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.

Wednesday, January 4, 2012

Are civil unions a threat to marriage?

By Rob Vischer

Civil unions have become popular in Europe, and now they're making headway in the U.S.  Designed to provide a non-marriage alternative to same-sex couples, they're being embraced by opposite-sex couples who reject marriage.  A recent study based on Cook County's civil union law raises some concerns, as John Culhane reports:

Many of the other straight civil union pioneers have also said no to marriage—for themselves and as an institution. The evidence is in a report that the Cook County Clerk’s Office recently issued on the nation’s first opposite-sex couples who civilly united. It found dissatisfaction with the institution of marriage because of concerns with its historical assignment of roles, its connection to religion, and its unfairness to gay and lesbian couples. My own interviews with some of these same couples, who have rejected marriage and plunged into the shallower, murkier pool of the civil union, reflect a cohort prepared to take the wrecking ball to marriage itself.

The numbers in the study are quite limited, and for all we know, those who choose civil unions may never have chosen marriage anyway.  But many defenders of traditional marriage have viewed civil unions as a way to grant legal legitimacy to same-sex unions while maintaining the integrity of marriage.  In the end, will civil unions end up undercutting marriage?

Monday, January 2, 2012

Conference on Christian Legal Thought

By Rob Vischer

If you'll be in or near Washington D.C. next weekend, don't forget to register for the Conference on Christian Legal Thought.  Details here.

Wednesday, December 28, 2011

"Separate but equal"

By Rob Vischer

The New York Times has an article on the Church's resistance to laws forcing Catholic Charities to place children with same-sex couples for foster care and adoption.  Most of the article's analysis is yesterday's news to regular MoJ readers, but this quote caught my attention:

When the contracts [in Illinois] came up for renewal in June, the state attorney general, along with the legal staff in the governor’s office and the Department of Children and Family Services, decided that the religious providers on state contracts would no longer be able to reject same-sex couples, said Kendall Marlowe, a spokesman for the department.

The Catholic providers offered to refer same-sex couples to other agencies (as they had been doing for unmarried couples), but that was not acceptable to the state, Mr. Marlowe said. “Separate but equal was not a sufficient solution on other civil rights issues in the past either,” he said.

The tension between religious liberty and gay rights is a thorny problem that will continue to crop up in our policy debates for the foreseeable future.  Dismissing religious liberty concerns as the progeny of a "separate but equal" mindset does not bode well for the future course of those debates.  As I've written elsewhere, trying to force every civil rights issue into the template provided by the Jim Crow south is unhealthy and unnecessary.  If our focus is -- as I think it should be -- on ensuring access to goods and services deemed essential by the political community, there is no reason to force every religious child welfare agency to include same-sex couples in its pool of prospective foster care and adoptive parents.  The dignity-based harm that discrimination causes -- and if there is no real threat to access, that is what we're talking about -- is a dangerous foundation for the state's intrusion into religious associations.  If government funding is enough to merit such intrusion, then we should be prepared, for example, to force Christian colleges that rely on federal financial aid programs to provide married student housing for same-sex couples.  In some fields, government funding is a prerequisite to meaningful market participation.  The government should have some say when taxpayer funds are involved, but it's a lot more complicated than the "separate but equal" rhetoric suggests. 

Wednesday, December 21, 2011

Unconservative evangelicals

By Rob Vischer

Jordan Hylden highlights a new book by D.G. Hart on "Evangelicals and the Betrayal of American Conservatism," noting that evangelicals haven't betrayed conservativism because "they were never very conservative in the first place."  Evangelicals "tend to sit crossways to traditions and established institutions, to get impatient with gradualism and compromise, and to trouble the status quo with sweeping, radical reforms drawn directly from the pages of Scripture."  At bottom, the tension between evangelicals and conservatism is theological, according to Hart's thesis, as evangelicals need to embrace "not only conservatism but the Augustinian anthropology and ecclesiology that undergird it," along with the awareness that "there is no redeemer nation, only a Redeemer's church." 

Though the book may paint evangelicals with a fairly broad brush, and though I believe that the lack of tension between any particular Christian community and any particular political orientation should be taken as a dangerous sign of a potentially compromised witness, the book sounds like a worthwhile read.  On Hart's theological point, I was reminded of the "redeemer nation" vs. "Redeemer's church" distinction last summer, as I attended an evangelical worship service with my family.  The music morphed from a praise chorus to a patriotic anthem and back, complete with an American flag waving on the big screens.  Having grown up in evangelical circles, this hardly fazed me, but my 11 year-old daughter shot me a confused look to signal that something had gone terribly awry in her view.  Having grown up Catholic, she has no experience with a "redeemer nation."  I will maintain that evangelicals have many things they can teach Catholics, but the more-than-occasional blending of patriotism and worship is not one of them.

Thursday, December 15, 2011

Obama continues the "war on science"

By Rob Vischer

I have grown weary of the narrative that portrays any political decision that conflicts with the recommendations of (most? some? important?) scientists as being part of a "war on science."  Today's lead story on Politico continues the narrative, pointing to recent decisions by the Obama administration delaying new smog standards and rejecting recommendations that emergency contraception be made available to minors without a prescription.  The fact that scientists have concluded that a certain practice would be safe for children or good for the environment is an important consideration, but it is not dispositive.  Scientists could readily show that highway traffic deaths would be reduced dramatically if we required vehicles to be manufactured with a top speed of 30 mph.  Obviously, we haven't done that because there are other values at stake.  Casting such decisions as "science" versus "politics" or "religion" leads to a one-dimensional view of a constitutional democracy.  Consider this excerpt from Politico's "politics over science" article:

“I feel like I am in a time warp,” said Francesca Grifo, senior scientist and director of the Scientific Integrity Program at the Union of Concerned Scientists. “These were both issues that the previous administration wrestled with and came down largely where this one has. So what is all this stuff about scientific integrity about? When the rubber meets the road on two crucial issues, science isn’t driving these decisions.”

The administration, following a personal review by Obama, will soon decide whether to expand an exemption for religious institutions from new rules that require health plans to offer free contraceptive coverage.

There are many different angles by which to denigrate religious liberty, but portraying the right not to pay for contraceptives as part of an anti-science agenda is more than a stretch.  Science is important and should not be ignored in our politics, but science does not (and cannot) answer many of the questions that are (or at least should be) at the heart of our politics. 

Tuesday, December 6, 2011

OWS, lawyers, and Catholic legal education

By Rob Vischer

Should Occupy Wall Street protestors include lawyers in their list of grievances?  Columbia Law prof Katherine Franke thinks so:

By and large, it's investment bankers who have been in the protesters' crosshairs, but the Occupy Wall Street (OWS) demonstrations also offer an opportunity to consider what role lawyers may have played in the creation of these sophisticated financial instruments, enabling the overreaching decried on the OWS protesters' placards. Behind every credit default swap or short of subprime mortgage-backed assets sit legal counsel sanctioning these practices. The greed that has motivated bankers to sacrifice the public's interests for short-term personal gain has been made possible, in no small part, by the work of lawyers.

As far as remedies, she highlights what should be a strength for Catholic legal education:

As legal educators, we are reminded to teach our students that being a "good lawyer" must include the cultivation of responsible moral judgment. Implicit in the OWS protests is a condemnation of an approach to lawyering that regards all legal rules simply as the price of misconduct discounted by the probability of enforcement: Skirting too close to, if not over, the limits of law is seen as the cost of doing business, or as my colleagues trained in economics call it, "efficient breach."

I don't mean to suggest that the role of the corporate lawyer will always be clear, even from a Catholic perspective, or that corporations do not deserve top-notch legal representation from graduates of Catholic law schools.  But if Catholic social teaching is going to have traction among our students, this is a key area for starting the conversation, even if we cannot prescribe -- or sometimes even discern -- easy answers.

Wednesday, November 30, 2011

Hurlbut on Romney on abortion

By Rob Vischer

I am less skeptical of Mitt Romney's "change of heart" on abortion than others are, but critics should check out the report of Stanford's William Hurlbut, who counseled Gov. Romney about embryonic development in the course of the Massachusetts debate over embryonic stem cell research:

"Several things about our conversation still stand out strongly in my mind,” Hurlbut told me. “First, he clearly recognized the significance of the issue, not just as a current controversy but as a matter that would define the character of our culture way into the future.

“Second, it was obvious that he had put in a real effort to understand both the scientific prospects and the broader social implications. Finally, I was impressed by both his clarity of mind and sincerity of heart. . . . He recognized that this was not a matter of purely abstract theory or merely pragmatic governance, but a crucial moment in how we are to regard nascent human life and the broader meaning of medicine in the service of life."

Monday, November 28, 2011

The New York Times on the nature of legal education

By Rob Vischer

The Times has published a series of articles criticizing American law schools; over the weekend, the paper editorialized on the topic, pronouncing that "American legal education is in crisis."  It appears that there are no Thomists on the NYT editorial board:   

The case method has been the foundation of legal education for 140 years. Its premise was that students would learn legal reasoning by studying appellate rulings. That approach treated law as a form of science and as a source of truth.

That vision was dated by the 1920s. It was a relic by the 1960s. Law is now regarded as a means rather than an end, a tool for solving problems.

I do think that law schools need to get better at training students in the practice of law, especially in the second and third years.  I'm pretty sure, though, that viewing law "as a source of truth" should not bear the brunt of blame for what ails legal education.

UPDATE: I note that Marc DeGirolami commented on the editorial over at his non-MoJ blogging perch.

Tuesday, November 15, 2011

The NYT on the bishops' concern for religious liberty

By Rob Vischer

Here's a deeply cynical article in the New York Times on the bishops' new religious liberty committee (mentioned here by Rick).  A few points bear noting:

First, focusing on religious liberty is not simply a "recasting" of the Church's existing opposition to abortion and SSM.  These are related but distinct issues.  I'm pretty sure that the bishops are not dropping opposition to abortion or SSM from their agenda, and supporting the religious liberty cause does not require consensus on the merits of abortion or SSM. 

Second, I don't think it's fair to say that abortion and SSM have now "eclipsed" poverty and economic injustice as important issues to the bishops.  I don't think there's any comparison between the amount of resources the bishops devote to combating poverty versus combating abortion or SSM.  The fact that more of the bishops' teaching platform has been devoted to abortion and SSM in recent years may not reflect changes in relative importance as much as changes in social circumstances.

Third, the suggestion that the bishops' teachings on politics and morality have "been met with indifference even by many of their own flock" does not necessarily follow from the cited statistic that only 16% of Catholics had heard of the document, "Forming Consciences for Faithful Citizenship."  I'm guessing that the statistics for documents issued by the bishops to address economic injustice would not be much rosier.  The implication that Catholics care less about the bishops' teaching on an issue like religious liberty than on an issue like poverty needs more evidentiary support.

Finally, I tend to be leery of cherry-picked quotes to close off an article.  They often seem to be carefully chosen laundering devices to allow the expression of the author's own opinion without (explicitly) violating journalistic standards.  So the article ends with this: “The bishops speak in hushed tones when it comes to poverty and economic justice issues, and use a big megaphone when it comes to abortion and religious liberty issues.”  This is an unfairly sweeping statement, especially as the final word in a "news" article.  To take one of many examples: Archbishop Nienstedt, no shrinking violet on SSM and abortion, was front and center over the summer in opposing the GOP's efforts to balance the Minnesota state budget through draconian cuts to social services.  It didn't sound too hushed to me.

Monday, November 14, 2011

How Do Lawyers Serve Human Dignity?

By Rob Vischer

At Notre Dame over the weekend, I presented a paper on the rise of secularism within the legal profession, which I see as the triumph of the technical over the transcendent.  It's evidenced in part by a move from the "moral law" approach of the 1908 Canons to today's "ethics" codes, which are primarily technical regulations.  There are some good reasons for this move, but it is by no means costless.  There are several market, regulatory, and cultural developments that have contributed to put tremendous pressure on lawyers' ability to see themselves as anything more than technically competent mouthpieces.  I'd be happy to email a draft to interested readers.

In a related paper, I take on the thin conception of human dignity that prevails within the legal profession.  This paper is now online and available for comment.  Titled How Do Lawyers Serve Human Dignity?, here's the abstract:

The conception of human dignity that prevails within the legal profession is roughly interchangeable with individual autonomy. That is, lawyers serve the cause of dignity by facilitating the client’s autonomy. In this regard, the legal profession’s dignity discourse lacks the nuance and depth that is found in the discourse occurring in other fields, bioethics in particular. As far as it goes, autonomy is a key component of individual dignity, but autonomy does not exhaust the nature or implications of dignity, particularly the narrow conception of autonomy employed widely within the legal profession. The narrowness results, in significant part, from lawyers’ failure to invest in the dialogue necessary to pursue a fully relational sense of client autonomy, rather than a simplistic autonomy of individual self-interest secured through the maximization of legal rights and privileges. In reality, there are multiple layers of human dignity, not all of which are centered on individual autonomy. Whether or not a more authentically relational conception of autonomy can be reclaimed, it is important to articulate how the human orientation toward relationship can help provide substantive content to, and draw professionally relevant implications from, the elusive concept of human dignity.

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