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.

Friday, March 17, 2006

Lambda vs. Ropes & Gray

Fr. Araujo's reflection on Harvard law students' threatened protests against Ropes & Gray raises some interesting questions for me.  One thing I emphasize with my students is the need for lawyers to take moral responsibility for their professional decisions.  And that would include, I believe, exercising students' marketplace power to make firms accountable for the causes they take on.  So while I disagree with the students' belief that the representation of Catholic Charities in this context is illegitimate, I have to applaud their engagement with the moral dimension of legal work. 

Rob

Wednesday, March 15, 2006

Public Norms and Gay Adoption

Thanks to Rick for his thoughtful response on John Garvey's op-ed.  It seems to me that the state can link its anti-discrimination requirement for adoption to child welfare.  The state has an interest in the make-up of the pool of potential adoptive parents, and this interest is different than its interest in the make-up of the pool of other service providers.  Many goods and services are fungible; parents are not.  If a pharmacy decides not to dispense Plan B, for example, the same product is available elsewhere, and the state licensing program's beneficiary (i.e., the pharmaceutical consumer) has lost only the time it takes to travel to another pharmacy.  But if an organization decides to exclude same-sex couples, as a category, from the parenting pool, isn't there an impact on the quality of the pool?  If a couple that might otherwise be best suited for a particular unwanted child is excluded, hasn't the state licensing program's beneficiary (i.e., the child) suffered a loss even if other adults ultimately step forward?

Assume that a private adoption agency decided that whites are the most suitable parents and thus follows a policy of never placing children with non-white couples.  Doesn't the state have an interest -- beyond the symbolic quality of the exclusion -- of ensuring that children have the benefit of a parenting pool that is constructed according to the public's judgment of appropriate parenting criteria, rather than the agency's racially biased criteria?  Should the answer change if the racially biased criteria are grounded in religious beliefs?

All that said, I'm inclined to agree with Rick on this particular case because my guess is that Massachusetts is much more concerned with the symbolic dimension of Catholic Charities' exclusion than with any real impact on the quality of the parenting pool; I'm simply suggesting that the enforcement of public norms in adoption may have a firmer foundation than in other contexts where religious organizations are forced to toe the secular line.

Rob

Gay Adoption and Religious Liberty

Boston College law dean John Garvey has weighed in on the gay adoption controversy in today's Boston Globe.  An excerpt:

The issue is not whether the Church or the state has the better of the debate over gay families. When freedom is at stake, the issue is never whether the claimant is right. Freedom of the press protects publication of pornography, blasphemy, and personal attacks. Freedom of religion is above all else a protection for ways of life that society views with skepticism or distaste.

I appreciate the argument, but I'm not sure that religious liberty gets us all that far in this context.  We're not talking about the protection of religious speech or a community's internal affairs.  An organization's selection of adults to serve as parents for children with whom they have no natural relationship seems a prime target for the enforcement of public norms.  And while I often defend the flourishing of plural moral norms, even in the public sphere, through a marketplace approach, do we really want a marketplace of moral norms when it comes to the adoption of children?  (I don't intend that as a rhetorical question -- I'm honestly not sure.)

Rob

Tuesday, March 14, 2006

Private Prisons and Just Punishment

UCLA law prof Sharon Dolovich's new paper, State Punishment and Private Prisons (via Solum), appears relevant to our recurring conversation evaluating the American system of punishment from the perspective of Catholic legal theory:

[I]f our penal policies and practices are to be legitimate, they must be consistent with two basic principles: the humanity principle, which obliges the state to avoid imposing punishments that are gratuitously inhumane; and the parsimony principle, which obliges the state to avoid imposing punishments of incarceration that are gratuitously long. After sketching the foundation for this legitimacy standard, I then apply it to the case of private prisons. Approaching the issue of private prisons from this perspective helps to reframe the debate in two ways, both long overdue. First, it allows for a direct focus on the structure and functioning of private prisons, without being derailed by premature demands for comparison with public-sector prisons. It thus becomes possible to assess directly the oft-heard claim that the profit incentive motivating prison contractors will distort the decisions taken by private prison administrators and lead to abuses. Second, it makes it possible to see that the state’s use of private prisons is the logical extension of policies and practices that are already standard features of the penal system in general, thus throwing into sharper relief several problematic aspects of this system that are currently taken for granted. In this sense, the study of private prisons operates as a "miner's canary," warning that not just the structure of private prisons, but also that of American punishment practices more broadly, may need reconsideration.

Rob

Monday, March 13, 2006

Faculty Chaperones and Catholic Identity

For an example of the struggle to articulate and maintain a university's Catholic identity that does not involve the Vagina Monologues, check out the storm caused here at the University of St. Thomas by the administration's practice of not allowing unmarried partners to travel with faculty on student trips.  A sampling of the coverage can be found here, here, and here, and the protest letter signed by (some) faculty and staff is here.

Rob

UPDATE:  After I posted this, I was asked why my name is not on the protest letter.  There are several reasons, including the fact that accusing the administration of being "hypocritical" and displaying a "lack of integrity" are unlikely to facilitate a healthy resolution of a difficult issue.  Also, the resolution currently before the faculty senate suggests that a faculty chaperone could choose whatever travel partner they wish without limitation.  Here are my original comments in response to that resolution:

I would be more sympathetic to [this] resolution if it simply called for travel privileges for same-sex partners who are in long-term, committed relationships and are legally precluded from pursuing more formal recognition of those relationships.  That proposal would still stand in tension with the school’s Catholic identity, but it would raise a different set of considerations than the broader and, in my view, more radical suggestion that a faculty member’s choice of travel partner is none of the school’s business.  The implicit presumption is that faculty members are teachers by instruction, but not by the behavior they model – or at least that the modeling function is limited to circumstances chosen by the faculty member. 

If I paid tuition for my child to attend any college, Catholic or not, and the faculty chaperone on a trip abroad slept with a different partner at every stop on the journey, for example, I would certainly complain to the administration.  And if the administration responded to my complaint with “that’s none of our business,” I would wonder what sort of formation process is contemplated at that institution.  If I go out for drinks with students one evening and end up getting falling-down drunk, that’s no longer just my personal business; I’ve made it the school’s business by modeling my behavior for students.

The resolution should strike us at the law school as especially problematic because we’ve set out a distinct mission of educating the whole person, which puts the burden on us to know that we’re being watched, not just listened to.  If folks want to have a conversation about what sorts of relationships are legitimate models for students on university-sponsored trips, that’s one thing.  But to suggest that our choice of travel partners is irrelevant to the formation of students that occurs – intentionally or not – on such trips, that’s quite another.

I'm not sure how other schools have handled this issue, but I'd welcome any reactions, insights and recommendations.

The Equality Ride

I've been following the media coverage of the Equality Ride, a cross-country protest tour through which GLBT students hope to bring attention to anti-gay policies and practices at Christian colleges.  Whatever our view of the policies being protested, it is, in my view, a valuable model of cultural engagement by the riders, who seem to be targeting hearts and minds, rather than the levers of government power.  Equally interesting are the divergent approaches taken by the institutions themselves, ranging from the fortress mentality (e.g., Liberty having the protestors arrested for setting foot on campus) to the facilitation of dialogue (e.g., Bethel planning various discussion forums with students and faculty).  As Wheaton College's provost recognized, "this is a significant event" because "it signals a heightening of the pressure that's going to be on our institution as we are discordant with the general culture on our stand of sexual morality."

Rob

Saturday, March 11, 2006

Culture Check

Naomi Wolf has a blistering critique of what has become a highly successful and outrageously immoral genre of books for adolescent girls:

The great reads of adolescence have classically been critiques of the corrupt or banal adult world. It's sad if the point of reading for many girls now is no longer to take the adult world apart but to squeeze into it all the more compliantly. Sex and shopping take their places on a barren stage, as though, even for teenagers, these are the only dramas left.

Rob

Thursday, March 9, 2006

More stats on parental notification laws

Yet another study suggests that parental notification laws might be more efficacious than The New York Times concluded.  (Thanks again to Carter Snead.)

Rob

Balkin Applauds South Dakota

Jack Balkin welcomes the political implications of the South Dakota anti-abortion law, noting that George Allen, Mitt Romney and John McCain have all spoken favorably of the legislation:

If Republican presidential candidates announce their support for criminalizing abortions in the primaries in order to win the votes of the pro-life faithful, their Democratic opponents will be more than happy to remind the public of that position when the general election comes round. That, I predict, will help split the Republican coalition that has governed the country for years.

For this we can thank the wonderful folks in the South Dakota legislature, who have put the criminalization of abortion squarely on the table for public discussion. By making it important for Republican politicians to take a stand-- not on the relatively popular issues of partial birth abortion bans and parental notification requirements, but on the far less popular question of criminalizing abortion-- South Dakota has managed to do what years of Democratic politics could not-- create a wedge issue that will destroy the Republican party's winning coalition nationally.

Rob

Tuesday, March 7, 2006

"When Would Jesus Bolt?"

Amy Sullivan visits Alabama to explore the GOP's increasing restlessness over whether it can keep evangelical voters in the fold.

Rob