Hopefully one significant contribution of Catholic legal education to the profession is to maintain a focus on the moral dimension of legal practice. I find it especially encouraging when I find a scholar affirming the basic impetus of our project from a secular perspective. In that regard, I recommend a wonderful recent paper by Harvard law prof Joseph Singer, Normative Methods for Lawyers. I'm going to assign portions of the paper to my first-year students because it so clearly lays out the problems we have in legal education when we attempt to avoid moral reasoning. Singer explains why we can't escape the need for normative engagement through traditional approaches such as doctrine, efficiency, rights, democracy, or critique. Here's an excerpt:
As a law professor, I have noticed this problem acutely among my students. They quickly learn to make sophisticated arguments about interpreting precedent and statutes, making analogies and distinguishing cases, debating the judicial role (active or restrained), and discerning the advantages and disadvantages of rigid rules versus flexible standards. They also learn to use cost-benefit analysis, measuring the expected consequences of alternative rules of law in monetary values and adding up the costs and benefits to determine which rules appear to maximize social welfare. But when I ask my students to make or defend arguments based on considerations of rights, fairness, justice, morality, or the fundamental values underlying a free and democratic society, they are mute. They get out the first sentence: "I have a right to use my property as I see fit" or "I have a right to be left alone." But then they go silent; they do not have a second sentence – they do not know how to go on. Their silence is partly caused by their not knowing what to say; they cannot figure out what vocabulary to use or how to make the argument. But the underlying reason for this uncertainty is their fear that such arguments are merely matters of opinion that have no objective basis. They know that others can disagree and they feel they do not have way to defend their arguments or ground them.
Those who are interested in the moral dimension of legal reasoning should read this paper, and those who are not interested in the moral dimension of legal reasoning must read this paper. For my much less eloquent exploration of the topic, you can check out one of these papers.
Wednesday, June 18, 2008
Ryan Anderson has an interesting and disheartening update on the battles over abstinence education. The middle ground between "abstinence only" and "abstinence as a wink-wink delusion before we get to the real stuff" approaches to sex ed appear more and more elusive.
In October 2002, a CIA lawyer reportedly told military and intelligence officials that torture is "subject to perception," and that "If the detainee dies, you're doing it wrong."
Can we agree that there was a woeful lack of legal and moral leadership on the subject of torture in the Bush Administration?
Apparently some Swiss ethicists have been watching Veggie Tales. This morning my research assistant, in the course of collecting potential readings on human dignity, brought me an April 2008 report from the Federal Ethics Committee on Non-Human Biotechnology in Switzerland titled, The dignity of living beings with regard to plants: Moral consideration of plants for their own sake. Looking through the report's conclusions was exhausting, if only because so many snarky comments piled up in my brain. As an exercise of self-discipline, I'll just give you a sampling of the conclusions:
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Dale Carpenter has a long and thoughtful post about SSM and religious liberty. I agree with Dale that concern for religious liberty is not a persuasive reason to oppose SSM, though I think there is more reason to be cautious than Dale suggests, as I've tried to explain here. Dan Markel agrees with the gist of Carpenter's post, but adds a couple of layers that create even more tension with my own views.
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Monday, June 16, 2008
Tom asks me to clarify what I mean when I refer to SSM's statist orienation; he's correct that I'm primarily referring to state efforts to impose nondiscrimination norms on conscientious objectors. But I think the tension is broader than that. Heterosexual marriage, as a legal category, encounters relatively little resistance from the citizenry because it is not just a legal institution -- it's a social, cultural, religious, and biological institution. Same-sex marriage encounters huge resistance from the citizenry, in part because it conflicts with the traditional religious conception of marriage, but also because it lacks the broader social/cultural supports that heterosexual marriage has, even outside the religious context. Many religious individuals oppose same-sex marriage for specific religious reasons; some non-religious individuals will also oppose -- or at least not rush to support -- same-sex marriage for non-religious reasons (the lack of procreative capacity, history/tradition, the conviction that children need a father and mother, as well as outright prejudice against gays and lesbians). We can't just answer these various grounds of opposition by saying, "If you oppose same-sex marriage, don't enter into one." The individuals who oppose same-sex marriage operate the organizations and make up the associations that comprise civil society. The state's task is to prudently discern how far to push the legal norms of same-sex marriage (e.g., requiring the extension of employee benefits to same-sex spouses, conditioning authority to perform state-recognized marriages on willingness to perform same-sex ceremonies, conditioning tax-exempt status on inclusion of same-sex couples in associational membership), as well as the moral norms underlying same-sex marriage (e.g., punishing anti-GLBT speech or discrimination). Some of these same questions arise in the context of interracial marriage, but the breadth and depth of the resistance in the same-sex marriage context makes the resolution of these tensions even more difficult. (This is not to suggest that the resolution of these tensions was easy in the racial context -- e.g., I find problematic the premise of the Bob Jones case that tax-exempt status should turn on an organization's furtherance of state policy.)
Albert Brooks responds to my question about MoJ's relative silence regarding the Boumediene case:
In response to your MOJ inquiry about what, if any, the CST perspective on Boumediene should be, I think we absolutely have something to say. First, the Chuch validates the role of the Judiciary as a check and balance on the power of the Executive (with the Legislature's assistance) to imprison and punish individuals:
The Church recognizes the responsibility of the State to defend its citizens, but insists that "In a State ruled by law the power to inflict punishment is correctly entrusted to the Courts; 'In defining the proper relationships between the legislative, executive and judicial powers, the Constitutions of modern States guarantee the judicial power the necessary independence in the realm of law.'" (Compendium of the Social Doctrine of the Church at Para. 402, quoting JPII's Address to the Italian Association of Judges)(emphasis in original).
Further, "In carrying out investigations, the regulation against the use of torture, even in the case of serious crimes, must be strictly observed: 'Christ's disciple refuses every recourse to such methods, which nothing could justify and in which the dignity of man is as much debased in his torturer as in the torturer's victim.' Likewise ruled out is 'the use of detention for the sole purpose of trying to obtain significant information for the trial.' Moreover, it must be ensured that 'trials are conducted swiftly: their excessive length is becoming intolerable for citizens and results in real injustice.'" Id. at Para 404 (emphasis added). Well, you might ask, isn't Terrorism different? NO.
"This right [to defend oneself from terrorism] cannot be exercised in the absence of moral and legal norms, because the struggle against terrorists must be carried out with respect for human rights and for the principles of a State ruled by law. The identification of the guilty party must be duly proven, because criminal responsibility is always personal, and therefore cannot be extended to the religions, nations or ethnic groups to which the terrorists belong.
The recruitment of terrorists in fact is easier in situations where rights are trampled and injustices are tolerated over a long period of time." Id at Para 514. I believe Justice Kennedy's Majority opinion is fully in line with all of these principles that the Church insists upon. The four Justices who dissented? Four Catholics appointed by Republican Presidents.
Friday, June 13, 2008
My awkward phrasing alone is enough to justify Michael's skepticism about my assertion of the "more statist orientation" of same-sex marriage, but I'll try to briefly explain what I meant. I'm not sure that marriage as a legal category is fully distinct from marriage as a non-legal category. As Don Browning puts it, marriage "builds on natural inclinations but requires additional powerful social, legal, cultural, and religious reinforcements." Same-sex marriage, because it largely lacks the social, cultural, religious, and biological reinforcements, must rely more on legal reinforcements. As I said, that is not, in my view, a compelling reason to oppose same-sex marriage, but it does warrant caution when evaluating state efforts to overcome social, cultural, religious, and biological obstacles to same-sex marriage that are not as formidable in the case of heterosexual marriage.
