Mirror of Justice

Abortion as Infanticide

In response to my post (and Abby Johnson's comments) suggesting that a post-Roe abortion regime could focus more on providers than on the women obtaining abortions, Jonathan Watson suggests that the approach to punishment should borrow from the approach to punishing infanticide:

I do think that abortion is infanticide. I cannot see a reasonable legal argument for assigning a different punishment for ending the life of a human being at X point versus Y point, unless one argues as I have in the last paragraph of this letter.

Some arguments I have seen include:

1) A fetus is less of a person than an infant. Of course, one might argue that this would also entail different punishment for killing an adult than a child than an infant. I don't find this compelling, as it raises the possibility of being able to assign various individuals "personhood" based on arbitrary characteristics (race, nationality, and so forth).

2) The quickening argument, whereby killing the body before movement could be felt by the mother (or some similar argument), thus indicating ensoulment. The image and likeness to God, upon which true personhood ought to be based, is not limited I would say to any point during the developmental process. The quickening line of thinking was also abandoned by the Church once technological advances made determination possible that life was beginning on its own at conception.

3) A fetus has less of an appeal than an infant, as it doesn't physically appear human. I see the same problems inherent here as in the personhood argument in regards to the handicapped, old, and infirm.

Perhaps one could argue that the purpose of criminal punishment of this sort is based not on an object external norm (e.g., all killing is wrong, and therefore, killing a fetus warrants the same punishment as killing an infant, child, adult, etc.) but on internal subjective depravity ( e.g., a person should be more emotionally attached to a born infant), and therefore punished for the greater depravity of the act required to kill an infant than kill an unborn. But, this again makes hash of Catholic arguments in this direction.

On a related note, do you think that one can say that all life is deserving of equal protection of the law, and continue to argue that that life is receiving equal protection when the punishment for destroying that life at different stages is different? It's not something which I have considered before - is it possible that equal protection of two different people under the law might entail different punishment? Would that be the basis of hate crime laws?

I think one could argue that since it is the weakest who need the most protection from external law against physical violence that one could plausibly argue that fetuses and infants, the old, the handicapped, etc., deserve greater protection through deterrance  via imposition of harsh punishments than others in society.

Not Rome, but Rainier . . .

Thanks to all my MOJ-colleagues for all the great posts to which I returned today after a week in the Pacific Northwest.  Unlike Greg, I have not been in Rome.  Instead, on Sunday morning, I was here (on top):

How Much Jail Time?

Writing in Newsweek, Anna Quindlen believes that pro-choice groups have found a winning strategy:

Buried among prairie dogs and amateur animation shorts on YouTube is a curious little mini-documentary shot in front of an abortion clinic in Libertyville, Ill. The man behind the camera is asking demonstrators who want abortion criminalized what the penalty should be for a woman who has one nonetheless. You have rarely seen people look more gobsmacked. It's as though the guy has asked them to solve quadratic equations. Here are a range of responses: "I've never really thought about it." "I don't have an answer for that." "I don't know." "Just pray for them."

You have to hand it to the questioner; he struggles manfully. "Usually when things are illegal there's a penalty attached," he explains patiently. But he can't get a single person to be decisive about the crux of a matter they have been approaching with absolute certainty.

A new public-policy group called the National Institute for Reproductive Health wants to take this contradiction and make it the centerpiece of a national conversation, along with a slogan that stops people in their tracks: how much time should she do? If the Supreme Court decides abortion is not protected by a constitutional guarantee of privacy, the issue will revert to the states. If it goes to the states, some, perhaps many, will ban abortion. If abortion is made a crime, then surely the woman who has one is a criminal. But, boy, do the doctrinaire suddenly turn squirrelly at the prospect of throwing women in jail. . . .

The great thing about video is that you can see the mental wheels turning as these people realize that they somehow have overlooked something central while they were slinging certainties. Nearly 20 years ago, in a presidential debate, George Bush the elder was asked this very question, whether in making abortion illegal he would punish the woman who had one. "I haven't sorted out the penalties," he said lamely. Neither, it turns out, has anyone else. But there are only two logical choices: hold women accountable for a criminal act by sending them to prison, or refuse to criminalize the act in the first place. If you can't countenance the first, you have to accept the second. You can't have it both ways.

I agree with Quindlen that pro-life advocates need to work harder on articulating what the post-Roe world should look like.  Understandably, though, the focus has been on changing a legal system where most regulation, much less criminalization, of abortion is a non-starter given the governing interpretation of the Constitution.  I also assume that many within the pro-life community would favor government regulation to shut down abortion providers without requiring that women who obtain abortions be thrown in jail.

UPDATE: St. Thomas law student Abby Johnson laments:

Too bad those documentary folks didn't interview me -- I would have had no problem answering a question about penalties for women who have abortions. As you suggested, I think the most reasonable course of action is regulating providers rather than criminalizing women seeking abortions. There are plenty of reasons women shouldn't be criminalized for seeking abortions, not the least of which is that abortion is in many cases a last resort for women who see no feasible way of bearing and raising a child ... it's almost a "necessity" defense.

No one is arguing that women seeking abortions do so because it's fun, or because it's something they want to do. In many cases, they see it as the best of the available solutions to a very difficult situation -- and none of the alternative solutions are very palatable. Friends I've known who have had abortions did so because they were scared of the life-changing consequences of bearing children and of their ability to raise and provide for these children, and didn't have (or didn't think they had) the necessary support systems to be able to adequately care for and support a child. When our answer to these fears is to kill the child rather than find ways to assist in building adequate long-term support, we've failed not only the children but also their mothers.

The "culture of life," Putin style

Apparently there is a huge youth organization in Russia called Nashi, sponsored by the Kremlin, that encourages its members to procreate for the sake of the Motherland.  The Daily Mail reports:

Nashi's annual camp, 200 miles outside Moscow, is attended by 10,000 uniformed youngsters and involves two weeks of lectures and physical fitness.

Attendance is monitored via compulsory electronic badges and anyone who misses three events is expelled. So are drinkers; alcohol is banned. But sex is encouraged, and condoms are nowhere on sale.

Episcopal Competence

Apparently the national bishops conference plans to meet with Catholic members of Congress in an attempt to forge a bipartisan plan to withdraw troops from Iraq.  Richard John Neuhaus, predictably, is not impressed:

One is inclined to the view that the bishops conference does not have the competence, in the meaning of both ability and authority, to forge, or serve as broker in the efforts of others to forge, worldly stratagems for the Middle East. It is not evident that the nation lacks legitimate political authorities whose task it is to deal with such matters. Nor is it evident that there is a bipartisan call for the bishops to help them do their job.

Kindly note that I have refrained from mentioning that the recent record of the bishops in governing the Church—where they do have competence (at least in the sense of authority)—is not so stellar as to warrant great confidence in their ability to conduct American foreign policy. Nor, be it noted, have I mentioned that no comparable initiative has been announced by the bishops conference to constructively engage the many Catholic members of Congress who reject and persistently work against the Church’s teaching regarding the protection of unborn children, a matter indisputably within episcopal competence and on which the conference has spoken words of admirable clarity.

Faith & Politics

In the Christian Century, Jan Linn objects to the recent Democratic presidential candidates' forum on faith and politics:

The issue is not whether Christians or members of any other religious group have the right to vote for candidates who share their faith and values. The question is whether the way Christians on the right and left are involved in politics undermines both our democracy and the faith communities they represent. With good reason many of us have believed that the Christian right has done so. I would suggest that any group that focuses on the faith of candidates as a qualification for public office will negatively affect government and religion, even if its agenda is one of social justice.

Jim Wallis responds:

A forum on "faith, values and poverty" with leading candidates is appropriate in a presidential season. This forum showed that Democratic candidates, along with Republican candidates (who will appear in a similar forum in September), can be comfortable with issues of faith and public life, respect the separation of church and state, and show their own faith to be both personal and real while connecting it to broad policy issues like poverty, environmental responsibility, criminal justice, war and peace, the notion of the common good, the sanctity of life and healthy families (and thankfully not just the last two issues).

Our forum recalled the words of Lincoln, who warned us not to believe that God is on our side, but to worry and pray earnestly that we are on God's side. We might also heed the advice of the U.S. Catholic bishops, whose guidelines on faith and public life bear repeating. As Christians, they wrote, we are called to be political but not partisan, principled but not ideological, clear but also civil, engaged but not used.

Wuthnow and Mainline Protestants

With respect to the decline in numbers in mainline Protestant denominations, some of the factors mentioned by Rob have surely played a role. Nonetheless, according to Robert Wuthnow (presented by him at a session honoring his work at the American Academy of Religion), 90% of the decline in numbers is attributable to lower birth rates.

Encyclopedia of Catholic Social Thought is available

I wanted to let people know that the Encyclopedia of Catholic Social Thought, Social Science, and Social Policy was just released by Scarecrow Press (a divsion of Rowman & Littlefield). I had the great privilege of editing this project with Michael L. Coulter (Grove City), Stephen M. Krason (Franciscan University), and Joe Varacalli (Nassau Community College-SUNY). This project was sponsored by the Society of Catholic Social Scientists. The Encyclopedia is nearly 1200 pages and is published in 2 volumes. There are about 850 entries from nearly 300 contributors.

Some of the prominent contributors include Cardinal George Pell (Sydney), Bishop Giampaolo Crepaldi (Pontifical Council for Justice and Peace), Bishop Nicholas DiMarzio (Brooklyn, New York), Bishop J. Michael Miller (Congregation for Catholic Education and just named to Vancouver BC), Father C. John McCloskey (Faith and Reason Institute), Mary Ann Glendon (Harvard), James Hitchcock (St. Louis U), Mark Latkovic (Sacred Heart Major Seminary), William E. May (JP II Institute), Father Francis Canavan SJ (Fordham), Father Joseph Koterski SJ (Fordham), Charles Rice (Notre Dame), Ronald Rychlak (Ole Miss), Russell Shaw (Pontifical University of the Holy Cross), and Paul Vitz (Institute for Psychological Sciences).

Ave Maria School of Law had a critical role in the project. Dean Bernard Dobranski generously supported the project since its inception. My assistants Sheri (Ashley) Fornell and Sharon Sansoterra were instrumental to our efforts. Sue Berendt and Dia Moulton also contributed greatly. A number of Ave Maria students (Albert A. Starkus III, Trent Pepper, Daniel G. Byrne, and Heather Brenneman Miles) provided important research assistance. The following Ave Maria professors also contributed entries--Jane Adolphe, Howard Bromberg, Joseph Falvey Jr., Bruce Frohnen, Patrick Quirk, Stephen Safranek, and James Sonne.   

We think that this is a unique resource. It is a bit expensive for individual purchase (the list pric eis $150) although it would certainly be appropriate for libraries. We tried to make an effort to include a range of perspectives within the Catholic tradition. So, for example, on economic issues we have contributions that range from those that are more free-market oriented to those from a more distributist perspective.

We are hoping to have a website resource available within a couple of weeks. This website will have the full list of entries and contributors and also include sample entries so that people can get an idea of the quality of the Encyclopedia. I will post something when the website is on-line.

Richard M.      

As the family goes . . .

University of Virginia sociologist Brad Wilcox has an article in First Things exploring the connection between the traditional family and church attendance.  He also addresses mainline Protestant churches' efforts to reach out beyond the traditional family:

Perhaps the most visible example of this strategy is the recent “God Is Still Speaking” advertising campaign from the United Church of Christ (UCC). The “Ejector Pew” commercial from this campaign has attracted attention. It depicts a WASP upper-middle-class nuclear family settling comfortably into a church pew as unconventional families—a black single mother, a gay couple, a single man, and so on—are ejected from their pews. The commercial closes with this tag: “The United Church of Christ: No matter who you are or where you are in life’s journey, you are welcome here.”

This campaign—and the larger sentiment behind it—is doubly ironic. First, despite their inclusive rhetoric, mainline Protestant congregations are actually less likely to have single parents, single adults, and married couples without children than are evangelical Protestant churches. Mainline Protestant churches attract upper-middle-class people who live in conventional families but also aspire to the progressive cultural conventions of their class, which is to say, they walk right and talk left. Evangelical Protestant churches attract working- and middle-class people who hail from a range of different family situations but who now aspire to live in accord with God’s plan for their lives.

The UCC campaign is also ironic because it embraces the trends that have been the undoing of the UCC—indeed, of all the mainline. Because they are less likely to adopt a strict and strongly supernatural religious orientation, and to offer an intense experience of communal life centered on God, churchly traditions such as mainline Protestantism depend more on the rhythms and realities of family life to draw men and women into the life of the church. The average young man raised in a Congregationalist home isn’t likely to enter his local UCC church on any day except Christmas and Easter—unless he finds himself married with children.

Combatting Poverty Through Systemic Change

My friend John Freund, C.M., has gathered a treasure trove of resources on systemic change in the Vincentian Encyclopedia on the famvin website.  The systemic change approach to poverty, which has been embodied in a number of movements, emphasizes involving the poor themselves, a holistic vision that addresses a series of basic human needs and espeically self-help and self-sustaining programs particularly aimed at the root causes of poverty.  The Vincentian Encyclyopedia material on the subject includes some terrific media resouces and can be accessed here.   The Vincentian Community is committed to identifying and exploring strategies that implement systemic change; see here for a dicussion of their focus.

Catholics and Their Electoral Responsibilities

I am so very grateful for Rob’s, Tom’s, Rick’s, Amy’s, and Greg’s recent and multiple postings on several fundamental questions regarding the role of Catholics involved with public life and the direction of our political system. Like them, I have expressed thoughts about these matters in the past [HERE], [HERE], [HERE], [HERE], [HERE] and [HERE].

But with the ongoing process of candidate debates that has begun very early and has been taking place very often, our five mentioned colleagues and friends in the Lord have focused attention on the significance of these debates in the context of the duties of the electorate who assert that they Christian and Catholic. At this point, I would like to make the following observations about the Catholic voter.

Since my return to the US, I have been able to follow more closely (and even watch) several of these debates among same-party candidates that commenced in the spring of this year. I think one thing that all Americans need to keep in mind is that, regardless of the political party to which any of these candidates belongs, each seeker of office is trying to secure the largest popular approval that he or she can attain. This means that their fellow candidates from the own parties are not above criticism, oftentimes strong. While we may object to these machinations, this is politics pure and simple in a democratic state. Once each of the parties has narrowed the competition, the strong candidates from both groups will most likely extend their criticism to the survivors of the contest of the other party. The electorate, in general, and Catholic voters, in particular, need to take stock of this: what candidates and parties promise and what they deliver are not necessarily synonymous.

Promises will be made, and all voters will have to assess their reality. In addition, the faithful Catholic must also decide how he or she will exercise the franchise not only as a citizen but as a Catholic knowing that some of what is promised by candidates will be implemented. This is no easy task since none of us can accurately predict how any candidate will conduct himself or herself once elected. As voters (and as Catholics), we should not be surprised that most strong pro-abortion candidates will remain confirmed in this view should they be elected. But one thing is certain: whatever may be promised by any candidate may not be delivered because of the necessity of political compromise.

Thus, the Catholic voter—like any voter—can be confounded by the promises of the candidate versus the record of the office holder. So what guidance does the Church offer Her faithful regarding their duties pertaining to the exercise of the franchise knowing that the outcome escapes the exactitude of the campaign promise? This question raises the need to be particularly conscious of the distinction the Church makes in Her teachings between formal cooperation and material cooperation.

John Paul II in his encyclical letter Evangelium Vitae, N. 74 had this to say about the duty of a Christian pertaining to formal cooperation:

Christians, like all people of good will, are called upon under grave obligation of conscience not to cooperate formally in practices which, even if permitted by civil legislation, are contrary to God’s law. Indeed, from the moral standpoint, it is never licit to cooperate formally in evil. Such cooperation occurs when an action, either by its very nature or by the form it takes in a concrete situation, can be defined as a direct participation in an act against innocent human life or a sharing in the immoral intention of the person committing it. This cooperation can never be justified either by invoking respect for the freedom of others or by appealing to the fact that civil law permits it or requires it. Each individual in fact has moral responsibility for the acts which he personally performs; no one can be exempted from this responsibility, and on the basis of it everyone will be judged by God himself.

This instruction applies not just to some issues, such as abortion or euthanasia, but to all. However, the Catholic might consider how material cooperation is different. On this point, then Cardinal Ratzinger had something to say in his July 2004 letter to Cardinal McCarrick:

A Catholic would be guilty of formal cooperation in evil, and so unworthy to present himself for Holy Communion, if he were to deliberately vote for a candidate precisely because of the candidate’s permissive stand on abortion and/or euthanasia. When a Catholic does not share a candidate’s stand in favor of abortion and/or euthanasia, but votes for that candidate for other reasons, it is considered remote material cooperation, which can be permitted in the presence of proportionate reasons.

I will not be surprised if this statement from Cardinal Ratzinger is exploited by some involved with the ongoing campaigns and the 2008 election. But there are several points to keep in mind about the Cardinal’s statement.

First of all, we need to take stock of whether the candidates themselves are bound by the teachings of the Church regarding formal and material cooperation. A few of the candidates for the Presidency assert that they are Catholics, and, surely, the responsibilities imposed by Catholic teachings apply to them. Indeed, both John Paul II and the Congregation for the Doctrine of the Faith have addressed the duties of officeholders, particularly legislators, in recent years; therefore, the obligations imposed by the Church’s teachings, including those quoted from Evangelium Vitae, cannot be ignored. While those office holders and candidates who are not Catholic may argue that they are not bound by these duties, I would suggest that no one is excused from observing the moral natural law that applies to all. But my discussion today does not focus on office holders or candidates, it concentrates, rather, on the electorate who profess to be Catholic.

In addition, some Catholics voters may consider that the text quoted from the letter of Cardinal Ratzinger would enable them to vote for a pro-abortion candidate (or in favor of a candidate who supports euthanasia/assisted suicide) as long as the voter cast his or her ballot for this candidate for other reasons such as the candidate’s support for laws enhancing care for the sick and elderly, refugee relief, and education or restricting penal laws imposing capital punishment. I, for one, do not think that this is what the former head of the CDF had in mind. If it were otherwise, the Catholic voter could justify voting for any candidate or supporting any party as long as this voter expressed disagreement with the candidate (or the candidate’s party on certain issues) on these particular questions or others that conflicted with specific, fundamental, and clear Catholic teachings. For then, the Catholic would be cooperating in a material but not formal way.

But there comes the time when even material cooperation by any Catholic presents gave problems. It should not be considered either an excuse or a permission to justify whatever the user of the distinction claims.

I tender this view because candidates who are elected (and the parties to which they belong) may be emboldened to fortify their positions on issues that are antithetical to Catholic teaching and the moral natural law knowing that they can still win a good percentage of the Catholic vote that is based on the material cooperation argument. While the voter may think that his vote for such candidates is for “proportionate reasons”, the office holder who legislates for or enforces with vigor these problematic positions will likely not take this into consideration. Thus, the laws and policies that contravene Catholic teachings will assuredly become more entrenched. That is why I have previously argued in my October 8, 2006 posting that the “proportionate reasons” cannot be for any reason as long as it is “proportionate.” To properly be “proportionate”, justifications must take into account the concerns that I have mentioned that will further entrench laws and policies antithetical to the teachings of the Church. If I may borrow from Thomas More, when Catholics forsake their religious beliefs for “proportionate reasons”, they will lead this country on a road, if not to chaos, then surely to a place in which the moral natural law has been relegated to the periphery if not abandoned outright.    RJA sj

Defining Intrinsic Evil

While Greg is packing his suitcase, I’d like to throw into the mix of Tom’s and Greg’s exchange about prudential judgment and intrinsic evil a passage from Veritatis Splendor number 80, which suggests a striking array of examples of “instrinsic evil” – and which I believe throw an important monkey wrench into conversations that try to figure out how Republican and Democratic party platforms line up with CST:

“Reason attests that there are objects of the human act which are by their nature “incapable of being ordered” to God, because they radically contradict the good of the person made in his image.  These are the acts which, in the Church’s moral tradition, have been termed “intrinsically evil” (intrinsece malum): they are such always and per se, in other words, on account of their very object, and quite apart from the ulterior intentions of the one acting and the circumstances.  Consequently, without in the least denying the influence on morality exercised by circumstances and especially by intentions, the Church teaches that “there exist acts which per se and in themselves, independently of circumstances, are always seriously wrong by reason of their object.”

John Paul then goes on to quote a section Gaudium et Spes from which in the context of discussing the respect due to the human person gives a number of examples of intrinsically evil acts:

Whatever is hostile to life itself, such as any kind of homicide, genocide, abortion, euthanasia and voluntary suicide; whatever violates the integrity of the human person, such as mutilation, physical and mental torture and attempts to coerce the spirit; whatever is offensive to human dignity, such as subhuman living conditions, arbitrary imprisonment, deportation, slavery, prostitution and trafficking in women and children; degrading conditions of work which treat labourers as mere instruments of profit, and not as free responsible persons: all these and the like are a disgrace, and so long as they infect human civilization they contaminate those who inflict them more than those who suffer injustice, and they are a negation of the honour due to the Creator. (quoting Gaudium et Spes number 27).

Thoughts about what difference this makes?

Amy

Prudential Judgment, Proportionality, and the Danger of Accommodating to Intrinsic Evil

In his posting, Tom Berg thoughtfully suggests that the mere fact that the approach to an issue is left to prudential judgment under Catholic Church teaching should not be understood to mean that the matter at hand is necessarily of lesser importance than would be even a subject on which Church teaching is unequivocal, requires a specific response, and thus is not as susceptible to prudential variation.

For example, Tom hypothesizes, suppose that a candidate for the presidency were (lamentably) pro-choice on abortion, but nonetheless was the only candidate who espoused an effective means of protecting the nation’s borders against the smuggling in of a nuclear weapon that would lead to millions of American deaths at the hands of a terrorist group. (As an aside, Rudy Guiliani appears to be adopting precisely this strategy to appeal to social conservatives who are dismayed by his position on abortion. Guiliani regularly contends that the other candidates, notably the pride of Democratic candidates, frequently downplay or even ignore the terrorist threat in their speeches and debates, whereas he offers himself as a more reliable protector of our national safety.)

In many respects, I do think that Tom Berg is quite right. The mere fact that Catholic teaching does not lead ineluctably to one solution for a particular problem – that is, the methods of economic, political, or social change are left to prudential judgment – is not a perfect measure of the issue’s place in the hierarchy of matters of public concern. Indeed, his point is the only reason that I couldn’t quite say last election that a vote for John Kerry was impossible for a faithful Catholic, although it was very difficult. I do think it unlikely that the contrasts offered on other issues could ever be so stark as to implicate Tom’s hypothetical. Nonetheless, I concede that one could imagine circumstances in which a candidate’s plainly unacceptable views on one issue of unequivocal Church teaching, perhaps even on the central human rights issue of our time (i.e., the continuing holocaust against the unborn), might be out-balanced by his or her commanding attention and brilliant solution to another matter of overriding national importance (at least if the other candidates were so woefully unqualified as to fail to appreciate the urgent need to address the crisis).

Still, I suggest that one ought to very, very hesitant before going down that road. That the means to the end of a problem are left to prudential judgment signifies that persons of good will, fully in communion with the Church, might disagree on an economic, social, or political solution. But those of different perspectives on methods would nonetheless be within the bounds of the community on the basic nature of the problem and the need to seek a proper solution. By contrast, when a matter involves an intrinsic evil, such as the ongoing and casual dealing of death to unborn children, a candidate’s deliberate adoption of a policy of formally cooperating with that evil is of a completely different nature. Here we are not addressing questions of procedure but rather of the greatest substance. Thus, the presumption surely would be strong against a candidate who, whether from mendacity, foolishness, or craven pandering, would knowingly embrace an intrinsic evil or would knowingly facilitate and cooperate with those who do.

Moreover, whenever we seek to balance a candidate’s strengths in addressing matters of public concern open to exercise of prudential judgment against the candidate’s manifest weakness on a subject of clear Church teaching and defined as an intrinsic evil, the temptation of subordination of conscience to convenience is always presented. By accommodating to, or explaining away, the candidate’s stance on the matter of intrinsic evil, even by reference to other qualities of great merit on other matters, we may find ourselves developing a moral blindness.

Those in the blogosphere will recognize “Godwin’s Law,” which says that as a conversation unfolds and continues on-line, the probability that someone will make a reference to Hitler or Nazis approaches 1.0. The “Corollary to Godwin’s Law” has been that the person who so transgresses against norms of courteous discussion is declared the loser of the argument. Nonetheless, sometimes and on some subjects, it is just impossible (or too tempting) to forgo a well-targeted reminder of this historical reality. So here I go, pleading guilty to violating Godwin’s Law.

Among a number of books I am reading simultaneously during my sojourn in Rome, I have been reading Albert Speer’s “Inside the Third Reich.” Unlike most of the street thugs or disoriented and displaced workers associated with the Nazis in their early period, Speer was from a wealthy and prominent family and was well-educated as an architect. Yet Speer joined the Nazi Party and rose to become the architect of public works, and eventually the leader of wartime production, for the Third Reich. In the beginning, Speer was so attracted to Hitler’s vision of a revitalized Germany, so convinced of the need for a new civil order and Hitler's unparalleled ability to achieve it, and so entranced by the opportunities to rebuild a vibrant public sector that he was willing to look away from those parts of the Nazi platform that were not so palatable. In particular, he regarded the anti-Semitic elements of the Nazi ideology as the unseemly, even strange, but temporary flaws of an immature political movement.

However, once having embraced the Nazi movement for other and arguably public-regarding (if unsound) reasons, Speer gradually came to be less and less troubled by the Nazi hostility to the Jews, even to the point of tolerating (although never enthusiastically endorsing) the race laws and forced relocation of Jews. By the time the war came to an end, Speer had submerged all but a residue of his conscience on the "Juden Frage," even accepting the use of Jewish slave labor in building the public works and means of production that promoted his architectural dreams. Although Speer was spared the death penalty at Nuremberg by reason of evidence that he had reasonably well-treated the slave labor, providing them with better food and conditions than others, no one could doubt that his conscience had been seared by his association with the Nazis. As he later confessed, he ultimately had become the worst of criminals, whose guilt could not be expurgated in a thousand years.

Hopefully, few of us will ever face the political choice that Speer encountered or fail to make a better and more conscientious choice if we are so confronted. Nor do I mean to suggest that the issues facing modern day Americans are of the same caliber and moral importance as those facing post-World War I Germany (although the abortion issue may qualify and may be so regarded by future generations). I mean only to say that a willingness to accommodate to a matter of intrinsic evil, however we may think that a greater good may be realized by looking the other way and going along, is a dangerous course for a person of conscience, even at the voting booth.

And on that solemn note, I must prepare to leave Rome for a hopefully uplifting and peaceful journey to Siena for the weekend. This also means that I'll have no internet access for the next two days, so my colleagues on the blog may freely identify my errors of analysis without fearing any prompt response.

Greg Sisk

Prudence, Proportionality, and Giuliani

In response to my post that the prudential status of an issue does not alone entail that it's less important than an issue on which the Church clearly speaks, Rob Driscoll at Notre Dame writes:

Is that then an argument for why Catholics who are pro-life could vote for Rudy Giuliani and not be violating Church teaching?  That, in addition to, what Professor Garnett referred to as the prudential decision regarding electability?  In other words, a Catholic who really believes that Giuliani’s leadership will save millions of American lives could vote for him despite his pro-abortion positions (and disregarding his promise to point originalist judges who likely would uphold restrictions on abortion “rights”)?

Yes in theory, although I don't buy it empirically.  If one believes -- and, I would add, has good reason to believe -- that Giuliani's approach to homeland security would be that much better than the pro-life candidate at protecting America from catastrophic likely losses of life, then the simple fact that the Church does take a position on abortion but doesn't take a position on the details of homeland security policy shouldn't logically preclude someone from finding the reasons to vote for Giuliani proportionate.  I seriously doubt as a matter of fact that Giuliani is that much better, and moreover he's endorsed waterboarding and other interrogation tactics that are deeply problematic morally and also, I think, of little value compared with the serious wound they inflict on America's standing in the world (a crucial part of reducing the appeal of terrorism).

Someone certainly should weigh Giuliani's promise to appoint strict constructionists to the Court, which points toward appointments who are more likely to limit or overrule Roe, although that prediction should be tempered by his own pro-choice views (which make him less likely to expend political capital for an anti-Roe nominee) and by his statement that being a strict constructionist does not necessarily mean overturning Roe.  The other consideration for me, though, is that because of the very difficult situations that many pregnant women face, I believe the provision of stronger social supports for them and their children is both (i) called for morally to accompany criminal abortion restrictions and (ii) crucial in strategic terms if such restrictions are to maintain public support in the long run.  Republicans tend to oppose those supports (often for far less than proportionate reasons, in my view), while Democrats tend to back them.  This is why, although I regard the overturning of Roe as very important, I cannot give Republicans -- including Giuliani -- the total nod with respect to abortion policy.  I participate in pro-life organizations that call for such supports (Democrats for Life) and also those that don't (the Christian Legal Society); but as a matter of my own voting I weigh such safety-net policies as an important consideration.

But all of this goes beyond the modest point of my first post, which was not about how to answer these issues, but just about how to analyze them: the fact that an issue is prudential in nature at the level of policy, as opposed to one on which the Church specifically teaches, does not entail that the issue is less important in the weighing process of proportionality.

Tom

New Website: Fordham's Institute on Religion, Law & Lawyer's Work

“You’re going to be one of those parents who never let their kids out of the house to go to college.”  This was my colleague’s remark as I combed our brief to make corrections for the umpteenth time.  He was on to something.  After sitting on the Institute’s website for some time—ok, six years—we are now up and running.  Click here. 

Collecting scholarship and materials from our various programs over the past years, it hopes to serve as a resource to nourish “religious lawyering” programs across the United States and beyond.  We are—of course—still tinkering with it over the summer, so I’m all ears for suggestions or if you see glitches.

Amy

Benedict XVI on the Postconciliar Period

Sandro Magister has a fascinating transcript of Pope Benedict XVI reflecting on the postconciliar period. Here. Although we all have our own thoughts about this period, I don't think many have the wisdom and historical perspective of Benedict (I have to say my knowledge of the aftermath of the Council of Nicaea is a bit thin). The transcript closes with a beautiful passage that reflects Benedict's humility and his deep love of "the Crucified One" and his optimism. I will only quote the last line of the transcript--"In this combination of the humility of the Cross and the joy of the risen Lord, who in the Council has given us a great road marker, we can go forward joyously and full of hope."

Richard M.

Barbie's World

Check out the “Barbie Girls” website flagged in the 7/23/07 New York Times piece about integrating MP3 players into toys.  I’d love to hear critiques from a CST perspective.  Beyond the obvious concerns about unabashed consumerism (my favorite feature is shopping for accessories for your pet), I was fascinated by the cultural implications of some of the mechanics as revealed in “tips for girls” and the message to parents. 

“When you register, you create a screen name to use on the site. Because anybody in the Barbie GirlsTM world can see your screen name, you don’t wanna include your real name . . . Instead, make up something new and creative!”  What are the cultural implications of play through screen names? Although there are obvious safety benefits, in this world of “fun, friends and fashion,” you are never yourself.

“If a girl feels that a friend or best friend is misbehaving, she can click “block” to keep that person from sending her messages. And she can instantly remove anyone from her room by clicking “ask to leave.”  Here too, there are important safety concerns, but at the same time, how do instant “block” and “ask to leave” buttons change how they perceive relationships and friendships? 

“We want you to make new friends, but we also want you to be extra careful about who you add as a friend, especially if you have never played with her before, in the real world, or online.”  While there are tight limitations on random chat in the mall, “best friends” can chat more freely because they have actually met in real life.  The definition of a “best friend?”: “To make one of your best friends in real life a best friend online, you both need to own a Barbie GirlTM. Connect your friend’s Barbie GirlTM to your computer and follow the on-screen instructions.”  What does this say about what it means to make and be a “best friend”?

The moral dimensions of the “tips for girls” are fascinating.  On one hand, there’s a constructive “golden rule” kind of message.  “Always be nice to others!  BarbieGirls.comSM is for everyone to enjoy, and that means treating others the way you wanna be treated.”  “Don’t say anything mean, rude, violent, or untrue about anything or anyone. Also, don’t encourage your friends to say any bad stuff.”

But I’m not sure about the tendency to rely on 7-year olds to intuit when something is wrong, and act on that intuition:  “It is always your responsibility to stop chatting or playing with anyone that makes you feel uncomfortable or that is misbehaving.”  “We sometimes review chatting to make sure people are being friendly and safe and are following the rules. But because we don’t constantly monitor the site, you should “report” users to us who are misbehaving.”  “You should also make sure that the other girls you play with or chat with follow the rules too.”  What does this say about authority – and perceptions of autonomy – in kids who are still pretty little?

Would love to hear your thoughts – especially those of you who as parents struggle with the implications of these kind of media.  I’m going to use the site as a springboard for a conversation next week with Focolare teenagers, who are part of their summer program are exploring how Catholic spirituality can sustain them in their everyday engagement with popular culture – I’ll keep you posted on their reactions and insights. 

Amy

Resources on Religion and Immigration

Folks who are following immigration debates might be interested to know that papers from Fordham’s 2005 conference, Strangers No Longer: Immigration Law & Policy in the Light of Religious Values, are now available on line in PDF Format through the University of Detroit-Mercy Law Review website as part of their special volume on law and religion. 

Contributions include Michael Scaperlanda’s keynote, Immigration and Evil: The Religious Challenge, and a response by Stephen Legomsky.

Michele Pistone’s (Villanova) contribution has evolved into a book: Stepping Out of the Brain Drain: Applying Catholic Social Teaching in a New Era of Migration (Lexington Books 2007). 

Here’s a nice plug for the book by Don Kerwin of the Catholic Legal Immigration Network: "This is a ground-breaking book and should be read by everybody who cares about the interplay between migration and development. Pistone and Hoeffner detail the contributions that skilled workers make to economic development and poverty reduction in their nations of origin. In an era characterized by globalization, they see the mobility of skilled migrants as a 'gain' for both sending and receiving nations, a gain that very directly addresses the root causes of migration."

Amy

I Support Rudy Giuliani . . . . for Mayor of Rome

As my summer teaching in Rome begins to wind down, and I begin to reflect on a wonderful summer and all the inestimable treasures of the Eternal City, I had to honestly weigh in the drawbacks and flaws of Rome as well. As I did so, it dawned on me that this city desperately needs a Mayor Giuliani.

While citizens of Roma cannot do anything about the summer heat wave oppressing southern Europe, the same cannot be said of the pervasive graffiti on every building in every part of the city, staining even the most beautiful and ancient of edifices; the ingrained culture of littering, under which every sidewalk, every piazza, every famous site is covered with discarded cigarettes, broken bottles, newspapers, and other trash; and the ubiquitous bands of pickpockets that swarm around most public places while the polizia stand by idly. Indeed, Rome is now seeing the rise of the squeegee men! If ever a city needed a mayor who accurately diagnosed the “broken-window syndrome” and who appreciated how giving attention to the supposed little things can dramatically change the culture of a city and make it more livable, that place is Rome.

Rudy, you’ve missed your calling. Based on your years as mayor of New York City and the resulting revival of Manhattan, you are uniquely well-qualified to bring about a rebirth of livability in Rome. I could never support your presidential candidacy, but you are the perfect candidate for Mayor of Rome. And in a city in which the communists and the fascists are both viable political participants, a little thing like not being a citizen of Italy shouldn’t stand in the way. You have the Italian heritage, and speak the language, so surely that's qualification enough.

Greg Sisk (blogging from Rome)

Prudence and Proportionality

Taking off from Daniel Suhr's remarks concerning abortion, Iraq, and proportionality, I wanted to make one comment.  It's about the relation between prudence and proportionality in voting, something I've been thinking about ever since we had a conference on the role of prudence in the Catholic social tradition here at St. Thomas Law's Murphy Institute in April 2006.  Daniel wrote that

being wholeheartedly against the War in Iraq is not a proportionate reason for being pro-choice. As Archbishop Myers reminded us in the run up to the 2004 election, the Pope did not bind the conscience of Catholics to oppose the War in Iraq - he merely expressed his own prudential judgement on the question. Moreover, as the Archbishop points out, we must remember what we are balancing here - the lives of 1.3 million unborn children in America every year. Virtually no other modern policy issue - not taxes, welfare benefits, minimum wage, farm subsidies, the war - compares on that scale.

My focus here is not on the second point in that paragraph -- that no other issue can compare to the lives of 1.3 million unborn children.  That has been discussed before on the blog, and it is a powerful prima facie argument concerning proportionality (although one can question whether any policy that the pro-life community proposes will come close to saving 1.3 million lives, and also whether some policies widely opposed by Republicans -- such as access to contraception -- will prevent more of those abortions).

I want to focus on Daniel's (and Abp. Myers's) first point -- that abortion is matter of binding conscience for Catholics whereas Iraq is a matter of prudential judgment -- because I don't think that this argument logically shows disproportionality between the two issues.  An issue could be prudential, in the sense that the Church doesn't take a position on it, and yet be overwhelmingly important.  For example, suppose a voter is very knowledgeable on homeland security matters and, based on this knowledge, believes (i) that terrorists are very likely to try to smuggle nuclear bombs through a port, with a potential loss of millions of lives, and that (ii) the pro-choice candidate's plan for securing the ports is excellent and very likely to succeed while the pro-life candidate's plan is so inadequate as to create a huge risk.  The Church doesn't take a position on how to secure ports, so this is "merely" a prudential matter at the relevant level of decision, but that doesn't mean that the ports issue isn't a proportionate reason for voting for the pro-choice candidate (not, as all the analyses of this make clear, because the candidate is pro-choice, but because of the proportionate reason of a grave threat to millions of lives).

Now, the fact that the Church doesn't take a position on some issue could be evidence that the issue isn't important.  But it's pretty weak evidence once it's been acknowledged, as thoughtful people in both the magisterium and laity have done, that there are many issues on which the Church doesn't officially speak -- at least at the level of policy -- and instead leaves the matter to the better informed (and hopefully morally well-formed) judgment of lay people in their secular callings.  "Prudential" logically does not mean "unimportant."  The fact that an issue is prudential gives people discretion concerning it -- discretion, within reason, to disagree on its resolution -- instead of binding them to treat it as less important.

Again, this objection does not go to the "1.3 million unborn children" point, which I quite agree is logically about proportionality and would have to be answered, if at all, on other grounds.  But I expect that the argument "X can't be proportionate because it's only prudential" will appear in upcoming discussion about the 2008 elections.  So I offer this as a modest proposal for how to think about (not how to resolve) these issues.

Tom

Thompson's repentance

Another MoJ reader points out that, since the 1991 lobbying work at issue, Thompson has:

come to a very firm pro life position. His Senate record from 1994 until 2002 was perfect; he was endorsed by the National Right to Life in both elections. I believe that his thinking on the matter further benefited from his marriage to a thoughtful pro-life woman, and the births of his two young children (with the attendant diagnostic technologies to view life in the womb, etc.). I think his recent public statements confirm this; he is unequivocally opposed to embryo-destructive research, abortion, etc. Check out his video to the NLRC.

As such, as to whether voting for Thompson could amount to material or formal cooperation with evil, "if a politician repents of a life-destructive view and goes on to consistently affirms pro life values for 15 years, it seems to me that supporting that politician doesn't raise any issues on that score, does it?"

The culpability of a lobbyist

Regarding Fred Thompson's lobbying work on behalf of abortion rights, another MoJ reader observes:

It seems to me that one cannot confidently equate the position advanced by a lawyer who zealously represents his client's interests and the public policy position such a lawyer might advance if elected to a legislative or executive office.  In Senator Thompson's case, a more reliable indicator of how he is likely to execute his office if elected president is his record on abortion legislation while serving in the senate.

On a more theoretical level, would your query extend equally to a criminal defense lawyer who represents one accused of murder?  How about a lawyer who represents a man seeking a civil divorce from his wife so that he might wed the woman with whom he had carried on an affair?  Can the first lawyer, without contradiction, claim that he abhors murder and believes that those who commit it deserve to be punished by the state?  Can the second lawyer justifiably claim that he believes in the sanctity of marriage?  Perhaps, however, you believe that a faithful Catholic cannot be a criminal defense or divorce lawyer.  Surely you wouldn't contend that a Catholic lawyer may only defend someone he is confident did not commit the crime of which he is accused or may only represent someone seeking a divorce whom he is confident will not remarry, lest he materially cooperate in the commission of sin?

The Boston Globe made a similar point about Thompson, reporting that Christian conservatives have "defended any work [Thompson] may have done as merely a lawyer working for a client."

First, let me be clear that I don't think a Catholic is morally precluded from voting for Thompson.  As someone who has voted for only one pro-life presidential candidate (and that was mainly because, as a senior in high school, I was reacting to the photo of Dukakis in a tank), far be it from me to throw stones.  There might be great reasons to vote for Thompson, his magnificent voice being near the top of the list. 

But I resist any suggestion that we can look past the causes a lawyer chooses to take on.  I agree that a position advanced by a lawyer's client is not the same as the policy position advanced by an elected official.  And I would generally not find fault in a criminal defense lawyer who represents a guilty client.  There are significant structural values furthered in those representations.  But on the civil side -- especially on the lobbying side -- the structural values are less significant, and the market of lawyers is much more robust, at least for clients who can pay.  As I've argued elsewhere,   

When lawyers within a functioning marketplace introduce extralegal norms into the advice they give clients or as the basis for declining a representation, they do not close down the divergent paths by which the common good is realized. In fact, lawyers who bring conscience to bear on their professional identities can help expand and enrich the common good by challenging the presumptions of the governing legal paradigm, whether by critically engaging the substance of the positive law or the objectives that the client wishes to pursue through the positive law.

Granted, I still struggle with the implications of Pope John Paul II's statement that Catholic lawyers "must always decline the use of their profession for ends that are counter to justice, like divorce."  At the very least, though, it's a clear signal that lawyers are accountable for the causes to which they devote their time and talents.  That does not mean that lawyers should only represent "good" clients; often the value of the work derives from the overarching good made possible by the lawyer fulfilling his responsibilities in our system of justice.  Approached by an abortion rights advocacy organization that could afford any number of high-priced lobbyists, I'm not sure what overarching good comes from accepting the representation.  Again, this does not mean that Catholics should not vote for Thompson; but it has to be part of the inquiry if we want to take the moral dimension of lawyering seriously.

Proportionate reasons: electability, not opposition to war

Marquette law student Daniel Suhr echoes Rick's misgivings about Casey Khan's moral analysis of voting for Fred Thompson:

First, let's not be too quick to judge what exactly Senator Thompson did or did not do while a lobbyist. As [yesterday's] Boston Globe points out, many leaders on the Religious Right have acknowledged the complexities of this particular question. And let's remember that Thompson's record on life issues while in the US Senate was stellar.

Second, there can be a proportionate reason in a primary - electability. As we all learned in the 2004 Pennsylvania US Senate primary between Senator Specter and Congressman Toomey, many reasoned, conservative Catholics like Senator Santorum believed that a candidate's chances of winning constituted a proportionate reason to support a pro-choice candidate. Many pundits and analysts say, with good reason, that Senator Thompson may be the GOP's best chance at holding on to the White House in 2008.

Third, being wholeheartedly against the War in Iraq is not a proportionate reason for being pro-choice. As Archbishop Myers reminded us in the run up to the 2004 election, the Pope did not bind the conscience of Catholics to oppose the War in Iraq - he merely expressed his own prudential judgement on the question. Moreover, as the Archbishop points out, we must remember what we are balancing here - the lives of 1.3 million unborn children in America every year. Virtually no other modern policy issue - not taxes, welfare benefits, minimum wage, farm subsidies, the war - compares on that scale.

As a primary voter, Casey is entitled to go for idealism. But Ron Paul is a non-starter as a serious candidate for president. I, for one, am looking for a candidate who is both ideologically compatible and electable. Senator Thompson, among other Republicans, fits that bill.

MOJ leads, CTSA follows . . .

Commonweal magazine has this editorial about a recent speech by the President of the Catholic Theological Society of America in which he called for more dialogue, and less reflexive hostility, between and among Catholics who disagree.  The editors write:

What dialogue will not obscure, of course, is that the differences among Catholics are not trivial. All the more important then, as Finn pointed out, to “meet for conversations not just with your allies but with your strongest opponents as well.” If there is to be any hope for an ecclesiology of communion, it is important that bishops, clergy, theologians, and the laity build personal relationships. The first step in building a relationship is to begin talking with one another, and the only hope for sustaining one is to continue talking.

Mirror of Justice:  Catholic lawyers, who sometimes disagree, talking about non-trivial things, since 2004.