Mirror of Justice

Torture Memo

Michael asks whether any MoJ-ers have written anything directly critical of the "torture memo."  Not that it's a particularly formidable task to criticize that memo, but here's my effort nonetheless.

Rob

Regarding the "New Impediment"

The article by Monsignor Candreva in the magazine America dated February 27 of this year concludes with this hope:  "I hope that the above reflections can help assure my brothers in the priesthood who may feel that the instruction [sic] makes them 'second-rate' that any of us who honestly made our ordination promises, who have faithfully accepted the burden of celibacy, and who have, no matter how we may have failed the Lord and his people, risen up through the grace of the sacrament of reconciliation to continue to carry our cross, can look forward with founded hope to being embraced by the Lord at the end of our journey."   America identifies Monsignor as a canon lawyer and retired priest of the Dicocese of Rockville Centre, N.Y. 

America attaches the following sub-title to Candreva's essay: "The Vatican's document regulating admission to seminaries and ordination revives an almost extinct legal device."  No doubt, Monsignor is right, in a way, that "Prohibiting men with certain characteristics from being ordained to the priesthood is nothing new in church [sic] discipline."  But does Monsignor see this as no more than a matter of (1) regulating (2)admission to (3) seminary or ordination as (4) a question of discipline or legal device?  There is a theology that is being applied, if clumsily, in the Instruction.

"Purposive interpretation," as we say in the law, would be of value here.  Failing that, a return to the "almost extinct legal device," the "impediment," might be necessary.  Or are there no "impediments" to the sacraments?         

"Fundamentalism" Conference

While we're in the mode of fisking upcoming legal conferences, this notice I received about the "Fundamentalism and the Rule of Law" conference at Cardozo Law School on March 14 doesn't inspire huge confidence in its balance.  There are some very fine scholars speaking, including several friends of mine, and of course one can't tell precisely how the discussion will go; but a few concerns of note. . . .

First, the premise is that "[r]eligious fundamentalism is on the rise around the world.  Its truth claims often directly challenge not only competing social mores but also legal rules.  That clash . . . is just beginning to gain the attention of scholars."  This sounds like the subject will be the foundational challenge to modern democracy from radical groups, especially in Islam; and indeed there are a couple of addresses or papers on subjects such as "Islam and the Rule of Law."  Combined with those, however, are a couple of papers on the "faith-based initiative" and the funding of social services, and another on "the religious right and the politics of abortion."  Is it really fair to suggest that either (i) the effort to extend equal funding to religious social services that aid the poor and needy or (ii) the effort to enact restrictions on abortion (in many cases, comparable to restrictions that exist in Western European nations) constitute the same kind of fundamental challenge to Western democracy and the rule of law as we are seeing from truly fundamentalist groups?

Second, the conference conception seems to gloss over the important distinction in American religion between fundamentalism and evangelicalism -- the latter being a less separatist and more acculturated version of conservative Protestantism than the former.  The panel with a paper on the faith-based intiative (as well as others on intelligent design and abstinence-only programs), for example, is called "Fundamentalist Initiatives in the U.S."  But fundamentalists, with their highly separatist attitude toward society and the state, are generally unlikely to seek government funding for social service activities, and certainly are not as accepting as evangelicals of seeking such funds on simply the same basis as secular social services.  Of course there are not hard and fast lines between fundamentalism and evangelicalism, but it is hard not to see the thrust of this conference as lumping the two together (and with negative connotations, as for example in the question about the consistency of these viewpoinrs with "the rule of law").

Finally, the conference appears heavily weighted against the idea of conservative religion playing a role in politics and law.  The two papers on the faith-based initiative are by opponents, including Winnifred Fallers Sullivan (U. Chicago Divinity School) and Steve Green, the former general counsel for Americans United for Separation of Church and State.  Commenting on Steve's panel, along with a Cardozo professor, is . . . well, Barry Lynn of American United for Separation of Church and State.  Don't expect a strong clash of views there.  The perspectives of the panelists vary in some ways -- and some are objective social-science analysts -- but the normative views about conservative Christians, so far as I can see, run from very negative over to moderate/mixed.    I see no one on the roster who is an overall defender of evangelicals' activism in politics and law, no one really to counter the several panelists who are sharp critics of that activism.

Tom

Recommended reading ... on the Bush Admin's "Torture Memo"

In the February 24th issue of COMMONWEAL, Cathleen Kaveny (Notre Dame, Law and Theology) has a piece well worth reading.  Alas, there is no electronic version to which I can link, but here are the first two paragraphs:

PERVERTED LOGIC
Behind the Administration's "Torture Memo"

In the Bush administration's most infamous "torture memo," dated August 1, 2002, Assistant Attorney General Jay Bybee wrote to then-White House Counsel Alberto Gonzales:  "Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."  An American interrogator who inflicted anything short of this level of pain on a detainee in the war on terror
would not be committing torture, he argued, and therefore could not be charged with that crime under the federal antitorture law.

Bybee's purpose in adopting such a definition of torture was clearly to give interrogators maximum leeway to inflict physical pain in order to obtain information.  Where did his definition originate?  In international law?  No.  From scholarly commentary on torture?  No, again.  Bybee drew on an entirely unrelated body of law, federal health-care law, which mandates the alleviation of pain rather than justifying its infliction.  In my judgment, Bybee�s reasoning is not simply faulty, it is perverse.  It exemplifies the sort of reasoning that has given us lawyers a bad name.

[To read the whole piece, find Commonweal, 2/24/06, and go to pages 8-9.]

Have I missed something?  Has Robby George (Princeton, Politics) written anything critical of the "Torture Memo"?  Have any MOJers done so?

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Upcoming Statement by Catholic Democrats in the House

In the Washington Post, E. J. Dionne calls attention to a forthcoming "Statement of Principles By Fifty-Five Catholic Democrats in the U.S. House of Representatives":

"As Catholic Democrats in Congress," the statement begins, "we are proud to be part of the living Catholic tradition -- a tradition that promotes the common good, expresses a consistent moral framework for life and highlights the need to provide a collective safety net to those individuals in society who are most in need. As legislators, in the U.S. House of Representatives, we work every day to advance respect for life and the dignity of every human being. We believe that government has moral purpose."

The statement is only six paragraphs, which gives it clarity and focus. After a paragraph on Catholic social teaching about the obligations to "the poor and disadvantaged," the writers get to the hard issue, insisting that "each of us is committed to reducing the number of unwanted pregnancies and creating an environment with policies that encourage pregnancies to be carried to term."

What's significant is that this is not a statement from pro-choice Catholics trying to "reframe" the abortion question. The signatories include some of the staunchest opponents of abortion in the House, including Reps. Bart Stupak, Dale Kildee, Tim Holden, James Oberstar and James Langevin.

In other words, Democrats on both sides of the abortion question worry that it is crowding out all other concerns. And in very polite language, the Catholic Democrats suggest that their bishops allow them some room to disagree. "In all these issues, we seek the church's guidance and assistance but believe also in the primacy of conscience," they write in an echo of Kennedy. "In recognizing the church's role in providing moral leadership, we acknowledge and accept the tension that comes from being in disagreement with the church in some areas."

It will be interesting to read the full six paragraphs when they are released -- in particular, to see whether the pro-choicers signing the statement have dragged the pro-lifers in their direction, or whether the pro-lifers have influenced the pro-choicers in any significant respect.

Tom 

A New Impediment

AMERICA, February 27, 2006

Contraception and the Double Effect

Denise Hunnell (an MD and MOJ reader) submitted my question to a service called the National Catholic Bioethics Center (www.ncbcenter.org).  Peter Cataldo responded by attaching an article he wrote, entitled Therapeutic Uses of Anovulents, which includes the following helpful discussion:

The theoretical possibility of a possible abortifacient effect from chronic use of therapeutic anovulants for female spouses is not a decisive factor in the moral evaluation of their use under these circumstances.  The reason is that at the present time there is no moral certitude that such use causes an abortifacient effect.[1]  There is no moral responsibility for effects that are not reasonably foreseen. If an effect does not follow from the nature of a cause or in the majority of cases, but instead follows accidentally and seldom, then it may be considered an unforeseen consequence not morally attributable to the agent (see St. Thomas Aquinas, Summa Theologica, I-II, 20, 5; Summa Contra Gentiles, III, ch. 6, ns. 4 and 7).

Evidence of a causal connection between the regular and long-term use of anovulants and the prevention of implantation of a possible embryo is tenuous.  There is both physiological evidence that the changes to the endometrium caused by anovulants are probably not sufficient to cause an abortifacient effect, and theoretical evidence that these changes might prevent implantation.  Moreover, there is no way of knowing that an embryo exists who might be affected by the drug. This uncertainty about a possible abortifacient effect disqualifies it as a foreseen bad effect.  A possible abortifacient effect would not follow from the nature of the pill because its primary mechanism is the suppression of ovulation, and if an abortifacient effect occurs infrequently it cannot be known with certitude.  For these reasons, the therapeutic use of anovulants is not an act that would violate the first condition of the principle of the double effect.

[1] For opposing medical and ethical positions from prolife physicians and a pharmacological expert on the question of the abortifacient effect of oral contraceptives see: Walter L. Larimore and Joseph B. Stanford, “Postfertilization Effects of Oral Contraceptives” and Walter L. Larimore and Randy Alcorn, M.A., “Using the Birth Control Pill Is Ethically Unacceptable” in The Reproduction Revolution: A Christian Appraisal of Sexuality, Reproductive Technologies, and the Family, eds. John F. Kilner, Paige C. Cunningham, and W. David Hager Grand Rapids, MI: Wm. B. Eerdmans Publishing Co., 2000), 179–191; Susan A. Crockett, M.D. et al., “Using Hormone Contraceptives Is a Decision Involving Science, Scripture, and Conscience” in The Reproduction Revolution, Kilner et al., eds, 192–201; Joel E. Goodnough, M.D., “Redux: Is the Oral Contraceptive Pill an Abortifacient?” Ethics & Medicine 17.2 (Summer 2001): 37–51; John Wilks, B., Pharm, M.P.S., Response to Joel Goodnough MD, ‘Redux: Is the Oral Contraceptive Pill an Abortifacient?’ ” Ethics & Medicine 17.2 (Summer 2001): 103– 109; and William F. Colliton, M.D., “Response to Joel Goodnough MD, ‘Redux: Is the Oral Contraceptive Pill an Abortifacient?’ ” Ethics & Medicine 17.2 (Summer 2001): 110–113; and Chris Kahlenborn, Joseph B. Stanford, and Walther L. Larimore,“Postfertilization Effect of Hormonal Emergency Contraception,” The Annals of Pharmacotherapy 36.3 (March 2002), 465–470).

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From Leiter Reports, 2/28/06:

Adoption Legislation We Can All Support (Leiter)

Details here; an excerpt:

If a Youngstown lawmaker's proposal becomes Ohio law, Republicans would be barred from being adoptive parents.

State Sen. Robert Hagan sent out e-mails to fellow lawmakers late Wednesday night, stating that he intends to ``introduce legislation in the near future that would ban households with one or more Republican voters from adopting children or acting as foster parents....''

Hagan said his legislation was written in response to a bill introduced in the Ohio House this month by Rep. Ron Hood, R-Ashville, that is aimed at prohibiting gay adoption....

Hood's bill, which does not have support of House leadership, seeks to ban children from being placed for adoption or foster care in homes where the prospective parent or a roommate is homosexual, bisexual or transgender.

To further lampoon Hood's bill, Hagan wrote in his mock proposal that ``credible research'' shows that adopted children raised in Republican households are more at risk for developing ``emotional problems, social stigmas, inflated egos, and alarming lack of tolerance for others they deem different than themselves and an air of overconfidence to mask their insecurities.''

However, Hagan admitted that he has no scientific evidence to support the above claims. Just as "Hood had no scientific evidence to back his assertion that having gay parents was detrimental to children", Hagan said.

Some news about one of our own ...

Two MOJers at Cornell:  Eduardo Penalver is joining Steve Shiffrin at Cornell.  I lifted this from Leiter's Law School Reports (2/28/06):

Penalver from Fordham to Cornell

Eduardo Penalver (property, law & religion), a tenure-track professor at Fordham and a visiting professor this year at Yale Law School, has accepted a mid-level untenured (but tenure-stream) post at Cornell Law School.

Congrats, Cornell  Condolences, Fordham.
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Berkeley's Stem Cell Conference

This week UC-Berkeley is convening a pep rally conference titled "California's Stem Cell Initiative: Confronting the Legal and Policy Challenges."  (HT: Solum) Here is the description:

Most scientists concur that human embryonic stem cell research holds considerable promise for advancing human health. In 2004, California voters endorsed a bold initiative (Proposition 71) to fund stem cell research by the issuance of $3 billion in bonds, which will be allocated over a 10 year period to researchers.

However, foundational legal and policy issues remain to be resolved – from intellectual property rights to other ownership issues (e.g., the form of donor consent), to how (and whether) the state of California should expect to recoup its investment in the research, to name just a few. This conference seeks to provide insights and recommendations from leading thinkers that will enable California’s bold initiative to be successful.

A couple of presumptions jumped out at me.  First, the conference takes as a given that the health benefits of embryonic stem cell research are largely undisputed and that California's initiative is "bold" (used twice in two paragraphs!) and should be "successful."  With premises like these, the conference marginalizes many of the most pressing issues surrounding the initiative.  Second, how could the "foundational legal and policy issues" not include any discussion of the ethical or moral dimension of state-funded embryonic stem cell research?  Perhaps they just weren't significant enough to include in the description.  Or perhaps the conference organizers presume that such questions are not worth exploring in the first place.  Or perhaps they presume that such questions are not properly encompassed by a conference on law and policy.  The divinity school types need something to talk about at their conferences, I suppose.

Rob

More on Contraceptives versus Abortifacients

Patrick Shrake (a recent graduate of the St. Thomas Law School) sent me the following on the distinction between contraception and abortifacients:

Everyone agrees that "conception" occurs when the ovum and sperm unite. I don't know if it is possible to find a reputable scientist that would argue that life does not begin at the moment-though many will argue about the value of that life. A simple understanding of English (& Latin) should lead everyone to agree that "contraception" means "against conception" and that a contraceptive works by working "against conception." However, many don't like the precision that such words formerly gave, and so a discussion of when "pregnancy" begins became important to organizations like the AMA.

Nonetheless, I think it useful to think of the matter like this: If a "contraceptive" works by preventing fertilization, then it is working as a contraceptive. If it works by preventing implantation, then it works by killing the already conceived embryo. I think the simplest word for that is abortifacient.

I think this is much cleaner than the language I was using in earlier posts, but it doesn't necessarily resolve the question I was posing.  It does, however, help me (I hope) to clarify the nature of my question:   Given that, in some undefined subset of cases, the use of certain hormonal contraceptives results in the indirect destruction of embryos by preventing implantation, what would the Church say (or has it said) about the therapeutic use of such a contraceptive.  Specifically, would the therapeutic use of such a contraceptive (for non-contraceptive, non-abortive purposes) be inherently impermissible such that the contraceptive is considered evil in itself, or would the therapeutic use of the contraceptive be susceptible to a double effect analysis?  I don't think this question is answered by the Pope's statement today, but I'm wondering whether the Vatican has addressed this question elsewhere.

More on the Dennett Controversy ...

Sightings  2/27/06

Doubting Dennett
-- Martin E. Marty

Last year it was Sam Harris's The End of Faith; this year it is Daniel C. Dennett's Breaking the Spell: Religion as a Natural Phenomenon that sets out to rally the anti-religious, and serves to fire up some defenders of religion. Neither lacks notice. Reviewers and editorialists savor conflict, some academics critical of religion sharpen their knives, and many preachers enjoy having sermon topics hand delivered to their pulpits. Next year we will repeat the cycle with someone else's book, as Americans have done since the middle of the eighteenth century.

Exactly fifty years ago I was writing my dissertation on the subject of how "infidels," "freethinkers," "atheists," etc. made use of religion, and how religionists of several sorts made use of them and their tracts and blasts. I have kept on tracking the partisans, noting along the way that the Harrises and the Dennetts do the faithful a favor. Instead of being indifferent, as most self-described non-religious scholars tend to be, they find faith important enough to oppose it. One can make the case that their opposition is helpful. It is easier to sneer back at a sneer than to effectively shrug off a shrug. A-theistic thought, Feuerbach- and Nietzsche-style, is quickening and, with its vital criticism, can encourage reform.

Meanwhile, the religious who get suckered into making emotional responses might take comfort from the knowledge that few people "lose the faith" because of books like these. Many of the religious, as they face their own doubts, show awareness of the faults in religious history and flaws in the communities of faith they themselves profess, and have thought of and faced up to all of these. I've never seen a partial percentage point of a blip downward in trends of support for religion in the face of "outsider" attacks.

Little of what I have written is fair to Tufts University professor Dennett, who makes his case for questioning all religion from the viewpoint of evolutionary biology. It is true that the neurosciences today pose more profound and disturbing questions than Darwinian evolution ever did. "God" reduced to something in the genome or "mysticism" to nothing but neuron firings in the brain produce real challenges, some of which Professor Dennett, albeit naively, furthers in his argument. I don't want to be a sneerer (William Paley: "Who can refute a sneer?"). I do want to tell what I took from a reading and from some reviews. For example, Leon Wieseltier, who savages the book in the New York Times Book Review (February 19), shows that Dennett flubs the case for reason, which he rather strangely defines, and whose backfiring on him he does not notice.

Dennett -- here's where naivete comes in -- wants religion to be studied just like every other phenomenon can be studied, namely "objectively." He seems unaware of the ways scholars in many disciplines question "objectivity," how many students of religion are aware of "hermeneutics" in ways that he is not, how "phenomenologists" among them learn to bracket their own commitments when studying something complex.

Criticism from within religious communities for two centuries, or maybe twenty, has shaken the foundations of the faiths that it often purifies. Maybe next year's critical sensation will show awareness of the kinds of criticisms that have been going on for a long time -- never "objectively."

For Further Reading:
For those who would like a succinct summary of Dennett's proposal, M.E.M. suggests "Common-Sense Religion" by Daniel C. Dennett, in the Chronicle of Higher Education (January 20).

Martin E. Marty's biography, current projects, upcoming events, publications, and contact information can be found at www.illuminos.com.
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Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.

Elizabeth Brown (St. Thomas Law School) on Plan B

I received several helpful e-mails providing more information on the distinction between contraception and abortifacients.  They generally agreed on the following information, which I received from Elizabeth Brown, and thought I'd post here (thanks also to Denise Hunnell, MD, who sent along very similar information):

While everyone agrees that an abortion is the termination of a pregnancy, the problem is that everyone does not define when pregnancy begins in the same way.  The American Medical Association defines pregnancy as beginning when a fertilized egg implants in the uterus.  Other groups, like the Catholic Church, define life and pregnancy as beginning when the sperm fertilizes the egg.    

Plan B or the morning after pill is like taking two or three regular birth control pills at once.   Generally, Plan B is taken in two doses within 12 hours of each other.  Like regular birth control pills, it can prevent ovulation, or it can prevent the fertilization of the egg, or it can prevent a fertilized egg from implanting in the uterus.  Plan B cannot disrupt or end an established pregnancy, i.e., it doesn’t have any effect if the fertilized egg has implanted in the uterus.  Plan B only works if it is administered 72 hours after having unprotected sex.  If taken within 24 hours, Plan B has a 95% success rate at preventing pregnancy.  The later in that period that a woman begins taking it, the less effective it is.  If begun within 48-72 hours, it only has a 58% success rate at preventing pregnancy. 

As noted above, the American Medical Association defines pregnancy as beginning when a fertilized egg implants in the uterus.  As a result, the AMA does not view Plan B as an abortifacient because it is not terminating an established pregnancy (as the AMA defines pregnancy).  See AMA House of Delegates resolution opposing the FDA’s decision not to allow Plan B without a prescription.

http://www.ama-assn.org/ama1/pub/upload/mm/15/res_hod443_a04.doc

Many groups opposing Plan B view any fertilized egg as a human being and thus, any chemical that prevents a fertilized egg from implanting is, in their definition, an abortifacient.

Plan B is different from RU-486, or the abortion pill, which is administered 4-7 weeks into a pregnancy and is designed to terminate the pregnancy.  In the case of RU-486, everyone agrees that a viable pregnancy exists and will end if RU-486 is administered.

Not every woman, who has unprotected sex and does not use contraceptives, will become pregnant.  In addition, about 40-60% of fertilized eggs naturally fail to implant on their own.

At this point in time, there is no way for anyone to know whether unprotected sex has resulted in a fertilized egg or not because pregnancy tests can only detect an implanted fertilized egg.  So neither the woman taking Plan B nor the doctor prescribing Plan B nor the pharmacist dispensing Plan B can know for certain that the medication will, in fact, terminate a fertilized egg, instead of merely preventing ovulation, preventing fertilization, or doing nothing.

For more information on Plan B, see http://www.uspharmacist.com/index.asp?show=article&page=8_1567.htm

In general, Plan B may be viewed as being a bit like Russian Roulette.  There is a very small chance that it will, in fact, terminate a fertilized egg compared to the chance that it will prevent ovulation or fertilization or do nothing.  If it prevents ovulation or fertilization then it is no different that any other contraceptive. 

Religious Liberty Cases and Catholics: Guest Blogging at The Volokh Conspiracy

In recent empirical study of judicial decisionmaking, Michael Heise (Cornell), Andy Morriss (Case Western), and I have been exploring religious liberty cases in the lower federal courts. The enduring legal myth is that members of minority religious groups face a decidedly uphill battle in securing accommodation for unconventional religious practices, expression, or values from the courts. According to the conventional wisdom, traditional Christian believers may anticipate a more hospitable welcome from the judiciary when asserting claims of conscience or religious liberty. However based upon our empirical study of religious liberty decisions in the federal courts, the proposition that minority religions are less successful with their claims was found to be without support, at least in the modern era and in the lower federal courts. In fact, counter to popular belief, adherents to traditionalist Christian faiths, notably Roman Catholics and Baptists, appear to be the ones that today enter the courthouse doors at a disadvantage.

For the next week, I will be guest-blogging once daily on the subject of this study and the nature and meaning of the findings at "The Volokh Conspiracy" (volokh.com), identified just last week in the Wall Street Journal as one of the leading legal blogs in the country (hence my great appreciation for being invited by Eugene Volokh to share some ideas on this topic with his readers). I invite "Mirror of Justice" readers to surf over and, after the week is concluded, I may continue the conversation and respond further to comments back here at home on the "Mirror of Justice."

Greg Sisk

The Pre-Implantation Embryo

In his statement today to the Pontifical Academy for Life (at this conference), Pope Benedict:

reaffirmed Catholic teaching that life begins at the moment of conception, saying embryos are "sacred and inviolable" even before they become implanted in a mother's uterus. . . .

By making such a defense of life, the Pope appeared to be trying to cut short any debate that the period between conception and implantation could be seen as a time for legitimate experimentation or manipulation on embryos.

Rob

Factual Question on Oral Contraception

After re-reading some of these posts on contraception and pharmacists and looking over some of the left-wing blogs' takes on this question, I am a little bit confused about the distinction between abortifacients and oral contraception.  My understanding is that oral contraceptives are permissible for therapeutic purposes, even though they can prevent implantation of a fertilized ovum.  (Ironically, oral contraceptives are sometimes used as part of fertility treatments (to sort of re-zero the hormonal clock).)  Some of the things I've read suggest that Plan B works in the same way.  What exactly is meant by an abortifacient?  Does the hierarchy consider normal oral contraceptives to be such?  (Is the only difference between oral contraceptives and so-called "emergency contraception" the intent of the user?)  I would have thought that abortifacient means something that directly kills an embryo.  But maybe there's something about the hierarchy's teachings on oral contraceptives that I'm misunderstanding.  Can someone point me towards a good (and recent) scholarly analysis of the question? 

Carozza on "Secularity or Secularism"

Here is a link to a helpful and thoughtful piece by MOJ-friend Paolo Carozza (Notre Dame), called "Free Church and Limited State," on how "[t]he religious character of American culture and the role of the Church in public debate reveal why a concordat between Church and State is superfluous in the USA."  Here is a bit:

Our law respects and protects that central role that religion has played in our collective life. We have a capacious understanding of freedom of religion, which recognizes that an important part of the liberty of religious communities is the capacity to speak and act publicly on questions of common concern. At the same time, the dominant American notions of freedom of speech are substantially more unrestricted than the prevailing European ones. Much of our tolerance for the presence of religiously informed views on controversial social issues is the consequence of the idea that all speech is given space to be heard in the public square, even if it is unpopular or offensive to some others. This is especially important given the great pluralism of religious identity and commitment among Americans. It is not the role of the state to be the arbiter of what is acceptable as public discourse, and so the law protects the liberty of all to express their views–even, or perhaps especially, those whose views are informed by their religious convictions.
Here there is a close connection between American views of the place of religion in public and American views of the state. While the legacy of nineteenth-century constitutional theories in continental Europe emphasizes the monopoly of the state as the embodiment of the public interest, the United States belongs to a constitutional tradition much more inclined to see the state as a limited actor in the social fabric. From this side of the Atlantic, a Concordat appears to be a response to the need to establish certain protections for the Church against the state’s claim of exclusive and ultimate power and authority. But in a context such as ours, where the freedom of the Church is largely guaranteed by the structural limitations of the state to interfere in her affairs, a Concordat seems to be superfluous. To give a specific example: there is no need for a special agreement ensuring the right of the Church to establish its own educational system, because the state does not have a monopoly of power over education to begin with and so cannot prohibit the creation and operation of religiously affiliated schools.

Catholic Conservative William F. Buckley on Iraq ... Food for Thought

National Review Online
February 24, 2006

It Didn’t Work
William F. Buckley, Jr.

"I can tell you the main reason behind all our woes — it is America." The New York Times reporter is quoting the complaint of a clothing merchant in a Sunni stronghold in Iraq. "Everything that is going on between Sunni and Shiites, the troublemaker in the middle is America."

One can't doubt that the American objective in Iraq has failed. The same edition of the paper quotes a fellow of the American Enterprise Institute. Mr. Reuel Marc Gerecht backed the American intervention. He now speaks of the bombing of the especially sacred Shiite mosque in Samara and what that has precipitated in the way of revenge. He concludes that “The bombing has completely demolished” what was being attempted — to bring Sunnis into the defense and interior ministries.

Our mission has failed because Iraqi animosities have proved uncontainable by an invading army of 130,000 Americans. The great human reserves that call for civil life haven't proved strong enough. No doubt they are latently there, but they have not been able to contend against the ice men who move about in the shadows with bombs and grenades and pistols.

The Iraqis we hear about are first indignant, and then infuriated, that Americans aren't on the scene to protect them and to punish the aggressors. And so they join the clothing merchant who says that everything is the fault of the Americans.

The Iranian president, Mahmoud Ahmadinejad, elucidates on the complaint against Americans. It is not only that the invaders are American, it is that they are "Zionists." It would not be surprising to learn from an anonymously cited American soldier that he can understand why Saddam Hussein was needed to keep the Sunnis and the Shiites from each others' throats.

A problem for American policymakers — for President Bush, ultimately — is to cope with the postulates and decide how to proceed.

One of these postulates, from the beginning, was that the Iraqi people, whatever their tribal differences, would suspend internal divisions in order to get on with life in a political structure that guaranteed them religious freedom.

The accompanying postulate was that the invading American army would succeed in training Iraqi soldiers and policymkers to cope with insurgents bent on violence.

This last did not happen. And the administration has, now, to cope with failure. It can defend itself historically, standing by the inherent reasonableness of the postulates. After all, they govern our policies in Latin America, in Africa, and in much of Asia. The failure in Iraq does not force us to generalize that violence and antidemocratic movements always prevail. It does call on us to adjust to the question, What do we do when we see that the postulates do not prevail — in the absence of interventionist measures (we used these against Hirohito and Hitler) which we simply are not prepared to take? It is healthier for the disillusioned American to concede that in one theater in the Mideast, the postulates didn't work. The alternative would be to abandon the postulates. To do that would be to register a kind of philosophical despair. The killer insurgents are not entitled to blow up the shrine of American idealism.

Mr. Bush has a very difficult internal problem here because to make the kind of concession that is strategically appropriate requires a mitigation of policies he has several times affirmed in high-flown pronouncements. His challenge is to persuade himself that he can submit to a historical reality without forswearing basic commitments in foreign policy.

He will certainly face the current development as military leaders are expected to do: They are called upon to acknowledge a tactical setback, but to insist on the survival of strategic policies.

Yes, but within their own counsels, different plans have to be made. And the kernel here is the acknowledgment of defeat.
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Religion in MMOGs

I once started, but made no progress on, an essay about religion -- or, more precisely, religious freedom -- in MMOGs ("massively multiplayer online games").  I wondered, what would it mean for an "avatar" (i.e., the "digital you" in virtual-world games) to enjoy and exercise religious freedom?  I was not thinking so much about any real-world, religious-freedom rights that we might have to participate in MMOGs, or about any constraints that religious-freedom laws might impose on the regulation of gamers or games themselves.  Instead, I was trying to imagine what it would really mean to say or wonder if the avatars themselves, in "their" worlds, enjoyed religious freedom.  The question seemed worth asking because -- in my view, anyway -- religious-freedom questions (in the real world) are intimately connected to moral-anthropology questions, i.e., what is a human person and what does the answer to this question mean for additional questions about how human persons ought to be regarded and treated?

Well, again, I made no progress.  This should have come as no surprise, given that I really do not know much about MMOGs or computer-gaming generally.  (Some prawfs -- like Dan Hunter, Michael Froomkin, Timothy Wu, and Jack Balkin -- do, though).   In any event, here is an interesting post, on the "Terra Nova" blog, about "religion in MMOGs" (read the comments, too):

[A]ctual religion and theology are pretty much absent or at best non-operative in most MMOs.  In fantasy games the priest is typically a "healer" but otherwise the character is a façade.  In modern or science fiction games, religion is conspicuously almost entirely absent.

I've been wondering for some time about enabling the presence of both real-world and made-up religions in MMOs as thematically appropriate.  Is this a good way to flesh out a world, to create gameplay surrounding a moral code and shared identity, and to bring a significantly missing piece of human community to the game, or would it just be a way to invite controversy -- in effect, to draw aggro from both religious and non-religious players and cause a heap o' customer service trouble? 

The companion to this question is a bit more introspective: to what degree does the answer to the question of operative religions in MMOs vary with our own degree of spirituality/religiosity?  Is the perceived  agnosticism of the game development community keeping religion out of MMOs?

Any thoughts?

Conscience, Catholic hospitals, and contraception

Apparently, lawmakers in Connecticut are putting together a bill "that would require all Connecticut hospitals, including the four Roman Catholic hospitals in the state, to provide emergency contraception to rape victims."  The news story, and the proposal's supporters who are quoted, speak simply of "contraception," while those speaking for the Catholic hospitals speak in terms of early abortifacients:

The Rev. John Gatzak, director of communications for the Archdiocese of Hartford, said the archdiocese would oppose any legislation requiring hospitals to administer contraceptives in cases where an egg already has been fertilized or ovulation has begun.

The Catholic Church "does believe and always has that human life begins at conception and that human life" at the point of conception "is entitled to all the respect that other human life is entitled to," Gatzak said.

I assume that the First Amendment would not require an exemption from Connecticut's "emergency contraception" mandate (though, perhaps, state law would).  Is there any compromise possible?  Or, is the Catholic Church simply going to have to give up on running full-service hospitals?  And, if the Church were to do this, would that be good for civil society and for the poor? 

Conscience, Human Dignity, and Livelihood

As a past participant to some of the MOJ discussion on conscience and related issues, I would like to offer a few thoughts in response to some of the recent postings. It is clear that a wide variety of individuals today, both in the US and abroad, are facing challenges to their consciences. In this context, I often think of our fellow Catholics in the People’s Republic of China. Some of the recent MOJ debate has concentrated on physicians and pharmacists. In some of this dialogue, a distinction was drawn between members of these two professions. It seems that one view makes a distinction between these two groups in that the sanctions they face can lead to a threat of livelihood for physicians but not for pharmacists. Is that really the case?

Let me suggest that any person has a right to claim the exercise of conscience and that those opposed to this exercise of conscience may take actions that threaten that person’s livelihood and possibly even that individual’s life. Let us take the case of the auto mechanic who is employed by the only place where his specialty and trade are in need. The employer (and only employer) runs a so-called “chop shop” in which stolen cars are broken up into components and sold. Our mechanic of conscience so far has worked only on legal activities, but his employer begins to apply pressure that he must now participate in the shop’s illegal activities. Knowing that there is no other place to go (the mechanic must stay in this community because of his family) for employment, does this fellow not risk loss of his livelihood?

Let us take another case of high school students. Most are good kids; a few get into mischief; some engage in dangerous anti-social behavior. In this case, there is student who minds her business, but she is targeted by a clique from the last group I identified. She is pressured and threatened to engage in dangerous, illegal conduct by members of this last group. There is no escape in that she cannot leave school; if she says anything to her parents or the school authorities, she has good reason to believe that the bullies will initiate reprisals that will lead to serious injury or death. In conscience, she stands her ground and refuses to comply with the demands. Does she not risk loss of her livelihood?

Let us take a third case. Private Jones is a member of an elite military unit in a dangerous foreign assignment where the military are pursuing terrorist suspects. The military unit finds and detains suspects. A superior decides to use interrogation methods that violate applicable international humanitarian law and international law. Private Jones realizes this and finds ways of not participating in these illegal activities for a while. But the day comes when pressure is put on Private Jones to assist in these unlawful methods. In conscience, the private resists, but more pressure is applied—pressure that threatens the private’s status in the elite unit. Does Private Jones not risk loss of livelihood?

Let us take a fourth case. After much difficulty in finding a university teaching post because of national financial constraints in higher education, Professor Davis has recently joined the faculty of Mosquito State University. She weathered the hiring battles and finally got a prized teaching post. What initially seems to be a stroke of good luck is not. The University has authorized the faculty to hire another person in an increasingly difficult job market. Thousands of candidates apply and a few are called on campus to be interviewed. Professor Davis is attracted to one candidate in particular because they both share similar philosophies on life and teaching. However, just before the faculty vote that will determine who will be the successful candidate, a senior member of the faculty who also chairs the rank and tenure committee stops by Professor Davis’s office and “suggests” that Professor Davis not vote for Davis’s favorite candidate. Even though the hiring vote is done by “secret” ballot, Davis knows that how each member of the faculty votes can be determined. Professor Davis, in conscience, is compelled to vote for this candidate, but Davis also knows the consequences for her presently untenured career. Does Professor Davis not risk loss of livelihood because of the exercise of conscience?

I believe that the distinction between physicians and pharmacists about losing or not losing their livelihood is not a helpful one. All persons have human dignity, and all persons of conscience can find themselves in situations where their integrity and their well-formed consciences in which they rely on the objective moral order can be assaulted. These assaults can occur in the daily life of the person wherever he or she works and lives. They can occur to someone who is a member of a learned profession and someone who is not. These pressures know no boundaries that are based on age. They can exist throughout the human condition. They do not visit only members of elite professions; they can threaten virtually anyone including our local pharmacist.   RJA sj

Pharmacists and Contraceptives

This USA Today article suggests that at least some pharamcists are simply refusing to fill prescriptions for oral contraceptives (not just the morning after pill, etc.), although it also supports Kim's point that there is more concern about abortifacients:

For a year, Julee Lacey stopped in a CVS pharmacy near her home in a Fort Worth suburb to get refills of her birth-control pills. Then one day last March, the pharmacist refused to fill Lacey's prescription because she did not believe in birth control.

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Sonfield says medical workers, insurers and employers increasingly want the right to refuse certain services because of medical developments, such as the "morning-after" pill, embryonic stem-cell research and assisted suicide.

Conscience and Professions

In response to the comment by Kim Daniels:

(1) I think the fact that (assuming doctors face professional sanctions for participating in an execution) the presence of a professional norm makes the case quite different from the pharmacist situation for the simple reason that state compulsion puts them in the impossible position of (possibly) losing their livelihood for complying with the state's demand.  Granting that violating your own conscience is a serious harm, I think it's safe to say that violating your conscience plus the possibility of losing your livelihood is even more serious, and something that pharmacists do not face.

(2) My comments were directed towards doctors refusing to dispense run-of-the-mill oral contraceptives.  (I believe another post addressed the question of cashiers dispensing condoms.)  I'm not familiar enough with the run of these cases to assess the accuracy of the statement that most of them involve abortifacients.  Obviously, the considerations I discussed would be substantially different in the case of a medicine that someone's religion teaches is evil in itself (i.e., one that has no legitimate uses). (I would disapprove of the state's attempts to compel someone to sell such a medicine against their conscience in the same way that I would think it wrong for the state to compel a Catholic hospital to provide abortions.)

Beinart on religion, secularism, and the cartoons

Peter Beinart, of The New Republic, contributed to a recent issue of the magazine what I thought was a very thoughtful essay on the whole "free speech / offensive cartoons/ riots in the streets / religion and liberalism" debate.  One the one hand:

The riots currently engulfing the Islamic world, prompted by a Danish newspaper's decision to caricature the Prophet Mohammed, require two responses. The first is easy: horror. In the physical assault on Denmark's embassies and citizens, and in the diplomatic assault on Denmark's government--all because a free government won't muzzle a free press--multiculturalism has become totalitarianism. Religious sensitivity, say the zealots marching from Beirut to Jakarta, matters more than liberty. Indeed, it matters more than life itself. To which the only answer, from democrats of all religions and of none, must be: In this matter, we are all Danes.

As I have suggested in earlier posts (though not so eloquently), I agree. On the other hand:

Responding to the thuggishness is easy. Responding to the cartoons themselves is harder. It is hard to condemn them when the barbaric response in parts of the Islamic world so vastly dwarfs the initial offense. And yet, the cartoons should be condemned nonetheless. Of course, the Danish newspaper had the right to publish them. But, in doing so, it revealed a particularly European prejudice, one that the United States must take care not to repeat.

The prejudice is not simply against Islam. Rather, it stems from Europe's--or at least Western Europe's--inability to take religion seriously at all.

Later, after expressing concern that many conservatives in the United States seem not to share President Bush's "conservative ecumenism," Beinart writes:

Now, in the wake of the cartoon saga, the election of Hamas and the ongoing trauma in Iraq, that universalism is being challenged, and the older, more pessimistic conservatism is resurfacing. And that's a very bad thing. No matter what you think of the religious right's domestic agenda, the United States is much better off with a religious right than with a Christian right or a Judeo-Christian right. When conservative American Christians lose their ability to identify with conservative Muslims--to imagine their faith as in some basic way the same and deserving of the same basic respect--the United States will find itself less able to speak to the Muslim world, and less able to listen to it. It will find itself, in other words, in the place Europe is now. And that's a place no American should want to be.

While I imagine my own views of the so-called "religious right" differ from Beinart's, it seems worth working to hold on to the very Dignitatis humanae-type theme that Muslims' faith is "in some basic way the same and deserving of the same basic respect" as Christians' (which is not to say that one must suspend or bracket one's view that Christianity is true or shield one's eyes from the fact that there are serious problems in the Muslim world).

"Not in the Heavens"

In the February 20 issue of The New Republic, my friend Noah Feldman has a very critical review of Jay Sekulow's book, Witnessing Their Faith: Religious Influence on Supreme Court Justices and Their Opinions.  Feldman writes:

In this political-religious environment, the relation of an official's faith to his political practices has become a renewed topic of conversation in evangelical circles. That is the best reason to examine the new book by the lawyer-activist Jay Sekulow, a central figure in the evangelical rethinking of constitutional law and practice. He serves as chief counsel for the cleverly initialed American Center for Law and Justice (ACLJ), a law firm founded by Pat Robertson to represent evangelicals in constitutional litigation. He has appeared several times at the Supreme Court on behalf of evangelical causes. . . .

Witnessing Their Faith, it turns out, is Sekulow's doctoral thesis, written for the School of Leadership Studies at Pat Robertson's Regent University in Virginia Beach. Whatever its merits as an example of "leadership studies," Sekulow's work is a failure as history. This is not because his facts are wrong. Most of them are correct, and a reader new to the subject could certainly pick up some useful things about the history of church and state in America. The trouble with Sekulow's book lies in its selection and its interpretation of biographical materials about nine Supreme Court justices and their opinions. The choice of examples is highly selective, and the interpretations are pervasively tendentious. Witnessing the Faith is an important document of a disturbing phenomenon. . . .

The central claim of Sekulow's book is that in the cases he analyzes, "the opinion of the justices coincided with the official positions held by the religious denomination that had influenced them." In practice, Sekulow cannot successfully demonstrate this claim. Yet the story he tells is worth considering, more for what it fails to show than for what Sekulow claims it does show. A reasonable argument can be made that in fact Sekulow's subjects overwhelmingly separated their religious faith (which was often quite minimal) from their constitutional decision-making. The faith that they witnessed, in other words, was not religious, it was constitutional. . . .

There's a lot more, and the view is well worth reading.  Like Feldman's book "Divided By God," the review is -- even in those places where one might have questions or even disagreements -- respectful, charitable, and generous.  Some MOJ readers and bloggers might quibble with this line, though:

Presumably Brennan's liberal activism would not have squared well with his Catholic upbringing and commitments (although one can imagine some historian trying to connect Brennan to the social justice tradition of the Catholic Worker movement).

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Daniels on executioners and pharmacists

Regarding our recent discussions of pharmacists' and doctors' conscience-based objections to morning-after pills and lethal injections, Kim Daniels (a lawyer with the St. Thomas More Law Center) writes:

Just a quick note from the trenches regarding the MOJ discussion [about doctors, pharmacists, and conscience].  I think that in fact there are important similarities between a doctor's refusal to participate in imposition of the death penalty and a pharmacist's refusal to prescribe certain drugs.

Prof. Penalver notes that in the death penalty case,  the doctors were not acting merely on their personal views, but on their "professional obligations."  I'm not clear on the moral difference between these two categories; after all, to value professional obligations is itself a personal moral view, and the doctors were "obligated" to act the way they did only because they share the widely-held views of their profession.  While the doctors may or may not have faced professional consequences as a result of their actions, this was just a factor in their personal moral evaluation of the situation they faced.

Prof. Penalver next argues that  "in one case, doctors are being asked to directly cooperate in the killing of a human being; in the other case, they are being asked to sell someone something that is not even considered evil in itself."  But the current pharmacist cases largely involve Plan B, an abortifacient that these pharmacists are unwilling to dispense precisely because they believe that doing so amounts to illicit cooperation in the intrinsically evil act of abortion.  As far as I know, in those cases involving pharmacists' refusal to fill prescriptions for hormonal contraceptives, the pharmacists similarly objected to the abortifacient actions of those medications.

18 USC s3597(b) prevents any state or federal employee or service provider from being required "as a condition of that employment or service obligation" to attend or participate in an execution "if such participation is contrary to the moral or religious convictions of the employee."  I heartily support this law; I'm still unclear, though, as to why pharmacists who object to cooperating in the taking of a life don't deserve similar protection.