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.

Monday, September 26, 2005

John Courtney Murray and Same-Sex Marriage

I was not able to make it to Villanova's John Courtney Murray conference, but I have a question to pose to conference participants (and anyone else interested): What would Murray have said about today's debate over same-sex marriage? 

One common argument against same-sex marriage is that it will legitimize immoral conduct and provide avenues for future generations to embrace immoral conduct more easily, relegating the true vision of marriage to being merely an available, but not uniquely authentic, path.  But didn't Murray's embrace of religious freedom do the same thing regarding religious truth?  In both contexts, the Church is free to stand for the Truth in the public square, but the public square is opened to other paths as well.  If public morality is, in Murray's words, to be "determined by moral standards commonly accepted among the people," does the basis for opposing the state's recognition of same-sex marriage evaporate once public opinion in a given state turns in favor of same-sex marriage?

Is there another basis for concluding that Murray would oppose same-sex marriage?

Rob

Thursday, September 22, 2005

Home as a Legal Concept

Widener law prof Benjamin Barros has posted his paper, Home as a Legal Concept, on SSRN.  Here is the abstract:

This article, which is the first comprehensive discussion of the American legal concept of home, makes two major contributions. First, the article systematically examines how homes are treated more favorably than other types of property in a wide range of legal contexts, including criminal law and procedure, torts, privacy, landlord-tenant, debtor-creditor, family law, and income taxation. Second, the article considers the normative issue of whether this favorable treatment is justified. The article draws from material on the psychological concept of home and the cultural history of home throughout this analysis, providing insight into the interests at stake in various legal issues involving the home.

The article concludes that homes are different from other types of property and give rise to legal interests deserving of special legal protection, but that these interests can be outweighed by competing interests in particular legal contexts. The result is that in many contexts special legal treatment of homes is justified. In other contexts, for example residential rent control, the strength of competing interests means that the law overprotects the home. In still other contexts, for example eminent domain law as embodied by the Supreme Court's recent decision in Kelo v. New London, the law tends to underprotect the home.

(HT: Solum)

Rob

Toward a Catholic Legal Theory of . . . Pets

The next time someone asks you whether current legislative priorities at the federal level comport with the principle of subsidiarity, tell them no, and offer this example.

Rob

The New Tort: Insemination Discrimination

I'm just as opposed to invidious discrimination as the next equality-loving fellow, but it seems a bit heavy-handed to suggest that any refusal by a physician to artificially inseminate an individual based on her marital status is unlawful, regardless of the religious convictions underlying the refusal.  Apparently, that may be the case in California.  The story of the litigation is here.  (It's pitched as a gay rights case, but it is just as easily classified as an issue of marital status.)  As the plaintiff's attorney remarked, “People have a right to choose to start families, and providers who offer these services to the public don’t get to pick and choose who can be a family.”  So much for the moral marketplace.  (Hat Tip: Open Book)

Rob

Ban on Gay Priests Approved (?)

The New York Times is reporting that the Church's rule prohibiting homosexuals from becoming priests will probably be published within the next six weeks, and that, according to an unidentified church official with "authoritative" knowledge of the rule, the question is not "if it will be published, but when":

[T]he church official who discussed the expected new rules said the document called for barring even celibate men who considered themselves homosexual because of what he contended were the specific temptations of seminaries.

"The difference is in the special atmosphere of the seminary," he said. "In the seminary, you are surrounded by males, not females."

Rob

Wednesday, September 21, 2005

Conscience in Context

I have just posted (under my name in the righthand sidebar) my new paper, Conscience in Context: Pharmacist Rights and the Eroding Moral Marketplace, forthcoming from the Stanford Law & Policy Review.  Here is the abstract:

Our society has long esteemed the sanctity of conscience, and our legal system has reflected that esteem, effectively shielding the individual from state encroachment, especially in matters of religion.  A rapidly expanding range of disputes, however, is not readily settled under the individual-versus-state paradigm; rather, the new battle lines are forming between consumer and provider, with both driven to live out the dictates of conscience in the marketplace.  The legal community has been slow to adjust to this trend, presuming reflexively that resolutions are best reached by harnessing state power to defend some conception of individual conscience, as exemplified by pharmacists’ well-publicized entry onto the center stage of our nation’s ongoing culture war drama.  One side invokes conscience to justify legislation that would empower pharmacists to refuse to fill prescriptions on moral grounds without the possibility of negative consequences; the other side invokes conscience on behalf of the consumer to justify legislation that would require all pharmacies to fill all valid prescriptions.  Congress and the dozens of state legislatures to take up the issue have embraced the winner-take-all terms in which the combatants have framed the contest. 

This article asks us to step back from these two-dimensional terms of engagement and to contextualize the public relevance of conscience by outlining the contours of a marketplace where moral claims can operate and compete without invoking the trump of state power.  Instead of making all pharmacies morally fungible via state edict, the market allows individual consciences to thrive through overlapping webs of morality-driven associations and allegiances, even while diametrically opposed consciences similarly thrive.  The zero-sum contest over the reins of state power is replaced by a reinvigorated civil society, allowing the commercial sphere to reflect our moral pluralism.

Rob

Thursday, September 15, 2005

Missing the Point of Charity

Borrowing a line from Milton Friedman, Ted Rall says that it's time to "starve the beast"; Rall is not talking about the government, but about the collection of "private charities used by the government to justify the abdication of its duties to its citizens."  He argues:

Disaster relief is too important to be left to private fundraisers, with their self-sustaining fundraising expenses, administrative overhead (nine percent for the Red Cross) and their parochial, often religious, agendas. It's also way too expensive. In the final analysis, after the floodwaters have receded and the poor neighborhoods of New Orleans have been razed under eminent domain, major charities will be lucky if they've managed to raise one percent of the total cost of Katrina. Congress, recognizing the reality that only the federal government possesses the means to deal with the calamity, has already allocated $58 billion--over 70 times the amount raised by charities--to flood relief along the Gulf of Mexico. As Bush says, that's only a "down payment."

Cutting a check to the Red Cross isn't just a vote for irresponsible government. It's a drop in the bucket compared to what you'll end up paying for Katrina in increased taxes.

Granted, in terms of popularity of likelihood of success, trying to make a case against giving money to charities compares to lobbying against puppies. The impulse to donate, after all, is rooted in our best human traits. As we watched New Orleanians die of thirst, disease and anarchic violence in the face of Bush Administration disinterest and local government incompetence, millions of us did the only thing we thought we could to do to help: cut a check or click a PayPal button. Tragically, that generosity feeds into the mindset of the sinister ideologues who argue that government shouldn't help people--the very mindset that caused the levee break that turned Katrina into a holocaust and led to official unresponsiveness. And it is already setting the stage for the next avoidable disaster.  (HT: CT)

I think it's safe to assume that Rall does not embrace the principle of subsidiarity.  Even if the efforts of the Red Cross, the Salvation Army, and other private groups could be written off as largely symbolic compared to the government action necessary to restore the Gulf Coast, they are vitally important symbols in our society.  Disaster relief of this magnitude must be primarily a collective, top-down endeavor, at least in terms of funding.  But to marginalize the bottom-up efforts of motivated individuals and associations to meet real needs that have arisen in their midst is to disconnect the citizenry from the suffering around them.  One way I explain subsidiarity is by pointing out that, even if we could prove that all children would eat more nutritious meals if they were bussed three times a day to a central government agency for feeding, few (I hope) would support such an endeavor.  It's not just whether children receive proper nutrition, but who provides it to them.  In New Orleans, I expect the government to do most of the heavy lifting through funds coercively (and justifiably) collected from taxpayers, but I also want an evacuee to come face to face with a volunteer who hands her a meal that has been purchased with the few dollars that my daughter's kindergarten class raised. 

Rob

Wednesday, September 14, 2005

Katrina and the New (Old) Conservatism

Brian Tamanaha takes note of conservatives' post-Katrina embrace of aggressive government action in securing the citizenry's health and welfare, and bolsters the understanding of conservatism as more than a "don't tax me" mindset with extensive quotes from the work of Friedrich Hayek.  Tamanaha concludes that Hayek:

identifies a minimum baseline of shared expectations from government that conservatives and liberals can agree upon as a starting point. Today the conservative dominated government is not meeting this minimum. Never mind disaster relief, what about the millions and millions of Americans without health insurance?

The irony of Bush's "compassionate conservatism" slogan is that its mere formulation is a reminder of how cold conservatism has become. Former conservatives, before conservatism was captured by ideological extremists, built compassion into their conservative ideas, so adding the word would have seemed redundant to them. Hayek constantly referred to the primacy of the general welfare, which his conservative doctrines were designed to serve.

In Hayek--one of the most important conservatives of the 20th Century--conservatives might find a guide for the new (old) conservative view of government.

Read the whole thing here.

More on Judge Roberts & JFK

Patrick O'Hannigan has answered my question -- for whom does the Church speak if it does not speak for Judge Roberts? -- over at The American Spectator.

I'm glad Mr. Vischer is paying close attention, but I'm not sure the kabuki dance of a confirmation hearing warrants that kind of attention. . . .

On the evidence of the intelligence he has shown so far and the fact that everyone watching the proceedings knew Specter would bloviate until his time ran out, it's safe to assume that John Roberts meant nothing revolutionary in agreeing with Kennedy's timeworn assertion. His answer is either a delineation of roles or a simple failure of nerve. In other words, said the nominee, "I'm Catholic, but I'm a judge, not a spokesperson for the Catholic Church. You want Fulton Sheen, you're a little late. You want Benedict XVI, you know where to find him. Meanwhile, here's the soundbite you all knew was coming. It's a crying shame you guys are still asking questions you asked forty-five years ago."

Anyone so inclined could also read Roberts' answer as a tacit admission of Christian failure. If you accept the twin Catholic propositions that we live in a fallen world and that the church speaks not simply for Christians but also for Christ, then any divergence between what the church says and what individual Christians say, while not necessarily regrettable, is at least cause for pause. Individual Christians (never mind Americans) can't presume to have the benefit of doubt if we've ignored the voice from the clouds saying "This is my Son, on whom my favor rests. Listen to him."

It's safe to say that Roberts did not have such theology in mind, not because he's incapable of humility or lofty thought, but because a Senate committee hearing run by the likes of Joe Biden, Arlen Specter, Ted Kennedy, Pat Leahy, and Dianne Feinstein is more properly cause for meditation on verses like "By their fruits you shall know them," "I send you forth as sheep among wolves," and (too late for Roberts on this one) "shake the dust of that town from your feet."

Read O'Hannigan's full response here.

Rob

Tuesday, September 13, 2005

For Whom Does the Church Speak?

I just noticed this snippet from the Roberts confirmation hearing:

Mr. Specter, a Pennsylvania Republican, wanted to know if Judge Roberts agreed with what Senator John F. Kennedy told a group of Protestant ministers in 1960: "I do not speak for the church on public matters, and the church does not speak for me."

"I agree with that, senator, yes," said Judge Roberts . . . .

I don't necessarily disagree with Judge Roberts, but this raises a question for me: when the Church speaks on public matters, for whom is it speaking?  I understand that the Church does not impose, but simply proposes; however, it still must be proposing views that are deemed claims of truth from someone's perspective.  So on public matters, is the Church's perspective somehow separable from the laity's perspective, or at least potentially separable -- i.e., can and should faithful Catholics discern for themselves whether they will embrace the Church's stated perspective?  Or is Roberts implicitly defining the category of "public matters" to involve issues where prudential judgment is key, and where the Church may not have more expertise than the laity?  Or does the Church speak for the laity in their roles as citizens, but not when they take on public roles like President (JFK) or judge (Roberts)?  What exactly does it mean for Roberts to say that the Church does not speak for him?

Rob