammunition for those looking to move beyond the stalemate over Roe v. Wade. Apparently the findings were presented at a “town hall” meeting in Denver with Sen. Bob Casey, Rep. Heath Shuler and others, and sponsored by Democrats for Life of America. I haven’t seen a write-up, so don’t know what they may have added.

Catholics in Alliance commissioned the study, which was conducted by Joseph Wright, a political science professor at Penn State University and a visiting fellow at the University of Notre Dame, and Michael Bailey, a professor of American government at Georgetown University. You can read it here (in a 19-page PDF file). Tom Roberts at NCR also has coverage.

Monday, August 25, 2008

Biden as VP Candidate: An Episcopal Headache?

Biden VP nomination could touch off episcopal split
By JOHN L. ALLEN JR.
August 25, 2008

As the Democratic National Convention opens in Denver, here’s an irony worth pondering: Perhaps the most disappointed group in America over the choice of a Roman Catholic as the party’s nominee for vice president may well be the country’s Catholic bishops.

That’s not necessarily any reflection on the personal merits of Delaware Senator Joseph Biden, but rather what kind of Catholic he is, and what that means for the American bishops between now and November 4 (and perhaps for four or eight years after that).

Friday, August 22, 2008

Catholic Capitalism?

In the August 23d issue of The Tablet, there is an article that is required reading for all MOJers:  Clifford Longley, An Acceptable Face for Capitalism.  The article opens thus:

With the all-conquering global free market seeming to trounce all competing social and economic ideologies, a moral and practical framework looks increasingly necessary. Could Catholic social teaching fill the gap?

Click here to read.

Tuesday, August 19, 2008

Bill Stuntz on "Abortion, Fighting Evil, and the Saddleback 'Debate'"

Check it out, here.

Monday, August 18, 2008

Humanae Vitae, Revisited

What follows is a letter that appeared in the August 2d issue of The Tablet:

Truth and authority

I read your wide coverage of Humanae Vitae (26 July) with interest as I was one of the original six members of the Papal Commission on Birth Control appointed by Pope John XXIII and confirmed by Paul VI. The outstanding feature of the Commission was its dedication to the discovery of the truth. Every argument was carefully analysed and sifted to determine its weight. The other striking feature was the attitude of Pope Paul VI. Because of the international political implications of the Church’s teaching on contraception, the Commission was set up by the Secretary of State, not by the Congregation for the Doctrine of the Faith (CDF) as might have been expected. The Secretary General of the Commission, the Swiss Dominican, Henri de Reidmatten, reported directly to the Pope. When it became clear that fundamental questions were being raised, the response of the Pope was to continue the study with diligence and integrity.

It was only after the Commission had completed its report and been disbanded that the CDF swung into action, persuading the Pope not to change the teaching for fear of the damage this would do to papal authority. It failed to envisage the greater damage to be caused by maintaining a teaching which is unsustainable. The CDF set up a secret commission entirely of priests to produce a new report. This gives an insight into the curial mindset to think that a group of celibate priests, handpicked for their orthodoxy, would have a better understanding of marriage than a commission of cardinals, bishops, priests and lay people, married couples and single people, drawn from all five continents and embracing a wide range of sacred and secular disciplines.

The fundamental difference between the Commission and the CDF lies in the understanding of the nature of sexual intercourse in marriage. As Charles Curran (“Dangers of certitude”, 26 July) succinctly explained, the hierarchical Church identifies the morality of sexual intercourse with its physical aspects. It would hotly deny this, but the fact that a couple are allowed to choose an act that is nonprocreative but may not make an act non-procreative shows that it is the physical aspect that is sacrosanct. The Commission, looking at the evidence, took a wider view of sexual intercourse, seeing it as part of the wider relationship, expressing and fostering love.

The Commission anticipated that a change in teaching would be a great pastoral challenge and prepared a pastoral document of four chapters, one largely the work of the French Jesuit Père de Lestapis, the finest account of married love I have ever read. What a pity that none of this was ever published.

There have been many tragic consequences of Humanae Vitae, but none greater than that referred to in “A mother’s story – 1” (26 July). For the Popes, especially John Paul II, to teach, in season and out of season, that contraception is wrong and the overwhelming majority of the faithful to reject this undermines the integrity of the Church and weakens its witness in many areas. I hope that your coverage of this issue will promote more open and honest discussion which is so badly needed.

John Marshall

Emeritus Professor of Neurology
University of London

Thursday, August 7, 2008

Abortion and the Catholic Voter

Interesting post (including comments) over at dotCommonwealhere.

Tuesday, July 29, 2008

Our Pro-Life President?

Check this out, at dotCommonweal (here).

Monday, July 28, 2008

Comments on Humanae Vitae

There is an interesting set of comments on Humanae Vitae over at dotCommonweal.

Check them out, here.

A troubling, cautionary tale ...

... of a devoutly Christian lawyer--a graduate of  Regent Law School--who in her misguided religious/political zeal broke the law, and of an Attorney General who nurtured a departmental culture that encouraged such lawbreaking.

New York Times, July 29, 2008

Gonzales Aides Broke Laws in Hiring, Report Concludes, by Eric Lichtblau

Senior aides to former Attorney General Alberto Gonzales broke the law by using politics to guide their hiring decisions for a wide range of important department positions, slowing the hiring process at critical times and damaging the department’s credibility and independence, an internal report concluded Monday.

The report, prepared by the Justice Department’s inspector general and its internal ethics office, singles out for particular criticism Monica Goodling, a young lawyer from the Republican National Committee who rose quickly through the ranks of the department to become a top aide to Mr. Gonzales.

Ms. Goodling, who testified before Congress in May 2007 at the height of the scandal over the firings of nine United States attorneys, introduced politics into the hiring process in a systematic way that constituted illegal misconduct, the report found.

Last month, the inspector general, Glenn A. Fine, released a separate report that found a similar pattern of politicized hiring at the Justice Department in reviewing applications from young lawyers for the honors and intern programs. The new report released Monday goes much further, however, in documenting pervasive evidence of political hiring for some of the department’s most senior career, apolitical positions, including immigration judges and assistant United States attorneys.

The inspector general’s investigation found that Ms. Goodling and a handful of other senior aides to Mr. Gonzales developed a system of using in-person interviews and Internet searches to screen out candidates who might be too liberal and to identify candidates seen as pro-Republican and supportive of President Bush.

When interviewed by the inspector general, Mr. Gonzales said he was not aware that Ms. Goodling and other aides were using political criteria in their decisions for career positions. Mr. Gonzales resigned last summer in the face of mounting accusations from congressional Democrats that politics had corrupted the department.

His successor, Attorney General Michael Mukasey, said in a statement Monday after the report’s release that he was disturbed by their findings that improper political considerations were used in hiring decisions relating to some career employees. . . .

In forwarding a résumé in 2006 from a lawyer who was working for the Federalist Society, Ms. Goodling sent an e-mail message to the head of the Office of Legal Counsel, Steven Bradbury, saying: “Am attaching a résumé for a young, conservative female lawyer.”

Ms. Goodling interviewed the woman herself for possible positions and wrote in her notes such phrases as “pro-God in public life,” and “pro-marriage, anti-civil union.” She was eventually hired as a career prosecutor.

Ms. Goodling also conducted extensive searches on the Internet to glean the political or ideological leanings of candidates for career positions, the report found. She and other Justice Department supervisors would look for key phrases like “abortion,” “homosexual,” “guns,” or “Florida re-count” to get information on a candidate’s political leanings.

[Read the rest, and download the report, here.]