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, July 18, 2005

What Roe v. Wade Should Have Said

Yale law prof Jack Balkin has a new book, "What Roe v. Wade Should Have Said," in which he asks eleven scholars to rewrite Roe v. Wade and its companion case Doe v. Bolton using only materials available in 1973.  Contributors include  Anita Allen ( Penn), Akhil Amar (Yale), Teresa Stanton Collett (St. Thomas), Michael Stokes Paulsen (Minnesota), Jeffrey Rosen (George Washington University), Jed Rubenfeld (Yale), Reva Siegel (Yale), Cass Sunstein (Chicago), Mark Tushnet (Georgetown), and Robin West (Georgetown).  Interestingly, none of the contributors adopted Roe's trimester framework.

Rob

Sunday, July 17, 2005

Ban on Gays Imminent?

John Allen reports:

Sources indicate that the long-awaited Vatican document on the admission of homosexuals to seminaries is now in the hands of Pope Benedict XVI. The document, which has been condensed from earlier versions, reasserts the response given by the Congregation for Divine Worship and the Discipline of the Sacraments in 2002, in response to a dubium submitted by a bishop on whether a homosexual could be ordained: "A homosexual person, or one with a homosexual tendency, is not fit to receive the sacrament of Holy Orders."

Andrew Sullivan reacts:

even if gay priests live up to all their responsibilities, even if they embrace celibacy wholly, even if they faithfully serve the Church, they would still be deemed beneath being priests, serving God, or entering seminaries. Why? Because, in pope Benedict's own words, they are "objectively disordered," indelibly morally sick in some undefined way, and so unfit, regardless of their actions, to serve God or His people. It is no longer a matter of what they do or not do that qualifies or disqualifies them for the priesthood; it is who they are. Not since the Jesuits' ban on ethnic Jews, regardless of their conversion or Christian faith, has the Church entertained such pure discrimination. The insult to gay Catholics is, of course, immeasurable. It is also an outrageous attack on the good, great and holy work so many gay men and lesbians have performed in the Church from its very beginnings.

MoJ's exploration of the issue can be found here, here, here, here, here, and here.

Rob

Friday, July 15, 2005

Laughing at Tulsa (for good reason)

Reader Antonio Manetti offers these thoughts in response to my earlier post criticizing the New York Times editorial on the decision to install a Genesis display at the Tulsa Zoo:

It strikes me that the Times editorial, far from poking fun at Tulsans in general, was ridiculing those thin-skinned folk who are offended whenever they perceive a threat to their favorite religious account of creation. Apparently, many citizens of Tulsa had the sense to object to such nonsense. Good for them.

If you are implying that the inclusion of the Genesis account in science museums and similar public venues is inappropriate because these institutions are ill equipped deal with such matters, then I agree. I'd go a step further and suggest that such an inclusion opens the door for a scopes-like legal circus whose likely outcome would be the requirement to include other religious accounts of creation as well. Would you want Genesis to share equal billing with those? More importantly, of course, attempting to juxtapose Evolution with Genesis does both a disservice by failing to recognize that the fundamental truths expressed by Science and Religion are incommensurate.

As to evolution's 'singularity' -- it seems clear from the text of the article that such singularity comes not from the exclusion of or hostility to religion but because evolution is the only scientifically valid account. Not an unimportant distinction in my view.

That brings me to what I believe is the real issue -- the implicit fear you refer to. One aspect is the fear you ascribe to the editorial writers of disturbing the societal consensus due to science with the divergent views of religion. Although I'm not as certain of that as you seem to be, I believe there's another element of fear at work -- namely the fear on the part of the religious establishment that, in their heart of hearts, people have more faith in science (and scientists) than religion. After all, science delivers the goods much of the time while prayers often go unanswered. When a scourge strikes, we may ask God for deliverance, but we set the scientists to work (evolution and all) and have faith that they’ll save us once again as they have in the past.

The fact is that, in practice, people worship science more than religion. Instead of combating this kind of idolatry using the laws, courts and the coercive power of the state to marginalize valid science it would contribute to the public discourse to focus on the faustian bargain through which we often enjoy the fruits of science at the expense of religion’s transcendent values.

Thoughts?  Is the law, as Antonio suggests, obfuscating the real tension at work in society's stance toward science and religion?

Rob

Studying Prayer

The Washington Post reports on a new study exploring the efficacy of prayer (or purported lack thereof).  In response, Touchstone Magazine's blog, with some insightful help from C.S. Lewis, considers the "real efficacy" of prayer.

Rob

Wednesday, July 13, 2005

What is a Catholic Judge Supposed to Do?

As Rick notes, over at Wired Catholic, the premise of my inquiry on Gonzales is not finding a particularly warm embrace.  An excerpt:

Maybe Prof. Vischer is just being provocative, but I doubt it. I think he probably has no clue what Natural Law is or what legitimate Catholic legal theory should be. This is fairly ironic given that Natual Law was pretty much developed by St. Thomas Aquinas, the namesake of Prof. Vischer's university. . . .Vischer's statement reveals he has done little to intellectually understand and embrace a Catholic theory of law - that man's law is no law at all when it rebels against the Author of Life.

I'm not sure how this translates into a workable approach to judging, but I'll give Wired Catholic and like-minded others a chance to explain it.  It's one thing to recognize that a U.S. Supreme Court ruling conflicts with the Natural Law; it's quite another thing to insist that a state court judge articulate and invoke the Natural Law as a basis for rejecting a precedent that he is bound to follow in interpreting the U.S. Constitution.  We're not just talking about stare decisis, remember.  Gonzales was a justice on the Texas Supreme Court.  Assume that the Texas legislature passed a law prohibiting all abortions except for cases of rape and incest.  Putting the resignation/recusal option to the side for a moment, on what grounds and with what language should a Catholic Texas state court judge uphold such a statute in light of Roe and its progeny?  Are you suggesting that Catholic judges employ a version of jury nullification, effectively thumbing their noses at the injustices of the governing legal regime?  (Jury nullification serves the intended result, of course, as the jury's acquittal is the final word; judicial nullification would last only as long as appellate review took to run its course.)

Rob

Tuesday, July 12, 2005

Unborn Babies vs. The Rule of Law

The American Life League has issued a statement in opposition to the potential nomination of Alberto Gonzales to the Supreme Court.  Here is an excerpt:

When asked if his own personal feelings about abortion would play a role in his decisions, Gonzales told the Los Angeles Times in 2001 that his "own personal feelings about abortion don't matter… The question is, what is the law, what is the precedent, what is binding in rendering your decision. Sometimes, interpreting a statute, you may have to uphold a statute that you may find personally offensive. But as a judge, that's your job." Gonzales' position is clear: the personhood of the preborn human being is secondary to technical points of law, and that is a deadly perspective for anyone to take.

(HT: CT

I'm fairly confident that Gonzales was not speaking of mere "technical points of law" (whatever those are), but of a judge's responsibility to uphold settled legal principles, regardless of how distasteful he finds them.  The American Life League apparently would like judges to further the interests of the unborn regardless of legal constraints.

Do any co-bloggers or readers agree with the American Life League?  Does Catholic legal theory contemplate that a judge subvert the rule of law in order to protect the unborn?  Once a judge reasonably finds a law to be indeterminate, does that create space for the insertion of his own beliefs?  In the case of abortion, is a judge morally obligated to stretch to find indeterminacy?  Or should a judge advance the cause of the unborn whenever the opportunity presents itself, even when the constitutional and interpretive issues resist such advancement under any reasonable legal analysis?

Rob

Monday, July 11, 2005

One Public Religion, Many Private Religions

John Witte has a new paper out, "One Public Religion, Many Private Religions: John Adams and the 1780 Massachusetts Constitution."  Here is the abstract:

John Adams is gaining new respect today both for his political shrewdness and his religious wisdom. Both these talents were on full display in the 1780 Massachusetts Constitution that Adams largely crafted. Striking a via media between defenders of the traditional Congregationalist establishment and religious dissenters, Adams' constitution established one public religion but granted freedom to all peaceable private religions. This juxtaposition reflected Adams' political and religious philosophy. Every state and society, he believed, had to establish by law some common values and beliefs to undergird and support the plurality of private religions that it embraced. The notion that a state and society could remain neutral and purged of any public religion was, for Adams, a philosophical fiction. Absent a commonly adopted set of values and beliefs, politicians would invariably hold out their private convictions as public ones. But every state and society also had to respect and protect a plurality of forms of religious exercise and association. The notion that a state could coerce all persons into adherence and adherents to a single established religion alone was, for Adams, equally a philosophical fiction. Persons would make their own private judgments in matter of faith and conscience, even if they pretended to conformity.

(HT: Solum)

Rob

Laughing at Tulsa

When the New York Times devotes an editorial to events in Tulsa, Oklahoma, you can bet that the editors are not espousing the virtues of midwestern common sense as a template for their readers. It seems that the directors of the Tulsa Zoo voted to supplement a display about evolution with a display about the Genesis account of creation. An ill-advised vote, perhaps. But from the Times' perspective, these votes are the stuff of knee-slapping hilarity:

After the inevitable backlash from bewildered taxpayers warning that Tulsa would be dismissed as a science backwater, the directors "clarified" their vote to say they intended no monopoly for the Adam and Eve tale but rather wanted "six or seven" creation myths afforded equal time. There was the rub: there are hundreds of creation tales properly honored by the world's multifarious cultures, starting with the American Indian tribes around Tulsa.

You want creationism? How about the Cherokee buzzard that gouged the valleys and mountains? And why should Chinese-Americans tolerate neglect of P'an Ku and the cosmic egg at the zoo, or Norse descendants not speak up for Audhumla, the giant cow?

The futility of this exercise was emphatically made clear last week when a crowd of critics demanded reconsideration. With the speed of the Mayan jaguar sun god, zoo directors reversed themselves, realizing they had opened a Pandora's box (which see). In stumbling upon so many worthy cosmogonies, Tulsa did us all a favor by underlining how truly singular the evolution explanation is, rooted firmly in scientific demonstration.

Exactly how is the evolution explanation "truly singular?" Scientists are in an ongoing process of revising, rejecting, and rescinding previous work tracing the evolutionary path. Individuals who strongly believe in evolution strongly disagree about the particulars. And the litany of creation stories cited in the editorial are simply derivations of The Creation Story: the belief that a divine power is responsible for life's origins. It is only disagreement about the particulars that is reflected in the various creation stories. In this sense, we could say "how truly singular the creation explanation is."

Now in all likelihood, the editors meant "truly singular" in the sense of "not religious." And I assume that the many creation stories are more threatening to the editors than the many varieties of the evolutionary pathway because people may be more passionate about the former than the latter (and those believing the former, we assume, are much more prone to unreasonable action than those believing the latter). So as we've seen in our discussion of Noah Feldman's work and the Ten Commandments cases, the specter of divisiveness drives the inquiry. In the Times' view, the existence of many religious beliefs creates an (apparently irrebuttable) presumption that the government-facilitated expression of some subset of those beliefs in the public sphere is illegitimate. Put simply, religious belief is inherently divisive, science is not; organize society accordingly.

To be clear, I would not vote to install a Genesis timeline in the local science museum. But my reluctance stems from my fear that such efforts foster an unnecessary science versus faith tension -- i.e., the notion that kids can believe their science teacher OR they can believe the Bible. I don't, however, buy the suggestion that our society must respond to religious pluralism by pretending in public that no one is religious and allowing science to fill the gaps.

Rob

Friday, July 8, 2005

The Church on Evolution

Is the Church shifting its stance on evolution? Read the Times' account here.

Rob

New document on communion

Newsday reports on a draft Vatican document regarding communion.  Predictably, the draft cautions that "[s]ome receive Communion while denying the teachings of the church or publicly supporting immoral choices in life, such as abortion, without thinking that they are committing an act of grave personal dishonesty and causing scandal."  In addition:

The paper covers a range of issues related to the Eucharist: It suggests, for example, that Latin be used during international liturgical gatherings so all priests involved can understand the proceedings, and it suggests that parishes consider using more Gregorian chants to prevent more "profane" types of music from being played.

It calls for priests not to be "showmen" who draw attention to themselves and says lay people can have an important but "minimal" presence in Masses. It says the tabernacle -- which holds the bread and wine held by Catholics to be the body and blood of Christ -- should have a prominent place in the church and not be shunted off to a corner.

Most significantly, though, the document laments the fact that fewer and fewer Catholics are going to Mass on Sundays -- in some countries, only 5 percent of the faithful attend -- and that fewer Catholics are going to confession.

As a result, many Catholics are living in a state of mortal sin when they receive Communion, it said.

I'm no expert on church growth, but I'm hoping that the primary component of the Church's reevangelization strategy is not simply to tell all the Catholics who don't attend mass that they're in a state of mortal sin if and when they do show up.  Put differently, perhaps we should offer a bit more carrot, a bit less stick?

Rob