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.

Thursday, May 22, 2008

Marriage as intrinsic good and contraception / divorce

By Rob Vischer

A reader comments on Prof. George's argument regarding marriage between a husband and wife as an intrinsic good:

In his response to your hypothetical, Professor George offers a clear presentation of the intrinsic good of marriage in the language and logic of the natural law tradition. My worry is that the ready availability of divorce and easy legal access to contraception already compromises this "intrinsic good." So that, if we are to take seriously George's understanding of how the law should teach, we must be committed both to making divorce and the use of contraception within marriage illegal.  I don't know if George himself is committed to these positions, but I would hazard that many people who more or less subscribe to the "intrinsic good" of marriage articulated by George are not willing subscribe to them. So the question becomes, why should divorce and contraception remain legal while homosexual unions remain illegal?  I'm not sure that George's argument provides an answer.

Prof. George can correct me if I'm wrong, but my guess is that he would not favor the re-criminalization of contraceptive use / distribution because of the intrusiveness of such laws.  It is generally seen as less problematic to grant a negative liberty to engage in immoral conduct (the right to use contraceptives free of government coercion) than to grant a positive liberty to do so (the right to have my chosen relationship recognized and affirmed by the government).  I would also guess that Prof. George would favor the repeal of no-fault divorce laws.

Wednesday, May 21, 2008

Witt v. Department of Air Force

By Rob Vischer

The Ninth Circuit has ruled that the miltary's "don't ask, don't tell" policy is subject to heightened scrutiny under Lawrence v. Texas.  I have not yet read the opinion, but Eugene Volokh suggests that the Ninth Circuit has interpreted Lawrence as recognizing a fundamental right to sexual autonomy.

Tuesday, May 20, 2008

Humanitarian intervention and just war theory

By Rob Vischer

Fr. Araujo recently posted an excerpt of Pope Benedict's address to the UN in which he affirmed a nation's duty to protect its citizens and the corresponding obligation of the international community to intervene when that duty is not fulfilled.  I'm wondering if others have thought about how just war theory applies to cases of humanitarian intervention when that intervention is likely to trigger an armed conflict.  The Bush administration's version of preemptive war does not easily fit within traditional just war theory, but does a preemptive humanitarian war qualify?  Specifically, would it be permissible for an international force to topple the military rulers of Myanmar if the international community concludes that effective aid cannot be delivered as long as they remain in power? 

Also, Pope Benedict cautioned that the international community's duty to intervene should not be understood as a limitation on a nation's sovereignty.   That confuses me -- how could it not be a limitation on a nation's sovereignty?  If we're establishing a principle stating that, if you engage in purposeful and systematic neglect of your citizens' basic needs, you forfeit the right to exclude foreign governments from your country, and perhaps your right to govern, isn't that a limitation on sovereignty (and a prudent one at that)?

George on Marriage as an Intrinsic Human Good

By Rob Vischer

In response to my question about voting for same-sex marriage in 2038 if the consequentialist arguments have lost their persuasive power, Prof. Robert George kindly forwarded me his contribution to the book, The Meaning of Marriage.  He attempts to reclaim "a sound understanding of marriage, especially in its sexual dimension, as an intrinsic, rather than merely instrumental, human good."  An excerpt:

According to the traditional understanding of marriage, then, it is the nature of marital acts as reproductive in type that makes it possible for such acts to be unitive in the distinctively marital way.  And this type of unity has intrinsic, and not merely instrumental, value.  Thus, the unitive good of marriage provides a noninstrumental (and sufficient) reason for spouses to perform sexual acts which by uniting them as bodily persons (that is, one flesh) consummate and actualize their marriage.  At the same time, where the central defining good of marriage is understood to be one-flesh unity, children who may be conceived in marital acts are understood not as ends extrinsic to marriage . . . but rather, and uniquely, as gifts that supervene on acts whose central defining and justifying point is precisely the marital unity of spouses.

If we recognize this intrinsic value of marriage, then the law must support that recognition:

The law is a teacher.  It will teach either that marriage is a reality in which people can choose to participate, but whose contours people cannot make and remake at will (e.g., a one-flesh communion of persons united in a form of life uniquely suitable to the generation, education, and nurturing of children), or the law will teach that marriage is a mere convention, which is malleable in such a way that individuals, couples, or, indeed, groups, can choose to make of it whatever suits their desires, interests, or subjective goals, etc.

I very much appreciate (and recommend) Prof. George's analysis, as he has thought more deeply and coherently about this issue than I ever will.  I also agree that maintaining marriage as a meaningful social institution requires limitations on its malleability.  (Dale Carpenter has offered some thoughts, and linked to others' work, on drawing boundaries between same-sex marriage and polygamy.)  I wonder, though, if privileging opposite-sex couples based on their participation in acts that are "reproductive in type" can carry the weight that is being placed on it in this analysis.

Monday, May 19, 2008

Why should a Catholic vote against same-sex marriage (in 2038)?

By Rob Vischer

I've been listening to conservative talk radio again, and after hearing another caller announce his plan to move out of California so his marriage is not associated with what the California Supreme Court hath wrought, it can be hard to keep sight of the line where reasonable argument ends and irrational prejudice begins.  I'm trying to separate out the various strands of opposition to the ruling.  I understand (and am highly sympathetic to) the democratic legitimacy argument, so let's put that to the side for now.  Let's flash forward in time.

Imagine it's the year 2038.  Same-sex marriage has been legalized by a combination of judicial rulings and legislation in every state except Kansas, and now Kansas voters face a referendum on the issue.  Let's assume, for the sake of this exercise, that many studies conducted over the previous 30 years have established, to a reasonable degree of certainty, that:

  • children raised in households headed by same-sex couples are indistinguishable from children raised in traditional households in terms of emotional and intellectual development, rates of physical and sexual abuse, self-esteem, and other measures of well-being;
  • children raised in households headed by same-sex couples are no more likely to exhibit same-gender attraction than the general population is, and that the overall percentage of gays and lesbians in society has remained fairly constant;
  • rates of sexual promiscuity among gays and lesbians have been reduced in states legalizing same-sex marriage, and rates of committed, monogamous relationships have correspondingly increased in the GLBT community;
  • marriage and divorce rates in the general population have not been impacted by the legalization of same-sex marriage;
  • state legislatures and courts legalizing same-sex marriage have uniformly rejected calls to extend the concept of marriage to encompass multiple partners.

These are big assumptions, I realize.  But if the experience of same-sex marriage ends up eviscerating the usual consequentialist arguments against same-sex marriage, what are the reasons why the Catholic voter in Kansas should reject same-sex marriage?  Is the ontological argument the only fall-back?  If so, what does that ontological argument look like -- given ancient societies' embrace of polygamy and 2038 America's apparently successful embrace of same-sex marriage -- and why should a Catholic voter find it persuasive?  Does it come down to Church authority, or is there something else?

UPDATE: Just to be clear, I'm not asking why the Catholic voter should support the Church's understanding of marriage.  I'm asking why the Catholic voter should vote to extend the Church's understanding of marriage to the entire society through the civil law, assuming the state of knowledge as it might exist in 2038. 

Friday, May 16, 2008

Pluralism run amok

By Rob Vischer

Anyone interested in parental rights, civil society, or subsidiarity should read Laura Rosenbury's paper, Between Home and School.  It's a fine and creative paper (selected for the Stanford/Yale junior faculty forum), but its conclusions are troubling.  Prof. Rosenbury laments the law's focus on parents and school as the only relevant child-rearing authorities, and she works to expand the law's vision to include sites "between home and school" that are part of the child-rearing project -- e.g., Boy Scouts, summer camps, religious activities, youth sports.  She asserts that, while the state should let these groups operate as they wish for the most part, the state should step in to foster certain key child-rearing values.  The problem she identifies is our half-hearted embrace of pluralism:

Pluralism currently exists only between families . . . . Our society is pluralistic because many types of families are permitted to exist largely free from state indoctrination.  In contrast, pluralism rarely exists within families.  Children are generally exposed to just one belief system within the family, or at most two.  Therefore, although children may not be standardized by the state, they often are standardized within their own families.  Pluralism may exist on a broad, societal level, but children rarely experience pluralism on a micro level, within their own families.

And to drive the point home:

[B]ecause the space between home and school often provides the most meaningful opportunities for children to experience pluralism, these actors would not be permitted to operate completely outside the zone of state power.  Rather, the state should intervene in a limited way to ensure that the actors do not thwart the potential of these spaces to expose children to diverse ways of life within the broader civil society.

My second-grader has been reading her Children's Bible a bit too much lately, I confess; tonight I think I'll supplement it with some Nietzsche.  Pluralism demands no less.

Thursday, May 15, 2008

Same-sex marriage in California

By Rob Vischer

The California Supreme Court, by a 4-3 vote, has overturned the state's statutory ban on same-sex marriage.  The fact that the state already allows same-sex couples to enter into domestic partnerships appears to have played a significant role in the court's decision.  Here's an excerpt:

[I]n contrast to earlier times, our state now recognizes that an individual’s capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual’s sexual orientation, and, more generally, that an individual's sexual orientation — like a person’s race or gender — does not constitute a legitimate basis upon which to deny or withhold legal rights. We therefore conclude that in view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.

Wednesday, May 14, 2008

Spivack on Dellapenna on Abortion History

By Rob Vischer

In his book, Dispelling the Myths of Abortion History, Villanova law prof Joseph Dellapenna challenges the legal history underlying Justice Blackmun's analysis in Roe.  Now Oklahoma City law prof Carla Spivack has posted a paper challenging Dellapenna's analysis.

Tuesday, May 13, 2008

The Neural Buddhists

By Rob Vischer

David Brooks argues that the revolution in neuroscience is not going to erode belief in God's existence, but it is likely to erode belief in particular religious traditions.  An excerpt:

First, the self is not a fixed entity but a dynamic process of relationships. Second, underneath the patina of different religions, people around the world have common moral intuitions. Third, people are equipped to experience the sacred, to have moments of elevated experience when they transcend boundaries and overflow with love. Fourth, God can best be conceived as the nature one experiences at those moments, the unknowable total of all there is. . . .

In unexpected ways, science and mysticism are joining hands and reinforcing each other. That’s bound to lead to new movements that emphasize self-transcendence but put little stock in divine law or revelation. Orthodox believers are going to have to defend particular doctrines and particular biblical teachings. They’re going to have to defend the idea of a personal God, and explain why specific theologies are true guides for behavior day to day. I’m not qualified to take sides, believe me. I’m just trying to anticipate which way the debate is headed. We’re in the middle of a scientific revolution. It’s going to have big cultural effects.

Monday, May 12, 2008

Subjective conscience and objective moral truth

By Rob Vischer

On the topic of conscience and authority, Steve is correct to emphasize the Christian tradition's deep respect for the subjective dimension of conscience.  This does not mean, nor do I read Steve as suggesting, that there is no objective moral truth.  Since the time of the Scholastics (and as foreshadowed as far back as Paul's epistles), Christianity has employed a dual framework for understanding conscience: synderesis is a person's general, non-deliberative moral knowledge, and conscientia refers to the freely chosen application of that knowledge to a particular set of facts.  The moral truth to which synderesis pertains does not change simply because we do not accurately perceive its substance or practical import.  At the same time, it is wrong to act against one's conscience, even an improperly formed conscience.  The gap between moral truth and application is not necessarily fixed; it may be closed through experience or teaching.

What then do we do with a conscience that is not, in the Church's understanding, accurately perceiving and/or applying moral truth, especially if the gap cannot be closed through experience or teaching?  At some point, is a Catholic supposed to defy the claims of her own conscience and submit to Church teaching that runs contrary to her moral convictions? 

Take birth control, for example.  Suppose that a Catholic reads all of the relevant Church teaching on the subject, talks to her priest, prays, etc., but that she still remains convinced that the use of contraception within marriage is not immoral.  At this point, how should the conversation go between the woman and her Church?  The Church can say, "we respect your conscience, but it is improperly formed, so in acknowledgment of that fact, you should submit to Church teaching."  The woman responds, "how is it improperly formed?"  There is no response that the Church can make on this point that has not already been considered and rejected by the woman.  Ultimately, it is a straightforward claim of authority by the Church.  If the woman's only reason for concluding that her conscience has been improperly formed is the Church's assertion that it has been improperly formed, that seems to create tension with: 1) a fulsome respect for conscience; and 2) the belief that knowledge of the moral law, as pertains to contraception at least, has been written on our hearts.

I can see how this problem can be worked out from the standpoint of ecclesiology (as members of a faith tradition that is bigger than ourselves, not all of our truth claims require our individual assent), but I have a harder time working it out from the standpoint of conscience (for which individual assent is central).  Obviously, I have more questions than answers on this tension, and I welcome others' views.

Previous Articles More Articles

Recent Posts

Categories

Monthly Archive