MoJ readers might be interested in Marty Lederman's speculation (based on an excerpt from Jan Crawford Greenberg's new book on the Supreme Court) about why the Bush Administration passed over Michael McConnell for a Supreme Court vacancy.
Monday, February 12, 2007
Reasonable Reliance on Gov't Counsel: A New Litmus Test?
Culture War Journalism
The New York Times' public editor responds to complaints about the recent front-page story proclaiming that more than half of American women now live without a husband. The tally was made possible by counting 15 year-olds as "women living without a spouse." (A previous MoJ post on the criticism is here.) The editor concludes:
The eye-catching assertion that more women in America were living without a husband than with one obviously vaulted this article to Page One. “It is true that the 51 percent benchmark probably lifted this story onto the front page,” Jack Kadden, a deputy national editor who oversaw its preparation, wrote in an e-mail. “It is certainly what caught our attention.”
It was discouraging to find yet another article with an unusual angle that didn’t seem to encounter many skeptical editors as it made its way to the front page. “At the Page One meeting there was agreement that the story was especially newsworthy because of the for-the-first-time-more-living-alone-than-with-a-spouse angle,” Jill Abramson, the managing editor for news, wrote to me in an e-mail. “No questions about the methodology or age categories were discussed.”
The road to Minneapolis . . .
Since a faculty hire as humdrum as the Dalai Lama is worth trumpeting on MoJ, I feel obliged to announce a faculty hire even more impressive: longtime MoJ-er Susan Stabile, the Dean George W. Matheson Professor of Law at St. John's, will be joining Lisa Schiltz, Greg Sisk, Tom Berg, and me on the faculty of the University of St. Thomas Law School at the close of the academic year. Needless to say, we are incredibly excited to have her on board as the St. Thomas project continues to unfold.
Today's Wedding News
The "weddings & celebrations" page of the New York Times can be a surprisingly provocative read, and today is no exception. Consider the story of Sharon Drager and Wyit Wright (HT: Volokh):
By 1996 [Dr. Drager] was divorced again. She was also lonely and began looking online for old friends. She found Mr. Wright’s e-mail address. She remembered being both “apprehensive and excited” when she began typing, “I don’t know if you remember me.”
His response came 15 minutes later. By then, he said, his home life was troubled. He was heartened “to hear from someone who you never thought you would hear from again.”
They corresponded by e-mail off and on for five years. “Every time his name popped up,” Dr. Drager felt a bolt of excitement.
After 9/11, their conversation changed. Mr. Wright, who had always thought he could fix anything, had by then concluded that his family life was irrevocably broken.
He suggested to Dr. Drager that they meet in Las Vegas the next year and go on a group river-rafting trip through the Grand Canyon. He told his wife about the trip but not about his companion.
I realize that there is often an overlap between a previous marriage and the relationship giving rise to the new marriage, but I did not realize that the overlap is now to be publicly noted (even chuckled over?) as simply another anecdotal indication of the myriad ways in which our lifelong commitments end and begin again with someone invariably more delightful than our previous partner.
Friday, February 9, 2007
How could I be anti-Catholic? I voted for Kerry!
The New York Times has now picked up the Edwards blogger flap story. Not suprisingly, the paper quotes the less offensive comments made by the bloggers about Catholics and plays up the easy William Donohue angle, leaving the impression that this may be a conservative overreaction. A single quote from Eduardo could have brought some helpful nuance to the analysis. And speaking of howlers, check out this evidence of a true Catholic-loving vibe:
In a brief note on her personal blog on Wednesday, Ms. McEwan [one of the Edwards bloggers] said that in the 2004 presidential election she had voted for Senator John Kerry, the Massachusetts Democrat who is a Roman Catholic, which she said was evidence that she was not anti-Catholic.
Thursday, February 8, 2007
Conscience and Objective Truth
Over at First Things, Ryan Anderson laments Great Britain's requirement that the Catholic Church's publicly funded adoption agencies place children with same-sex couples. Here's an excerpt:
the Church isn’t arguing that gay parents shouldn’t be allowed to adopt, or even that the state shouldn’t place children with gay couples. As Notre Dame law professor Richard Garnett points out, the Church is merely asking for an exemption—an exemption allowing it the freedom to continue to place children; an exemption that wouldn’t force it into the dilemma of either violating its own conscience or having to close its adoption programs.
In this case, the religious believers are clearly on the side of conscience and freedom, while secular liberals are promoting a state-imposed moralism that coerces everyone, at least everyone who desires to cooperate with the state for the common good. Thus, the Anglican archbishops of Canterbury and York, in solidarity with their Catholic brethren, wrote to Blair: “The rights of conscience cannot be made subject to legislation, however well meaning.”
They are entirely right, but, unless properly understood, their statement can be misleading. If committed homosexual relationships were true marriages, and if gay couples were equally suited to raise children, then the anti-discrimination legislation as applied to adoption would make sense. This is why Alan Johnson, the education secretary, was right when he said: “To me this is legislation to prevent discrimination on the grounds of sexual orientation and you cannot do that and at the same time allow discrimination in one area.” If the Church’s teaching about homosexuality and marriage is true, then the Church’s claim to the rights of conscience is valid. But if it is false, then so, too, is its claim for exemption—think back to the case of Bob Jones University and interracial dating.
I've consistently enjoyed the writing Ryan has done for First Things, but I believe he's wrong on this one. The validity of a conscience claim cannot turn on the truth of the view contained therein. Aquinas taught that even the erroneous conscience must be obeyed -- not to honor a man's conscience is to tempt him to sin because it asks him to deny his understanding of the divine command. Our focus should be on correcting the erroneous conscience through persuasion, not on coercing the erroneous conscience. The institutional conscience of Bob Jones University was not invalid because its views on race were wrong; it was simply deemed unworthy of government benefits (tax exemption) in light of our emerging societal consensus on race.
If the federal government had moved to shut down Bob Jones University because of its inter-racial dating ban, such action would pose a much bigger problem for conscience. And if the British government simply moved to cut off funding to adoption agencies that discriminate against same-sex couples, that's not nearly as problematic as shutting them down (as happened in Massachusetts, in my understanding). If our protection of conscience devolves into a battle over objective truth, the outlook for conscience is not a particularly rosy one.
UPDATE: Ryan Anderson responds to my post as follows:
You’re entirely right about the individual’s obligation to follow his own conscience, even if it objectively errs. On this I agree with you (and St. Thomas). I should have been more careful and more precise on this point in my original piece at First Things. But, I do not think our obligations to conscience necessarily entail the political implications you describe. As far as public law goes, appeals to erroneous consciences and their freedoms need not hold sway. That is, I do not think all moral paternalism is unjust.
Consider an example. Appealing to a right to freedom of conscience in the case of racial discrimination in hiring practices (based upon a deeply held, sincere belief that God told you some racial group is inferior or wicked), wouldn’t legitimize an exemption from anti-discrimination laws in business hiring. Only if the underlying belief (that the racial group is inferior, wicked, etc.) was true, would the conscience claim hold weight for public law. That is, only if the moral legislation of the state was wrong—i.e. racial discrimination is in fact legitimate but the state prohibits it—would the appeal to conscience carry the day. Of course the individual still has to follow his conscience (even if objectively erroneous), but the state may certainly penalize him for doing so (as we do in non-discriminatory hiring law, and many other paternalistic laws).
In the UK adoption case, it seems to me that if the underlying morality (and applications) of the sexual orientation anti-discrimination law is correct, then the Church’s appeal to the rights of conscience will not work. To appeal to conscience in this case would require one to argue that the law itself is misguided (in its implications for marriage and adoption, but not, as Cardinal Murphy-O’Connor put it, in its prohibition of “forms of unjust discrimination, violence, harassment or abuse directed against people who are homosexual.”) The point of the post was to say that the UK got the political theory right (especially since secular-liberals so often claim to oppose moral paternalism), but that they got the underlying morality (and the prudence of morals legislation on this question at this time) wrong. The future of our same-sex marriage discussions in the US, as Maggie Gallagher describes them, seems to be just as volatile.
As an aside, it is my understanding (but this remains somewhat unclear to me) that the British government’s proposed law is enforced via elimination of public funding. The Catholic adoption agencies—if they refused to place children with gay and lesbian couples—would lose all of their public funds. The lack of public funding is what would then force them to close. That they are so dependent on government monies is a whole other discussion, however… Nonetheless, deciding who is eligible to receive public funds to serve the public good is still a form of paternalism.
To be clear, I agree with Ryan that a conscience-based claim for exemption from an otherwise applicable law entails a claim that the law itself is misguided (at least as applied to the person/group seeking the exemption) -- i.e., that the law conflicts with a moral claim that the person/group believes to be true. But that does not mean that we must establish the objective truth of the view on which the conscience claim is based. Even if such a standard is binding in theory (which I do not believe it is), it's a non-starter in practice.
Wednesday, February 7, 2007
Solum on Religion and Constitutional Consensus
University of Illinois law prof Larry Solum has posted his new paper, "Pluralism and Public Legal Reason." Here's the abstract:
What role does and should religion play in the legal sphere of a modern liberal democracy? Does religion threaten to create divisions that would undermine the stability of the constitutional order? Or is religious disagreement itself a force that works to create consensus on some of the core commitments of constitutionalism - liberty of conscience, toleration, limited government, and the rule of law? This essay explores these questions from the perspective contemporary political philosophy and constitutional theory. The thesis of the essay is that pluralism - the diversity of religious and secular conceptions of the good - can and should work as a force for constitutional consensus and that such a consensus is best realized through commitment to an ideal of public legal reason instantiated by the practice of legal formalism.
The case for these claims is made in six parts. After this introduction, Part II, The Fact of Pluralism in the Context of Contemporary Religious Division, explores the idea of religious division in light of an important notion in political philosophy - the idea that John Rawls calls the fact of reasonable pluralism. Part III, Public Legal Reason, argues that the fact of pluralism has important normative consequences for the foundations of normative legal theory and argues for an ideal of public legal reason. Part IV, Legal Formalism, contends that this idea is best realized in constitutional practice through a formalist approach to constitutional interpretation - one that deliberately eschews direct reliance on religious and secular comprehensive conceptions of the good. Part V, Feasibility and Positive Theory, discusses the question whether this ideal of public legal reason and corresponding conception of constitutional formalism are realistic, given the constraints imposed by democratic politics under contemporary conditions. Finally, Part VI, Religious Division Revisited: From Pluralism to Formalism, brings the discussion to a close.
Monday, February 5, 2007
Texas Takes the Lead
Last Friday Texas Governor Rick Perry issued an executive order requiring all entering sixth grade girls in the state to be vaccinated for HPV, a sexually transmitted disease linked to cervical cancer. We've already discussed the wisdom of such moves (here and here); Eugene Volokh weighs in with a series of posts, as does Jonathan Watson.
Forthcoming CDF documents
The Congregation for the Doctrine of the Faith is working on new documents addressing bioethics (with no change in teaching on the use of condoms) and natural law, which is "the only possible foundation for fruitful inter-religious dialogue."
Friday, February 2, 2007
Is Objective Moral Truth Possible?
Over at Balkinization, Brian Tamanaha has posted a "pragmatic view of natural law." Here's an excerpt:
Opponents castigate pragmatists for being moral relativists. The charge seems to fit the pragmatists, except for this consideration: criticizing someone as a “relativist” is meaningful only if it is possible to be a non-relativist.
These critics—let’s call them “objectivists”—deny that their position is a relativist one because objective natural principles really do exist. When making this claim, objectivists are saying not only that they believe that these principles exist, but more so that they do in fact exist.
The pragmatist will respond that, while the belief of objectivists in natural principles is sincere and has consequences (when they act on this belief), the claim itself is wrong—there are no such things as universal, objective, absolute principles. The referent of the claim does not exist. If it is meant by the objectivist as a factual claim, it is false. If it is a metaphysical claim, then it is a myth or fiction on a par with belief in the existence of ghosts.
Assuming these responses are correct (a big assumption, which cannot be discussed here), the charge of relativism senseless. It has no bite because objectivists are in exactly the same position as pragmatists—they too have no objective, universal grounding for their principles. One could say that we all are relativists—and the objectivists just don't know it—but a better understanding is that the term relativism is misleading and inapt because it posits an alternative position that is not available.
I'm in the process of trying to work through these questions as part of my ongoing project on conscience. Steve Smith has argued that conscience claims seem to depend "on metaethical objectivism -- on a commitment to the idea that morality is in some sense natural, or given, or objectively true." I'm open to being persuaded otherwise, but I'm inclined to agree with Steve on this point. And I don't think moral objectivism is so far-fetched -- if a moral claim is "objectively" true to the extent that its truth is a quality that exists apart from the fact of my belief in it. And I'm not sure that it depends on our belief in God.
If there are certain observable truths about human nature (whether it's a created nature or an accidental nature that has taken hold at this stage of our evolution), those truths have moral implications, don't they? For example, from what we know about our social nature in terms of human bonding and relationships, the practice of breaking apart slave families to sell members as separate commodities is immoral, isn't it? (I'm even putting aside the question of slavery itself.) I don't know anyone who will say "that practice is immoral because I believe it is immoral" (which is what the non-objectivist has to say, right?). They're much more likely to say, "that practice is immoral because it is immoral." Moral judgments, it seems to me, are grounded outside ourselves -- not necessarily in universal divine revelation, but perhaps in what we know about the human person. I recognize that "is" does not generally lead to "ought," but aren't there circumstances where the gap between "is" and "ought" is so small as to be irrelevant outside the academy? If so, aren't we then in the realm of moral objectivism?
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