During my semester of serving as a certified legal intern for the public defender's office in juvenile court, representing children who have been accused of committing acts that would be crimes if committed by an adult, I have experienced and learned a lot. And as a product of seemingly unrelated reading, including Catholic bioethics and American Constitutional law, I would like to discuss the issue of "fathers," starting with this question:
Can a "morally neutral" culture create anything good?
Sure, but only by chance, or consensus, or when seasonal conditions allow since there is, by design, no authoritative agreement on what's good and what's not. Failures in fatherhood are a social problem in our culture, truly a moral problem and enigma; a problem that is bigger than anything I could hope to solve, or even understand, as a law-student intern working with kids who need adequate care in addition to some moral correction. The problem is this: in the lives of juveniles who are judged by the state to be "delinquent," what is the role of "a father" and who can make a man into a good father?
Most of the clients I've represented do not have a father who is present in their lives. But every single human being does indeed have a male origin, in addition to their mother. No person alive today exists but for the union of one male and one female, cooperating with the gift of life which God has given to humankind. Perhaps more "provable" than the origins of the first man and first woman is the present-day fact that "male and female [God] create[s] them"—that is, all babies, all children, each one of us—that was us, created by a male and a female, not by ourselves. Most of these young people have a mother who is present, or some other family. But it has been rare to see a father in the courtroom, and even rarer to see the birth-father. And when he is there, things seem to turn out "better" for the kid, i.e. they don't sit in state-controlled detention, but they get to go home.
Maybe the only ultimate answer which doesn't "drill down" any further is: each man himself is responsible for becoming and being a good father, because who can be forced to be good? Or who can be good for (in place of) another? Part of my intent is to place blame on men, all men, for we have failed to build a society of men who take honor in being good fathers, and who condemn appropriately all those vices which lead men to abandon their duties instead of shouldering them.
Three social players shape boys into the men they may become: Church, State, and Society. Briefly, 1) how do each of these approach the role of "fathers"? and 2) what tools do they have to stem the problem of fatherless delinquents? This is no expert analysis, but it's a soul-crushing problem seeing it face-to-face, even once a week, for a semester, so this is my best shot.
The Catholic Church tells men they are created in God's image and called to be virtuous, and the Church claims to have the moral authority to tell men who they are, and how they ought to be. It tells men to take up their crosses daily, to lay down their lives for others in acts of love, and to be like Christ. The Church says that marriage or holy orders—both forms of fatherhood—are two primary vocations in life for men. The Church teaches that men and women are both inherently dignified by being each created in God's perfect image. Therefore neither is complete in themselves, and all human persons have an inherent dignity which is irrespective of their sex, but they are not "the same"—rather, they are both good, both needed, both an image. The Church tells men to love their wives, to not be harsh with their children, to provide for their families or risk being kicked out of Christian community (not providing for your relatives, especially your household, is to deny the faith and be damnable). The Church thus speaks harshly, appropriately, to men who would faint at the obligations of family. And it holds up a good wife and children as gifts from God—good things, not pathologies. It tells men: this is who you are, as men you are sons of the Good Father, and as men, being men, you are made to be good fathers; not perfect, but good.
Our State tells men they may be required to pay financial restitution for their absence in the lives of their children and their wives (or children's mothers), it tells men to take responsibility for their actions and they will be rewarded. The State has power to arrest a man and impose jail time as an attempt to compel him to pay this money. Neither of these replaces a father, obviously, but the State can provide very beneficial services like health care, counseling, and some education. The State also has the power to remove an abusive father with jail time or restrictions. The State can give financial benefits to married couples through tax structure, and other recognition which may slightly encourage men to be committed fathers. The State is forced to deal with young people who don't have adequate care at home when these young people "get into trouble"—where else will they go? Who will be a father to them? A pair of parents would be better suited to handle unruly children than one parent alone. Who can work and keep a teenager out of trouble at the same time? It's a miracle when it happens, and it should not be ignored. Juvenile detention is sometimes better for a child than their home life; this is unfortunately true.
Our Society tells men they should be kind, they should take responsibility for their actions, they should provide for the needs of others, and they should at the same time be whatever they want to be. Even if some in our society do encourage fathers, does our current society, with its highest value seeming to be some sort of moral "neutrality," have the tools to do it effectively? Is "men being men" associated with good fatherhood? Can we do this? Should we? I think we need to do something, but maybe it's hopeless or too fraught with the risk of offending others... Let's not give up so easily.
Our society doesn't seem to do much to tell men: You should seek to be a good father. You should be a good husband, and you have inalienable moral duties to any human beings you create, and any woman you procreate with, whether you want it or not, figure it out beforehand—it's on you. You should be a good son and a good brother. You should be a good man, and this entails being a father in one way or another. And you are made for this, so you can do it.
But there is so much brokenness, and there are so many heart-breaking cases. Who can take away the sins of the entire world? It seems impossible that the past suffering of others could be made right by someone else, it seems that harmony could be out of reach. But maybe we can do more than we think. And maybe the Church needs to speak more to men, telling us not to neglect fatherhood, but to aspire to it above all other status. Whether this is seen as "heteronormative" or just what we need right now, I think it would be good.
Wednesday, November 13, 2019
The president of the major association of of evangelical Protestant higher-education institutions, the Council of Christian Colleges and Universities (CCCU), has issued a statement in conjunction with the Supreme Court arguments on the DACA-recission case. The CCCU has supported protection for "Dreamers" for a long time, and in the current case it joined an amicus brief supporting DACA's legality. I blog this not for the purpose of discussing the legal issues in the case or endorsing the challenge to the recission.
I only want to call attention to the participation of "Dreamers" in CCCU institutions as one of the countless instances in which faith-based institutions with "traditional" views are contributing to the common good--and in particular, are living and working with, and helping to empower, communities that are vulnerable in some way. Indeed, in significant parts of the country evangelical (and Catholic) higher-education institutions have high percentages of student of color. In our politically polarized times, such work is too often ignored. This is an opportunity to pay attention to it.
From the statement by president Shirley Hoogstra:
This is very close to home for one of our campuses as Norma Ramírez is a PhD candidate in clinical psychology at Fuller Theological Seminary [a CCCU member] and one of the plaintiffs in the case. You can read more of her story here. You can also watch this video to hear from her directly.
The CCCU has supported a permanent solution for Dreamers since the DREAM Act was first introduced in 2001. As part of our ongoing court strategy, we recently signed on to two amicus briefs addressing the Supreme Court cases on DACA. These briefs target crucial ideas to our immigration policy perspective; they argue for the protection of DACA recipients as they contribute to society and to our institutions and in the promotion of defense of human dignity.
The CCCU continues to support a bipartisan, legal, permanent legislative solution for DACA recipients, and feels the urgency of this issue for our students, their families, their employers, their churches, and their communities. What’s at stake? These young people have become integral parts of their communities, and removing them from the U.S. would impose a huge financial, as well as emotional, burden on the country. Beyond the economic arguments, though, we also feel a moral imperative. The CCCU believes that all persons are made by our Creator God, are made in His image, and therefore are endowed with dignity (Genesis 1:27). These young people—and those around them—need stability in order to thrive. Mass deportation would unconscionably break up families.
Friday, October 18, 2019
Yesterday I blogged about our shortly-forthcoming edited book of essays, Patents on Life: Religious, Moral, and Social Justice Aspects of Biotechnology and Intellectual Property. I've now posted on SSRN my chapter, which concludes the book with a summary of the essays and the themes. Here's a bit from the abstract:
This book gathers religious, secular moral, legal, and sociopolitical perspectives in one place. It aims to be a resource so lawyers, policy activists, and policymakers in patent debates might better understand what religious perspectives have to offer, and so religious thinkers and leaders might better understand biotech patents and thus have more to offer. The chapters include Christian, Jewish, and Muslim perspectives on bioethics and law--and both American and European perspectives on the limits of patentable material. The chapters explore various considerations: the importance of patents to innovation, the limitations on patenting of naturally occurring products and processes, the potential limits on patents stemming from distributive concerns, and the place of patents in international trade and development debates.
Three themes, summarized here, emerge from the balance of the chapters. First, patents on life call for evaluation under criteria of morality and social justice. Second, religious thought can contribute to (without dominating) such evaluations. Finally, however, for religious thought to contribute effectively, it must be more informed and sophisticated than it has been, about both patent law and biotechnology. The chapters aim to provide such knowledge.
This final chapter gives a good sense, I think, of what the rest of the book covers.
I hope readers interested in the "Catholic legal theory" project will give the volume a look--and suggest it to your academic libraries! First, take a look at it yourself. Second, pass the word to others who work, or have interests, in any of the areas of public moral theology, human life and dignity, technology, social justice, and development and human rights ("preferential option for the poor" etc). A few reasons why this topic may be of wide interest:
1) The vast majority of the chapters in the book are very accessible to non-scientists. It's meant to explain basic patent concepts, and genetic technologies, to religious thinkers (and explain religious ethics to patent lawyers and scientists). Patent law can get complicated, but at its base it has a quite comprehensible logic.
2) As I've argued in a previous paper on "intellectual property (IP) and the preferential option for the poor," IP laws, including patent, are by nature a kind of qualified (tho still valuable) property right that has parallels to Catholic approaches to property. IP is designed with social and common-good purposes in mind: encouraging innovation through exclusivity, while maintaining others' access through limits on exclusivity. Catholic thought on property tends to have a similar structure.
3) Partly because IP rights fit with the Catholic model of qualified and instrumental property rights, and partly because patents have affected poor people in developing nations, the Catholic Church has actually had quite a lot to say about them--albeit not in a systematic way. The Vatican has defended the right of indigenous people to control over and fair reward for the genetic resources, the claim of people in poverty to have access to essential medicines (including, for purposes of this book, "biologic" drugs produced from living organisms), and the claim of farmers to retain autonomy over genetically modified seeds in the face of licensing practices by companies holding patents on the seeds. This collection aims, among other things, (a) to make the Church's positions better known to policymakers in the field and (b) help Catholic thinkers integrate the important topic of IP into their understanding of Catholic social thought principles.
4) Because of the richness of Catholic social doctrines in this area, and because of the role of Catholic institutes in the project, we have several different Catholic contributors. Some focus very much on the development-and-poverty implications of patents on and access to biotechnologies. Others focus on the bioethical issues involved in giving humans ownership over materials or processes that are relatively close to "natural [God-created] phenomena." In any event, while the chapters contain considerable religious diversity in the chapters, they also contain a set of Catholic : essays that are rich, deep, and diverse. IP is now central to the economy and society, and not just in the biotech area. These essays will help people think through how Catholic thought applies to the "new form of ownership" that Saint John Paul II identified in Centesimus Annus (para. 32) as increasingly fundamental: "know-how, technology, and skill."
Thursday, October 17, 2019
Coming in the next few days and weeks from Cambridge University Press:
The book contains 16 interdisciplinary essays (law, theology, ethics, politics, business) on biotechnology patents and issues of justice. A bit from the description at Amazon (see also the Cambridge Press page here):
This volume brings together a unique collection of legal, religious, ethical, and political perspectives to bear on debates concerning biotechnology patents, or 'patents on life'. ... Even after many years and court decisions, important contested issues remain concerning ownership of and rewards from biotechnology -- from human genetic material to genetically engineered plants – and regarding the scope of moral or social-justice limitations on patents or licensing practices. This book explores a range of related issues, including questions concerning morality and patentability, biotechnology and human dignity, and what constitute fair rewards from genetic resources.
The issues the book addresses appear regularly in the news: gene-sequence patents and their effect on biomedical innovation and costs, "biopiracy" of developing-nation resources and its effect on indigenous peoples, genetically modified crops and their effect on farmers and farming practices, biologic-drug patents, gene-editing (CRISPR) technology patents.
This book responds to the fact that such issues concerning biotechnology ownership, patents, etc., have received considerable secular ethical (as well as political and economic) analysis--but relatively little theological/ethical analysis by religious traditions, leaders, and thinkers. There is plenty of religious bioethics, including on new genetic technologies, but relatively little of it addresses ownership, patents, and so forth. The Vatican has actually been a fairly active voice (emphasizing a moderate view of patent rights, their role in innovation, but also the need to temper them to ensure access for the poor and fair rewards to indigenous peoples)--but the Church's role is not as well known as it should be.
The premise of this book is that the great religious traditions and their leaders and thinkers can speak to those issues but haven’t addressed or studied them much. They need to understand the basics of patent law and policy better. Conversely, the many lawyers, policymakers, and activists engaged in moral debates over biotech patents and the creation and distribution of technologies haven't appreciated the contributions that religious thought can make. They need to understand religious social thought better.
This book, with its multidisciplinary contents, is a one-stop, readable resource for all of the groups above.
Please tell your libraries to buy the book! And--just in time for holiday gift-giving--you can pre-order it at Amazon in Kindle (delivery Oct. 24) or hardcover (available December) versions.
The book also reflects both US and European approaches to the patentability of genetic material and the role of moral considerations in granting patents, both topics that involve interesting trans-Atlantic contrasts and comparisons. And it also reflects multiple religious approaches: Catholic, Jewish, Muslim, and Protestant (both evangelical and mainline).
Continue reading
Tuesday, August 13, 2019
The Becket Fund has filed a certiorari petition in a case called Ricks v. Idaho Board of Contractors. Ricks, who applied for an Idaho license to be able to practice his livelihood as a construction contractor, objected to the requirement of providing his social security number (he believes, as a small but non-negligible number of people have regularly believed, that it’s the “mark of the beast” in Revelation 13:16-18). The petition urges the Court to overrule Employment Division v. Smith and subject even “neutral and generally applicable laws” to meaningful scrutiny under the Free Exercise Clause.
Ten religious liberty scholars, including yours truly, have signed an amicus brief supporting the petition. Tom Hungar and others at Gibson Dunn drafted and filed the brief on our behalf. From the summary of argument:
Smith is ripe for reconsideration, and this case presents an excellent opportunity for the Court to engage in that endeavor. Smith itself was a departure from this Court’s previously settled requirement that the government demonstrate a compelling interest before imposing a substantial burden on the free exercise of religion. The question of the proper interpretation of the Free Exercise Clause was not briefed in Smith, but it has been substantially elucidated by subsequent academic work. That scholarship reveals that the Framers understood the Clause not merely as embodying an equal protection principle that prohibits targeting or discriminating against religion, but also as a substantive protection granted to religious practices even in some circumstances where similar secular conduct can be prohibited. The Smith Court’s undue contraction of the protections afforded by the Free Exercise Clause inevitably falls hardest on adherents of minority religions—the very individuals that the Clause was adopted to protect.
Tuesday, July 2, 2019
The Washington Metro Area Transit Authority (WMATA) accepts advertisements on the side of its buses but rejects religious ads along with political and "issue-advocacy" ads. Under that policy, WMATA rejected an ad from the Catholic Archdiocese for its "Find the Perfect Gift" holiday campaign (directing viewers to information about worship services, charitable giving, and charitable-service opportunities), even though WMATA had accepted ads from retailers encouraging holiday shopping, from the Salvation Army exhorting charitable giving in the holiday red kettles, and from others (a yoga studio, a Christian radio station whose ad was supposedly not as overtly religious as the Archdiocese's, etc.).
The D.C. Circuit upheld the exclusion of the Archdiocese ad on the ground that it did not discriminate (impermissibly) against a religious viewpoint, but rather discriminated (permissibly) against religion as a "subject matter" in a nonpublic forum. The en banc court refused rehearing, over a strong dissent by Judge Griffith teeing up the case for cert (here is the SCOTUS Blog page). The cert petition, filed by Paul Clement et al. at Kirkland & Ellis, argues that the decision below is irreconcilable with Lamb's Chapel, Rosenberger, and Good New Club: the "equal access" decisions that hold, time after time, that exclusion of religious speech is viewpoint discrimination. (It also argues that excluding religious viewpoints as such violates the Religious Freedom Restoration Act.)
Our religious liberty clinic at St. Thomas filed a brief for multiple organizational amici supporting the petition. First, we zeroed in on a couple of the court of appeals' arguments for treating the religious exclusion as subject-based rather than viewpoint-based, including this argument:
the court of appeals reasoned that the Archdiocese would have been able to place an ad urging charitable donations if its ad, like that of the Salvation Army, “contained only non-religious imagery”—for example, an ad simply saying “Please Give to Catholic Charities.” App-25. This argument is irreconcilable with Lamb’s Chapel, Rosenberger, and Good News Club. In each of those cases the presentation of a religious perspective involved explicit religious language, not mere reference to a religious identity or the religious nature of a belief. A restriction on “religious imagery” cripples the ability of speakers to present religiously grounded, and only religiously grounded, perspectives.
Second, we argued that "the specific subject matter involved in this case—the meaning and essence of Christmas and the winter holidays—itself presents important and recurring questions":
There is an ongoing debate in society about the essence of the holiday, the priorities to observe in celebrating it, and the motivation for gift-giving. On these subjects, various religious and secular perspectives compete, and the government must not discriminate among expressions of these perspectives by private groups and individuals.
By allowing holiday-related ads exhorting commercial gift-giving and charitable giving, but not an ad exhorting the religious basis for the holiday and for gift-giving, the court upheld viewpoint discrimination within subject matters included in the forum. Our brief touched on some of the societal controversies over "keeping Christ in Christmas," etc. Those controversies, we argued,
show that there is a set of competing perspectives on the subjects of the holiday season and which elements of it are most important. Some of those controversies arise in contexts not applicable here, such as speech by employees of private businesses or displays sponsored by government. But this case involves a government restriction on private speakers expressing their religious perspective in a government forum. In that category of cases, the government’s proper course is clear: it must allow varying perspectives on a subject matter to be expressed, on equal terms. To accept ads emphasizing the commercial and charitable aspects of Christmas and gift-giving but refuse ads emphasizing religious perspectives on those subjects skews public debate—the fundamental harm to free expression from viewpoint discrimination.
Like the Montana tax-credit case (Espinoza) where cert was just granted, this case focuses on what Justice Kavanaugh recently called "the bedrock principle of religious equality"--a concept more simple than the sometimes complex questions over government-sponsored religious symbols and government accommodation of religious practice. Morris County Board of Chosen Freeholders v. Freedom from Religion Foundation, 139 S. Ct. 909, 909-11 (2019) (statement of Kavanaugh, J., respecting denial of certiorari). I would put the principle as "freely chosen religious activity should not be discouraged through discriminatory government actions"--but so framed, the principle is just as clear and foundational.
Both the Montana and D.C. cases show lower courts struggling mightily to validate discriminatory rules against voluntary religious speech and activity. A grant and reversal in the second case, joining the first, would clearly signal to judges and other officials that those efforts should cease.
