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, December 4, 2006

Bill Moyers at West Point

[I meant to post last week on Bill Moyers's truly extraordinary speech at West Point--but I forgot.  MOJ-readers may be interested in what Martin Marty has to say, below, about the speech.  I hope you will follow the link to the speech, print it out, and read it at your lesiure.

I recall that Richard John Neuhaus and George Weigel, among other prominent Catholics, were cheerleaders for Bush in Iraq.  What are they saying now, after over three and a half years of gross incompetence and countless deaths?]

Sightings  12/4/06

Bill Moyers's Message
-- Martin E. Marty

Let me start unconventionally this Monday by passing on a link [click here]  Let me also continue unconventionally.  Most of the 375-plus "sightings" from the past almost eight years have fulfilled my assignment to go scouting for religiously themed items in the public sphere -- but this time the scope is not clearly or purely religious.  The link above takes you to excerpts from a speech Bill Moyers delivered as the Sol Feinstone Lecture on the Meaning of Freedom at the United States Military Academy on November 15.  Moved, sometimes to tears and sometimes by the rage it inspires, I sent it on to many addresses on my list.  Never have I had so many "thank you's" and "let everyone know's" as I did this week.  That is why I am breaking precedent here and calling further attention to the speech.

In it, Mr. Moyers shows empathy, almost tender regard, for the consciences, assignments, and paradoxes that go with becoming a military officer during the Iraq war.  Aware that any questioning of the prosecution of that war used to draw overwhelming public criticism of a sort which challenged the patriotism of the critic -- and such questioning still draws some, even though most of the public has itself done such questioning -- Moyers displays his love for the nation and its freedoms, which is the overall topic of the Feinstone lectures.

There is much historical accounting here, for which the speaker acknowledges the help of historian Bernard A. Weisberger.  One hears of adventures and misadventures, conflicts and moments of consensus, all the way back to the American Revolution and through the Mexican War and the Vietnam War, itself prosecuted by conscience-troubled, now older-but-wiser Moyers, who was in the Johnson administration in the bad old days.

Part of what set Moyers off was the judgment by media mogul Rupert Murdoch that the casualties in Iraq were "minute" -- a dismissal that inspires Moyers to provide some close-ups of people who have lost someone close to them, citizens who cannot live with the word "minute" as an R.I.P. wave of the hand.

The focus here is not on the men and women who have signed up to be cadets; Moyers makes clear that he is not a pacifist or a dissenter against all forms of military engagement.  But, getting to his own field of specialization, he is disturbed that the present administration is not heeding warnings of ancients like James Madison and moderns like Dwight Eisenhower and others who feared the threat that comes from placing too much power of decision in the hands of the executive -- meaning, in the end, chiefly in war-making.

Then he does turn to the paradoxes that military officers face, speaking some "unpalatable" words when he "would prefer to speak of sweeter things."  Here he invokes one line of a sacred text, out of context but still reinforcing: "You shall know the truth and the truth shall set you free."
I think some credit must go to West Point leaders who invited someone they knew would be a critic, and to the audience, who will not find their wrestling with conscience, calls to duty, and love of country easier.  Others will have the chance to give their versions of the truth, but Moyers offers a very bracing one.
----------

Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.

Saturday, December 2, 2006

Some News from South Africa

Same-sex marriage now legal in South Africa

Story Highlights

•Civil Union Act makes South Africa fifth nation in world to legalize gay marriage
•Church hopes to perform first same-sex ceremony on Saturday
•Homosexuality still outlawed in much of sub-Saharan Africa

CAPE TOWN, South Africa (AP) -- With the deputy president's signature on a new law, South Africa on Thursday became the first country in Africa and only the fifth in the world to legalize same-sex marriages.

The Civil Union Act entered into force on the eve of a December 1 deadline set by the Constitutional Court for the government to change its marriage legislation to ensure full equality for gays and lesbians.

Gay rights groups have welcomed the law, although they criticized provisions allowing clergy and civil marriage officers to turn away gay couples if their consciences prevented them from marrying them.

Deputy President Phumzile Mlambo-Ngcuka signed the law in her capacity as acting president because President Thabo Mbeki is in Nigeria.

South Africa recognized the rights of gay people in the constitution adopted after apartheid ended in 1994, at a time when leaders were determined to bury all kinds of legal discrimination a thing. The constitution, the first in the world to prohibit discrimination on the basis of sexual orientation, provides a powerful legal tool for gay rights activists even though South Africa remains conservative on such issues.

The governing African National Congress had to push the legislation through despite reservations from some of its own members. Influential traditional leaders said the legislation violated African cultural norms. The Roman Catholic Church and Muslim groups -- and many other religious organizations -- denounced it as violating the sanctity of marriage between a man and a woman. The Anglican church said it was up to individual ministers to decide whether to use the "opt out" clause, while liberal churches like the Metropolitan Churches Community were in favor.

The National Assembly passed the legislation earlier this month and the National Council of Provinces approved it on Tuesday. Mlambo-Ngcuka's signature was the final legal step.

"There will be a huge response from same-sex couples who have waited such a long time for their relationship to be recognized," predicted Melanie Judge of the lesbian and gay project, OUT.

Janine Pressman, a pastor with the Glorious Light Metropolitan Community Churches in the capital, Pretoria, said she hoped to marry a couple on Saturday, provided the paperwork could be rushed through.

Priests wanting to wed same sex couples at a religious ceremony have to apply for permission from the Home Affairs Ministry and possibly undergo exams to get their license, ministry spokesman Jacky Mashapu said.

This could take two to three weeks, he said. But he added that the ministry wanted to speed through the applications.

Civil unions, without a religious component, could be performed virtually on the spot, subject to completion of the proper paperwork, he said.

"We are ready to go," Mashapu said.

The Civil Union Act provides for the "voluntary union of two persons, which is solemnized and registered by either a marriage or civil union."

Radio talk shows and newspaper columns have highlighted opposition to same-sex marriages in a country where gays and lesbians are victims of violent attacks because of their sexual orientation.

South Africa is only the fifth country in the world to legalize gay marriages. It is the first in Africa, where homosexuality is illegal in Zimbabwe, Kenya, Uganda, Nigeria, Tanzania, Ghana and most other sub-Saharan countries.

Judge, from OUT, said the public reaction had "forced us to confront the deep-seated prejudice and intolerance against gays and lesbians. It's a day to day reality," she said.

"It's been quite a frightening process to see the level of hatred that has been openly expressed against this minority," she said.

Friday, December 1, 2006

More on Human Sexuality

How long will it be before magisterial moral theology catches up with what we're learning about the complexity of human sexuality?  (And why is what we're learning so threatening to so many?)

New York Times
December 2, 2006

Supporting Boys or Girls When the Line Isn’t Clear

OAKLAND, Calif., Dec. 1 — Until recently, many children who did not conform to gender norms in their clothing or behavior and identified intensely with the opposite sex were steered to psychoanalysis or behavior modification.

But as advocates gain ground for what they call gender-identity rights, evidenced most recently by New York City’s decision to let people alter the sex listed on their birth certificates, a major change is taking place among schools and families. Children as young as 5 who display predispositions to dress like the opposite sex are being supported by a growing number of young parents, educators and mental health professionals.

Doctors, some of them from the top pediatric hospitals, have begun to advise families to let these children be “who they are” to foster a sense of security and self-esteem. They are motivated, in part, by the high incidence of depression, suicidal feelings and self-mutilation that has been common in past generations of transgender children. Legal trends suggest that schools are now required to respect parents’ decisions.

[To read the entire article, click here.]

Thursday, November 30, 2006

From Peter Nixon at dotCommonweal

Sign of the Times?

The Washington Post reports that for the second time in one year, the Christian Coalition has named a new a leader and then removed him before he took office:

The Rev. Joel Hunter, pastor of a nondenominational megachurch in Longwood, Fla., said he resigned as the coalition's incoming president because its board of directors disagreed with his plan to broaden the organization's agenda. In addition to opposing abortion and same-sex marriage, Hunter, 58, wanted to take on such issues as poverty, global warming and HIV/AIDS.

"My position is, unless we are caring as much for the vulnerable outside the womb as inside the womb, we're not carrying out the full message of Jesus," he said in a telephone interview yesterday. "They began to think this might threaten their base or evaporate some of their support, and they said they just couldn't go there."

by J. Peter Nixon

Wednesday, November 29, 2006

COMMONWEAL
December 1, 2006
 
Stay the Course?
The Editors


Meeting last month in Baltimore, the United States Conference of Catholic Bishops (USCCB) issued a number of statements, including guidelines for the pastoral care of “persons with a homosexual inclination” and an instruction-titled “Happy Are Those Who Are Called to His Supper”-on who should or shouldn’t receive Communion.

Overshadowed in the media reaction to the guidelines and the bishops’ “hard saying” about Communion was Bishop William S. Skylstad’s “Call for Dialogue and Action on Responsible Transition in Iraq.” Skylstad is president of the USCCB and his statement on the war has much to recommend it. Dismissing the idea that there are only two options in Iraq, either “cut and run” or “stay the course,” Skylstad pleads for a “collaborative dialogue that honestly assesses the situation, acknowledges past difficulties and miscalculations, recognizes and builds on positive advances.”

These are sensible recommendations, necessary steps in bringing about a responsible resolution to a tragic and untenable situation. The USCCB would do well to adopt just as sensible a policy in confronting the laity’s doubts about church teaching on the meaning of human sexuality. For instance, 95 percent of married Catholics do not find the teaching on contraception persuasive. And how do the bishops respond? “Stay the course or get out of the Communion line” might be a rough paraphrase of the USCCB statements. Homosexuality is not a sin, write the bishops further, but engaging in homosexual acts is. Increasingly, Catholics find this distinction hard to square with what they know about homosexual persons. The bishops’ response? “Stay the course or get out of the Communion line.”

It is especially disappointing that before issuing their statements, the bishops didn’t bother to listen in any systematic way to either homosexual or married Catholics. If one’s syllogisms are all in order, why bother talking with people who possess such “inclinations,” or who have tried to reconcile the church’s teachings with actual marital life? Instead, the bishops stumbled on the brilliant strategy of reminding the faithful that in the church’s view, resorting to contraception and engaging in homosexual acts are equally “disordered.” Evidently, the bishops believe that equating homosexual acts with a sexual “sin” committed by 95 percent of married Catholics makes their pastoral guidelines “welcoming” to homosexual persons.

Echoing John Paul II’s idiosyncratic “theology of the body,” the USCCB’s statement on “Married Love and the Gift of Life” argues that the use of contraception introduces “a false note” into the spousal sexual relationship. By such acts, the bishops explain, you begin to make yourself “into the kind of person who lies.” When fertility is “suppressed”-rather than merely outwitted through the diagnostic calculations of Natural Family Planning (NFP)-the sexual act becomes “something less powerful and intimate, something more ‘casual.’” Married Catholics may be surprised to learn they are inveterate liars obsessed with having “casual” sex. What is not surprising is how unconvincing the argument for NFP remains. Why is it morally permissible to avoid pregnancy by using NFP, but “disordered” and an “intrinsic evil” to act on the same intention using a different contraceptive method? When the bishops can explain that, perhaps Catholics will resume listening to what they have to say about marital love.

Some outspoken conservative Catholics argue that it was the failure of the bishops to strongly affirm Humanae vitae, and not the teaching itself, that explains the encyclical’s rejection by the laity. Will the condemnation of contraception now be vigorously preached from the pulpit? If so, the effect may be the opposite of what is hoped for. Telling married Catholics that their sexual lives are seriously “disordered” will likely only increase their doubts about the church’s understanding of sexuality, while strengthening the growing moral solidarity felt between heterosexual and homosexual Catholics. Ironically, perhaps that is what the Holy Spirit has been up to at the USCCB. As the saying goes, God writes straight with crooked lines.

The point is that when “stay the course” and “cut and run” are the only alternatives in the battle over human sexuality, too many Catholics will opt for the latter. Just as Iraq requires, in Bishop Skylstad’s formulation, an honest collaborative dialogue-one that “assesses the situation, acknowledges past difficulties and miscalculations...and builds on positive advances”-so too is such a dialogue desperately needed between the laity and the bishops concerning the church’s teachings on sexual morality. The current situation, to adapt Skylstad’s words again, is indeed “taking a terrible toll,” and “moral urgency, substantive dialogue, and new directions” must be found. While “stay the course” is not an option, “cut and run” cannot become the default position. What Catholicism has to teach us about the meaning of sexuality should not be reduced to NFP.

Monday, November 27, 2006

The Bishops and Human Sexuality

[The U.S. Catholic bishops were gathered in Baltimore earlier this month.  They issued some documents.  Here are some passages from the lead editorial in the November 24th issue of the National Catholic Reporter:]

Let’s consider for starters the document on contraception. A lot of the U.S. bishops today might say there are a lot of bad, or at least ignorant, Catholics out there, Catholics influenced by the contraceptive culture, for instance, who no longer know good from evil.

Maybe they’re right. More likely, though, it’s because the teaching makes little sense, doesn’t match the experience of lay Catholics and tends to reduce all of human love to the act of breeding.

In short, the bishops aren’t terribly persuasive or clear when they talk about sex, and they tend to want to talk about sex a lot. To be sure, they say lots of lovely and lofty things about marital love, about how it completes people and cooperates with God’s plan and fills married lives with joy and happiness. You can want not to have children, say the bishops, you just can’t do anything “unnatural” about it. It’s a strange concept, like not wanting to die of heart disease while not doing anything “unnatural” about it.

They make the point that if every time a married couple makes love they are not open to having children, then they’re not giving “all” of themselves to each other. If you use birth control, say the bishops, and every single act is not open to having children, then “being responsible about sex simply means limiting its consequences -- avoiding disease and using contraceptives to prevent pregnancy.” Whew! So that’s it, eh?

It’s either be open to having kids or married sex is no more significant than an encounter with a prostitute. Such a view of marriage and sexuality and sexual intimacy can only have been written by people straining mightily to fit the mysteries, fullness and candidly human pleasure of sex into a schema that violently divides the human person into unrecognizable parts. There’s a reason 96 percent of Catholics have ignored the birth control teaching for decades. We doubt the new document will significantly change that percentage.

So it is with gays. Here again, church authorities try to fit together two wildly diverging themes. They go something like this: Homosexuals are “objectively disordered” (that’s about as bad as it humanly gets, in our understanding of things), but we love them and want them to be members of our community.

Only this time out, the bishops are not using the term homosexual “orientation” (a definite position) but homosexual “inclination” (a liking for something or a tendency toward). Sly, no? The inference to be drawn, we presume, is that someone inclined one way can just incline another way, whereas someone with an orientation is pretty much stuck there.

That science and human experience generally say otherwise is of little concern, apparently, though the bishops were clear they weren’t suggesting that homosexuals are required to change. This time, too, the bishops, while acknowledging that those with homosexual tendencies should seek supportive friendships, advise homosexuals to be quiet about their inclinations in church. “For some persons, revealing their homosexual tendencies to certain close friends, family members, a spiritual director, confessor, or members of a church support group may provide some spiritual and emotional help and aid them in their growth in Christian life. In the context of parish life, however, general public self-disclosures are not helpful and should not be encouraged.”

The next paragraph in the document, by the way, begins, “Sad to say, there are many persons with a homosexual inclination who feel alienated from the church.” You can’t make this stuff up.

It is difficult to figure out how to approach these documents. They are products of some realm so removed from the real lives of the faithful one has to wonder why any group of busy men administering a church would bother. They ignore science, human experience and the groups they attempt to characterize. The documents are not only embarrassing but insulting and degrading to those the bishops are charged to lead. The saddest thing is that the valuable insights the bishops have into the deficiencies and influences of the wider culture get buried.

The Catholic Vote

Sightings  11/27/06

The Catholic Vote
-- Martin E. Marty

"God Gap Narrows as Democrats Take Majority of Catholic Vote" is Joe Feuerherd's headline in the liberal National Catholic Reporter (November 17).  "Republican hopes that socially conservative church-going Catholics would help forestall an electoral catastrophe in the 2006 midterm elections were not simply dashed.  They were obliterated, a real thumping."  The NCR editors had had little to cheer about on the Catholic vote front in recent years.  They and we had been told by many pundits that Roman Catholics were securely relocating themselves as blocs or in slots that would help make up a permanent Republican hegemony.

Now, however, "The Public Shakes Things Up."  This is the headline for the post-election column by editor Tom Roberts.  Blaming or crediting the war in Iraq most of all for the change, he pointed to the victory of progressive Kathleen Sebelius for governor in "redder than red" Kansas, among many other indicators.  He reported that Republican strategists had "hoped the so-called God gap" would continue to work in their favor.  But in exit polls, for whatever they're worth, 55 percent of Catholics said they voted Democratic.  Reliable analyst John Green, who watches these things for the Pew Forum on Religion and Public Life, observed: "More telling ... is that white Catholics -- considered the most swinging of swing voters -- gave a majority (50 percent) of their vote to Democratic candidates" -- a surprise.

Malfeasance, the Foley-Haggard-Katrina cluster of events, and issues of corruption and competence (more than philosophy and theology) were major determinants.  Opposition to abortion and gay marriage always galvanizes many, but this time not enough.  Referendums on such issues offered mixed news.  Green noted that if those two issues were not still prominent, ever more Catholics and Evangelicals would fold into the Democratic Party.  "Catholics care more about right and wrong than right and left," said Alexia Kelly of Catholics in Alliance for the Common Good.  Jeff Carr of the evangelical Sojourners group said that the "big losers" were "the secular left and the religious right."

The postscript editorial page in NCR judged the whole election "A Move Away from Extremism."  "The unilateral projection of U.S. power abroad and a domestic program that put individualism in hyper mode, and wrapped it all in a religiosity owing to the most extreme and conservative brand of Christianity" did not hold the place it had for several years.

While the returns gave liberal Catholics an occasion to cheer, the public at large may well welcome the shifting attitudes within the Catholic fold.  It is possible to make too much of one election as a turning point, but among other things it did lead editorialists to pay attention to more kinds of religious voters than those in the Christian Right, which they had seen as almost all-powerful.

Week after week we keep noting James Madison's observation that the security of rights in a republic depends on the diversity of interests, sects, and the like.  We can be sure that those weary of polarization will be working to energize the non-extremists, whose commitments are yet hard to assess.

----------
Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.

Sunday, November 26, 2006

Why do good--or even what you really want to do--when you can do well? Don't be stupid!

New York Times
November 27, 2006

Very Rich Are Leaving the Merely Rich Behind
By LOUIS UCHITELLE   

A decade into the practice of medicine, still striving to become “a well regarded physician-scientist,” Robert H. Glassman concluded that he was not making enough money. So he answered an ad in the New England Journal of Medicine from a business consulting firm hiring doctors.

And today, after moving on to Wall Street as an adviser on medical investments, he is a multimillionaire.

Such routes to great wealth were just opening up to physicians when Dr. Glassman was in school, graduating from Harvard College in 1983 and Harvard Medical School four years later. Hoping to achieve breakthroughs in curing cancer, his specialty, he plunged into research, even dreaming of a Nobel Prize, until Wall Street reordered his life.

Just how far he had come from a doctor’s traditional upper-middle-class expectations struck home at the 20th reunion of his college class. By then he was working for Merrill Lynch and soon would become a managing director of health care investment banking.

“There were doctors at the reunion — very, very smart people,” Dr. Glassman recalled in a recent interview. “They went to the top programs, they remained true to their ethics and really had very pure goals. And then they went to the 20th-year reunion and saw that somebody else who was 10 times less smart was making much more money.”

[Read the whole article.  Click here.]

To Hell With the Minimum Wage!

Richard Posner and Gary Becker attack the Democrats' plan to raise the minimum wage, here.

I wonder what Steve Bainbridge, Mark Sargent, and others--especially MOJ-readers who, unlike me, are economically literate--have to say.

Friday, November 17, 2006

A New Essay by MOJer Patrick Brennan

"The Decreasing Ontological Density of the State in Catholic
Social Doctrine"
     Villanova Law/Public Policy Research Paper No. 2006-23
          Villanova Law Review, Scarpa Symposium, Vol. 52, 2007

  Contact:  PATRICK MCKINLEY BRENNAN
              Villanova University School of Law
    Email:  [email protected]
Auth-Page:  http://ssrn.com/author=518225

Full Text:  http://ssrn.com/abstract=945201

ABSTRACT: Over the last century-plus, Catholic social thought has
gradually reduced the ontological density of the state, to the
point that the state now appears to have only a tentative grasp
on the natural law basis of its legitimacy. During the first part
of the twentieth century, Catholic social doctrine tended to view
the legitimate state as a participant in the divine rule;
although draped in a sacred mantle, the state was subject to the
limits imposed by the divine and natural law. In response to the
totalitarian states' transgressing of those limits at
mid-century, Catholic thinkers reduced the scope and stature of
the state's place in man's life in society, while insisting that
the state remain tethered to the natural law. Today, however,
Catholics and others face a laicized state that utterly denies
its obligations under the natural law. While Pope John Paul II
eventually responded to this denial by emphasizing the natural
law limits on the state, Pope Benedict has instead summoned
leaders and citizens to acknowledge and develop a state that is
committed to "reason," even if this means inviting unbelievers to
act "as if God exists." As understood by Pope Benedict XVI, the
state, a servant of individuals and diverse societies, is to
receive its content and direction from, among other sources, the
Church; it is to receive reason purified by faith.