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, July 15, 2006

In case you're interested ...

Some MOJ-readers may be interested in a piece I have in the current issue (7/14/06) of Commonweal--a piece titled The Morality of Human Rights:  A Problem for Nonbelievers.  To read the piece, click here.  (If anyone has any comments, I'd love to hear them:  [email protected].)
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Monday, July 3, 2006

Recommended Reading

Speaking of Christian legal theory, check this out:

Susan Pace Hamill, An Evaluation of Federal Tax Policy Based on Judeo-Christian Ethics, 25 Virginia Tax Review 671 (2006).  You can download it from SSRN, where it was posted several months ago.  Here's the abstract:

This article severely criticizes the Bush Administration's tax policies under the moral principles of Judeo-Christian ethics. I first document that Judeo-Christian ethics is the most relevant moral analysis for tax policy because almost eighty percent of Americans and well over ninety percent of the Congress, including President Bush, claim to adhere to the Christian or Jewish faiths. I also show that evaluating federal tax policy under Judeo-Christian principles not only passes constitutional muster but is also appropriate under the norms of a democracy. I then provide a complete theological framework that can be applied to any tax policy structure. Using sources that include leading Evangelical and other Protestant scholars, Papal Encyclicals and Jewish scholars, I prove that tax policy structures meeting the moral principles of Judeo-Christian ethics must raise adequate revenues that not only cover the needs of the minimum state but also ensure that all citizens have a reasonable opportunity to reach their potential. Among other things, reasonable opportunity requires adequate education, healthcare, job training and housing. Using these theological sources, I also establish that flat and consumption tax regimes which shift a large part of the burden to the middle classes are immoral. Consequently, Judeo-Christian based tax policy requires the tax burden to be allocated under a moderately progressive regime. I discuss the difficulties of defining that precisely and also conclude that confiscatory tax policy approaching a socialistic framework is also immoral. I then apply this Judeo-Christian ethical analysis to the first term Bush Administration's tax cuts and find those policies to be morally problematic. Using a wealth of sources, I then establish that the moral values driving the Bush Administration's tax policy decisions reflect objectivist ethics, a form of atheism that exalts individual property rights over all other moral considerations. Given the overwhelming adherence to Christianity and Judaism, I conclude that President Bush, many members of Congress and many Americans are not meeting the moral obligations of their faiths, and, I argue that tax policy must start reflecting genuine Judeo-Christian values if the country is to survive in the long run.
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A Message from a MOJ-Reader

[This morning I received the following message from David Schraub, a student at Carleton and an enthusiastic MOJ-reader.  At the end of his message, David has a generous compliment for the motley crew of MOF-bloggers.  David's message was prompted by my post this weekend on the decision of the Arkansas Supreme Court.]

Professor Perry,

I read with interest the Arkansas Supreme Court's decision regarding gay  foster parents. Several months ago, I blogged about the original trial court decision [here],which was a fascinating read because it did a great job running through all the testimony on the scientific data regarding gay parenting. The key witness, Dr. Michael Lamb, testified that having a gay parent:

"(i) does not increase the risk of problems of adjustment for children; (ii) does not increase the risk of psychological problems for children; (iii) does not increase the risk of behavioral problems; (iv) does not prevent children from forming healthy relationships with their peers and others; (v) does not cause academic problems; (vi) does not cause gender identity problems; and (vii) does not cause any adjustment problems at all."

I thought it would make an interesting appendix to your post.

I don't know how many Jewish readers you have, but I for one find you and all your co-bloggers to be consistently erudite, articulate, and well-argued. Keep up the great work. I hope to become a law professor some day, and yours is an excellent model for all of us aspiring scholar-bloggers to follow.

Yours,
David Schraub
The Debate Link: http://dsadevil.blogspot.com
Carleton College '08
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Saturday, July 1, 2006

Reply to Rick

Dear Rick,

Contrary to what you stated in your post, the Arkansas Supreme Court did not rule that it is improper for "the state" or "government" to regulate public morality.  It ruled that the Child Welfare Agency Review Board was acting beyond its statutory mandate--it was acting ultra vires--in ruling on the basis of its moral opposition to homosexuality.  The court did not suggest that the Arkansas legislature could not establish a foster-care rule based on its moral opposition to homosexuality.  But in the court's judgment the Child Welfare Agency Review Board had usurped the legislative function; it acted beyond its statutory mandate, thereby violating the separation of powers (opined the court).

Happy Fourth of July.

Michael

Same-Sex Foster Parents

I thought that MOJ-readers would be interested in this.  (I'm very sympathetic to the Arkansas Supreme Court's reasoning, but that's neither here nor there.)  I provide a link to the opinion below.

New York Times

June 30, 2006

Court Overturns Arkansas Ban on Same-Sex Foster Parents
By THE ASSOCIATED PRESS

LITTLE ROCK, Ark., June 29 (AP) — Arkansas cannot bar gay men and lesbians from becoming foster parents because there is no link between their sexual orientation and a child's well-being, the State Supreme Court ruled Thursday.

On a vote of 7 to 0, the justices agreed with a lower court judge that the state's Child Welfare Agency Review Board, which adopted the ban in 1999, had improperly tried to regulate public morality and had violated the separation of powers between the executive branch and the General Assembly, Arkansas's legislature.

In approving the policy, the board had said children should be in traditional two-parent households headed by a man and a woman because, it said, they would be more likely to thrive. Four Arkansas residents, represented by the American Civil Liberties Union, filed suit claiming discrimination and privacy violations against gay men and lesbians who otherwise qualified as foster parents.

The justices agreed Thursday, saying the ban was "an attempt to legislate for the General Assembly with respect to public morality."

"There is no correlation between the health, welfare and safety of foster children and the blanket exclusion of any individual who is a homosexual or who resides in a household with a homosexual," Associate Justice Donald L. Corbin wrote in the opinion.

In addition, the court said, the testimony of a member of the child welfare board demonstrated that "the driving force behind adoption of the regulations was not to promote the health, safety and welfare of foster children but rather based upon the board's views of morality and its bias against homosexuals."

The court also said that contrary to what the state had argued, being raised by homosexuals did not cause academic or sexual identity problems.

Julie Munsell, a spokeswoman for the Arkansas Health and Human Services Department, which oversees the child welfare board, said that the ban had not been applied since the lower court ruling in 2004 and that the plaintiffs had not sought foster-parent status since then.
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To read the Arkansas Supreme Court's opinion, click here.
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Amnesty International and Abortion

This is from The Tablet [London], July 1, 2006.

Australia

Amnesty 'losing ability to distinguish human rights'.  CHRISTIANS WOULD be compelled to resign membership from Amnesty International if it accepted that abortion was a human right, Cardinal George Pell has warned, saying the humanitarian organisation was "on the brink of working for a universal right to kill".

The Archbishop of Sydney said that the notion of human rights had become so twisted that the claim that every woman had the right to abort her baby was "double-speak at its best".

"Amnesty now has 1.8 million members around the world but any decision that a woman's rights to physical and mental integrity include her right to terminate her pregnancy will mean that gospel Christians in every mainline denomination will be compelled to resign," the cardinal wrote in his weekly column in Sydney's Sunday Telegraph. "Much of the group's energy and enthusiasm will be drained from it."

Noting that the organisation was founded in 1961 by a Catholic, Peter Benenson, Cardinal Pell said it was a "tragedy" that after 45 years Amnesty risked "losing its capacity to distinguish a genuine human right from a totally bogus claim".

Cardinal Pell wrote that a woman's reproductive right to choose could not suppress the more basic human right to life itself, citing Article 3 of the United Nations Declaration of Human Rights, which proclaims that everyone has the right to life, liberty and security of person.

He praised Amnesty's record, but warned that the UN declaration was now under threat.

"Formerly, Amnesty had a neutral position on abortion because there was no generally accepted right to abortion in international human rights law."

Cardinal Pell wrote that New Zealand and Britain had adopted pro-abortion positions, with Amnesty's Australian branch due to vote within days.

The cardinal noted that in every country where Amnesty's intentions had been made public, Christian leaders had objected strongly. Amnesty had gone "particularly quiet" in the United States because pro-life awareness and sympathies were more developed there.

"Pope John Paul II said that an inability to distinguish good from evil is the most dangerous crisis which can [affect] man," Cardinal Pell wrote.

"Let us hope there will be sufficient clear-minded humanitarians in Australia, and throughout the world, to prevent Amnesty making a terrible mistake and betraying its origins."
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Thursday, June 29, 2006

The Doctrine of Double Effect, Etc.

While at a gathering in Dublin this week (with MOJ-friends Gerry Whyte, Chris Eberle, and others), I had occasion to read a book by the Trinity College Dublin professor of theology who organized the gathering, Nigel Biggar.  The book is titled Aiming to Kill:  The Ethics of Suicide and Euthanasia (2004).  I want to call to the attention of MOJ-readers chapter 3 of the book:  "The Morality of Acts of Killing".   Chris Eberle, who also read the book, and I agree that Professor Biggar provides, in chapter 3, an admirably accessible and wonderfully thoughtful discussion of the doctrine of double effect, dealing with several competing positions. One of the best discussions of the DDE we've ever read.  Click here for a link to the book.
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Friday, June 23, 2006

Jesus not a Republican? An evangelical Christian speaks ...

[The following piece will be of interest to many MOJ-readers.   I would have excerpted the piece and posted a link to the  entire essay, but as I understand how the online Chronicle of Higher Education works, the link would have expired after three days.  So I'll just paste the entire essay here.  (Sorry, Mark.)

If someone can tell me how to provide a link that does not expire, I'll delete this post, excerpt the piece, and provide that link.

Now, off to Trinity College Dublin to discuss the Christian foundations of political liberalism with MOJ-friends Chris Eberle and Gerry Whyte (and others too)!

Be well, all.

Michael]

The Chronicle Review
June 23, 2006

Jesus Is Not a Republican

In November 2002, 30 years after my previous visit to Wheaton College to hear George McGovern, I approached the podium in Edman Chapel to address the student body. At evangelical colleges like Wheaton, in Illinois, there are two kinds of required gatherings: chapel and convocation. The former is religious in nature, whereas a speaker at convocation has the license to be far more discursive, even secular — or political. The college's chaplain, however, had invited me to preach in chapel, not convocation, and so, despite temptation, I delivered a homily that was, as I recall, not overly long, appropriate to the occasion, and reasonably well received.

I doubt very much that I will be invited back to Edman Chapel. One of the benefits of being reared within evangelicalism, I suppose, is that you understand the workings of the evangelical subculture. I know, for example, that when my new book on evangelicals appears, the minions of the religious right will seek to discredit me rather than engage the substance of my arguments. The initial wave of criticism, as an old friend who has endured similar attacks reminded me, will be to deny that I am, in fact, really an evangelical Christian. When that fails — and I'll put up my credentials as an evangelical against anyone's! — the next approach will be some gratuitous personal attack: that I am a member of the academic elite, spokesman for the Northeastern establishment, misguided liberal, prodigal son, traitor to the faith, or some such. Another evangelical friend with political convictions similar to mine actually endured a heresy trial.

The evangelical subculture, which prizes conformity above all else, doesn't suffer rebels gladly, and it is especially intolerant of anyone with the temerity to challenge the shibboleths of the religious right. I understand that. Despite their putative claims to the faith, the leaders of the religious right are vicious toward anyone who refuses to kowtow to their version of orthodoxy, and their machinery of vilification strikes with ruthless, dispassionate efficiency. Longtime friends (and not a few family members) will shuffle uneasily around me and studiously avoid any sort of substantive conversation about the issues I raise — and then quietly strike my name from their Christmas-card lists. Circle the wagons. Brook no dissent.

And so, since my chances of being invited back to Edman Chapel have dropped from slim to none, I offer here an outline of what I would like to say to the students at Wheaton and, by extension, to evangelicals everywhere.

Evangelicals have come a long way since my visit to Edman Chapel in 1972. We have moved from cultural obscurity — almost invisibility — to becoming a major force in American society. Jimmy Carter's run for the presidency launched us into the national consciousness, but evangelicals abandoned Carter by the end of the 1970s, as the nascent religious right forged an alliance with the Republican Party.

In terms of cultural and political influence, that alliance has been a bonanza for both sides. The coalition dominates talk radio and controls a growing number of state legislatures and local school boards. It is seeking, with some initial success, to recast Hollywood and the entertainment industry. The Republicans have come to depend on religious-right voters as their most reliable constituency, and, with the Republicans firmly in command of all three branches of the federal government, leaders of the religious right now enjoy unprecedented access to power.

And what has the religious right done with its political influence? Judging by the platform and the policies of the Republican Party — and I'm aware of no way to disentangle the agenda of the Republican Party from the goals of the religious right — the purpose of all this grasping for power looks something like this: an expansion of tax cuts for the wealthiest Americans, the continued prosecution of a war in the Middle East that enraged our longtime allies and would not meet even the barest of just-war criteria, and a rejiggering of Social Security, the effect of which, most observers agree, would be to fray the social-safety net for the poorest among us. Public education is very much imperiled by Republican policies, to the evident satisfaction of the religious right, and it seeks to replace science curricula with theology, thereby transforming students into catechumens.

America's grossly disproportionate consumption of energy continues unabated, prompting demands for oil exploration in environmentally sensitive areas. The Bush administration has jettisoned U.S. participation in the Kyoto Protocol on climate change, which called on Americans to make at least a token effort to combat global warming. Corporate interests are treated with the kind of reverence and deference once reserved for the deity.

The Bible contains something like 2,000 references to the poor and the believer's responsibility for the poor. Sadly, that obligation seems not to have trickled down into public policy. On judicial matters, the religious right demands appointees who would diminish individual rights to privacy with regard to abortion. At the same time, it approves a corresponding expansion of presidential powers, thereby disrupting the constitutionally mandated system of checks and balances.

The torture of human beings, God's creatures — some guilty of crimes, others not — has been justified by the Bush administration, which also believes that it is perfectly acceptable to conduct surveillance on American citizens without putting itself to the trouble of obtaining a court order. Indeed, the chicanery, the bullying, and the flouting of the rule of law that emanates from the nation's capital these days make Richard Nixon look like a fraternity prankster.

Where does the religious right stand in all this? Following the revelations that the U.S. government exported prisoners to nations that have no scruples about the use of torture, I wrote to several prominent religious-right organizations. Please send me, I asked, a copy of your organization's position on the administration's use of torture. Surely, I thought, this is one issue that would allow the religious right to demonstrate its independence from the administration, for surely no one who calls himself a child of God or who professes to hear "fetal screams" could possibly countenance the use of torture. Although I didn't really expect that the religious right would climb out of the Republican Party's cozy bed over the torture of human beings, I thought perhaps they might poke out a foot and maybe wiggle a toe or two.

I was wrong. Of the eight religious-right organizations I contacted, only two, the Family Research Council and the Institute on Religion and Democracy, answered my query. Both were eager to defend administration policies. "It is our understanding, from statements released by the Bush administration," the reply from the Family Research Council read, "that torture is already prohibited as a means of collecting intelligence data." The Institute on Religion and Democracy stated that "torture is a violation of human dignity, contrary to biblical teachings," but conceded that it had "not yet produced a more comprehensive statement on the subject," even months after the revelations. Its president worried that the "anti-torture campaign seems to be aimed exclusively at the Bush administration," thereby creating a public-relations challenge.

I'm sorry, but the use of torture under any circumstances is a moral issue, not a public-relations dilemma.

And what about abortion, the issue that the religious right decided in the early 1980s was its signature concern? Since January 2003, the Republican and religious-right coalition has controlled the presidency and both houses of Congress — yet, curiously, it has not tried to outlaw abortion. Why? Could it be that its members are less interested in actually reducing the incidence of abortion itself (in which case they should seek to alter public opinion on the matter) than in continuing to use abortion as a potent political weapon?

Equally striking is the rhetoric that leaders of the religious right use to motivate their followers. In the course of traveling around the country, I have been impressed anew by the pervasiveness of the language of militarism among leaders of the religious right. Patrick Henry College, according to its founding president, Michael Farris, "is training an army of young people who will lead the nation and shape the culture with biblical values." Rod Parsley, pastor of World Harvest Church, in Ohio, issues swords to those who join his organization, the Center for Moral Clarity, and calls on his followers to "lock and load" for a "Holy Ghost invasion." The Traditional Values Coalition advertises its "Battle Plan" to take over the federal judiciary. "I want to be invisible. I do guerrilla warfare," Ralph Reed, former director of the Christian Coalition, famously declared about his political tactics in 1997. I wonder how that sounds in the ears of the Prince of Peace.

Such rhetoric and policies are a scandal, a reproach to the gospel I honor and to the Jesus I love. I went to Sunday school nearly every week of my childhood. But I must have been absent the day they told us that the followers of Jesus were obliged to secure even greater economic advantages for the affluent, to deprive those Jesus called "the least of these" of a living wage, and to despoil the environment by sacrificing it on the altar of free enterprise. I missed the lesson telling me that I should turn a blind eye to the suffering of others, even those designated as my enemies.

The Bible I read says something quite different. It tells the story of ancient Israel's epic struggle against injustice and bondage — and of the Almighty's investment in the outcome of that struggle. But the Hebrew Scriptures also caution against the imperiousness of that people, newly liberated from their oppressors, lest they treat others the way they themselves were treated back in Egypt. The prophets enjoin Yahweh's chosen people to "act justly and to love mercy and to walk humbly with your God" and warn of the consequences of failing to do so: exile and abandonment. "Administer true justice," the prophet Zechariah declares on behalf of the Lord Almighty. "Show mercy and compassion to one another. Do not oppress the widow or the fatherless, the foreigner or the poor. Do not plot evil against each other."

The New Testament echoes those themes, calling the followers of Jesus to care for orphans and widows, to clothe the naked, and to shelter the homeless. The New Testament I read says that, in the eyes of Jesus, there is no preference among the races and no distinction between the sexes. The Jesus I try to follow tells me that those who take on the role of peacemakers "will be called the children of God," and this same Jesus spells out the kind of behavior that might be grounds for exclusion from the kingdom of heaven: "I was hungry and you gave me nothing to eat, I was thirsty and you gave me nothing to drink, I was a stranger and you did not invite me in, I needed clothes and you did not clothe me, I was sick and in prison and you did not look after me."

We could have a lively discussion and even vigorous disagreement over whether it is incumbent upon the government to provide services to the poor, but those who argue against such measures should be prepared with some alternative program or apparatus.

The agenda of the Republican-religious-right coalition, moreover, is utterly disconsonant with the distinguished record of evangelical activists in the 19th century. They interpreted the teachings of Jesus to mean that, yes, they really did bear responsibility for those on the margins of society, especially for the emancipation of slaves and for the rights of women.

In addition to distorting the teachings of Jesus, the religious right has also been cavorting with some rather unsavory characters in its quest for political and cultural power. Randy "Duke" Cunningham, who last year pleaded guilty to accepting $2.4-million worth of bribes, had earned a 100-percent approval rating from Pat Robertson's Christian Coalition while a member of the House of Representatives. During more than two decades as a member of the state Legislature, Jim West, a former mayor of Spokane, Wash., sponsored various bills aimed at curtailing the rights of gays and lesbians, as well as a bill that would have outlawed any consensual sexual contact between teenagers; the voters of Spokane recalled West last December, after he admitted to arranging gay sexual liaisons over the Internet and offering city jobs in exchange for sexual favors.

For the better part of three decades now, we've been treated to the moral sermonizing of William J. Bennett, who wrote The Book of Virtues and served as Ronald Reagan's secretary of education and as one of Bill Clinton's most relentless critics. We now know that Bennett is a compulsive gambler. Ralph Reed, currently a Republican candidate for lieutenant governor of Georgia — the first step on his road to the White House — has always preached against gambling as part of his "family values" rhetoric. He has also done consulting work for Enron (which engaged in other forms of gambling) and accepted as much as $4.2-million from Indian tribes intent on maintaining a regional monopoly for their casinos. "I need to start humping in corporate accounts," he wrote to the lobbyist Jack Abramoff. Tony Perkins, a graduate of Jerry Falwell's Liberty University and head of the Family Research Council, arguably the most influential religious-right organization aside from Focus on the Family, has had ties to white-supremacist organizations in his native Louisiana.

The purpose in ticking off a roll call of rogues associated with the religious right (and the list could have been longer) is not to single individuals out for obloquy and certainly not to suggest the absence of moral failings on the other side of the political spectrum — though I must say that some of this behavior makes Bill Clinton's adolescent dalliances pale by comparison. The point, rather, is to argue that those who make it their business to demand high standards of moral rectitude from others ought to be able to approach those standards themselves. My evangelical theology tells me that we are, all of us, sinners and flawed individuals. But it also teaches the importance of confession, restitution, and amendment of behavior — whether it be an adulterous tryst, racial intolerance, or prevarication in the service of combating one's enemies. We have seen nothing of the sort from these putatively Christian power brokers.

"Do not be misled," St. Paul wrote to the Corinthians. "Bad company corrupts good character." Jesus himself asked: "What good would it be for you to gain the whole world, yet forfeit your soul?" The coalition with the Republican Party is blasphemy, pure and simple.

It has also led to a denigration of the faith. The early years of the religious right provide a case in point. The pursuit of political power and influence in the 1980s came at a fearsome price. For most of the 20th century, evangelicalism had existed primarily within its own subculture, one that protected individuals from the depredations of the world. It was an insular universe, and the world outside of the subculture, including the political realm, was corrupt and corrupting. Believers beware. Along about 1980, however, evangelicals, newly intoxicated with political power and cultural influence, succumbed to the seductions of the culture. It was during the Reagan years that we began to hear about the so-called prosperity gospel, the notion that God will reward true believers with the emoluments of this world. Evangelicalism was still a subculture in the 1980s, but it was no longer a counterculture. It had lost its edge, its capacity for cultural critique.

A number of people have asked me what the religious right wants. What would America look like if the religious right had its way? I've thought long and hard about that question, and the best answer I can come up with is that the religious right hankers for the kind of homogeneous theocracy that the Puritans tried to establish in 17th-century Massachusetts: to impose their vision of a moral order on all of society.

The Puritans left England and crossed the Atlantic in the 1630s to construct what John Winthrop called a "city on a hill," an example to the rest of the world. The Puritans configured church and state so the two would be both coterminous and mutually reinforcing, but only one form of worship was permitted.

Without question, Puritanism in 17th-century Massachusetts was a grand and noble vision, but it ultimately collapsed beneath its own weight, beneath the arrogance of its own pretensions. By the middle of the century, Puritanism had become ingrown and calcified, the founding generation unable to transmit its piety to its children. By the waning decades of the century, in the face of encroaching pluralism — Anglicans and Quakers — and the rise of a merchant class, the Puritan ministers of Massachusetts were making increasingly impassioned, frantic calls for repentance. What frightened them — no less than the leaders of the religious right at the turn of the 21st century — was pluralism.

Despite the best efforts of the Puritan clergy, spirituality in New England continued to languish into the 18th century. The tide began to turn when fresher and more energetic preachers entered the scene in the 1730s. George Whitefield, Gilbert Tennent, Isaac Backus, and others challenged the cozy relationship between church and state and thereby reinvigorated religion in New England. The force of their ideas and their assault on the status quo spread throughout the Atlantic colonies in an utterly transformative event known as the Great Awakening.

The lesson was clear. Religion functions best outside the political order, and often as a challenge to the political order. When it identifies too closely with the state, it becomes complacent and ossified, and efforts to coerce piety or to proscribe certain behavior in the interests of moral conformity are unavailing.

Thankfully, the founding fathers recognized that wisdom and codified it into the First Amendment, the best friend that religion has ever had. The First Amendment was a concession to pluralism, and its guarantee of a "free market" of religion has ensured a salubrious religious marketplace unmatched anywhere else in the world.

Unfortunately, some of the clergy in New England still refused to concede their prerogatives and surrender to the religious marketplace. Congregationalists in Massachusetts and Connecticut clung stubbornly to their establishment status, not wanting to forfeit the tax subsidies afforded them by the state. From his post in Litchfield, Conn., Lyman Beecher resisted "the fall of the standing order" in Connecticut. In 1820, however, a scant two years after Connecticut did away with state-subsidized religion (Massachusetts would follow suit in 1833, the last state to do so), Beecher was forced to repent. Although he and his fellow Congregationalist ministers had feared "that our children would scatter like partridges," the effect of disestablishment was quite the opposite. "Before we had been standing on what our fathers had done," Beecher recalled in his autobiography, "but now we were obliged to develop all our energy." After disestablishment, he wrote, "there came such a time of revival as never before."

The leaders of the religious right are also frightened by pluralism. That's understandable, especially for a movement that propagates the ideology that America is — and always has been — a Christian nation. Pluralism is messy. It requires understanding, accommodation, and tolerance, especially if we hope to maintain some semblance of comity and social order. The Puritans hated pluralism, as did the Protestants of the 19th century in the face of Catholic immigrants from Ireland, Germany, and Italy. Changes in the immigration laws in 1965 brought to the United States new hues of ethnic and religious pluralism, a rich and diverse palette unimaginable to the Protestants of the 1950s, let alone to the Puritans of the 1650s.

By the late 1970s, the leaders of the religious right felt their hegemony over American society slipping away. One reading of the religious right is that many evangelicals believed that their faith could no longer compete in the new, expanded religious marketplace. No wonder the religious right wants to renege on the First Amendment. No wonder the religious right seeks to encode its version of morality into civil and criminal law. No wonder the religious right wants to emblazon its religious creeds and symbols on public property. Faced now with a newly expanded religious marketplace, it wants to change the rules of engagement so that evangelicals can enjoy a competitive advantage. Rather than gear up for new competition, as Beecher did in the 19th century, the religious right seeks to use the machinations of government and public policy to impose its vision of a theocratic order.

But pluralism is a good thing. It keeps religious groups from resting on their laurels — or their endowments, in the case of mainline Protestantism — and makes them competitive in the marketplace of ideas.

Ironically, the one movement that, more than any other, has in the past exploited the free marketplace of religion to its advantage is evangelical Protestantism. Evangelicals have understood almost instinctively how to speak the idiom of the culture, whether it be the open-air preaching of George Whitefield in the 18th century, the circuit riders and the camp meetings of the antebellum period, the urban revivalism of Billy Sunday at the turn of the 20th century, or the use of radio and television by various preachers in the 20th and 21st centuries.

America has been kind to religion, but not because the government has imposed religious faith or practice on its citizens. Quite the opposite. Religion has flourished because religious belief and expression have been voluntary, not compulsory. We are a religious people precisely because we have recognized the rights of our citizens to be religious in a different way from us, or even not to be religious at all. We are simultaneously a people of faith and citizens of a pluralistic society, one in which Americans believe that it is inappropriate, even oppressive, to impose the religious views of a minority — or even of a majority — on all of society. That is the genius of America, and it is also the reason that religion thrives here as nowhere else.

As I argued in my testimony as an expert witness in the Alabama Ten Commandments case, religion has prospered in this country precisely because the government has stayed out of the religion business. The tireless efforts on the part of the religious right to eviscerate the First Amendment in the interests of imposing its own theocratic vision ultimately demeans the faith even as it undermines the foundations of a democratic order that thrives on pluralism.

Jesus himself recognized that his followers held a dual citizenship. "Give back to Caesar what is Caesar's," he said, "and to God what is God's." Negotiating that dual status can be fraught, but it is incumbent upon responsible citizens of this earthly realm to abide by certain standards of behavior deemed essential for the functioning of the social order. Much as I would like all of my fellow Americans to be Christians or vegetarians or Democrats, I have no right to demand it. The leaders of the religious right have failed to observe even the most basic etiquette of democracy.

Is there a better way? Yes, I think so. It begins with an acknowledgement that religion in America has always functioned best from the margins, outside of the circles of power, and that any grasping for religious hegemony ultimately trivializes and diminishes the faith. The Puritans of the 17th century learned that lesson the hard way, as did the mainline Protestants of the 1950s, who sought to identify their faith with the white, middle-class values of the Eisenhower era. In both cases, it was the evangelicals who stepped in and offered a corrective, a vibrant expression of the faith untethered to cultural institutions that issued, first, in the Great Awakening and, second, in the evangelical resurgence of the 1970s.

For America's evangelicals, reclaiming the faith would produce a social and political ethic rather different from the one propagated by the religious right. Care for the earth and for God's creation provides a good place to start, building on the growing evangelical discontent with the rapacious environmental policies of the Republican-religious-right coalition. Once thinking evangelicals challenge religious-right orthodoxy on environmental matters, further challenges are possible. A full-throated, unconditional denunciation of the use of torture, even on political enemies, would certainly follow. Evangelicals opposed to abortion would be well advised to follow some Catholic teaching a bit further on this issue. As early as 1984, Joseph Cardinal Bernardin, the late archbishop of Chicago, talked about opposition to abortion as part of a "seamless garment" that included other "life issues": care for the poor and feeding the hungry, advocacy for human rights, and unequivocal opposition to capital punishment. Surely the adoption of what Bernardin called a "consistent ethic of life" carries with it greater moral authority than opposition to abortion alone.

As for abortion itself, evangelicals should consider carefully where they invest their energies on this matter. Both sides of the abortion debate acknowledge that making abortion illegal will not stop abortion itself; it will make abortions more dangerous for the life and health of the mother. The other complication is legal and constitutional. Especially at a time when the government's surveillance activities are already intruding on the privacy and the civil liberties of Americans, we should consider carefully the wisdom of allowing the government to determine a matter properly left to a woman and her conscience.

I have no interest in making abortion illegal; I would like to make it unthinkable. The most effective way to limit the incidence of abortion is to change the moral climate surrounding the issue — through education or even through public-service campaigns similar to those that discourage smoking or drugs or alcohol or spousal abuse.

Taking such a broader approach to "life issues" would affect evangelical attitudes not only toward abortion and capital punishment but also to matters related to race and to the poor. The social and economic policies of this nation seem to have created a permanent underclass. If evangelicals believe that God cares about the fate of a fetus, it shouldn't require a huge leap in logic to surmise that God also cares about people of color or prisoners or immigrants or people with an orientation other than heterosexual.

Finally, an evangelical social and political ethic would take into account the pluralistic context of American society and recognize the genius of the First Amendment. That requires respect for the canons of democracy and for the importance of public education to ensure its future. It acknowledges, for example, that the proper venue for the teaching of creationism or intelligent design is the home or the Sunday-school classroom, not the science curriculum. It means refusing to identify the symbols of the faith — the Bible, prayer, the Decaloguewith the political order. In short, our best hope for the recovery of an evangelical social and political ethic lies with recognizing that the faith functions best independent of the political order.

Indeed, one of the hallmarks of this grand experiment of democracy in America has been its vigilance over the rights of minorities. Evangelicals should appreciate that, for they were once a minority themselves. Evangelicals need once again to learn to be a counterculture, much as they were before the rise of the religious right, before succumbing to the seductions of power. The early followers of Jesus were a counterculture because they stood apart from the prevailing order. A counterculture can provide a critique of the powerful because it is utterly disinterested — it has no investment in the power structure itself.

Indeed, the most effective and vigorous religious movements in American history have identified with the downtrodden and have positioned themselves on the fringes of society rather than at the centers of power. The Methodists of the 19th century come to mind, as do the Mormons. In the 20th century, Pentecostalism, which initially appealed to the lower classes and made room for women and people of color, became perhaps the most significant religious movement of the century.

The leaders of the religious right have led their sheep astray from the gospel of Jesus Christ to the false gospel of neoconservative ideology and into the maw of the Republican Party. And yet my regard for the flock and my respect for their integrity is undiminished. Ultimately it is they who must reclaim the gospel and rescue us from the distortions of the religious right.

The Bible I read tells of freedom for captives and deliverance from oppression. It teaches that those who refuse to act with justice or who neglect the plight of those less fortunate have some explaining to do. But the Bible is also about good news. It promises redemption and forgiveness, a chance to start anew and, with divine help, to get it right. My evangelical theology assures me that no one, not even Karl Rove or James Dobson, lies beyond the reach of redemption, and that even a people led astray can find their way home.

That sounds like good news to me. Very good news indeed.

Randall Balmer is a professor of American religious history at Barnard College. This essay is excerpted from Thy Kingdom Come: How the Religious Right Distorts the Faith and Threatens America: An Evangelical's Lament, to be published next month by Perseus Books. Copyright © 2006 by Randall Balmer.

http://chronicle.com
Section: The Chronicle Review
Volume 52, Issue 42, Page B6

Monday, June 5, 2006

Martin Marty Thanks Tom Berg

Sightings  6/5/06

Pro-Life Progressivism
-- Martin E. Marty

"Pro-Life Progressivism" must sound as oxymoronic to some citizens as "Pro-Choice Conservatism" must sound to others.  That's the fix we're in, and have been, since 1973, after Roe v. Wade, when defining groups often found it feasible to organize people, raise funds, defame "the other," and stop thinking.  When I follow two autos bearing competitive bumper stickers -- "Abortion Is Murder" vs. "A Woman's Body Is Her Own To Do With What She Wants" -- and inhale the carbon monoxide their exhaust spews my way, one thing I know for sure is this: Neither is an invitation to dialogue.  Both are conclusions, not premises or hypotheses.  The one rules out thinking about "rights" and the other refuses to consider that there are "life" issues in abortion.  Poised between the two camps of militants or in the trail of their exhaust pipes, most other non-polarized citizens gasp.  They do know and show that "both sides" have something to say that all should consider.  Few find ways to try to reach the other and help the "in-betweens."

An exception was our neighbor and friend Cardinal Joseph Bernardin, who was setting forth a "Seamless Garment" or "Consistent Life Ethic" -- for which he probably lost admirers from one camp and was certainly blasted by sharp-shooters from the other.  Still, many did entertain second thoughts when they thought at all about what he was proposing.
Today all I can do is point to another effort, a scholarly attempt to get a hearing for "Pro-Life Progressivism."  Responsible is Tom Berg, a.k.a. Professor Thomas C. Berg, "Faculty and Symposium Advisor" and trusted friend ever since he used to stop by during his University of Chicago Law School days and prompt me to think.  Now he does it in print in his Foreword to the Spring 2005 University of St. Thomas Law Journal from Minneapolis (see below for details).

The symposium asks, "Can the Seamless Garment Be Sewn?  The Future of Pro-Life Progressivism."  Among the contributors are people one takes seriously (or, at least, I take seriously), such as Jim Wallis, Sidney Callahan, Ted Jelen, and John Witte.  Actually, Witte's article is not quite on subject; it's in Part Two of the same issue, but it poses "The Challenges of Christian Jurisprudence," which is related to the symposium.

It's frustrating, I know, to be told that there's something here which more of us ought to read, and then not to be given easy access.  Your friendly neighborhood law school library will be of help.  The single issue can come to you for $20.00.  Berg reminds readers that the Catholic moral-political tradition in America has led many to "oppose the taking of human life not only in cases of abortion but also in cases of war -- or at least war not justified as a strict necessity for defending others' lives."  Oh-oh!  He quotes Pope John Paul II, so often invoked on anti-abortion causes, but pushed past when he is cited as a foe of capital punishment.  Berg, not himself Catholic, likes the Catholic progressive tradition, sometimes noticed by Catholic politicians, on "anti-poverty programs, environmental protection measures, and worker's rights," as human-dignity and human-life issues.  He reminds those who welcome such witness that they have some listening to do on the other part of the Bernardin-John Paul II program.

This column will settle nothing.  I just wanted to tell you what I "sighted" this week.

Resources:
The Law Journal may be contacted at: University of St. Thomas Law Journal, 1000 LaSalle Ave., MSL 225, Minneapolis, MN  55403; or by email at: [email protected].  For further details, visit: http://www.stthomas.edu/lawschool/rw/rw_re.cfm.


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

Friday, June 2, 2006

Subsidiarity and the Marriage Protection Amendment: Another View

The following piece by Jonathan Rauch, who writes for the Atlantic Monthly and is a columnist for the National Journal, is relevant to some recent MOJ postings.  I thought that MOJ-readers would be interested.

National Journal
May 31, 2006

Gay Marriage Amendment: Case Closed

Senate Republicans trade federalism for demogoguery

Jonathan Rauch                   

All right, so the Republicans have had better years. But don't forget their secret weapon. Not an ABM, MIRV, or MX. An MPA: the Marriage Protection Amendment, precision-targeted on same-sex marriage and, through it, the Republican base.

The MPA would amend the U.S. Constitution to forbid gay couples to marry. Senate Majority Leader Bill Frist, R-Tenn., says he will bring the amendment up during the week of June 5. It has zero chance of passing by the required 67-vote majority, as Frist knows. In 2004, the amendment garnered only 48 Senate votes, and the Human Rights Campaign, a gay-rights group, figures it will get only about 52 votes this year.

So why bother? Consider Virginia, where in 2004 the Republican-controlled Legislature hit on the promising formula of passing both a whopping tax increase and a gratuitously vindictive anti-gay-marriage law. (The so-called Marriage Affirmation Act outlawed not only gay marriage and civil unions, but also private contracts between same-sex individuals seeking to replicate marital arrangements.) Lyndon Johnson once said, "Hell, give [a man] somebody to look down on, and he'll empty his pockets for you." The Virginia formula was in that vein: Knock the gays hard enough, and maybe conservatives wouldn't notice the tax hike.

In Virginia, the moral-values credit card seemed to have maxed out in 2005; Democrats held the governorship. Nationally, many conservative voters seem to have noticed that the same Republican politicians who are trotting out the marriage amendment have also spent up a storm, created the biggest new entitlement program since LBJ's Great Society, riddled the budget with earmarks, and approved unprecedented restraints on political activity.

Whatever its political merits, the MPA remains as unwise substantively as when it first came up in 2004. Since then, moreover, the case for its necessity has disintegrated.

The question posed by the marriage amendment is not just whether gay marriage is a good idea, but who should decide—the states or the federal government? From its debut in 2001, the marriage amendment was misleadingly advertised as a restriction on activist courts. In truth, the amendment would strip the power to adopt same-sex marriage not only from judges but from all 50 states' legislators, governors, and electorates.

Defining and regulating marriage has been within states' purview since colonial times. (Utah was required to ban polygamy while it was still a federal territory. On the few occasions when the U.S. Supreme Court has intervened, it has curtailed states' powers to restrict marriage rights, not imposed a definition.)

Why should the federal government usurp the states' authority over marriage? Amendment supporters have insisted that gay marriage anywhere would soon spread everywhere. How, they demanded, could one state have a separate definition of marriage without creating chaos? Unless the federal government stepped in, they said, one or two states would impose same-sex marriage on all the rest.

Actually, states have defined marriage differently for most of the country's history. Until the 1960s, mixed-race marriages were recognized in some states but not others. That each state is entitled to regulate marriage in accord with its public policy views is established legal precedent; otherwise Maryland, say, could start marrying 10-year-olds and every other state would be obliged to go along—an absurdity. Moreover, in 1996 Congress passed the Defense of Marriage Act, which explicitly relieved the states of any obligation to recognize other states' same-sex marriages.

Federal-amendment proponents have claimed that the Supreme Court might strike down DOMA. That argument, already weak on the law (DOMA is almost certainly constitutional), is even weaker now that President Bush's two Supreme Court appointments, Chief Justice John Roberts and Associate Justice Samuel Alito, have solidified the Court's conservative majority. Would-be amenders are now reduced to claiming that the Constitution should be revised to pre-empt a hypothetical ruling by a future Supreme Court. On this prophylactic theory of constitutional jurisprudence, it is hard to imagine what amendment might not be in order.

So far, DOMA has stood up. The country's most liberal federal appeals court, the California-based 9th Circuit, saw off a challenge to DOMA just this month. Meanwhile, for more than two years Massachusetts has been marrying same-sex couples, including couples who travel and move outside the state. Spot the chaos? The wholesale legal confusion?

In fact, what is most remarkable about Massachusetts's gay-marriage experiment is how little legal confusion and inconvenience it has caused. As evidence that a state-by-state approach is unworkable, proponents of a federal amendment can point to a messy Virginia child-custody case and—well, not much else.

The social ramifications of gay marriage will take time to unfurl; but if rampant legal confusion were going to be the result of Massachusetts' gay marriages, it should have begun to appear by now.

Indeed, few defenders of a state-by-state approach would have dared predict that the Massachusetts experiment would create as few legal tangles as it has. That the states can go their separate ways on gay marriage is no longer a prediction; it is a fact.

MPA supporters note that a court, and not the people, ordered gay marriage in Massachusetts. That is true but not relevant. Congress has no more business overriding state courts than it does overriding state legislatures. If a state fears that its courts will order gay marriage, it can change its constitution, which is exactly what 18 states have already done and what as many as nine more will do in November. More than half the states have statutorily banned gay marriage. A handful of states—California, New Jersey, New York, and Washington are possibilities—might wind up with judicially imposed gay marriage; the large majority, it is now clear, will not.

In 2004, MPA advocates liked to say that pre-empting state legislatures and electorates was of no practical consequence, because only judges would support so alien a notion as same-sex marriage. That argument expired last September, when the California Legislature passed the Religious Freedom and Civil Marriage Protection Act, a bill legalizing same-sex marriage. Republican Gov. Arnold Schwarzenegger vetoed the bill, but the question is no longer academic: How do MPA proponents, who claim to champion democratic decision-making, justify handcuffing the democratically elected Legislature of the largest state in the union?

At bottom, what many MPA proponents want to forestall is not judicially enacted gay marriage; it is gay marriage, period. They say that an institution as fundamental as marriage needs a uniform definition: a single moral template for the whole country.

That argument would seem more compelling if marriage were more important than human life. Many of the same conservatives who want the federal government, not the states, to settle gay marriage also want the states, not the federal government, to settle abortion. Sen. George Allen, R-Va., for example, supports the MPA, but he would like to see Roe v. Wade "reinterpreted" so that states would decide the fate of abortion. Although the 2004 Republican platform calls for a "human life amendment to the Constitution," you will look in vain for any such amendment on the Senate floor.

Two questions for anti-gay-marriage, anti-abortion Republicans: If states can be allowed to go their own way in defining human life, why not allow them to go their own way in defining marriage? Where constitutional amendments are concerned, why is preventing gay couples from marrying so much more urgent than preventing unborn children from being killed?

It is precisely because marriage is so important, and because it is the subject of such profound moral disagreement, that a one-size-fits-all federal solution is the wrong approach. California and Texas, Massachusetts and Oklahoma take very different views of same-sex marriage. By localizing the most intractable moral issues, federalism prevents national culture wars.

In 2006, that argument is no longer hypothetical. Federalism is working. As the public sees that states are coping competently and that no one state will decide for all the rest, the atmosphere of panic over gay marriage has mercifully subsided, providing the time and calm that the issue needs.

The national Republican leadership's bid to upset this emerging equilibrium is demagoguery, which is sad. Conservative politicians' betrayal of federalist principles to distract attention from their broken promises is cynicism, which is sadder. And none of this is surprising -- which is saddest of all.

© Copyright 2006 National Journal
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