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.

Wednesday, November 15, 2006

News from Ireland

MOJ-friend and Trinity College Dublin law prof Gerry Whyte sends this our way:

The Irish Times
November 15, 2006

Court says frozen embryos 'not unborn'

Luke Cassidy

A woman has lost a High Court battle to have frozen embyos implanted in her womb against the will of her estranged husband.

The woman claimed the embryos, created using in vitro fertilisation technology, should have been afforded the protection given to the unborn under the Constitution.

However, the High Court decided today that the three frozen embryos are not "unborn" as defined under the Constitution and it is a matter for the Oireachtas to decide on their legal status. Article 40.3.3 of the Constitution states acknowledges the right to life of the unborn "with due regard to the equal right to life of the mother".

But in a 26-page High Court ruling delivered this morning Mr Justice Brian McGovern said that three frozen embryos are "not 'unborn' with the meaning of Article 40.3.3 and it is a matter for the Oireachtas to decide what steps should be taken to establish the legal status of embryos in vitro".

"Laws should, and generally do, reflect society's values and will be influenced by them. But, at the end of the day, it is the duty of the courts to implement and apply the law, not morality," the judge said.

"Until the law or the Constitution is changed, this issue remains within the sphere of ethics and morality."

The ruling comes as an estranged Dublin couple battle over the use of three frozen embryos stored in the Sims Fertility Clinic, Rathgar.

The High Court has already ruled the estranged husband did not give his consent for the eggs to be used in the event of their marriage breaking up.

Today's ruling is the second stage of the case, with the judge asked to consider public and constitutional law issues.

Archbishop of Dublin Diarmuid Martin has said he is seriously concerned by today's High Court ruling against a woman who tried to have frozen embyos implanted in her womb against the will of her estranged husband.

The Archbishop said the court's ruling that the three frozen embryos are not "unborn" as defined under the Constitution "cast doubt on what rules were in place to protect life".

The Pro-Life Campaign said it was "confident the Supreme Court will vindicate the rights of the human embryo if the judgement is appealed."

The Labour Party welcomed the clarity that the High Court decision on the frozen embryo case has brought, although it insists that the Government must now produce legislation for assisted reproduction clinics.

Eduardo now at dotCommonweal

Eduardo Peñalver, like fellow MOJ-blogger Mark Sargent, is now blogging at dotCommonweal.  For Eduardo's first post there, commenting critically on the

New U.S. Bishops' Document on Homosexuality

click here.

Sunday, November 12, 2006

Torture

New York Times
November 11, 2006

A Topic in the Air but One That Political Candidates Declined to Touch: Torture of Prisoners

The October issue of Theology Today, a scholarly journal published by the Princeton Theological Seminary, featured a series of articles on torture. “It is a matter of shame,” writes one of the contributors, Jeremy Waldron, a professor of law at New York University, that “we have no choice but to conduct a national debate about torture.”

That debate, Professor Waldron continues, is not about stopping torture by “corrupt and tyrannical regimes” but about whether the American people and the American nation want “to remain part of the international human rights consensus that torture is utterly beyond the pale.”

There were few if any signs of such a debate in the midterm election campaigns. That cannot simply be because of the government’s insistence that the United States abhors torture and does not practice it. The government insists on many things — about the war in Iraq and economic prosperity, for example — that its political opponents do not hesitate to challenge and challenge vociferously.

Torture is different. It is such a stain on personal and national character that nothing but appalling photographs could have forced the subject to the fore. When it comes to pressing the question of official complicity, no stack of equivocating documents can have similar force. In a season of shameless attack ads, torture is still too shameful to be debated.

As for religious reaction, Fleming Rutledge, the Episcopal priest and noted preacher, said in this issue of Theology Today, “In my lifetime, I do not remember any major public question being so studiously ignored as this one.”

The journal articles stem from an effort to change that. They are based on presentations at the founding conference, in Princeton last January, of the National Religious Campaign Against Torture. Prominent religious leaders, Protestant (both mainline and evangelical), Roman Catholic, Eastern Orthodox, Jewish and Muslim, issued a statement, “Torture Is a Moral Issue,” that was a sweet seven sentences in length:

“Torture violates the basic dignity of the human person that all religions, in their highest ideals, hold dear. It degrades everyone involved — policy makers, perpetrators and victims. It contradicts our nation’s most cherished values. Any policies that permit torture and inhumane treatment are shocking and morally intolerable.

“Nothing less is at stake in the torture abuse crisis than the soul of our nation. What does it signify if torture is condemned in word but allowed in deed?

“Let America abolish torture now — without exceptions.”

It is hard to say how much the Theology Today articles add to that succinct statement. In one, William T. Cavanaugh, who teaches theology at the University of St. Thomas in St. Paul, draws on his previous study of torture by the Pinochet government in Chile. His most provocative observations may be that, however counterintuitive, “those who torture tend to think of their work in extremely high moral terms.”

Citing examples from Chile, Professor Cavanaugh notes that “torturers sometimes imagine their acts as a kind of self-sacrifice on their part: ‘What terrible things I must do in order to defend my beloved people!’ ”

What goes for the individual torturer can go for the nation as a whole. “The moral purpose is made more righteous,” Professor Cavanaugh writes, “by the extremity of the act of torture itself.” By definition, “the threat against the nation must be extremely severe if such an extreme procedure as torture is used.”

The argument is strangely circular, but it ends in the conviction, he says, that “only the most morally righteous nation could be trusted with the capacity to use torture for a good purpose.”

In another article, a leading evangelical ethicist, David P. Gushee, a professor of moral philosophy at Union University in Jackson, Tenn., worries that the United States is “succumbing to the temptation to waive moral rules that we have every reason to know are applicable to us.”

“We know that torture is wrong,” Dr. Gushee writes, “but just not now, not in our exceptional case, not in this global war on terror. Yet we are queasy enough, that we do not want to call torture, torture.”

Instead, he continues, “we deny that we are torturing, or we deny that our prisoners are really prisoners, or when pushed to the wall, we remind one another of how evil the enemy is and how much worse other countries or ideologies are.”

“We give every evidence,” he concludes, “of the kind of self-deception so characteristic of the descent into sin.”

Dr. Gushee has not limited his concern to scholarly pages. Last February he wrote an article for the popular evangelical monthly Christianity Today titled “5 Reasons Torture Is Always Wrong.”

All these writers must step carefully around the fact that the president and other American authorities have repeatedly denied that the government tolerates torture — even while they reserve its right to use what are delicately referred to in official parlance as “enhanced” or “alternative” interrogation techniques.

Obviously, these theologians have something less than complete confidence in such official protestations, and one can understand why.

In a White House compromise with a small group of adamant Republicans, last month’s Military Commissions Act, for example, left standing the United States’ commitment to Common Article 3 of the Geneva Conventions protecting prisoners from violence, cruelty, torture and humiliating and degrading treatment.

But while the legislation spelled out certain “grave breaches” of Common Article 3 that would constitute war crimes, it also underlined the president’s power to interpret the nation’s obligations, to define what is grave or not and to screen his definitions from court challenges, and maybe even from public knowledge.

Already, the Central Intelligence Agency has warned that detained Qaeda suspects must not be allowed to disclose their treatment to courts — or perhaps even to their own lawyers — lest other terrorists “adapt their training to counter the tactics that C.I.A. can employ in interrogations.”

Is there any way around this lack of transparency? Here is one idea, admittedly inspired not by sober theological analysis but by political ads.

Let all interrogations be videotaped (interrogating off camera would itself be a “grave breach”). Three years after any interrogation, the video would be made public. One could assume that by that time terrorists would have learned whatever techniques had then been in use.

The important feature, of course, would be the kind of endorsement now required of campaign advertising — a closing shot of the president on screen. “This interrogation was paid for by the American people,” the president would have to say, “and I approve of its methods.”

Saturday, November 11, 2006

Recommended Reading

A new essay by MOJ-friend, Greg Kalscheur, SJ.

       
Moral Limits on Morals Legislation:
Lessons for U.S. Constitutional Law
from the Declaration on Religious Freedom

GREGORY A. KALSCHEUR
Boston College - Law School
       
Boston College Law School Research Paper No. 111                  
Southern California Interdisciplinary Law Journal, Vol. 16, Fall 2006          
Abstract:    
A persistent American confusion regarding the proper relationship between law and morality is manifest in the opinions in Lawrence v. Texas. The Second Vatican Council's Declaration on Religious Freedom provides the foundation for an analytical framework that can bring clarity to that confusion. The heart of this framework is the moral concept of public order. This concept offers a principled explanation of both the holding in Lawrence and the limitations the Court placed on that holding. The Court could clarify the confusion manifest in Lawrence by explicitly acknowledging that a state interest only becomes legitimate for purposes of rational basis review when the asserted interest constitutes a public order concern. A constitutional jurisprudence that aspires to be faithful to the sort of limited government that is demanded by respect for human dignity should recognize that the state can only use law to restrain human freedom when that limitation serves a public order function.

To download/print/read, click here.

Friday, November 10, 2006

A Message from Cathy Kaveny, Prompted by Michael Scaperlanda's Post

[Michael S's post here.  Now, Cathy's message:]

Dear Michael,

I heard you posted my Commonweal blog contribution on Mirror of Justice, and I just learned of Michael Scaperlanda’s quite negative reaction to it.  And I wanted to take a minute to respond to him.  He is quite right to point out that my response to Robby George and Gerry Bradley two years ago was heated.   I was hurt and angered by their response to Dean Roche'’s op-ed, which strongly implied that Roche, and by implication, other hold-your-nose -and-vote-for-Kerry types ­like me, were either stupid ­ dupes of the NY Times, or else in bad faith about being pro-life.   Remember, at the time, prominent conservative Catholics were saying that it was a mortal sin to vote for Kerry-- a sin, if done with full consent of the will and sufficient reflection, would deprive one of eternity with God.  It saddens me that Catholics like Professor Scaperlanda can't see how deeply hurtful this way of framing the debate is to their fellow believers. I thought then, and continue to think now, that the rhetorical strategy Bradley and George used was not a helpful way to conduct a discussion of complicated issues involving prudential judgment. It shuts down conversation, it doesn’'t open it up. Professor Scaperlanda suggests that I continued the tone in protesting it.  Perhaps.  But then, I didn'’t know ­ and still don'’t know -- how one can effectively protest what one believes is an attack on one'’s fundamental integrity as a Catholic.

I took this dust-up very seriously, though.  After the election, I started to think more systematically, and academically, about how moral conversation should take place;  ­ more specifically, I started to think about the relationship of rhetoric and morality.  I came to recognize that there were two types of moral discourse dominating the religious discourse around the 204 election: 1) practical reason or casuistry and 2) prophetic discourse.  I looked at these issues in light of abortion and torture in the 2004 election, and examined when and how both the religious right and the religious left employed both rhetorical forms.  I came to the conclusion that 1) practical moral reasoning or casuistry is our normal form of discourse; 2) prophetic discourse rightly comes in when the conditions for the possibility of  sound moral discourse have broken down.  But it has its dangers.  Prophecy is best viewed as a moral chemotherapy.  It aims at destroying a cancer within the moral conversation, in order to reconstruct on a sound basis.  But like actual chemotherapy, sometimes it destroys too much good along with the bad and ends up seriously harming the polity it purports to be saving. The full-blown 80 page analysis (Latin footnotes and all) is in “Prophecy and Casuistry: Abortion, Torture, and Moral Reasoning,” Villanova Law Review, 2006.  I hope to turn it into a book.

My bottom -line position, right now is this: the culture of death v. the culture of life rhetoric is prophetic in the way it functions in our moral discourse.  It has real destructive consequences for our common conversation, even if those who deploy it do so for a constructive end.  Once someone tells you you’re part of the culture of death, or voting for the contemporary equivalent of Nazis, or slaveowners, there’s just nowhere for the conversation to go.

My take on the 2006 election:  Most Americans now believe the country needs a reasonable conversation; they want practical reason, not prophecy. The culture wars rhetoric has to fade into the background for that conversation to occur.

Best,

Cathy

Response to a Post by Lisa Schiltz

I shared with a colleague Lisa's post titled  "Support for Complementarity" (here).  I thought that my colleague's response would be of interest:

About the Wellesley College study on the impact of women on corporate boards.  I couldn't get web access to the study itself, only to the abstract of the study.  The abstract doesn't tell me much about the methodology of the study. I do know that of 62 persons interviewed, 50 were women directors who, not surprisingly, tell us that having lots of women on boards is a good thing for corporations.  Why only 12 CEOs?  How many of them were women?  Is bias possible here?

The next problem with the methodology is the interview format.  Economists care more about what behavior reveals than what people say, and thus are always suspicious of survey results.  In this particular area of corporate governance, the question that is usually asked about various practices that have been studied is "do they improve corporate performance, as evidenced in stock prices?"  There are studies that demonstrate that even long term anticipated benefits, such as from research, are reflected in current stock prices. There is no suggestion in this blog or the abstract of any such rigor in this study.

I serve on the Nomination and Governance Committee of [name deleted], which I currently chair.  (We have one woman on our board, a representative of a venture capital firm that is an investor.)  We have been looking for new directors, using both the contacts of our current board members and a search firm.  Very few women have shown up in the pool, and their experience has generally been more limited than that of the men, many of whom have served as CEOs and COOs of public companies.  The limited number of women CEOs and COOs thus explains the thin pool of women candidates, as far as I can tell.

One response to this problem might be - why not think outside the box, and pick candidates with other kinds of experiences?  On our board, I'm an example of such a pick - an academic.  One of the problems is that I add value only in certain limited areas to the board's deliberations.  I don't understand science, and I have no experience in the drug industry. Here I learn from and rely on others, which is proper.  But how many such semi-ignorant board members do we need?  Does a woman have a different take on issues of drug development than a man?  I can't see how - we do our research in limited areas - HIV and Hepatitis drugs, where gender doesn't seem to play a role.  Has the company hired women for responsible positions? Two of our vice presidents (regulatory affairs and alliance and project management) are women.  We have one Hispanic vice president. What we look for are the smartest and most experienced people we can attract, because the united goal of the board is to (1) find the financing to allow us to develop and test our present and future drugs, (2) get them through the clinical process to FDA approval, and (3) then get them into the market where they can save lives and earn a return for our investors, some of whom have been stockholders for eight years without any return at all.  This kind of patience is what it takes in the drug  development business.  I can't see how gender makes a difference here.

There may be companies where gender might matter.  Consumer product companies where the market is largely composed of women is an obvious example.  There may be other companies faced with charges or complaints involving gender, such as discrimination, where women's insights could be valuable.  But proving that would require a focused empirical study, not simple assertions or anecdotal observations.

The Role of Religion in Health Law & Policy

This may be of interest to some MOJ-readers:

6 HOUSTON JOURNAL OF HEALTH LAW & POLICY, NO. 2, PP. 245-377, 2006. The Role of Religion in Health Law and Policy Symposium.  6 Hous. J. Health L. & Pol'y 245-377 (2006). [L][W]

Winslade, William J. and Ronald A. Carson. Foreword: The Role of Religion in Health Law and Policy. 6 Hous. J. Health L. & Pol'y 245-248 (2006). [L][W] Dolgin, Janet L. New terms for an old debate: embryos, dying, and the "culture wars". 6 Hous. J. Health L. & Pol'y 249-273 (2006). [L][W] Davis, Dena S.  The puzzle of IVF.  6 Hous. J. Health L. & Pol'y 275-297 (2006). [L][W] Griffin, Leslie C.  Conscience and emergency contraception.  6 Hous. J. Health L. & Pol'y 299-318 (2006). [L][W] Noah, Barbara A.  The role of religion in the Schiavo controversy.  6 Hous. J. Health L. & Pol'y 319-346 (2006). [L][W] Singer, Lawrence E.  Does mission matter.  6 Hous. J. Health L. & Pol'y 347-377 (2006). [L][W]

Minnesota Muslim Elected to U.S. Congress

This is worth reading.  (I read somewhere that Representative-elect Ellison converted to Islam from Catholicism.)  An excerpt:

But Muslims across America, and even overseas, celebrated his election Tuesday as the first Muslim in Congress, representing Minnesota’s Fifth District in the House of Representatives, as a sign of acceptance and a welcome antidote to their faith’s sinister image.

“It’s a step forward; it gives the Muslims a little bit of a sense of belonging,” said Osama A. Siblani, the publisher of The Arab American News, a weekly in Dearborn, Mich., a state with one of the heaviest concentrations of Muslims. “It is also a signal to the rest of the world that America has nothing against Muslims. If we did, he wouldn’t have been elected.”

Mr. Ellison’s success was front-page news in several of the Arab world’s largest newspapers and high in the lineup on television news programs.

A thoughtful--and, to me, compelling--comment on the election by J. Peter Nixon at dotCommonweal

"Put Not Your Trust in Princes"

A rather enormous amount of digital “ink” has been spilled over the last couple of days analyzing the election. I can’t imagine there is any discernable trend—Catholic or otherwise—that hasn’t been thoroughly analyzed by smarter people than me.

After the election I felt the same way that I felt after my gall bladder surgery: relieved that something unhealthy had been removed, but not exactly ready to jump for joy. I think I need a few days in bed with some Vicodin to recover.

By “unhealthy,” I don’t mean that the Republican Party itself is a font of contagion. But 12 years in power is a long time. The system of checks and balances had clearly broken down. Control of one branch of government corrupts and control of two branches corrupts absolutely. For all kinds of reasons, it was time for a change.

Will the Democrats be any better? For a time, it may be so. Certainly there are aspects of the common good that might be better served by a Democratic Congress. But there are also issues where Catholics and the mainstream of the party have often been at odds. Those of us inclined to be pleased at last Tuesday’s result have a special obligation not to mute our prophetic voice simply because our political allies now hold the reins of power.

Let me close with two final points. The first is we need to take a hard look at the way that politics is affecting how we relate to one another within the Church. There are practicing Catholics active in both of the major political parties, and that is a good thing. But there are dangers here too. One danger is that our partisan affiliation becomes more predictive of our stands on certain issues than the fact that we are members of the Body of Christ. The second danger—one well highlighted by Cathy below—is when we import into the Church the kind of bitter, partisan discourse that has become all too common in our political campaigns. Our bishops, in particular, need to provide leadership in these areas.

My last point is that we need to place politics in its proper place within the apostolic life to which we are called.  I believe deeply that Catholics are called to collaborate with all men and women of good will to achieve a more just and well-ordered society. But I don’t believe that the fundamental transformation of society to which Christians are called is something that is primarily accomplished through the coercive power of the state. Our primary focus must be Christian formation rather than political mobilization, trusting that well-formed Christians will have the virtues necessary to contribute effectively to the common good.

Having said these things, I hope you will join me praying for our elected officials.
_______________
mp

Thursday, November 9, 2006

Lifted from dotCommonweal

The Election and the (Culture) War

What does the 2006 election mean for Catholic participation in American political life? I think this country is sick of endless war – literal war and metaphorical war. Political commentators say that the midterm elections were a referendum on the war in Iraq, which is spilling the blood of both Americans and Iraqis with no clear political objective and no clear exist strategy. In my view, it is also a referendum on the culture wars: the take-no-prisoners-and-admit-no-doubt strategy of the Religious Right, which ended up being nothing more than a pathetic mirror image of the same strategy used by the secular Left twenty years earlier. I hope that the resounding defeat of Rick Santorum signals the end of this way of rhetorically framing controversial moral and social issues in both the Catholic Church in America and in American political life more generally. The way the theocons framed and defended the Iraq War was strikingly consonant with their framing of controversial domestic issues. I think – I hope – the viewers are saying that it’s this prophetic (and perhaps apocalyptic) frame that has to go.

1.      A Manichean world view: it’s Good v. Evil, the forces of light v. the forces of darkness.  And by the way, WE are GOOD.

2. A delight in demonizing the opposition: who could see anything good in the forces of darkness? How could the forces of darkness have any point worth considering whatsoever?
 
3. An inability to recognize hard questions, and to acknowledge good faith disagreement about difficult moral and political issues. To Catholic culture warriors, the question of stem-cell research, or the Terri Schiavo case, weren’t even hard questions. The very suggestion that they are hard questions proved your moral turpitude.

4. An ends-justifies-the-political-means mentality. If what it takes to rid the world of Saddam is prevarication on WMDs, so be it. If what it takes to save Terri Schiavo is to violate settled principles of federalism, so be it.

5. An inability to see nuance, or to take into account anything but one moral principle at a time. Abortion is the taking of innocent human life. Nothing else needs to be said. Therefore it should always be illegal, even in cases of rape or incest. If you think the question of the woman’s consent to sex is at all relevant to the legal status of abortion, you’re the enemy.

6. A preference for the stick rather than the carrot – after all, you can’t fight a war with a carrot. Support marriage by banning gay marriage; don’t provide married couples with the social support and other resources they need to make their commitment stick. Be pro-life by banning abortion, not by voting for social services that will prevent unwanted pregnancies.

You can’t argue someone out of a culture war mindset – on either side. You can’t make someone see nuance if they don’t want to see it. It’s a waste of time to try and do so. But maybe social conservatives who aren’t culture warriors – who see distinctions, who see some good in their misguided political opponents — might find a way of working together with social progressives of the same ilk.
 
For Catholics, I suggest the following:

1.  The theological model should be Benedict’s Augustinian Deus Caritas Est – not John Paul II’s “Culture of Life v. Culture of Death.” The culture of life v. culture of death language too easily feeds Manichean tendencies present deeply present in our culture.

2.  The legal model on abortion and marriage issues should be Mary Ann Glendon’s Abortion and Divorce in Western Law. It also should be the rhetorical model. It is humane, gradualist, and more concerned with the role of law as a teacher than law as police officer. I quote my colleague Don Kommer’s blurb on the back of my copy of the book:

“This book is dynamite. It blows to bits the often-heard contention that compromise on abortion policy is impossible in a divided society. The experience of other nations equally sundered along religious and moral lines shows that it is possible to craft an abortion policy marked by compassion for pregnant women and respect for unborn life. The argument of this book is graceful, elegant and persuasive. One reason for its persuasiveness is the author’s sympathy for the commitments and concerns of both sides for the abortion controversy.” She appeals to their deepest convictions, as well as to the general values of American society, to show that somewhere between the extreme positions of abortion on demand and no abortion at all a sensible and sensitive policy favored by most Americans is to be found.”

The book was written nearly twenty years ago. I am not sure that Professor Glendon still endorses its approach. But I think it is worth taking a second look at.

by Cathleen Kaveny (Permalink)