As I've written elsewhere, I'm skeptical about whether a pharmacist should be legally empowered to invoke a right of conscience against her employer. I fear that such a right might short-circuit the possibility of a moral marketplace and the potential for pharmacies to operate as a sort of mediating structure. The marketplace approach has plenty of critics, of course, and I welcome the challenges they present, though I'm given pause by the fact that the critics now apparently include Pope Benedict.
Tuesday, October 30, 2007
Benedict on Pharmacists
Tuesday, October 23, 2007
Torture as Technicality
I confess that I did not follow last week's confirmation hearings of Michael Mukasey to be attorney general. But I am disturbed at his evasiveness on the question whether waterboarding constitutes torture. David Luban comments:
Aren’t we tired of evasion? The legal formula "severe physical or mental pain or suffering" is NOT an arcane lawyer’s term of art. It’s not an old Latin phrase or a medieval term like "replevin" or "assumpsit". All the black arts of the Bush torture lawyers have been bent to one end: pretending that there is something arcane and complicated about the words "severe physical or mental pain or suffering." Something that only a brilliant lawyer with fancy credentials can figure out.
The fact is, there is no rich technical jurisprudence on the meaning of those words, and only scoundrels pretend that there is. The legal definition of torture is just twenty years old, and - to say the least - torture cases raising the issue of where to draw the boundary between "severe" and "not severe" aren’t popping up on the dockets of courts the world over like slip-and-fall cases. This isn’t a question for lawyers. This is a question of common sense. Let’s stop being ridiculous.
So: does waterboarding inflict severe suffering? If you want to do a quick, common-sense reality check, try this. Blow all the air out of your lungs. Then stare at your watch and try not to inhale for ninety seconds by the clock. Then take one quick half-breath and immediately do it again. Now imagine that you’re tied down while you’re doing it and water is pouring over your head and rolling up your nose. Or, if you’re really ambitious, get in the shower and turn it on and try the same hold-your-breath-with-no-air-in-your-lungs experiment with your head tilted up and the water pouring up your nose. Then decide for yourself whether it’s severe suffering.
Which is worse: having a President who obfuscates the clear meaning of terms in order to avoid accountability for personal moral failings, or having a President who does so in order to avoid accountability for morally flawed policy permitting the state's abuse of the human person? Whatever good the Bush Administration has done on certain issues of importance to human dignity, can anyone reasonably dispute that the lack of clarity and courage on the issue of torture is a black mark on its record?
The "anti-homosexual" Christian
Leading evangelical pollster The Barna Group has released a study showing that Christianity's reputation among young Americans is taking a serious hit, due in large part to its stance on homosexuality:
Interestingly, the study discovered a new image that has steadily grown in prominence over the last decade. Today, the most common perception is that present-day Christianity is "anti-homosexual." Overall, 91% of young non-Christians and 80% of young churchgoers say this phrase describes Christianity. As the research probed this perception, non-Christians and Christians explained that beyond their recognition that Christians oppose homosexuality, they believe that Christians show excessive contempt and unloving attitudes towards gays and lesbians. One of the most frequent criticisms of young Christians was that they believe the church has made homosexuality a "bigger sin" than anything else. Moreover, they claim that the church has not helped them apply the biblical teaching on homosexuality to their friendships with gays and lesbians.
Thursday, October 18, 2007
Ave Maria litigation begins
Former Ave Maria Law School professors Steve Safranek, Ed Lyons, and Phil Pucillo have filed a six-count complaint against the law school, Dean Bernard Dobranski, and Tom Monaghan. (HT: Leiter)
Wednesday, October 17, 2007
Justice Scalia Fires up the Grill
Since our Villanova contingent hasn't weighed in on yesterday's Scarpa conference, I'm forced to rely on local news accounts:
Devout U.S. Catholics like himself may stand apart from much of the nation on abortion, homosexuality, and embryonic stem-cell research, Supreme Court Justice Antonin Scalia told a packed audience at Villanova University yesterday, but he insisted "there is no such thing as a 'Catholic judge.' "
"The bottom line is that the Catholic faith seems to me to have little effect on my work as a judge," he declared.
Invited to speak to that very question - "the role of Catholic faith in the work of a judge" - the famously opinionated justice rendered his decision just three minutes into his keynote lecture at Villanova Law School's annual Scarpa conference on law, politics and culture.
"Just as there is no 'Catholic' way to cook a hamburger," he said to a murmur of laughter, "I am hard-pressed to tell you of a single opinion of mine that would have come out differently if I were not Catholic."
So is Justice Scalia correct? At least when it comes to the judge's role, is MoJ's Catholic Legal Theory project akin to constructing a Catholic Meat-Grilling Theory? (For those interested, I address Justice Scalia's past statements on this subject in an article exploring the contrasting functions of prudential judgment in the roles of lawyer and judge.)
Thursday, October 11, 2007
Sex in a Secular Age
I haven't read Charles Taylor's new book yet, but the excerpt in Commonweal is certainly a lively read. Here is a passage that connects directly with our ongoing discussions about the content of (and, relatedly, the increasingly "invincible ignorance" of) the natural law:
The sexual revolution, then, was moved by a complex of moral ideas in which discovering one’s authentic identity and demanding that it be recognized was connected to the goal of equality, the rehabilitation of the body and sensuality, and the overcoming of the divisions between mind and body, reason and feeling. We cannot treat it simply as an outbreak of hedonism.
Of course, the fact that the sexual revolution was motivated by a single interconnected ideal did nothing to guarantee that the ideal would be realized. The hard discontinuities and dilemmas that beset human sexual life, and that most ethics tend to ignore or downplay, had to assert themselves: the impossibility of integrating the Dionysian into a continuing way of life, the difficulty of containing the sensual within a continuing intimate relation, the impossibility of escaping gender roles altogether, and the great obstacles to redefining them, at least in the short run. Not to mention that the celebration of sexual release could generate new ways in which men could objectify and exploit women. A lot of people discovered the hard way that there were dangers as well as liberation in throwing over the codes of their parents.
Still, we have to recognize that the moral landscape has changed. People who have been through the upheaval have to find forms that allow for long-term loving relations between equal partners who will in many cases also want to become parents and bring up their children in love and security. But these can’t be simply identical to the codes of the past, insofar as they were connected with the denigration of sexuality, horror at the Dionysian, fixed gender roles, or a refusal to discuss identity issues. It is a tragedy that the codes that churches want to urge on people still (at least seem to) suffer from one or more-and sometimes all-of these defects.
The inability is made the more irremediable by the unfortunate fusion of Christian sexual ethics with certain models of the “natural,” even in the medical sense. This not only makes them hard to redefine; it also hides from view how contingent and questionable this fusion is, how little it can be justified as intrinsically and essentially Christian. The power of this fused vision to put people off is at its greatest in our age of authenticity, with a widespread popular culture in which individual self-realization and sexual fulfillment are interwoven.
When a Catholic philosopher with the intellectual firepower of Charles Taylor sees natural law claims as masking contigencies, can we really expect philosophy to lead to a rationally compelling articulation of the natural law?
More on Wills on Abortion
Rick already responded to some of the claims about pro-lifers made by Garry Wills; reader John Heitkamp also recommends this article from the Pro-Life Activist's Encyclopedia outlining the Church's history on abortion.
UPDATE: Jonathan Watson reminds me of the indispensable new book on the subject, Joseph Dellapenna's The Myth of Abortion HIstory.
Tuesday, October 9, 2007
Faith, Reason, and Abp. Tutu
My colleague Teresa Collett offers an additional response to Rick's questions regarding our statement about Archbishop Tutu:
This response represents only my views. I have not asked for, nor received, comments from my colleagues regarding what follows.
I appreciate the call to faithfulness that underlies your pointed questions regarding the letter signed by law faculty concerning the University's actions on Arbp. Tutu. However, I believe that you have read the letter through the eyes of the secular academic, rather than through the eyes of a faithful son of the Church, which I know you to be. Nowhere does the phrase "free speech" appear in the document. The only reference to secular norms appears in the statement, "[w]e could easily cite secular academic norms as well, for in this case they harmonize with Catholic norms.
The paragraph you cite as creating concern that the signators to the letter have not given adequate thought to the necessity of refusing a platform to those who hold or express offensive views, is not, as you fear, an endorsement of the pernicious idea that a Catholic (or indeed a secular) university is obligated "to give a platform to all speakers, no matter how offensive their views or statements." Rather, I understand the paragraph, and letter as a whole, to affirm only the idea that the University is "to promote dialogue between faith and reason, so that it can be seen more profoundly how faith and reason bear harmonious witness to the unity of all truth." Ex Corde, para. 17 (emphasis in the original).
Reply to Rick
Thanks to Rick for reading, and asking good questions about, our statement objecting to the university's decision not to welcome Abp. Tutu to campus. (As an aside, it's by no means clear to me that Tutu compared Israel to Nazi Germany.) I can only speak for myself on these points, but I'll offer my initial reactions. First, I'm not sure why a Catholic university should ever exclude a speaker who is engaged in the search for truth on the ground that his speech is offensive. Off the top of my head, I'm having trouble thinking of an example. Holocaust deniers are not engaged in the search for truth. Perhaps the timing of a visit is inappropriate, such as when the NRA might seek a platform to trumpet gun rights in the immediate aftermath of a campus shooting. And of course, the university need not give the offensive speaker a platform to himself; the inclusion (even forced inclusion) of other messages might be warranted. But what sort of speaker engaged in the search for truth should be categorically excluded from a Catholic university based on the offensiveness of his speech?
Rick's second question concerns the need for some sort of "abortion disclaimer." If we require a disclaimer before any pro-choice speaker admired by students opens his mouth on the campus of a Catholic university, we'll be quite busy, I imagine. And I'm not sure what the justification would be for limiting the disclaimer to abortion -- the next time President Bush delivers the commencement address at a Catholic university, should we add a torture disclaimer or a just war disclaimer? (Before anyone jumps on me for conflating areas of prudential judgment with a bright-line moral absolute, I don't think it's beyond the pale to say that President Bush has disregarded the boundaries of prudential judgment on those issues.)
If the speaker is noteworthy primarily for their position in opposition to Church teaching, I can see the need to invite either an opposing speaker or include a brief explanatory statement before the speech. If, for example, a student group at a Catholic university invited a Planned Parenthood official to be part of a panel about prenatal care for women in developing countries, it would still be important to have some sort of disclaimer in the introduction because she is so closely associated with abortion rights. Desmond Tutu is not noteworthy as an abortion rights advocate. He is a champion of peaceful resistance to injustice. No disclaimer needed, in my view.
Monday, October 8, 2007
"Powerful Lobbies" and Natural Law
I appreciate Fr. Araujo's reminder that a just social order requires prudence not only on the part of the judiciary, but also by other government officials and private citizens. I also agree that the courts cannot always be blamed for overreaching or social engineering since they can't simply ignore claims brought by groups who are pursuing their own social agendas. Nevertheless, I have a couple of comments. First, the specter of "powerful lobbies" is too frequently invoked, in my view, as an easy means of condemning instances in which citizens in association seek to persuade the legal/political authorities to adopt their vision of the good. Often, it is true, the proposed vision of the good is grounded more in the self-interest of those doing the proposing, rather than in some more authentic attempt to cultivate the common good. But are the citizens (and their associations) who are behind challenges to laws calling for the arrest of adults for consensual sexual conduct in the privacy of their homes really a "powerful lobby" that needs to be resisted? Can't they just as easily be portrayed as voices for limited government and human dignity, standing up against majorities on behalf of the marginalized? In the early part of the last century, should citizens concerned about state laws closing down Catholic schools have waited until they could convince their neighbors, one by one, that such laws are unjust, or should they have brought a constitutional claim to strike down the laws? Do those parents, teachers, and schools fall into the category of "powerful lobbies," or are they exempt because their action is brought on behalf of the "natural moral law?" And since few litigants believe that they are advocating against the "natural moral law," wouldn't this be the exception that ate the rule?
Second, how would the natural moral law play out in the case of Lawrence v. Texas? It's not obvious to me why the natural moral law would support the state's efforts to criminalize sexual conduct between consenting adults in private. At the very least, it seems highly debatable. And that's why, in my view, invocation of the natural moral law as a guiding framework in our legal system is not particularly helpful: when all reasonable people reach agreement on its content (e.g., slavery, genocide), the natural moral law appears to reflect the conclusions we've already reached. At times when disagreement on an issue is widespread (e.g. abortion and same-sex marriage), then the natural moral law's own indeterminacy does not do a whole lot to overcome the disagreement. Unless we're willing to invest ultimate interpretive authority in an institution (e.g., the Church) that lies beyond the reach of majority opinion, I'm not sure what the natural moral law adds to the conversation.
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