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.

Tuesday, May 2, 2006

Another Response to Eduardo

My understanding of the controversy has been greatly clarified by reading some pieces that co-blogger Richard Myers has kindly called to my attention.

The principal problem with Eduardo's argument, for those who affirm the teaching of Humanae Vitae, is Eduardo's first premise, that "the act itself must be morally good or at least indifferent."  For the position that condomistic sexual intercourse is always morally bad--in particular, that it is morally bad even when ex hypothesi the wife and husband who engage in such sexual intercourse do so without any intent to prevent conception--see, e.g., William E. May, "Using Condoms to Prevent HIV," The National Catholic Bioethics Quarterly, Winter 2004, at 667-68;  Benedict Guevin, OSB, "On the Use of Condoms to Prevent Acquired Immune Deficiency Syndrome," The National Catholic Bioethics Quarterly, Spring 2005, at 37-39.

For the position that condomistic sexual intercourse is not always morally bad--in particular, that it is not morally bad when ex hypothesi the wife and husband who engage in such sexual intercourse do so without any intent to prevent conception--see especially Martin Rhonheimer,   "On the Use of Condoms to Prevent Acquired Immune Deficiency Syndrome," The National Catholic Bioethics Quarterly, Spring 2005, at 40-48.  Significantly, Father Rhonheimer is a priest of Opus Dei.  He does not dissent from the teaching of Humanae Vitae but afirms it; but he understands the teaching differently from the way that Father Guevin and many others understand it.

Note that if Rhonheimer is correct, the Vatican can change its position on the morality of the use of condoms by a married couple for the purpose of preventing the transmission of HIV without compromising the teaching of Humane Vitae.

[Not that anyone is interested in my position, but just for the record:  I do not affirm the teaching of Humane Vitae.  With John Noonan and Charles Curran (among others), I dissent from that teaching.]
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Monday, May 1, 2006

AIDS, Condoms, and the Magisterium

[This is worth reading in full.]

New York Times

May 1, 2006

Debate Over Condoms and AIDS Tests the Pope

ROME, May 1 — Even at the Vatican, not all sacred beliefs are absolute. Thou shalt not kill, but there is still "just" war. Now, behind the quiet Vatican walls, a clash is shaping up between two poles of near-certainty: the church's long-held ban on condom use and its advocacy of human life.

The issue is AIDS. Church officials recently confirmed that Pope Benedict XVI has requested a report on whether it might be acceptable for Catholics to use condoms in one narrow circumstance: to protect life inside a marriage when one partner is infected with the HIV virus or is sick with AIDS.

Whatever the pope ultimately decides, church officials and other experts broadly agree that it is remarkable that so sensitive an issue is being taken up. But they agree that such an inquiry is logical, and particularly significant from this pope, who as Cardinal Joseph Ratzinger was Pope John Paul II's strict enforcer of church doctrine.

"In some ways, maybe he has got the greatest capacity to do it because there is no doubt about his orthodoxy," said Jon Fuller, a Jesuit priest and physician who runs an AIDS clinic at the Boston Medical Center.

The issue has surfaced repeatedly in recent years as one of the most complicated and delicate facing the church. For years, some influential cardinals and theologians have argued for a change for couples affected by AIDS in the name of protecting life, while others have fiercely attacked the possibility as demoting the church's long advocacy of abstinence and marital fidelity to fight the disease.

The news broke just after Benedict celebrated his first anniversary as pope, a relatively quiet year with few concrete papal acts. But he devoted his first encyclical to love, specifically between a man and a woman inside marriage.

Indeed, with regard to condoms, the only change being considered, according to reports, is in the specific case of a married couple. But any change, however narrow, would be unpopular with conservative Catholics, some of whom have already expressed disappointment that Benedict has displayed a softer face than Cardinal Ratzinger did as defender of the faith.

"It's just hard to imagine that any pope — and this pope — would change the teaching," said Austin Ruse, president of the Culture of Life Foundation, a Catholic-oriented advocacy group based in Washington that opposes abortion and contraception.

It is too soon to know where the pope is heading. Far less contentious issues can take years, to inch through the Vatican's nexus of belief and bureaucracy, prayer and politics.

The office of Cardinal Javier Lozano Barragán, the pope's top aide on health care issues, and other Vatican officials last week declined requests for interviews about the subject, and the news reports have been contradictory except to confirm that the pope has asked for such a review.

Cardinal Lozano Barragán was quoted in the newspaper La Repubblica as saying that Benedict made the request two months ago, as part of a broader examination of bioethical issues. "My department is carefully studying it, along with scientists and theologians entrusted with drawing up a document about the subject, which will soon be made known," he was quoted as saying.

He backtracked slightly a few days later: "We are in the first stage," the cardinal told the Zenit news agency. Would there be a document? "There might or might not be."

The debate has two levels: one on moral theology and church doctrine, the other public relations and politics. Many factors are driving the debate: The church is experiencing its greatest growth in Africa, which has the most severe AIDS problem. Much health care in Africa is provided by Catholic charities, whose workers, barred from providing condoms, have often spoken of being torn between church doctrine and the need to prevent disease.

More broadly, critics of the current Vatican policy say it is hard for the church to remain consistent on "life" issues, like its opposition to abortion and euthanasia and the death penalty, when condom use can help prevent the spread of AIDS.

But there is a deep vein of feeling against any change. Some oppose any perceived erosion of Humanae Vitae, the 1968 encyclical that banned artificial contraception, while other opponents say approving condoms for AIDS prevention might be interpreted as a wider acceptance of their use.

"That will be picked up as 'Church O.K.'s condoms,' and that would seem to undermine the whole church teaching on sexuality and marriage," said Brian Johnstone, a moral theologian at the Alphonsian Academy in Rome.

The debate was reopened, in public at least, in a long exchange between Cardinal Carlo Maria Martini, the retired archbishop of Milan and an influential thinker in the church, and the Italian bioethicist, Ignazio Marino, in April in the newsweekly L'Espresso.

"Certainly the use of prophylactics can, in some situations, constitute a lesser evil," Cardinal Martini said. "There is, then, the particular situation of spouses, one of whom is affected by AIDS."

But he recognized arguments against the church making any such official statement, saying, "The question is really if it is wise for religious authorities to propagandize in favor of this method of defense, almost implying that the other morally defensible means, including abstinence, should be put on a secondary plane."

The moral arguments stretch back nearly two millennia, to the idea that the church has a responsibility, in difficult moral cases, to advocate the "lesser evil."

"It is not considering that using a condom is morally good or right," Father Johnstone said. "You are simply trying to persuade that person to do the lesser evil — but it is still considered evil."

There are other related arguments: One is of "self defense," in which an uninfected partner could demand condom use to protect against infection. Another is that using a condom against AIDS could be considered medical intervention rather than contraception.

But the "lesser evil" argument is not universally accepted among Catholic thinkers, and the theology is complicated. Among many other issues, there is the user's intent: whether it is possible to use a condom without the intention of contraception.

"Putting on a condom is clearly something someone chooses," the Rev. Thomas Berg, an ethicist and director of the Westchester Institute, an institute for Catholic studies in New York, said by e-mail.

"And to do so in sexual relations, even if one's purpose is not to contracept, but merely to stop the spread of disease, one would still be opting for something that drastically disorders those sexual relations," he added. "And this, the church has taught to be immoral."

Echoing other conservative voices, Father Berg said he believes that, in the end, Benedict will make no changes but use the debate to "vigorously re-endorse ethically acceptable answers to the AIDS crisis, namely, the virtue of chastity and abstinence."

But others point to what they say is Benedict's capacity to surprise, using the shorthand of "Nixon-in-China" to make the case that a hard-liner could, without reversing church doctrine, more easily make such a change.

A change would address a relatively small part of the problem since most transmission of AIDS is not between married couples. But if Benedict did so, "it will have a huge influence," said Rebecca Schleifer, a researcher on AIDS issues for Human Rights Watch, though that influence may be exactly what many in the Vatican fear.

She and other experts said it could help break down resistance to condom use in places like the Philippines or parts of Africa where Catholic officials or clerics have a large influence.

"The church taking a step forward in saying, 'They do work and we believe in them in this situation,' is important to help protect the lives and health of millions of people around the world," Ms. Schleifer said.
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Friday, April 28, 2006

The Magisterium, Condoms, and AIDS

In the April 29th edition of The Tablet [London], there is an interesting article on condoms/AIDS, Cardinal Martini's recent statements, and Benedict XVI's authorization of a review of magisterial teaching.  Click here.

In the same issue, there is this editorial:

Aids and the lesser evil

The Vatican could no longer ignore the evidence of a serious division of opinion in the Catholic Church about the use of condoms in the fight against HIV-Aids. It was therefore judicious of Pope Benedict XVI to call for a review of the medical and theological issues soon after his election, a review now being undertaken by the Pontifical Council for Health Care. News of the review coincided with the publication of an interview with Cardinal Martini, widely regarded as the principal alternative candidate for the papacy in the conclave that elected Pope Benedict XVI a year ago, where he added his voice to those of other senior church figures who have expressed similar views in favour of a limited use of condoms. As he put it in an interview with an Italian magazine, there may be occasions where the use of a condom by a married person to protect their spouse from infection could be the lesser evil.

There are more than 39 million people with HIV, and Aids kills some three million a year. Every measure should be taken to reduce these totals, especially in Africa. The Catholic Church, through aid agencies such as Cafod and missionary organisations, is heavily involved in medical treatment, care for the victims, and care and education of orphaned children of victims. So the charge of callousness on this issue, so readily levelled by Western commentators, does not stand up. Many church leaders also oppose the use of condoms, sincerely convinced that widespread use can be part of the problem rather than part of the solution, on the grounds that it encourages promiscuity. Even those who advocate condom use agree that abstinence and fidelity remain vital in fighting the advance of Aids.

But the real problem for the Catholic Church lies elsewhere. Under the doctrine spelled out in the encyclical Humanae Vitae in 1968, any use of condoms, for whatever reason, is immoral. There is no leeway for arguments about a lesser evil; it is irrelevant how effective condoms are against Aids. But it is also well known that in the panoply of Catholic moral teaching, that on contraception is most often disregarded by the faithful. Can the Vatican approve the use of contraceptives in connection with Aids, even in the textbook case of a married couple, without reopening the wider debate? Would that not be interpreted as a retreat from Humanae Vitae? Indeed, has the time come for such a move anyway, with Aids as the catalyst for an overdue development of doctrine? The Pope will be well aware of all these questions.

n 1968 the most persuasive reason advanced in favour of retaining the ban on artificial birth control was that to lift it would signal that the Church could change its mind, and hence undermine its teaching authority. That is ironic, given the damage done to that authority by the furore that followed. Today, however, far from weakening its position, the Church would gain much public credit by admitting that condoms should not be ruled out as a protection against HIV-Aids, even if the practical questions concerning their advisability remain to be addressed. And if that opens the door to wider issues, then so be it.
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Tuesday, April 25, 2006

The Constitutionality of Lethal Punishment Con't

[from Slate.com]

supreme court dispatches


Death Math
The Supreme Court tinkers with the calculus of capital punishment.
By Dahlia Lithwick
Posted  Tuesday, April 25, 2006, at 7:13 PM ET

In 1994, Supreme Court Justice Harry Blackmun famously wrote, "From this day forward, I no longer shall tinker with the machinery of death." And whatever you may feel about the merits of expressing that sentiment, there can be no doubt that a huge machine of death is what we have in this country. There are all sorts of ways we persuade ourselves that we aren't really killing the people we execute. The growing clamor about the constitutionality of lethal injection is really just about how gross capital punishment can be before it's too gross to sanction. Similarly, today's re-argument of Kansas v. Marsh is nominally a fight about jurors in "equipoise," but in fact is a fight about how dispassionate and mechanistic a sentence of death can really ever be.

Kansas is one of the states that ask jurors to determine—after a finding of guilt beyond a reasonable doubt—whether a list of predetermined aggravating factors (such as the heinousness of the crime) outweigh mitigating factors. If they do, a death sentence is pronounced. The question for the Supreme Court today is what happens when the jurors are in equipoise—when they find an exactly equal number of aggravating and mitigating factors. The Kansas death-penalty statute provides that, in those cases, "the defendant shall be sentenced to death." In other words, if there's a tie, you die. In a different case, the Kansas Supreme Court has held that this death-penalty statute was unconstitutional in equipoise situations. The Supreme Court must decide whether it's unconstitutional for Marsh.

Marsh was first argued last December, when Sandra Day O'Connor was still on the court. Presumably the reason the court is hearing a reprise is that the justices split 4-4 (again with the equipoise), and now the outcome of the case hinges on the new appointee: Justice Samuel Alito.

Michael Lee Marsh was sentenced to death for killing Marry Ane Pusch and her 19-month-old daughter. He allegedly shot Marry Ane, stabbed her, slit her throat, set the house on fire, and abandoned the baby to burn. A Kansas jury found him guilty. At the penalty phase of the trial, the jury found three aggravating factors: 1) Marsh knowingly or purposely killed or created a great risk of death to more than one person; 2) he committed the crime to avoid a lawful arrest or prosecution; and 3) he committed the crime in an especially heinous, atrocious, or cruel manner. The jury was instructed that a tie goes to the state and found these aggravating factors were not outweighed by mitigating circumstances. They agreed to a sentence of death. The question is whether a theoretical case of equipoise violates the Eighth Amendment requirement that jurors must individually assess the aggravating and mitigating factors before giving a death sentence.

Kansas Attorney General Phill "All teen sex is rape" Kline argues the state's side. He quickly realizes that his best bet is to get out of the way and let Justices Antonin Scalia and David Souter talk to each other directly.

When Kline says of the Kansas death-penalty scheme, "We default to life at about every stage," Souter stops him to say that he has trouble squaring Kline's rhetoric with Kansas' decision that "if a jury cannot find that the aggravating factors outweigh the mitigating factors, you can find death anyway." Kline has called the Kansas approach "a reasoned moral response." Souter says it's hardly reasoned or moral to have jurors say, "We're on the fence but execute anyway."

Scalia stops Souter by injecting that it is decidedly a reasoned moral response to say: "We have found these horrible aggravating factors. Three of them. We further find no mitigating factors outweigh them."

Souter spits back, "That is not our case. The mitigators are of equal weight."

Says Scalia, "They are equal in a way that doesn't predominate." It seems that the Kansas mitigators and aggravators are somehow separate but equal. Or that the justices are arguing about whether the tie goes to the runner or the tagger.

The new chief justice (who calls only balls and strikes) points out that this is "not a numerical equipoise," in other words, there aren't seven concrete units of outrage to be balanced against seven corresponding units of mercy. Jurors can give each factor "whatever numerical weight they want."

By now it's 12 minutes in, and Alito finally speaks. What he says is either a question or a haiku, having to do with the difference between jurors' moral burden and their psychological burden. The point may be that the aggravating and mitigating factors alleviate the psychological burden of ordering an execution by making it look like algebra.

Kline says he doesn't believe that happens, reiterating that "the default is to life." Alito corrects him, "If the aggravators and mitigators are in equipoise, the default rule is death."

Justice John Paul Stevens (and in case you haven't heard it yet … here's some traveling music) asks whether Kansas could enact a law that would require mitigating factors to "substantially outweigh the aggravating factors." Justice Stephen Breyer says if the jury is indeed "in perfect balance, give me one moral reason that he should be executed." When Kline starts to say, "The law clearly provides …" Breyer stops him: "I don't want you to be a lawyer. Be a juror. What is the moral reason?"

Justice Anthony Kennedy has one. He says that "the scale is already tipped. [The defendant] stands before us having committed aggravated murder. He has the obligation to show us [mitigating facts]. He has not done so." Kennedy, at least, is not in equipoise.

Rebecca Woodman of the Capital Appellate Defender Office argues on Marsh's side. Roberts asks her how realistic it is to attempt to quantify "these abstract concepts like how much mercy." He wonders how you can quantify the "particularly heinous" nature of this crime in which "he slashed her throat and left her toddler to burn" and say it "exactly comes up to the level" of mitigating factors. He asks, "Is there any reason to think jurors come to balance such inchoate concepts?"

Woodman says jurors do just that, "in close cases." She offers (Doppler radar warns of horrible metaphor storms) a curious example of a wealthy woman hoping to "donate a million dollars to Yale Law School."

Scalia cracks up the room by asking, "Is that an aggravating circumstance?"

But Woodman goes on and at some length about how this hypothetical woman can't choose between two different portraits of her husband to hang on the walls of Yale, and she agonizes because she can't choose. And then some other stuff happens. And then she decides to let the dean choose which portrait to hang.

At the last oral argument in Marsh, Woodman talked about "yoking a live horse to a dead one to form a plowing team …" Maybe somebody should endow a metaphor clinic at Yale Law School instead.

Roberts probably isn't a likely donor, but he gently points out that Woodman's metaphor sucks. He says, in case we missed it the first time, "He is guilty of allowing a 19-month-old to burn to death and slashing the throat of her mother. … I can see thinking two portraits are indistinguishable. I can't see jurors saying 'I can show a lot of mercy or a little mercy, or just enough mercy to be in perfect balance.' "

Roberts is, of course, right. A regime asking jurors to "weigh" or "balance" a clutch of random intangible evils (heinousness of the crime, planning of the crime, whether the crime was done for pecuniary gain) against a clutch of random intangible mitigators (the defendant was dropped on his head as a baby, the defendant is the prison's Scrabble champion) is demented. It's not just weighing apples against oranges. It's a way to make a decision to kill or not kill look like a math problem with one right answer.

Woodman's position is that in the rare cases when a jury finds itself at a 50/50 split on those factors, is not reasonable to call their conclusion a decision. It's a not-decision, and that shouldn't lead to death.

It's awfully rare to hear a Supreme Court argument in which the word "moral" comes up as often as it does today. And in the end, this decision will turn on what "moral" really means to each justice. Scalia thinks its moral for the people of Kansas to decide that equipoise equals death. Souter says that a moral judgment that leads to the death penalty should have the clarity of an either/or decision, not a tie. Breyer, Breyer-like, suggests that you can either see it one way, or the other. But Roberts is right, I think, when he says that all this painstaking counting and measuring of aggravating and mitigating beans simply complicates the hard, messy work of putting someone to death.

Dahlia Lithwick is a Slate senior editor.
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Monday, April 24, 2006

The (Un)constitutionality of Capital Punishment?

Some of you may remember that last summer, after the U.S. Supreme Court decided Roper v. Simmons, Rick Garnett posted a comment saying that the case was wrongly decided.  (In Roper, the Court ruled that the Eighth Amendment forbids government to inflict capital punishment on anyone who was under eighteen when he committed the crime.)  I responded that in my judgment, Roper was rightly decided (even if perhaps wrongly reasoned).

I have just today posted a paper on SSRN in which I argue, inter alia, that even a deferential (Thayerian) justice could vote with the majority in Roper.  Some of you may be interested in the argument--and/or in one or more of the other arguments in the paper.  This is a "working" paper, and I'd be most grateful for any comments, especially critical comments.

The title of the paper:

PROTECTING CONSTITUTIONALLY ENTRENCHED HUMAN RIGHTS:
WHAT ROLE SHOULD THE SUPREME COURT PLAY?
(WITH SPECIAL REFERENCE TO CAPITAL PUNISHMENT, ABORTION, AND SAME-SEX UNIONS)


The SSRN link:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=898664

The part of the paper that concerns capital punishment is at pp. 25-51.

The abstract of the paper:

This Essay pursues one of the inquiries begun in my new book, TOWARD A THEORY OF HUMAN RIGHTS: RELIGION, LAW, COURTS (forthcoming, Cambridge University Press): What is the proper role of the United States Supreme Court in protecting constitutionally entrenched human rights?

Some contemporary legal theorists are hostile to judicial review (e.g., Mark Tushnet and Jeremy Waldron). In another Essay, I defend judicial review—but judicial review of a sort different from that with which we are familiar in the United States. I call the sort of judicial review I defend “the power of judicial penultimacy”. (The sort of judicial review with which we are familiar in the United States is “the power of judicial ultimacy”.) See Michael J. Perry, Protecting Human Rights in a Democracy: What Role for the Courts? http://papers.ssrn.com/sol3/papers.cfm?abstract_id=380283. In this Essay, I argue for a second best: Given that the United States Supreme Court exercises the power of judicial ultimacy, the Court should exercise that power in a Thayerian (deferential) manner.

I then illustrate my position by discussing three constitutional controversies, each of which implicates an issue at the epicenter of the American “culture wars”: capital punishment, abortion, and same-sex unions. First, I argue that capital punishment violates the Eighth Amendment, but I then explain why the Supreme Court should not so rule. Second, I contend that even if one concludes that state bans on pre-viability abortions violate the Fourteenth Amendment, one should not want the Court to so rule. Third, I argue that state refusals to recognize—state refusals to extend the benefit of law to--same-sex unions violate the Fourteenth Amendment, but that nonetheless, the Court should not—not yet—so rule.

A strong case can be made that the United States Supreme Court should have, not the power of judicial ultimacy, but only the power of judicial penultimacy. For better or worse, however, the Court has the power of judicial ultimacy. Given that the Court has this power, what role should the Court play in protecting constitutionally entrenched human rights? In his classic work, THE LEAST DANGEROUS BRANCH (1962), Alexander Bickel wrote: “The search must be for a function . . . which differs from the legislative and executive functions; . . . which can be so exercised as to be acceptable in a society that generally shares Judge [Learned] Hand’s satisfaction in a ‘sense of common venture’; which will be effective when needed; and whose discharge by the courts will not lower the quality of the other departments’ performance by denuding thjm of the dignity and burden of their own responsibility.” As this Essay indicates, I’m inclined to think that in exercising its power of judicial ultimacy in a Thayerian fashion, the Court would be playing its proper role—it would be serving its proper function—in protecting constitutionally entrenched human rights.

How appealing Thayerian deference is all things considered depends in part on what the implications of Thayerian deference turn out to be for various constitutional doctrines. Although in this Essay I pursue the implications of Thayerian deference for the constitutional controversies over capital punishment, abortion, and same-sex unions, there are many other questions to be answered: Can Thayerian deference accommodate the Supreme Court’s most important free speech decisions? Its most important antidiscrimination decisions—including, of course, Brown v. Board of Education? Its most important criminal procedure decisions? Indeed, perhaps we should not generalize across every constitutionally entrenched human right; perhaps there are reasons for thinking that Thayerian deference is appropriate in cases in which certain human rights are at issue but inappropriate in cases in which certain other human rights are at issue—the right to freedom of speech, for example, or the right not to be discriminated against on the basis of a demeaning view about an aspect of one’s particularity. In any event, the implications—the consequences—of Thayerian deference surely bear on our estimate of the all-things-considered appeal of Thayerian deference. And, accordingly, my fundamental argument in this Essay, in support of Thayerian deference, is tentative and provisional.
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Followup to Eduardo's Post

[For Eduardo's post, click here.]

The Tablet [London]
April 22, 2006
 

Editorial

What really harms the family

The family is under stress, of that there is little doubt. But there is a realistic way of expressing that crisis, based on what families themselves say; and an unreal one, conjured from the imagination of those out of touch with reality. The most recent example was contained in the prayers used at the Good Friday Stations of the Cross in Rome, brought to the media’s attention by the fact that it was the Pope himself who led the prayers even if he did not write them. “Today we seem to be witnessing a kind of anti-Genesis, a counter-plan, a diabolical pride aimed at eliminating the family,” one such prayer declared. Another spoke of “a slick campaign of propaganda ... spreading an inane apologia of evil, a senseless cult of Satan”.

Perhaps prayers designed to encourage a mood of penance should not be exposed to forensic scrutiny. Perhaps, then, Archbishop Angelo Comastri, Vicar General at the Vatican City, who wrote them, was only doing his job. But real families will not feel such lurid and melodramatic prayers do much justice to their situation. They are harassed by concrete problems like debt, lack of childcare, the high cost of housing, unemployment or excessive hours of work, and the now perpetual juggling act known as the work-life balance. These pressures are often confusing and contradictory, pulling in all directions, sometimes good and bad simultaneously.

The survey called Listening 2004, conducted for the Catholic Bishops of England and Wales, analysed many people’s own accounts of their problems, and many of their stories led back to what it labelled the dual-earner economy. In order to meet the high cost of a mortgage on an over-priced house, both partners felt obliged to work. This meant finding affordable childcare, which is often not easy. Many women felt financially pressured to return to work after the birth of a child before they felt they, or their child, were ready. Then they faced managing a home as well as pursuing a career, as even now it is usually the woman who bears the brunt of homemaking. Often they and their male partners were victims of the long-hours work culture that is as much a threat to a healthy family life as anything.

Needless to say, such factors place relationships under strain. Some marriages (and Catholic marriages are by no means immune) buckle under it. But there is no solution in a return to the conventions of the past, nor in inventing implausible scapegoats for present difficulties – gay couples often find themselves unfairly cast in that role. The opportunities available to women with children to fulfil themselves in paid work are good, not bad; and the role of the Church, if it has one here, is to ease the institution of the family into the future by encouraging strategies to mitigate the pain and maximise the pleasure. But any realistic family policy would recognise that the family is still the centre of most people’s hopes of happiness. And there really is no “counter-plan”. That is just paranoia.
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Sunday, April 23, 2006

The Establishment Clause in Chicago

If any MOJ-readers with an interest in Establishment Clause jurisprudence will be in Chicago next Saturday, April 29, read on ...

At the Palmer House Hotel in downtown Chicago.  Saturday afternoon, April 29, from 2:30-5:30.  At the annual meeting of the American Philosophical Association (Central Division).  A special session devoted to "State, Religion, and the Establishment Clause Today."  Presenters/discussants include Robert Audi (Notre Dame, Philosophy), Kent Greenawalt (Columbia, Law), Steve Shiffrin (Cornell, Law), and yours truly.  (The latter two are, of course, MOJ-bloggers.)  The moderator of the session:  Lucinda Joy Peach (American University).

The title of my paper:  "Why Rick Garnett Is Wrong About the Establishment Clause (Among Other Things)".  :-)
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Human Reality vs. Theological Abstraction

[I started to edit this, but couldn't decide what to omit.]

New York Times

April 19, 2006

A Boy, His 2 Mothers and Some Unlikely Support
By MICHAEL WINERIP

NEEDHAM, Mass.

WHEN Jesse Powers-Patey was 10, and living in foster care, a Boston television station did a "Wednesday's Child" feature on him, in hopes of getting the boy adopted. A local newspaper printed an article emphasizing his friendliness and love for baseball. Still, no family responded.

By then, he'd been to six schools, could barely read and was in special education. He'd lived in a homeless shelter with his drug-addicted birth mother and in eight foster homes. At 4, he was adopted by a single mother, but when he was 8, that woman returned him to the state. She claimed that he was hard to manage. Jesse said, "She dumped me because she was getting married and moving into a big house and the guy didn't want me around."

Finally, one couple who heard about Jesse at their church showed an interest: Laura Patey and Leigh Powers. The two began going to his baseball games, then having him visit their place, a few blocks from his foster home. Jesse played basketball with Ms. Patey, and PlayStation with Ms. Powers. After school, he'd wait on the front stairs for them to get home from work. Soon, he was leaving important things at their house, like his baseball cards.

When it was time for "the talk," Jesse was ready. "He told his friend Sam that there were these two neat women that he met and liked a lot," Ms. Powers recalled. "And Sam said, 'You mean Leigh and Laura, the two lesbians down the street?' And since Sam was cool with it, Jesse was."

Jesse's Moms are not rich — they rent one side of a two-family house on a busy street here — but their home enriched Jesse. It's a house full of books as well as computers, along with three cats and a bird feeder.

To help Jesse with school, Ms. Powers, a researcher who's a computer whiz, installed a program that reads his writing aloud to him. To make summer reading lists more manageable, they would get books on tape to listen to as he read along. "He'd been told he was stupid," Ms. Powers said. "We wanted to show him he could read."

Ms. Patey, who oversees disability services at Lesley University, concluded that he did not have learning problems — "just big gaps in his education from all the disruptions" — and got him switched to mainstream classes.

When it was time for high school, the Moms knew what they wanted. "A Catholic school," said Ms. Patey, who attended parochial schools and reluctantly left Roman Catholicism as an adult for an Episcopalian church where she could worship openly with her partner. "They say, 'A Catholic education is an advantage for life,' and I agree. It helps develop a moral compass, a sense of right and wrong and how to treat people with respect."

There were other reasons. She figured Jesse would have trouble passing the state graduation tests, which are not required at private schools. Plus, he hit puberty early — he was six feet tall and shaving at age 12.

"Jesse was pretty girl-crazy," Ms. Patey said. "I liked the idea of an all-boys school."

When they filled out the forms, the women crossed out "father" and wrote in their names. Jesse had to do two essays; one was on his Moms. "We didn't hide a thing," Ms. Patey said.

Last month, Cardinal Sean P. O'Malley announced that Catholic Charities of Boston, which has handled more foster care adoptions than any other private agency in the state, was getting out of the adoption business, rather than comply with Massachusetts laws mandating that gay men and lesbians be allowed to adopt.

Boston church leaders cited statements approved by Pope John Paul II in 2003 calling gay adoption "gravely immoral." "Allowing children to be adopted by persons living in such unions would actually mean doing violence to these children," the Vatican said.

Still, this may not have been a fight the Boston church was spoiling for. The archdiocese's decision came only after an article in The Boston Globe pointed out that in the last two decades, 13 of 720 Catholic Charities adoptions involved gay families. In the weeks leading up to the policy change, eight Catholic Charities board members resigned.

Jesse's Moms were angered by the official church position, but they also know this: At the two Catholic high schools Jesse has attended — Catholic Memorial in Boston and Saint Clement in Medford, where he will soon graduate — they have not been treated like "gravely immoral" people. They have been embraced and made to feel welcome.

Jesse plays three sports, and from Day One, Ms. Powers said, "We joined the booster clubs and we were out there."

"The parents got together before football games and we'd all go to breakfast," she added. At basketball games, Ms. Powers kept the score book for the team.

Jesse started on probation at Catholic Memorial, because of his weak academic history, and at the end of first semester, Ms. Patey met with an admissions officer, Brother Stephen Casey. "He told me, Jesse is a great kid," Ms. Patey recalled. "He said: "At dinner the other night, the brothers were all talking about you guys. We're really impressed. You two are doing a wonderful job with this kid.' " When the couple adopted a second boy, Alex, Catholic Memorial welcomed him, too.

Jesse still struggles. He gets by with C's, and one semester he was ineligible for baseball because of his grades.

When he was younger, he said, he'd get teased. "Kids would say, 'Shut your mouth, you have two moms.' Big joke," he said.

But there were adults to go to, he said, like his theology teacher, Daniel Dion. "I could tell him about kids giving me a hard time and problems at home with my Moms," Jesse said. "We talked, and it wouldn't boil up inside me."

At Saint Clement this year, Jesse was a football co-captain and baseball captain. Among the family's photographs is one of Jesse with the principal. But school officials do not appear comfortable speaking publicly about the kindnesses to Jesse and his family. A Saint Clement coach said he would be happy to talk to a reporter, and a few minutes later called back, saying he couldn't. The Saint Clement principal, Robert Chevrier, did not return several calls.

THE REV. J. BRYAN HEHIR, president of Catholic Charities of Boston, said that while the Vatican's strong positions on family had dictated the adoption policy, the social service agency's 130 other programs were committed to serving all people, including gays. "I'm not surprised to hear that these schools would welcome this family," he said.

Jesse has been accepted to two local colleges and hopes to play baseball, but will defer admission. He's spending next year at an Americorps program working with poor children. He could have picked a program anywhere, but chose Boston so he could live at home.

It's not perfect at home. He wishes his Moms were less strict; they took away his cellphone when his grades dropped, and Ms. Powers, the computer whiz, can track every Web page he visits. "I'm 18!" Jesse said.

When Jesse was little, an adoption social worker said, "This is your forever family — for the rest of your life." If the Powers-Patey household is having a bad day, someone will make a face and shout, "For the rest of your life!" as if they're all lashed together, going down with the ship.

But they're not; it's a house afloat with love. The two Moms juggle their jobs, so one is always there for Saint Clement school events and games. "It's a must," Jesse said. "Who else do I have to look at in the stands? When I hit a massive home run, I can't wave to someone else's Mom."
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Saturday, April 22, 2006

Subsidiarity Revisited

"Subsidiarity, Federalism and the Best Constitution: Thomas
Aquinas on City, Province and Empire"
     Law and Philosophy, Forthcoming

  Contact:  NICHOLAS ARONEY
              TC Beirne School of Law
    Email:  [email protected]
Auth-Page:  http://ssrn.com/author=89918

Full Text:  http://ssrn.com/abstract=890811

This article closely examines the way in which Thomas Aquinas
understood the relationship between the various forms of human
community. The article focuses on Aquinas's theory of law and
politics and, in particular, on his use of "political"
categories, such as city, province and empire, together with the
associated concepts of kingdom and nation, as well as various
"social" groupings, such as household, clan and village,
alongside of the distinctly "ecclesiastical" categories of
parish, diocese and universal church.

The analysis of these categories is used in the article to help
explain Aquinas's role in the development of theories about
subsidiarity, federalism and mixed constitutionalism. In the
first place, it is argued that a close inquiry into Aquinas's
discussion of the many and various forms of human community sheds
light on the origins and development of the idea of subsidiarity
within Catholic social teaching. Second, while Aquinas certainly
did not advance a theory of federalism as that idea is presently
understood, it is argued that recovering what Aquinas had to say
about the categories of human community helps us to understand
the origin and later development of federal ideas. Finally, it is
argued that far from endorsing a system of absolute monarchy as
is sometimes alleged, when understood in this way, Aquinas
supported a particular kind of mixed constitution in which
monarchy is "tempered" by a variety of constitutional constraints
founded upon a conception of the body politic as itself
constructed out of a plurality of smaller, intermediate
corporations and communities of a political, ecclesiastical and
social character.
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Friday, April 21, 2006

Recommended Reading

A former student of mine at Wake Forest University School of Law (where I taught from 1997-2003), Shannon Gilreath, has just published a book that may be of interest to some MOJ-readers.  Shannon, who is gay, is a convert to (Roman) Catholicism.   The title of the book:   Sexual Politics:   The Gay Person in American Today (2006).  To learn more about the book, click here:  Shannon Gilreath.
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