Mirror of Justice

2006 Catholic blog awards

Shamelessness time:  Why not surf over to the 2006 Catholic Blog Awards and nominate "Mirror of Justice" for, say, "Best Blog by a Group"?

Contraception and Population

I was reading Grisez's "Way of the Lord Jesus" today in preparation for Thursday evening's Natural Law Colloquium at Fordham.  (Here's my shameless plug:  Jean Porter is going to come to discuss her work as it relates to the controversy over gay marriage; Charles Reid will be coming from St. Thomas Law School to respond; I'll also be responding.  It starts at 6pm in Fordham Law School's amphitheater.).  Anyway, I was reading Grisez, and he makes the point that encouraging contraception for the purpose of avoiding overpopulation is not permissible.  My question is this (I know this sounds sarcastic, but I ask it in all sincerity and am interested in being pointed towards the appropriate resources):  Is there any community (of substantial size -- something like a country or tribe -- Ave Maria township does not count :-) ) that has achieved population stability in the absence of either high mortality or the widespread use of contraception?  In other words, is anyone aware of any data that any community has ever achieved population stability through the collective exercise of sexual self-control? 

Ninth Circuit strikes down PBA ban

The United States Court of Appeals has affirmed a lower court's invalidation of the federal ban on partial-birth abortions.  (Thanks to Howard Bashman).  It appears, by the way, that today's decision is the first post-Ayotte consideration of such a ban.  It will be interesting to see how the new Supreme Court -- with Justice Alito replacing Justice O'Connor -- responds to the Ninth Circuit's ruling, and applies both Ayotte and Stenberg.

UPDATE (from Bashman):

BREAKING NEWS -- U.S. Court of Appeals for the Second Circuit affirms district court decision holding Partial-Birth Abortion Ban Act of 2003 unconstitutional but requests additional briefing on the question of remedy: Today's ruling by a three-judge Second Circuit panel, in which each judge on the panel has issued a separate opinion, can be accessed here.

Senior Circuit Judge John O. Newman delivered the opinion of the court. Chief Judge John M. Walker, Jr. issued a concurring opinion expressing dissatisfaction with the U.S. Supreme Court's current abortion jurisprudence. Chief Judge Walker's concurrence states, "I write separately, however, to express certain concerns with the Supreme Court's abortion jurisprudence generally and with Stenberg in particular."

Circuit Judge Chester J. Straub dissented from today's ruling and would have held constitutional the ban on so-called "partial birth" abortion. In the dissenting opinion, he writes, "I find the current expansion of the right to terminate a pregnancy to cover a child in the process of being born morally, ethically, and legally unacceptable." For those who care about such things, Judge Straub was nominated to the Second Circuit by President William J. Clinton.

Child abuse and the confessional

The Concord Monitor reports:

For the second time in three years, lawmakers have proposed a bill that would require religious leaders to report suspected cases of child abuse, even if they learn about that abuse in the privacy of a religious confession.

The Diocese of Manchester opposes the bill, saying it would interfere with religious freedom without making children safer.

The Child Protection Act, enacted in 1979, requires any person in the state who suspects abuse or neglect to report those suspicions to law enforcement. That law specifically includes religious officials. But another state law exempts clergy from having to testify in court about anything said in confession or in a similar spiritual-advice setting.

That ambiguity led Rep. Mary Stuart Gile, a Concord Democrat, to introduce a clarifying bill three years ago. Lawmakers killed that bill in 2004. . . .

Northfield Police Chief Scott Hilliard, representing the New Hampshire Association of Chiefs of Police, also spoke, identifying himself as a practicing Catholic and eucharistic minister - and a former child-abuse investigator. "(We) feel it's important that there be no exemptions from the mandatory reporting statute," he said, supporting the bill. . . .

Getting Catholic priests to comply could be a major issue, said Rep. D.J. Bettencourt, the chairman of the subcommittee, whether or not the bill would be challenged legally. Bettencourt, a Catholic, said he consulted his own priest about the bill. His priest would rather go to prison than divulge something learned in confession, he said.

Stay tuned.

Children, Media and Sex

Perhaps some common ground in the culture war divide is discernible given that even The New York Times expresses concern with the impact that our sex-saturated media culture has on children and the general failure to invest any resources in studying that impact.  The Times article goes so far as to assert that the rate of teenagers' sexual activity (notably not just teen pregnancy) is "staggering."  One of the only surveys on the question of media impact found that:

[W]atching TV with sexual content artificially aged the children: those who watched more than average behaved sexually as though they were 9 to 17 months older and watched only average amounts. Twelve-year-olds who watched the most behaved sexually like 14- and 15-year-olds who watched the least.

Much (but certainly not all) of the blame lies with parents, given that two-thirds of children 8 to 18 have televisions in their bedrooms.

Rob

more on "the hollowing out of Roe v. Wade"

Rick mentioned Dawn Johnsen's Slate essay entitled "The Outer Shell: The hollowing out of Roe v. Wade." This line of argument, that the right to abortion has already been gutted, is increasingly common. Chris Whitman published an article in the Michigan Law Review several years ago to the same effect. I wrote a short comment on Whitman's piece for a University Faculty for Life conference and my paper is available here.

This argument has several distinctive features. One is to, I think willfully, ignore just how extreme US law is abortion. For example, Whitman and Johnsen ignore the Stenberg decision and the still very large number of legal abortions in the US. Second, while expressing concern for the weak and vulnerable, this argument ignores the mounting evidence that abortion harms women. I cite to some of the literature on this latter point in my paper and there has been additional evidence published on this point in just the last several months.

Richard      

The Death Penalty and Constitutional Structure

This looks interesting (thanks to Larry Solum):

Broughton on Capital Punishment
J. Richard Broughton (United States Department of Justice - Capital Case Unit) has posted The Second Death of Capital Punishment on SSRN. Here is the abstract:

This paper seeks to reexamine, and to reformulate, the terms of our national capital punishment dialogue by approaching death penalty jurisprudence as a problem of constitutional structure and form. As a factor contributing to the incremental demise of capital punishment in the United States, omnipotent and omniscient judicial regulation of capital sentencing has significant consequences for the political institutions responsible for controlling the people in our constitutional design. Examining the Supreme Court's recent categorical exemption cases, this paper confronts the raw moral judgments and political preferences that define the Court's immodest understanding of its own authority under the Eighth Amendment. It also examines recent capital habeas cases to demonstrate that the Court may be softening the rigorous standards for habeas relief especially for capital cases. Ultimately, these actions have weakened the death penalty and, more importantly, our political institutions. By serving as a forum for determining which criminal punishments are morally right and desirable, and by compromising the integrity of legal structures that safeguard vital state criminal law interests, the Court diminshes the essential distance that the Constitution places between the government and the governed, and between the institutions that govern. It also undermines the authority of the political branches as the primary institutional mediums for filtering out public passions and building coalitions for responsible democratic action to control the people. The paper therefore urges a greater awareness of, and endorses a constitutional law that safeguards, formal institutional arrangements.

Benedict XVI, Deus Caritas Est, and the Role of the Church in Public Life: A Continuity With, Not a Departure From, the Witness of John Paul II

At the beginning of any papacy, people carefully look for signs of continuity with, or variation from, the vision or style of the previous Pope. Thus, observers understandably have been combing through the first encyclical issued by Pope Benedict XVI, Deus Caritas Est, in an attempt to decipher the themes of the new papacy and identify possible points of departure from the actions and messages of John Paul II. When the new pope so often has been caricatured as authoritarian and rigidly doctrinal, statements by him that reflect nuance regarding the role of the Catholic Church in public life and an emphasis of the removal of the Church from ordinary politics take on heightened importance.

In terms of the Church’s relationship with the temporal civil order, which of course is also a matter of primary concern for the Mirror of Justice and its participants, Benedict XVI had this to say:

“The Church's social teaching argues on the basis of reason and natural law, namely, on the basis of what is in accord with the nature of every human being. It recognizes that it is not the Church's responsibility to make this teaching prevail in political life. Rather, the Church wishes to help form consciences in political life and to stimulate greater insight into the authentic requirements of justice as well as greater readiness to act accordingly, even when this might involve conflict with situations of personal interest. Building a just social and civil order, wherein each person receives what is his or her due, is an essential task which every generation must take up anew. As a political task, this cannot be the Church's immediate responsibility. Yet, since it is also a most important human responsibility, the Church is duty-bound to offer, through the purification of reason and through ethical formation, her own specific contribution towards understanding the requirements of justice and achieving them politically.

The Church cannot and must not take upon herself the political battle to bring about the most just society possible. She cannot and must not replace the State. Yet at the same time she cannot and must not remain on the sidelines in the fight for justice. She has to play her part through rational argument and she has to reawaken the spiritual energy without which justice, which always demands sacrifice, cannot prevail and prosper. A just society must be the achievement of politics, not of the Church. Yet the promotion of justice through efforts to bring about openness of mind and will to the demands of the common good is something which concerns the Church deeply.” (Deus Caritas Est, para. 28a)

In emphasizing the proper role of the Church in the awakening and formation of conscience, while insisting that the Church must not enter into the “political battle” that remains instead the separate vocation of the laity, Pope Benedict XVI’s words have been portrayed by some as a departure from the public witness of his predecessor. After all, John Paul II addressed civil authorities regularly with boldness and spoke with prophetic directness on issues of human rights, pointedly including the sanctity of human life from conception to natural death.

I submit that these observers both have misread Benedict XVI as foreshadowing something of a withdrawal by the Church on direct engagement with civil regimes on basic matters of human rights (including sanctity of life issues) and have misunderstood the non-political nature of John Paul II in his forthrightly religious witness in the public square. In other words, I see Benedict XVI's first encyclical as steadily in continuity with John Paul II in the understanding of the appropriate role of the Catholic Church when it encounters the temporal civil order. John Paul II confronted tyranny in many areas of the world and the self-centered idolatries in our corner of the globe by speaking the truth plainly and by encouraging an evangelical spirit that would transform societies by first bringing spiritual renewal to the people. But John Paul II eschewed direct political involvement by the Church or its clery, particularly that of a partisan nature.

The priority of evangelical renewal in John Paul II’s messages was often overlooked, given the uncompromising power of his words regarding the sanctity of human life and the greater specificity of his teachings on the fundamental duty of civil society to protect human life and dignity (e.g., Evangelium Vitae). However, one should not extrapolate a general political agenda, much less a call for direct Church involvement in political campaigns or ideological platforms, from the Church’s teachings condemning such inherent evils as genocide, slavery, and abortion. As did John Paul II, Benedict XVI as the occasion arises undoubtedly will regularly reaffirm the dedication of the Church to the fundamental principles of human dignity in any civil society, beginning with the right to life and including the freedom of religion, to educate children, and to receive the basic necessities of life. As Benedict XVI now counsels, the Church’s primary salvific role and its necessary separation from political life was underscored as well by John Paul II.

In reading Benedict XVI’s encyclical, Deus Caritas Est, as it touched briefly on the role of the Church in public life, I was reminded of John Paul II’s strikingly parallel words at a similarly early point in his papacy. In his very first pastoral journey in January, 1979, the new pontiff visited the Conference of Latin American Bishops (Consejo Episcopal Latinoamericano) in Puebla, Mexico. Far fom praising the increasingly partisan and radical political activism of some bishops and clergy in Latin America, who were loosely gathered under the banner of “Liberation Theology,” the Holy Father wholly rejected the reconception of Jesus as a political, even violent, revolutionary, rather than the divine Son of God with a “redemptive mission.” In his Puebla address, John Paul II emphasized that the Church’s prophetic voice on behalf of the poor and oppressed must be grounded in the Good News of Christ Jesus. By restoring the Church’s spiritual mission, he said, “we are capable of serving human beings and our peoples, of penetrating their culture with the Gospel, of transforming hearts, and of humanizing systems and structures.” The truly revolutionary role of the Church is evangelism, changing the culture by changing the hearts of men and women through a transformative encounter with the Living God through His Son, Jesus. “[E]vangelizing is the essential mission, the specific vocation, the innermost identity of the Church.”

As John Paul II later explained in his Encyclical, Sollicitudo Rei Socialis, to achieve an authentic advancement of human dignity, bishops and priests must focus upon their pastoral vocation of teaching and service, that is, sharing the saving message of Christ, reminding the faithful of the social doctrine of the Church, and exercising Christian charity to feed the hungry, house the homeless, and minister to the sick. “For the Church does not propose economic and political systems or programs, nor does she show preference for one or the other, provided that human dignity is properly respected and promoted, and provided she herself is allowed the room she needs to exercise her ministry in the world.” (Sollicitudo Rei Socialis, paras. 41-42)

For those of us who live, work, and have our being in systems of law and politics, we need to be reminded that while we should always be guided by the Church’s teachings, especially those concerning the dignity of all persons, we may never insist that the Church endorse any particular political agenda. And we must never delude ourselves into believing that what we may accomplish by way of legal reform or political success can ever substitute for the way of salvation offered through Jesus Christ. During his one-month papacy, Pope John Paul I insisted that “it is a mistake to state that political, economic, and social liberation coincide with salvation in Jesus Christ; that the regnum Dei is identified with the regnum hominis.” (John Paul I, Catechetical Lesson on the Theological Virtue of Hope, (Sept. 20, 1978) From John Paul I, through John Paul II, and on to Benedict XVI, the Gospel message for the temporal world and more importantly for the transcendent future remains the same.

Greg Sisk

Political Bias and Brain Activity

I wonder if this study helps explain how Catholics can come to such wildly divergent political conclusions based on a common body of social teaching.

Rob

Remedying "associational fraud": more reasons for skepticism

I agree with Rick's critique of the Ayres / Brown proposed remedy for "associational fraud."  Imposing a state-approved disclosure form on the membership process presumes that associations are nothing greater than the sum of their individual parts -- that is, an association's value is realized only to the extent that its members have subjectively and verifiably consented to the group's mission and message.  Seen in this light, required disclosure simply helps associations become more effective associations.  It is true that much of an association's mediating function would be lost if there was no correlation between the association's identity and the member's conception of that identity, but much of the mediating function would also be lost if associations were constrained to express that identity in a way that fits on a state-approved form.  The fact that an association's identity is defined, articulated, and pursued beyond the reach of the state is inseparable from the reasons we value associations in the first place.

Further, even for folks concerned with ensuring "correct" identities across the associational landscape, it's not clear that the Ayres / Brown remedy would deliver on its promise.  The proposal presumes that members will be empowered to demand change once a group's illiberal beliefs are brought into the light of day.  But one advantage of not having a formal process by which associations must declare their identities is that those identities maintain a higher degree of malleability than if every facet of an association's core beliefs must be put in writing and incorporated as part of every membership decision.  Institutional change may actually prove more difficult when the unspoken and uncertain beliefs are made explicit and certain.  E.g., I'd venture to say that the Dale litigation made the leaders of the Boy Scouts more wedded to their anti-gay policy than they would have been if the issue had never been pursued by New Jersey.  Just as a scholar's open mind can be jeopardized out of loyalty to his past work, an extensive paper record might prove a formidable obstacle to an evolving associational identity.

Rob

"Discrimination": Still not getting it

Sigh (from the Times (UK)).

A UNIVERSITY Christian Union has been suspended and had its bank account frozen after refusing to open its membership to people of all religions.

The Christian Union, an evangelical student organisation, has instructed lawyers and is threatening court proceedings against the Birmingham Guild of Students.

Eminent domain and churches

The point came up often in the post-Kelo commentary that local governments were likely to regard churches as attractive candidates for taking-and-redevelopment.  This recent New York Times story, "Humble Church is at the Center of Debate on Eminent Domain," suggests that the commentariat was on to something:

With bulldozers churning up the earth at the front door, the small Centennial Baptist Church in this struggling industrial hub west of Tulsa seems about to fall to the wrecker.

But the construction is just roadwork, for now. And that is all it will ever be if the congregation has its way.

"The Lord didn't send me here to build a minimall," said the longtime pastor, the Rev. Roosevelt Gildon.

In what a local newspaper called "a battle between God Almighty and the almighty dollar," Sand Springs is moving ahead with a redevelopment plan to clear the church and other occupants from the rundown district near downtown to make way for superstores like the Home Depot.

The "hollowing out" of Roe?

Professor Dawn Johnson -- an expert on, among other things, the law relating to abortion -- published a few days ago on Slate an essay called "The Outer Shell:  The Hollowing Out of Roe."  In Johnson's view, "[t]he Senate's focus on the formal status of Roe, while understandable, masks the extent to which the court has already gutted the right to choose and what the confirmation of Alito most immediately would mean for reproductive liberty."  Commenting on the "literally hundreds of abortion restrictions" that, it is reported, state governments have enacted in recent years, she warns:

Abortion restrictions often sound superficially reasonable and appealing: They include such benign-sounding requirements as waiting periods, "informed consent," special physical specifications for buildings in which abortions are performed, and special hospital admitting privileges for the physicians who perform them. They are designed to sound reasonable while also limiting the number of abortions performed, ultimately as completely as would a criminal ban.

I wonder if "restrictions" like waiting periods, informed consent, parental notice, etc., "sound reasonable" because, well, they are?    

U.K. Women demand tougher laws to curb abortions

[Vince Rougeau, who is in London this semester, saw this article and thought MOJ-readers would be interested.]

The Observer [London]
Sunday January 29, 2006

Women demand tougher laws to curb abortions
Denis Campbell and Gaby Hinsliff

A majority of women in Britain want the abortion laws to be tightened to make it harder, or impossible, for them to terminate a pregnancy.

Evidence of a widespread public demand for the government to further restrict women's right to have an abortion is revealed in a remarkable Observer opinion poll. The findings have reignited the highly-charged debate on abortion, and increased the pressure on Tony Blair to review the current time limits.

The survey by MORI shows that 47 per cent of women believe the legal limit for an abortion should be cut from its present 24 weeks, and another 10 per cent want the practice outlawed altogether. Among the population overall, reducing the upper limit was the preferred option backed by the largest proportion of respondents, 42 per cent, made up of a 36-47 per cent split among men and women.

Only one person in three agreed that 'the current time limit is about right', with slightly fewer women (31 per cent) than men (35 per cent) saying that. Just 2 per cent of women and 5 per cent of men think the last possible date after which a woman can end a pregnancy should be increased from 24 weeks.

The leader of the 4.1 million Catholics in England and Wales, Cardinal Cormac Murphy O'Connor, called on politicians last night to heed the evidence of a growing demand for a rethink on abortion policy, to include The Observer's findings. 'There has been a moral awakening over the last few years about abortion; the British public have been undergoing a reality check,' said his spokesman, Dr Austen Ivereigh. 'The Cardinal sees in this moral awakening a growing unease with, and erosion of, the idea of abortion as simply a woman's right.'

Increased awareness of the realities of abortion, and the impact of ultrasound images of a 23-week-old foetus smiling and grimacing, have made people change their views, said Ivereigh. The latter 'very dramatically showed that what had been depersonalised in many people's minds as a foetus was clearly seen to be a baby, a human being in formation, and that has come as a shock to many people', he added.

Abortion became a key issue in last year's general election campaign when Michael Howard, then the Conservative leader, said he wanted to see the maximum time limit cut to 20 weeks.

Former Liberal leader David Steel, the architect of the pioneering 1967 Abortion Act which made abortions legal for the first time in Britain, wants the upper limit reduced to 22 weeks.

The limit was originally set in 1967 at 28 weeks, because that was then taken to be the age at which a foetus would not be 'viable', but it was reduced to 24 weeks in 1990. Around 200,000 women a year undergo an abortion in Britain, although between 85 and 90 per cent occur within 12 weeks and only about 1.5 per cent after 20 weeks. Abortion is still illegal in Northern Ireland.

David Cameron, Howard's successor, backs a new limit of between 20 and 22 weeks. 'He thinks because of the advances in medical science there's now a case for it being lowered, although not dramatically. He would support it being reduced. That is his personal view,' said his spokesman.

Moves to reduce the time limit are now beginning to win the support of liberal-minded MPs who support the right to abortion. Dr Evan Harris, the Liberal Democrat MP and a former GP, called for an in-depth parliamentary inquiry to examine the scientific evidence about the survival rates of babies born at under 24 weeks, and then recommend any necessary changes to the law. 'The question has been raised about whether we are going to base the limit on viability - that was the basis under the existing law - and if it's on viability then viability is subject to change based on medical advances,' he said.

'The longer we don't debate this, the less confidence the public will have that Parliament is doing its job which is reviewing and keeping in mind how scientific advances impact on public policy.'

Abortion law has always been altered through private members' bills tabled by backbenchers rather than by government in the past, with MPs voting according to their conscience. However the tacit support of the government is vital to get private members' bills through, making the views of the Prime Minister and Health Secretary crucial.

Amid the debate last year, prompted by the images of unborn babies in the womb, Blair indicated that the government could be prepared to review the limits on abortion law. The then Health Secretary, John Reid, personally supports a lower time limit.

However, Patricia Hewitt, the current Health Secretary, seemed yesterday to rule out any reduction: 'I think it is very difficult for a woman contemplating a late termination and they need to be given very clear advice and support.'

Toni Belfield of the Family Planning Association, which opposes any reduction, said: 'The argument about medical advances misses the point. There needs to be access to late abortion after 20 weeks because a woman may not find out she is pregnant until 18 or 19 weeks, or be in a non-consensual relationship, or be told about a foetal abnormality.'

Julia Millington, of the Pro-Life Alliance of anti-abortion groups, said the findings were 'very encouraging'.

Ipsos MORI interviewed 1,790 people aged 16 to 64 by online questionnaire between 6 and 10 January.
_______________
mp

"Associational Fraud"

Over at Professor Balkin's blog, Ian Ayres and Jennifer Gerarda Brown have a post up called "Judge Alito, the Boy Scouts, and Associational Fraud."   They comment on the questions asked, and answers given, during Judge Alito's confirmation hearings concerning "Concerned Alumni of Princeton" and articles in the CAP's magazine that "expressed sexist and racist views of Princeton’s changing demographics."  And, they suggest that just as Judge Alito -- "like the Inspector in Casablanca" -- was "shocked to learn of CAP's . . . racist and sexist policies," many were "shocked to learn" -- after the Court's decision in Boy Scouts of America v. Dale -- that "their beloved Boy Scouts had taken an anti-gay policy."

They said, as Judge Alito says now, “that certainly was not any part of my thinking in whatever I did in relation to this group.” They regretted the time, money, and talent they had devoted to the Boy Scouts over the years. Steven Spielberg resigned from the national advisory board of Boy Scouts of America.

This sad, “if I’d only known” reaction from both Alito and former Boy Scouts suggests that organization members can be victims of a kind of associational fraud when they are induced to join a group without being fully informed of the group’s discriminatory policies.

Having identified this phenomenon -- i.e., "associational fraud" -- Ayres and Brown continue:

How could we prevent such associational fraud? We can all start by demanding to know more about the policies of organizations before we join them.

But the law can help. Government has a constitutional interest in promoting informed association. A state like New Jersey might pass an “Informed Association” statute that would require organizations to disclose discriminatory policies to prospective members before they are allowed to join. The statute might even require that members sign a statement acknowledging that they have been fully informed of the organization’s policies and still choose to join.

These written acknowledgements would not need to be made public. An organization with discriminatory policies might only be asked to retain evidence that its prospective members had signed the required acknowledgements.

Many people couldn’t bring themselves to sign a statement acknowledging that they were choosing to associate with a discriminatory group.

But at least part of this predictable decline in membership should be seen as an enhancement in association freedom. The freedom of association also means the freedom not to associate. And associational decisions are impaired if people are duped into joining.

Put another way, the law must give meaning to associational silence. If a group remains silent, what does this silence signal: that the group implicitly represents that it respects the state’s non-discrimination norm, that the group might not, or that group does not respect the norm? Any potential legal inference burdens some members’ associational rights, in that it forces either the members or the organization to speak to assure that their associational preferences are met.

Clearly, government cannot and should not force associations to clarify every position they hold. But anti-discrimination laws of general application (like New Jersey’s Human Rights Statute) are fundamental state policies. It’s reasonable for a state to insist that organizations taking contrary positions disclose their true colors to potential members before people join up.

The Ayres / Brown proposal is intriguing and provocative, but is it really one that we'd want to endorse?  For starters, I'm not sure about the premise that "[g]overnment has a constitutional interest in promoting informed association," if "constitutional interest" means "an interest that can justify a regulation, like the ones proposed, that burdens individuals' expressive-association rights or the rights of expressive associations."  I suppose it would be entirely legitimate to apply generally applicable anti-fraud laws to "expressive associations," as to everyone else, but I'm not so sure about the idea that government may, in effect, compel speech by associations -- that is, require them to state their positions on matters thought by the government to implicate "fundamental state policies" in order to make sure individuals' decisions-to-associate-expressively are, in the government's view, "fully informed."

Now, it seems right to say that "[t]he freedom of association also means the freedom not to associate. And associational decisions are impaired if people are duped into joining."  The trick, I guess, is distinguishing "duping" from "not stating explicitly or anticipating accurately every position that the association will take, going forward, particularly in response to coercive regulation." 

As for the writers' final claim --  i.e., that "[i]t’s reasonable for a state to insist that organizations taking contrary positions [to fundamental state policies] disclose their true colors to potential members before people join up":  It is not (yet) clear to me that an association should be required to "disclose [its] true colors", if this means "spell out explicitly, with the clarity demanded by the government, every position they do profess, or will profess to hold in future litigation."

I suppose a lot of this comes down to what we think the "freedom of association" is and is for.  My own view, which might account for some of my hesitation about the Ayres / Brown proposal, is one that tends to emphasize the "structural" role of associations, rather than their function as vehicles for individuals' expression.  In any event, I'd appreciate others' reactions to, and thoughts about, their post.

Pro-life progressivism in Tennessee: Whitman for Congress

My former student, Bill Whitman, is running for Congress, as a Democrat, in Tennessee's the Ninth District.  (Rep. Harold Ford is vacating the seat, to run for Congress).  Here is his statement, taken from his web site, describing his pro-life stance:

I follow the "Consistent Life Ethic" approach to life issues.  The Consistent Life Ethic calls us to defend and protect all persons who are threatened or marginalized by forces such as abortion, the death penalty, economic injustice, euthanasia, violence and war.  It requires us to a build a culture that affirms and defends life from conception to death.

I am opposed to abortion.  Protecting the sanctity of life is one of my first priorities as a legislator.  Being pro-life and being a Democrat are not mutually exclusive.  As Democrats, our first and most important principle should be to fight for those who cannot fight for themselves.  This charge does not exclude unborn children.  There are at least ten pro-life Democrats in Congress, including one from Tennessee.  Democratic leaders are rethinking their strict adherence to the pro-choice agenda.      

Memphis is a great city for many reasons, not the least of which is the strong moral and religious convictions of our citizens. Virtually all of our religious institutions teach us that life begins in the womb, as does biology.  Therefore, we must protect unborn children who cannot defend themselves.

Protecting unborn children does not just mean opposing abortion.  We must ensure comprehensive health care to pregnant women; we must provide resources to parents who experience unplanned pregnancies; we must create a culture that welcomes children; and we must encourage adoption.

Other related issues have surfaced recently in Congress.  My positions:  I oppose partial-birth abortion; I support restricting access to abortions in federally-funded hospitals; I believe that religious-affiliated hospitals should not be required to perform abortions; and I will defend the free-speech rights of all.  Furthermore, I am in favor of a constitutional amendment defining the right to privacy, which excludes the right to an abortion.

And, here is what Bill has to say about capital punishment:   

I am opposed to capital punishment, and will work to abolish this practice with respect to federal crimes. 

Capital punishment should be abolished for several reasons.  First, there are extreme racial disparities in the application of the federal death penalty.  Second, there always exists the possibility that we will execute innocent persons.  Furthermore, the death penalty encourages us as a society to resort to violence to solve our most difficult problems. 

As many religious leaders have implored, we cannot teach that killing is wrong by killing.  As a country, we have the capability to punish criminals with life imprisonment without parole, and this is how we should punish the most heinous crimes.  We need to work toward a more just society by ending the death penalty.   

If elected, I will support a bill to end the federal death penalty.  I will work tirelessly to persuade this community to abandon the use of the death penalty.

The Democratic Party's nominee will almost certainly win the seat, and so those of us who might be reluctant to support even a pro-life Democrat, because of (what we perceive to be) the downsides of tipping the House to the Democrats, might want to consider supporting financially Bill's campaign.  Bill's campaign strikes me as a powerful witness.

It is interesting to contrast Bill's straightforward pro-life position with those of Virginia's newly elected governor, Tim Kaine.  Kaine is a practicing Catholic, and was often described, during the raise, as a pro-life Democrat.  Kaine opposes capital punishment -- and worked actively against it as an attorney -- but told Virginia's voters that (quoting CNN) "his moral objections to capital punishment are rooted in his Roman Catholic faith and . . . [pledged] to carry out death sentences 'because it's the law.'"  And, on abortion, Kaine's position was: 

I have a faith-based opposition to abortion. As governor, I will work in good faith to reduce abortions by:

1. Enforcing the current Virginia restrictions on abortion and passing an enforceable ban on partial birth abortion that protects the life and health of the mother;
2. Fighting teen pregnancy through abstinence-focused education;
3. Ensuring women's access to health care (including legal contraception) and economic opportunity; and
4. Promoting adoption as an alternative for women facing unwanted pregnancies.

We should reduce abortion in this manner, rather than by criminalizing women and doctors.

Too often politicians are interested in scoring political points, rather than in reducing the number of abortions. Many of the legislative proposals introduced in the General Assembly, like the ones to require unnecessary building standards for doctor's offices that perform abortions, are just political grandstanding. They encourage division and lawsuits rather than contributing to the goal of reducing abortions.

The Feast of St. Thomas Aquinas

The Feast of St. Thomas Aquinas (Jan. 28) certainly should not go unnoticed on this blog.  Here's a link to a painting that might be appropriate for the occasion.

Arkes on Oregon, federalism, and euthanasia

Over at the First Things blog, Professor Hadley Arkes has a long post (scroll down a bit) on the Court's recent decision in Oregon v. Gonzales.  He addresses, among other things, the disagreement between Justices Kennedy and Scalia on the question whether (and how one should decide whether) assisted suicide is a "legitimate" medical purpose.  As Professor Solum would put it, here's a taste:

Our libertarian friends have shown an indecorous enthusiasm for this decision on the case from Oregon. It is not, in many cases, because they welcome the involvement of doctors in suicide, but because of their attachment to federalism. I share the attachment to federalism, but we run the risk there of replicating Justice Kennedy’s mistake on the large question. When we talk about the regulation of commerce or anything else, we may easily overlook the fact that the regulation of commerce cannot be detached from a sense of what is rightful or wrongful commerce.

As Scalia has recognized, the regulation of commerce encompassed, quite early, the regulation of lottery tickets, and in later years, the barring of prostitution, as the Congress has been drawn in persistently to mark off the boundaries of rightful and wrongful commerce. We’ll save for another day the tangled question of federalism; I’d simply post a caution that the libertarians are headed on a path of incoherence if they think that federalism offers a way of putting aside the moral questions that vex our politics.

Still, what has not been fully appreciated by the votaries of federalism is the way in which this decision by the Court cannot be cabined in Oregon. The scheme offered to us in the name of federalism asks us to incorporate the view that assisted suicide is just another, tenable view about the proper ends of doctors and medicine. Justice Kennedy plants the premise when he remarks that the Attorney General had sought to bar a policy in Oregon merely “because it may be inconsistent with one reasonable understanding of medical practice.”

The aversion to self-killing or self-murder, the enduring concern about doctors using their powers to end life—all of that is simply diminished now as “one reasonable understanding of medical practice,” no more right or wrong than anything else. To incorporate that understanding at the top of the State, in the national government, is to do nothing less than to erode the conviction that has firmed up the laws for the protection of life at the center and the periphery in this country. If the assistance of suicide is regarded as just another “reasonable understanding of medical practice,” why should that view of things not begin to seep into parts of the federal establishment? Why should it not come to affect the understandings that prevail in military hospitals or in divisions of the National Institutes of Health?

Althouse on Colbert on religion

This post, over at Professor Althouse's (excellent) blog, is well worth a read, particularly for "Daily Show" and "Colbert Report" watchers.  She reproduces (and comments on) this exchange, between Steve Colbert and Terry Gross (of "Fresh Air"):

GROSS: Now you grew up in a family with--What?--11 children?

Mr. COLBERT: Yeah, I'm one of 11 kids. I'm the youngest.

GROSS: And was it a religious family? You say you go to church and...

Mr. COLBERT: Oh, absolutely.

GROSS: Yeah.

Mr. COLBERT: We're, you know, very devout and, you know, I still go to church and, you know, my children are being raised in the Catholic Church. And I was actually my daughters' catechist last year for First Communion, which was a great opportunity to speak very simply and plainly about your faith without anybody saying, `Yeah, but do you believe that stuff?' which happens a lot in what I do.

GROSS: Can I ask you a kind of serious question about faith?

Mr. COLBERT: I've been turning all of your funny questions into serious things for an hour or so. I don't see why you can't do the same to me.

GROSS: In the sketch we heard earlier from "This Week In God," you talked about the Christian pharmacist who refused to fill a prescription for birth control.

Mr. COLBERT: Right.

GROSS: Now the Catholic Church opposes birth control, which...

Mr. COLBERT: They do.

GROSS: ...I presume you do not and...

Mr. COLBERT: Presume away.

GROSS: ...so how do you deal with contradictions between, like, the church and the way you live your life, which is something that a lot of people in the Catholic Church have to deal with?

Mr. COLBERT: Well, sure. You know, that's the hallmark of an American Catholic, is the individuation of America and the homogenation of the church; homogenation in terms of dogma. I love my church and I don't think that it actually makes zombies or unquestioning people. I think it's actually a church that values intellectualism, but certainly, it can become very dogmatically rigid.

Somebody once asked me, `How do you be a father'--'cause I'm a father of three children--`and be anti-authoritarian?' And I said, `Well, that's not nearly as hard as being anti-authoritarian and being a Roman Catholic,' you know? That's really patting your head and rubbing your belly at the same time. I don't know. You know, I don't believe that I can't disagree with my church and I'll leave it at that.

It seems to me that "anti-authoritarian" needs to be unpacked a bit.  I mean, it is hard to see how a Catholic, a father, or anyone else, can really be "anti-authority" in any kind of across-the-board way.  But, I guess I don't immediately see the conflict between being Catholic and being "anti-authoritarian" in the sense that Colbert is (or seems to me to be) "anti-authoritarian" -- i.e., being irreverent, being willing to puncture myths, platitudes, and pieties, being suspicious of power and "political correctness", etc.

UPDATE:   Cathy Kaveny kindly called my attention to this piece, by Celia Wren, in the latest Commonweal, about Colbert, his show, and the Faith.  While I suspect that Ms. Wren and I might disagree about the extent to which Colbert actually shows "the sheer inanity of some right-wing beliefs" -- as opposed to the inanity of beliefs that some people imagine conservatives hold -- I think the essay is a good complement to the Althouse post.

Yesterday, the Church and the Solar System; Today, the Church and Homosexuality

This is from the January 26 issue of The Tablet [London].  Just as the Church was once wrong about the the nature of the solar system, it is now wrong about the nature of homosexuality.  I wonder what some future historian will make of the parallels?  By the way, the esteemed Ernan McMullin, editor of the book under review, is an Irish priest and longtime member of Notre Dame's Department of Philosophy.

Lead Book Review

Sins of the Commission

The Church and Galileo
Ed. Ernan McMullin
University of Notre Dame Press, £23..50
Tablet bookshop price £21.60.

In 1633, the Holy Office found Galileo to be “vehemently suspected of heresy, that is to say, of having held and believed that the Sun is the centre of the world and immoveable”, and this despite a formal warning in 1616 that he must do no such thing. On his knees before the cardinals, Galileo swore an oath in which he abjured this and other errors and heresies; he promised to do nothing in future to give rise to such a suspicion. The penalty for breaking this oath would be death by burning.

The wound the Church thereby inflicted on herself has done incalculable harm. No matter the glorious history of Jesuit astronomers down the centuries; no matter that the papal residence in Castel Gandolfo has two telescopic domes on the roof; no matter that the Vatican Observatory now boasts a major telescope in Arizona: the treatment of Galileo is cited day by day as proof that the Church fears science.

The Galileo Affair, as it has come to be known, took place at a pivotal moment in the histories of both astronomy and of the Church. The task of mathematical astronomers since antiquity had been to save the appearances, to devise geometrical models for the planetary motions that would allow the calculation of accurate tables. That a model – Ptolemy’s or Copernicus’ – worked well for this purpose was no reason for supposing that it corresponded to the underlying reality. But Kepler in 1609 set astronomy on a new path, from the how to the why, from saving the appearances to discerning the physical truth about the heavens. This led in 1687 to Newton’s Principia, after which it would be foolish to maintain that the massive Sun orbited the tiny Earth.

Galileo wished his Church to be in the forefront of the new movement, but his judges understood nothing of this. What they did understand was that when Christ was quoted as saying, “This is my Body”, Protestant reformers had chosen not to take his words at face value. This was no time for invoking the Augustinian doctrine of “accommodation”, that the sacred author was using words accommodated to the understanding of his readers; and yet this was exactly what Galileo was doing when he argued that, despite Joshua’s report that God made the Sun stand still for a very special purpose, in fact it never did anything else but stand still.

The episode is hugely complex, and never a year passes without yet more books on the subject. It was therefore greatly to the credit of John Paul II in 1979 that he asked for a commission to explore the affair in depth, in order to lay the matter to rest by arriving at “a loyal recognition of wrongs from whatever side they come”.

The project was ill-fated from the start. It seems that the members of the resulting Galileo Commission were chosen for the positions they held, not for their knowledge of Galileo (the only member with some expertise in the history of astronomy being Fr George Coyne SJ, director of the Vatican Observatory). One member was soon appointed to a major see and so attended only the first meeting. Others suffered ill-health, among them the president, and it is probably because of his indisposition that after 1983 the commission never once met. A number of historical studies were published under the auspices of an editorial board that included this reviewer, but otherwise the work languished.

Eventually the authorities thought it time to bring the project to some sort of conclusion. Confronted by a subject of such immense complexity, even a well-informed and hard-working commission might have struggled to reach an agreed verdict. It was Cardinal Paul Poupard who drew the short straw. On 31 October 1992, he read out at a Vatican ceremony what purported to be the commission’s findings. They were in fact no such thing: Fr Coyne, for one, had not been consulted and knew nothing of what Poupard was to say.

The “findings” laid the blame not on any of the Church authorities involved but on (unnamed) theologians. According to Poupard, when the motion of the Earth was scientifically proved, which he bizarrely dates to 1741, the Church quickly responded by authorising an edition of Galileo’s opera omnia, and by removing from the Index works advocating the heliocentric theory. In fact, the 1744 edition of the opera had to omit Galileo’s brilliant work on the interpretation of Scripture, now recognised as a classic statement of the Church’s position; and his Dialogo, the book for which he was condemned, could be included only if it was prefaced with both the Holy Office decree and Galileo’s oath of recantation, and further doctored to make the work appear hypothetical. And when the 1757 edition of the Index appeared, Copernicus’s De revolutionibus, Kepler’s Epitome and Galileo’s Dialogo were there, just as before. So much for the Vatican’s eighteenth-century response to the advance of science, and so much for the disinterested scholarship of the twentieth-century “findings”.

Historians worldwide were dismayed by Cardinal Poupard’s address, and by the speech written for the Pope to read in response. Eventually, a conference of Galileo scholars was held at Notre Dame University in 2002. The resulting volume, edited by Fr Ernan McMullin, a leading scholar in the field, must serve in place of the findings of the Galileo Commission. It is a splendid work. Many of the chapters are definitive of our present understanding of these very complex issues, and Fr McMullin’s summary of the affair is itself worth the cover price. All but one of the contributions deal with times past, but Fr Coyne tells the depressing story of the official Commission as far as he has been able to determine it. He concludes: “The picture given in the discourses of October 31, 1992, does not stand up to historical scrutiny … In fact it was the Congregation of the Index, the Congregation of the Holy Office, and Paul V who enacted a hasty decree in 1616, and the Congregation of the Holy Office and Urban VIII who proclaimed a hasty condemnation of Galileo in 1633.”

When the Galileo Commission was constituted in 1981, Poupard was named head of one section and Coyne head of another. They have come to very different conclusions. I, and most historians, believe the evidence supports Coyne. If so, the Vatican has lessons to learn from the Galileo Affair concerning the proper exercise of authority in the Church today.

Michael Hoskin

More on "Deus Caritas Est"

In today's New York Times, former Commonweal editor Peter Steinfels has some interesting comments on Deus Caritas Est and its reception in the media.  To read Steinfels'  "Beliefs" column, click here.
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In response to my post below, Statements of Faith:  Are They Appropriate? (here), I received this interesting response:

I have experienced these statements of faith as a seminarian preparing
for the priesthood.  It strikes me they are useful from the perspective
of establishing intent.  They are, however, in my humble estimation, not
appropriate or productive as a means for enforcing orthodoxy in
instruction.  The only thing that can perform that function adequately
is oversight with authority.

As someone who entered the seminary after a career in systems
engineering, it occurred to me that an approach similar to establishing
a trademark on the use of the term Catholic (with a capital C) would be
a more effective mechanism to ensure against the misuse of the term than
any other mechanism that might be employed in the western world.

Naturally, this would be highly controversial.  It would not be
problematic for the Roman Catholic Church to establish priority of
ownership, but it might very well be problematic to establish a case for
exclusivity.  Given a successful case for both by the Roman Catholic
Church, groups such as "Catholics for Free Choice" and publications such
as the "National Catholic Reporter" would be required to drop the name
"Catholic."  Universities that failed in the obvious requirements for
fidelity to Catholic teaching and formation would be required to give up
their pretense to Catholic affiliation.

Barring success in this approach, perhaps it would be easier to
establish exclusivity for "Roman Catholic."  It would be interesting to
see how the various and sundry organizations responded.

Of course, there is no likelihood that this approach will be attempted
by the Church, not because it could not work, but because the Church
does not approach enforcement in this way.  Thus, organizations that
fall from grace do not always fall from general public credibility.  It
is very much that way with all product warranties of safety and
authenticity today.  Knockoffs, though illegal, are ubiquitous.  Tainted
products or products that make false claims of some benefit manage to
evade regulatory authorities and mechanisms all of the time.  Its a sign
of the times that people are generally left to their own devices for
protecting themselves from shysters of every stripe.

Fr. Larry Gearhart
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Jurisprudential Legacy of Pope John Paul II

Some of you may have received a "save the date" card for St. John's University School of Law's upcoming symposium on the Jurisprudential Legacy of Pope John Paul II, which be held at the law school on March 23-24.  The four panels will explore both the theoretical underpinnings of the thought of Pope John Paul II and his views of justice as well as the application of his thought to different areas of the law.  Papers will be delivered by a number of theologians and law professors, including MOJ bloggers Robert Araujo, Mike Scapalander and Greg Sisk.  Commentary on the papers will be delivered by MOJ'ers Michael Perry, Rob Vischer, Amy Uelman and myself.  John Allen, NCR's Vatican correspondant, will be our keynote speaker.  I look forward to welcoming you to St. John's for what I know will be an exciting and informative program.

 

Conference on the Preferential Option

While I'm at it, I might as well mention that we have selected a date for the Journal of Catholic Social Thought's 2006 annual symposium on CST and the law. It is Friday, October 27, at Villanova, and the topic is: What Does the Preferential Option for the Poor Mean for Law?   I'll be sending out a more formal, detailed Call for papers shortly, but feel free to get in touch with me if you have ideas or questions.

--Mark

Clarification: Hochschild & Wheaton

I received this note today from Joshua Hochschild -- and am posting it with his permission -- regarding my post on higher education and religious identity from the other day.

Dear Professor Garnett,

Since your post yesterday on the Mirror of Justice quoted relevant sections of Mr. Oakes’ recent essay on higher education and religious identity, I feel compelled to correct Mr. Oakes’ mistaken description of my own views.  He says that I do not “stand behind Wheaton for courageously affirming its commitment to its own founding principles.”  In fact I do.  As the Wall Street Journal article correctly reports, I expected to lose my job upon converting to Catholicism, and I acknowledged the College’s right to exclude Catholics.  I have never challenged this right, and I have made this position even more clear in interviews with the Chicago Sun-Times, and Inside Higher Ed.

Mr. Oakes apparently concluded otherwise by reading, out of context, this quotation: “I see no reason why I should be dismissed from the College upon joining the Roman Catholic Church.”  I think it is clear from the Journal article that this line is the conclusion of an argument made in response to the position, advanced by Wheaton’s president, that Catholic teaching is inconsistent with what is articulated by Wheaton’s Statement of Faith, and that therefore I should resign.  If I had been shown that Catholic teaching were inconsistent with the faith statement­, or that I had in any other way violated my contract with Wheaton, ­I would have resigned.  But in fact, as I explained in the detailed letter mentioned in the Wall Street Journal article, based on careful consideration of Catholic teaching I could in good conscience affirm Wheaton’s faith statement.  (There are by now several worthwhile conversations on the web, most notably at Amy Welborn’s blog, about the consistency of Wheaton’s faith statement and Catholic teaching.) 

Wheaton’s President was not persuaded, and so I was terminated.  Although I think he misunderstands Catholic teaching and I disagree with his manner of reading Wheaton’s faith statement, the decision was within his right, and that is why I did not fight it.

Mr. Oakes is right to point to my college editorial about the importance of educational institutions vigilantly guarding their founding religious principles.  Far from changing my mind, that is a position that I have maintained consistently to this day.

I hope you will consider making this clarification available on the Mirror of Justice site.

Thank you,
Joshua P. Hochschild
Assistant Professor of Philosophy
Mount St. Mary’s University

Cardinal Dulles at Villanova Law: The First Scarpa Conference at Villanova Law

I am happy to pass along the following announcement by my colleague and fellow MOJer Patrick Brennan regarding Villanova Law's inaugural Scarpa Conference in Catholic Legal Studies. Patrick will be joined by his coblogistas Rick Garnett and Amy Uelmen at the conference here at Villanova Law on September 15, 2006. We will be sending out a more formal announcement with details down the road:

"The Chair established by John F. Scarpa is to offer an annual conference on a topic in Catholic Legal Studies. The first Scarpa Conference is set for September 15, 2006. The topic is "From John Paul II to Benedict XVI: Continuing the New Evangelization of Law, Politics, and Culture." This turns out to be particularly apt and timely in light of particular teachings in Pope Benedict's first encyclical, which was published just two days ago.

I am most grateful to be able to announce that His Eminence Avery Cardinal Dulles, S.J., has accepted my invitation to deliver the keynote address at the first Scarpa Conference. The Cardinal is arguably the most respected Catholic intellectual in the United States. He is, in any event, the only American theologian ever to be created a Cardinal of the Catholic Church. Most Cardinals are bishops of major dioceses. Cardinal Dulles is not a bishop. He is a Cardinal in virtue of the twenty-two books and more than seven hundred articles he has published since graduating from Harvard College in 1940. His visit here will be a great honor to Villanova.

Also delivering papers will be Richard Garnett (Lilly Endowment Associate Professor, Notre Dame Law School) and Amy Uelmen (Director, Institute on Religion, Law, and Lawyer's Work, Fordham University School of Law), and Brennan.

Please save the date for what promises to be a rich exploration of the place of faith in the public square. If you have questions or suggestions regarding the conference, they will be gratefully received."

-- Mark

Pro-Life Progressivism at St Tom

I would follow up on Tom Berg's announcement of the publication of St Thomas'  symposium issue on prolife progressivism. It is definitely worth getting hold of. My article is probably the slightest of the contributions. The others are thoughtful, usefully interdisciplinary, and most important, represent some highly divergent viewpoints. The symposium's greatest contribution was to remind us that there is indeed such a thing as "prolife progressivism."

--Mark