Mirror of Justice

Grave affronts to human dignity

Tom Smith, over at "Right Coast", uses Steven Pinker's recent anti-dignity rant (more here) as an occasion for gathering numerous grave, but oft-overlooked, affronts to human dignity.  They include:  going shirtless if you are a man who, you know, ought not to; "sporting a goatee"; "yammering on your cell phone within the hearing of others"; etc.  Clearly, more fodder for Catholic Legal Theory . . . (HT:  Bainbridge, who should have cross-posted this here at MOJ, but forgot).

"The Power of God" in Social Movements, And What Difference It Makes

Fleming Rutledge, among the first women ordained in the Episcopal church, is one of America's great preachers.  (Check out a video here.)  She proclaims a powerful message of orthodox, evangelical Christianity that involves the transformation of the world.  Here she writes on how social transformations like the civil rights, anti-apartheid, and Solidarity movements have rested on the power of God rather than "the possibilities inherent in human nature":

For some time now, the academic guilds have been moving away from a rationalistic mode of biblical interpretation. This development opens the way for a new appropriation of the conceptual world of the New Testament, in which the presence of the demonic is presupposed. This perspective shapes theo-ethical thinking in two crucial ways: First, it allows Christians to view opponents not as evil in themselves, but as those who are in the grip of external forces. This conviction empowered Martin Luther King in his consistent message that blacks and whites together were in need of deliverance. Second, the worldview that acknowledges the agency of an active Enemy in world events encourages Christians to look for the power of God not only in stories of individual deliverance, but also in the great social movements of our time.

What practical implications does this have?  Well, for example, in the context of exploitative factory conditions,

[i]f we are thinking theologically, we cannot in this illustration cast the corporate bosses as guilty exploiters and the workers as innocent victims. Rather, we see how the Enemy works to seduce and insulate powerful people from perceiving the suffering of their underlings. The bosses of workers in unjust situations are not evil in themselves. They are in bondage to the desire for profit, so that they think of their workers as means to an end, if they think of them at all. Who can loosen such bonds? God alone. Therefore, social action undertaken in the sight of God has the potential to liberate not only the workers but also the bosses, not to mention the activists themselves! This is the uniquely Christian vision based in the knowledge of the power of God for the justification of the ungodly (Rom. 4:5; 5:6).

Rutledge speaks in distinctively Protestant terms, but do these ideas resonate with Catholic themes?

Tom

NARAL's endorsement of Obama, cont'd

Following up on Greg's post, check out this video, released by NARAL Pro-Choice America, endorsing Sen. Obama (he "fully pro-choice"), who has a "100% record" on "choice", as opposed to Sen. McCain's "0% record" on "choice."  Particularly striking -- and, to me, sad -- are the exhuberant mini-testimonials by the (mostly young) NARAL staffers ("I can't wait to finally have a pro-choice president back in the White House, and I think Barack Obama is going to rock it out.").

Consensus on the "Remonstrance" and vouchers?

I've been away, for the past few days -- crashing Princeton's Reunion and participating in the annual Law and Public Affairs reunion conference (on "Law and Religion") and enjoying chatting with many MOJ readers.  In any event -- and I hope this is not too awkward or clunky a segue -- I was struck, at the conference, by the proximity-to-consensus revealed at the conference, among a wide range of engaged law-and-religion scholars, on the proposition that the Constitution's no-establishment rule need not, and should not, be understood to prohibit using public funds to pay the tuition of students attending qualifying religious schools.  The "Memorial and Remonstance" / "three pence" / violates the conscience argument seemed to receive -- again, from a number of people who disagree on many other things -- a respectful wave, but little more.  If I remember correctly, Sandy Levinson suggested that the argument is, in today's conditions, pretty much irrelevant to the school-voucher and charitable-choice questions.  (That said, Laura Underkuffler, I should emphasize, did present clearly and powerfully a no-funding argument.)

Now, this near-consensus is, in my view, a good thing.  Still, I couldn't help but be struck by the fact that what is often, in the First Amendment course, taught as, and treated in the cases as, something of a constitutional Ur-text, seemed to carry so little weight with respect to what was, just a few years ago, *the* law-and-religion question.  Interesting.

Catholic Thought in Seattle

Yesterday was the second day of the gathering of the Conference of Catholic Legal Thought in Seattle.  We had three panels: Teaching and our Pastoral Role (led by Amy Uelmen, via video, Greg Kalscheur and myself), Catholic Thought and Legal Theory (led by Patrick Brennan) and Scholarly Career Planning as a Christian (led by Lucia Silecchia, with presentations by Michael Scaperlanda, Lisa Schiltz and John Breen).  Just to give you a brief idea of what our day was like:

The first panel was a wide-ranging discussion of how we teach Catrholic Social Thought in the classroom, addressing both seminars devoted to the subject and the introduction of Catholic thought into other classes.  In the seminar setting, challenges include how to present CST when students lack formation in Catholic or Christian traditions and teaching, how to approach topics such as abortion, divorce and sexual identity, given that for many students these issues are a personal source of grief and how to deal with the fact that students are reared in an environment that discourages them from thinking in terms of absolute truths and from making absolute value judgments about the behavior of others. 

The Legal Theory panel took as its starting point a 1958 article by Anscombe titled Modern Moral Philosophy setting forth Anscomb's position that our usual way of talking about morality presupposes a divine lawgiver who is uniquely competent ot legislate for the entire cosmos, including humans.  The question for discussion is whether Anscomb was right that one cannot coherently and truthfully use a moral vocabulary without affirming the existence of a divinity that can and does legislate for us rational creatures?  No surprise that there was some difference of opinion on this issue.

In the third panel, John Breen focused on where there are currently gaps in Catholic legal scholarship, suggesting that the crucial issue as we move forward in the project of Catholic Legal Thought is articulating a proper understanding of the relationship between faith and reason.  Lisa Schiltz and Michael Scaperlanda each then shared some of their thoughts about the nature of our role as scholars in this tradition.

An important part of the benefit of our time at these gatherings is our time outside of the formal more academic sessions.  After enjoying dinner together, the group reconvened in the lovely St. Ignatius chapel on the Seattle U. campus, where Greg Kalscheur invited us into an Ignatian examen, something that has been part of my own daily prayer for at least the last six or seven years, and then presided over Mass with us.  It was a wonderful way to end the day.

Our gathering concludes with lunch today (except for those able to stay for an afternoon of fun, which lamentably does not include me).  One final note: Part of our aim is to be a resource and a community for those seeking to enter this area of teaching and writing and so it was terrific to see some new faces among our group this year.

North Coast Women's Care Center v. Benitez

News reports of yesterday's oral argument are suggesting that the California Supreme Court is likely to rule against the doctors who claim a constitutional right to refuse to perform artificial insemination for a lesbian patient.  I do not believe that a doctor should be legally compelled to provide such a service when it violates his conscience, provided the patient has access to the service elsewhere (as the patient did in this case).  The fault, though, lies with the California legislature, not the courts.  Consider the wildly expansive language of the applicable state law, the Unruh Civil Rights Act: 

All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.

In a society that purports to care deeply about the vitality of conscience, that's a bad law.  At this stage, though, I'm not sure what the California Supreme Court is supposed to do about it.  Legislators can and should take account of context: 1) our society's conversation about sexual orientation is still in its early stages; 2) requiring a physician to help bring a child into a family setting that the physician believes is unhealthy and immoral is more intrusive than the application of anti-discrimination law in the run-of-the-mill "business" context; and 3) there are (apparently) plenty of physicians willing to provide their services to gays and lesbians even absent legal coercion. 

When courts are asked to recognize a "right" to discriminate, it's much more difficult to bring such factors to bear on the analysis, particularly under the framework of Employment Division v. Smith.  (Perhaps the California constitution gives the court more flexibility, but the justices sounded skeptical.) If the court recognizes the physician's constitutional right to refuse services to a lesbian, the resulting right would be more categorical than contextual, likely extending to the protection of discrimination against interracial couples looking to have a child, or against a lesbian requesting cosmetic surgery.  Maybe the courts are the only hope for conscience at this point, but we should bear in mind that they are not operating on a blank slate -- they're constrained by a conscience-trumping (but constitutional) statute.

"Gone Baby Gone"

I'm probably behind the curve on this one, but I just saw the (relatively) recent movie, "Gone Baby Gone."  Here's the opening line (spoken by the main character, a private investigator "from the neighborhood" in Boston):

I always believed it was the things you don't choose that makes you who you are. Your city, your neighborhood, your family.

I won't provide any spoilers, but here's a thought:  "Juno" and "Bella" (and "Knocked Up") notwithstanding, "Gone Baby Gone" was one of the most "Catholic" -- and, I thought, one of the most pro-life (in a subtle way) -- movies made in recent years.  Discuss.

Catholic Teaching on the Role of Authority

I'm in Seattle at the third annual meeting of the Conference of Catholic Legal Thought, along with fellow-MOJ'ers Russ Powelll, Michael Scaperlanda, Steve Shiffrin and Lisa Schiltz (and, via video this morning, Amy Uelmen).

As with the prior conferences, the first day of the conference (yesterday) was devoted to deepening our understanding of the some of the theological principles relevent to our consideration of the intersection of Catholic thought and the law.  In the first morning session, Professor William Buckley of Seattle University gave an introduction to Catholic Social Thought that was very useful for some of the newer members of our group.  The two afternoon sessions featured Frank Sullivan, S.J., from Boston College, a leading authroity on church authority and the role of the role of the Magisterium.

The focus of his talk was on the teaching authority of the church, in one session speaking about the definitive exercise of that authority and in the other on the non-definitive exercise of that authority.  I don't have the time this morning to do a full summary of his two talks, but there were a number of points that raised some interesting discussion and warrant further consideration.

The one I'll raise here (for perhaps obvious reasons) has to do with public expression of dissent from the teachings of the Church.  Having talked about what the church has said about expressions of dissent from teachings by theologians, Sulliavan was asked about expressions of dissent by lay persons and given the example of a lay person writing an editorial or blogging against the church position on things like homosexuality or contraception.  He expressed the view that how one evaluates such expressions of dissent depend on a couple of things.  First, how diligently the writer has tried to reach assent to the teaching?  Has the person proceeded from an attitude of obsequium religiousum (which Sullivan thinks is best translated as religious docility rather than religious submission or loyal submission), which includes an openness to a deeper examination of the issue and respect for the authority of the Church, and despite efforts be unable to give intellectual assent to the Church teaching?  Second, he also thought relevant what reasons the person has for expressing the opinion?  Re the last, he did not explore what reasons might justify public dissent and what would be considered improper reasons.

I hope others at the conference will chime in either expanding on Sullivan's comments of yesterday or in regard to today's sessions, which will begin shortly.

      

Same-Sex Unions, Revisited

About the development reported below:  Some MOJ-readers will lament it.  However, I welcome the development, because I regard the magisterial teaching on same-sex unions as deeply misguided and, worse, a font of serious injustice.

New York Times
May 29, 2008

New York to Back Same-Sex Unions From Elsewhere

By JEREMY W. PETERS  

ALBANY — Gov. David A. Paterson has directed all state agencies to begin to revise their policies and regulations to recognize same-sex marriages performed in other jurisdictions, like Massachusetts, California and Canada.

In a directive issued on May 14, the governor’s legal counsel, David Nocenti, instructed the agencies that gay couples married elsewhere “should be afforded the same recognition as any other legally performed union.”

The revisions are most likely to involve as many as 1,300 statutes and regulations in New York governing everything from joint filing of income tax returns to transferring fishing licenses between spouses.

In a videotaped message given to gay community leaders at a dinner on May 17, Mr. Paterson described the move as “a strong step toward marriage equality.” And people on both sides of the issue said it moved the state closer to fully legalizing same-sex unions in this state.

[To read this rest of the article, click here.]

Prof. Moltmann on Benedict

We have had, I think, only a bit of commentary on the blog concerning Benedict's November 2007 encyclical Spe salvi facti sumus ("in hope we were saved").  Now the great Protestant theologian Jurgen Moltmann, who for years has set forth a "theology of hope," critiques the encyclical.  A couple of passages:

If we compare [Spe Salvi] with Vatican II's 1965 document on "Joy and Hope," or Gaudium et Spes[,] the peculiarity of Benedict's encyclical immediately catches our eye. Benedict's encyclical is intended for church insiders; it is aimed spiritually and pastorally at the bishops of the Roman Catholic Church and "all Christian believers." It limits Christian hope to the faithful and separates them from those in the world "who have no hope."

By contrast, Gaudium et Spes begins with the church's deep solidarity with "the entire human family." ...

What is lacking in the papal writing? What is missing is the gospel of the kingdom of God, the gospel that Jesus himself proclaimed. What is missing is the message of the lordship of the risen Christ over the living and the dead and the entire cosmos that we find in the apostle Paul. ...  In short, what is missing is the hope of the all-encompassing promise of God who is coming: "See, I am making all things new." By limiting hope to the blessedness of souls in eternal life, Benedict also leaves out the prophetic promises of the Old Testament. Christian hope then becomes hard to differentiate from a Gnostic religion of salvation.

Comments welcome.  Is this critique a fair reading of Benedict -- does he indeed "limi[t] Christian hope to the faithful" and "to the blessedness of souls in eternal life"?

Spes Salvi certainly talks about the Kingdom of God and how we are saved in order to live for others.  But Benedict's and Moltmann's ultimate visions of the Kingdom of God are different.  Influenced deeply by Augustine, Benedict maintains a sharp distinction between our limited "day by day hopes" and "the great hope which must surpass everything else" (para. 31), so that we don't make idols of things in this imperfect world.  Moltmann says that reduces ultimate hope to a solely spiritual state, in disregard of the teaching of a new heaven "and a new earth."  I don't think that follows: the Pope's point is not that the ultimate hope is un-earthly, but that it must be brought about by God rather than by human efforts at improvement.  But I''m pretty sure Moltmann would agree with that.  So is the difference between them that Moltmann believes much more than the Pope that God can work outside the church, the body of believers?  Who's right on that?  If you think Benedict is basically right, does Moltmann nevertheless offer a necessary corrective, reminding us that God's good purposes of love and justice can be accomplished by people outside the Christian church too?

Tom

Hypo re the pedagogical function of marriage law

A blogger at Megan McArdle's site poses the following hypothetical to pro-marriage opponents of same-sex marriage:

An 8-year-old goes to play at the house of his friend, who is raised by two lesbian women. The environment is a loving one. So this playmate, whose straight parents are married, is going to absorb one of two possible norms.

1) My friend lives in a happy home. His parents are married. When people grow up and love each other, and want to have kids and a happy home, they get married. (I hope I get married one day.); or

2) My friend lives in a happy home. His parents aren't married. When people grow up and love each other, and want to have kids and a happy home, sometimes they get married like my parents. Other times they don't get married, like my friend's parents. (One day I may get married and have kids, but maybe I'll just have kids and live with the person I love.)

Shouldn't we prefer option #1 to #2?  Some might try an option #3, arguing that good parents shouldn't be allowing their children to play at the home of children with two lesbian parents in the first place.  That suggestion makes no moral or practical sense to me.  Other options -- some more thoughtful than others -- are discussed in the comments to Eugene Volokh's post of the hypo.

Is Compassionate Conservatism the Problem?

Senator Tom Coburn (R-Okla.) writes in today's Wall Street Journal that what has ailed the Republican party recently are its "big government" ideas, including not just the lobbyist-oriented "K Street Project" but also "compassionate conservatism":

Compassionate conservatism's starting point had merit. The essential argument that Republicans should orient policy around how our ideas will affect the poor, the widow, the orphan, the forgotten and the "other" is indisputable – particularly for those who claim, as I do, to submit to an authority higher than government. Yet conservatives are conservatives because our policies promote deliverance from poverty rather than dependence on government.

Compassionate conservatism's next step – its implicit claim that charity or compassion translates into a particular style of activist government involving massive spending increases and entitlement expansion – was its undoing. Common sense and the Scriptures show that true giving and compassion require sacrifice by the giver. This is why Jesus told the rich young ruler to sell his possessions, not his neighbor's possessions. Spending other people's money is not compassionate.

I wonder if this means Sen. Coburn wants to eliminate not just earmarks and the Medicare prescription-drug benefit (the big recent social spending increases), but also the Bush initiative for making more assistance available to faith-based and other community organizations helping the needy.  No doubt we all here agree that "policies [should] promote deliverance from poverty rather than dependence on government."  But let's suppose, as I think is true, that many private nonprofits receiving government social-service funds do aim to empower people to escape poverty, often in part through personal transformation, rather than just tide them over with material support.  Sen. Coburn's logic seems to reject assisting even these agencies with tax funds because "true giving and compassion require sacrifice by the giver" and "[s]pending other people's money is not compassionate."  Is that argument well-founded?  Assume that a certain form of help to the needy is truly empowering rather than dependence-inducing, and is properly administered -- then isn't it supported by demands of justice as well as of charity, and therefore proper for government to assist and promote?  Isn't compassion in part an obligation of justice as well as of charity?  Should government assistance in that context be dissed as "spending other people's money"?

Tom

McCain, Obama, and Abortion: By Their Friends/Enemies Ye Shall Know Them?

In her most recent column urging Democrats to rally around Senator Barack Obama, Ariana Huffington argues that women who supported Senator Hillary Clinton can be brought over to Obama by emphasizing the abortion issue. Huffington argues that, comparing Obama and Senator John McCain on the issues, “nowhere is the difference more profound than with reproductive rights.” The rest of the column is devoted to “unmasking McCain” for his “reactionary record on reproductive rights” (translatation: McCain is genuinely and consistently pro-life):

Since 1983, in votes in the House and the Senate (where he has served since 1987), McCain has cast 130 votes on abortion and other reproductive-rights issues. 125 of those votes were anti-choice.” . . . .

Of his anti-choice voting record, McCain has said, "I have many, many votes and it's been consistent," proudly adding: "And I've got a consistent zero from NARAL" through the years. And last month he told Chris Matthews: "The rights of the unborn is one of my most important values."

What's more, McCain has made it very clear that if he becomes president he will appoint judges in the Scalia, Roberts, Alito mold. His big judicial speech earlier this month was filled with coded buzz words that make it clear that, if given the chance, he'd replace 88-year-old Justice John Paul Stevens with an anti-choice Justice who would tip the scales against Roe v Wade. Throw in an additional anti-choice replacement for the 75-year-old Ruth Bader Ginsburg, and you can kiss the right to choose good-bye for a long, long time.

Hmm. Is running as the pro-choice candidate really the best way for Obama to win over those Catholics who voted against him by lop-sided margins in most of the Democratic primaries? Will Catholics for Obama publicly repudiate any effort to win over Hillary Clinton supporters by campaigning as the abortion rights candidate? Inquiring Catholic minds want to know!

Greg Sisk

"A Vice-President for Abortion"

There's been a lot of discussion -- here at Mirror of Justice, and on many other Catholic-themed blogs -- about Gov. Kathleen Sebelius, her veto of an abortion-regulation law, and Archbishop Naumann's criticisms of this veto.  Here is a news story, discussing Gov. Sebelius's increasing prominence in conversations about Sen. Obama's running-mate, and also about -- her professed "personally opposed" stance on abortion notwithstanding -- her abortion-related activities and record.  Gov. Sebelius is, as it happens, National Co-Chair of Sen. Obama's National Catholic Advisory Council.

UPDATE:  As a reader pointed out, the linked-to piece is probably better framed as opinion-and-analysis than as a "news story".  Which is not to say, of course, that the relationships described in the piece are not "news."

Archbishop Chaput on "Catholics for Obama"

In a recent column, Denver's Archbishop Chaput responded to a group called "Catholics for Obama" who had quoted him without providing the full context.  After confessing his own support (which he now views as midguided) for a pro-choice candidate decades ago and after noting that he "can't name any "pro-choice" Catholic politician who has been active, in a sustained public way, in trying to discourage abortion and to protect unborn human life -- not one," Chaput reiterated that Catholics who support Obama or any other pro-choice candidate "need a compelling proportionate reason to justify it. What is a 'proportionate' reason when it comes to the abortion issue? It's the kind of reason we will be able to explain, with a clean heart, to the victims of abortion when we meet them face to face in the next life - which we most certainly will. If we're confident that these victims will accept our motives as something more than an alibi, then we can proceed."

For his full statement, click here.

Fr. Reese’s: “Right or Rite, Civil Discussion in Order”

On April 16^th of this year, I had the occasion to respond to Fr. Thomas Reese’s essay published in Commonweal Magazine concerning his thoughts about reforming the Vatican. [HERE] Today, I take this occasion to respond to his May 20^th posting in the Washington Post-Newsweek weblog entry or “Right or Rite, Civil Discussion in Order”. [HERE] Fr. Reese has taken this recent opportunity to address the California Supreme Court decision In Re Marriage Cases that was handed down a few days ago. I am convinced that he intended that his posting be a conciliatory one in which reason rather than emotion or partisan perspective determine the outcome of the debate on same-sex marriage. I concur with his approach. Having said that, I must offer some additional thoughts to those he has offered regarding this “emotion filled issue.”

For those of us who have the responsibilities incumbent on Holy Orders, I think a few more words need to be proposed in order to assist the faithful and all people of good will on this “emotion filled issue.” The fact that it is emotion filled does not exclude the pressing need to address the “issue” with reason, compassion, and truth.

Fr. Reese is correct in asserting that for almost two thousand years Christians—and most others—have held that any sexual activity outside of marriage between a man and a woman to be sinful or wrong. The fact that people did engage in such activities did not make them virtuous or right.

The fact that we in the United States and other cultures around the world respect the separation of Church and state, as Fr. Reese states, does not mean that moral and rational argument is prohibited from the debates that take place in the public square. Moreover, he has asserted that “the desire to free private moral decisions from state control” has led to the legalization not only of divorce, birth control, and hetero- and homosexual relations. But it has also led to the wanton taking of innocent human life through abortion. I have criticized in the past and criticize here today that magical formula of Justices O’Connor, Kennedy, and Souter from Casey, which has fueled these “moral decisions” that, in fact, are not private but have had and continue to have mammoth public implications. But we must not forget that this tragic and problematic Casey formulation that “[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and the mystery of human life” fortifies the core of Lawrence which fortifies the core of Goodrich which reinforces the core of In Re Marriage Cases. It may well be that, as Fr. Reese suggests, “homosexuality is an orientation that is not chosen.” The fact that some citizens, as Fr. Reese further indicates, have changed their view on homosexuality and “celebrate these relationships as Christian marriages” does not make them marriages or admirable relationships. It is also true that over the course of the law’s development, extenuating circumstances have been used to restrict the ability of the State to sanction other human conduct, but this does not make the other problematic human conduct acceptable either. While the motivation that prompts a person to do something that is considered wrong may be better understood today with advances in the biological, sociological, and medical sciences (i.e., it is beyond a person’s control), the conduct itself does not become a model for virtuous human existence that must receive the protection of the state and its law.

For those interested in Catholic teachings that should still be heard by the faithful and all people of good will, might we consider what Pope Pius XI stated in his 1930 encyclical letter Casti Connubii about the nature of marriage:

For each individual marriage, inasmuch as it is a conjugal union of a particular man and woman, arises only from the free consent of each of the spouses; and this free act of the will, by which each party hands over and accepts those rights proper to the state of marriage, is so necessary to constitute true marriage that it cannot be supplied by any human power.

If some readers might think that Fr. Reese is looking for flexibility in interpreting the meaning of these words of Pius XI, he does not seem to, for he acknowledges that the Church (although he says “Catholic hierarchy”) does not sanction ecclesial or state-sponsored homosexual marriage nor sex outside of marriage, given the definition of marriage.

But the faithful and all people of good will need to take stock of several other matters crucial to evaluating the rightness and wrongness of same-sex unions. For example, in the 1983 Charter of the Rights of the Family approved by Pope John Paul II, it is clear that “the family is based on marriage, that intimate union of life in complementarity between a man and a woman which is constituted in the freely contracted and publicly expressed indissoluble bond of matrimony and is open to the transmission of life.” In furtherance of this point, the Pontifical Council for the Family noted in 2000 that, “With regard to the recent legislative attempts to make the family and de facto unions equivalent, including homosexual unions (it is good to keep in mind that their juridical recognition is the first step toward their equivalency),  members of parliament should be reminded about their grave responsibility to oppose them, for ‘lawmakers, and in particular Catholic members of parliaments, should not favor this type of legislation with their vote because it is contrary to the common good and the truth about man and thus truly unjust’.” Indeed, the Council concluded that making homosexual relations the equivalent of marriage is “much more grave” for this would be “contrary to common sense.”

The efforts of the Pontifical Council for the Family were later reinforced by the Congregation for the Doctrine of the Faith in its Considerations Regarding Proposals to Give Legal Recognition to Unions Between Homosexual Persons and approved by Pope John Paul II in 2003. While this document [HERE] merits careful consideration, its conclusion encapsulates the Church’s teaching that must not be forgotten:

The Church teaches that respect for homosexual persons cannot lead in any way to approval of homosexual behaviour or to legal recognition of homosexual unions. The common good requires that laws recognize, promote and protect marriage as the basis of the family, the primary unit of society. Legal recognition of homosexual unions or placing them on the same level as marriage would mean not only the approval of deviant behaviour, with the consequence of making it a model in present-day society, but would also obscure basic values which belong to the common inheritance of humanity. The Church cannot fail to defend these values, for the good of men and women and for the good of society itself.

While I take comfort in Fr. Reese’s reminding us that courts have stated that churches would not be required to perform marriages between same sex partners, the movement to make such unions an issue of the protection and advancement of “civil rights” and “constitutional rights” places the future of these consoling words into question. I recall the difficulty that Thomas More had with another “marriage” even though he was assured that his silence would be sufficient to protect him. It did not. When the State or those who influence its decision making take a different view, the well-formed consciences of its citizens are threatened when their consciences do not conform to the will of the State that is intent on mandating uniformity. As Christopher Dawson has reminded us, even the democratic state may not be satisfied with “passive obedience” when it demands of its citizens “full co-operation from the cradle to the grave.”

I share Fr. Reese’s view that the California court’s decision in In Re Marriage Cases (and I hasten to add in Goodridge v. Department of Public Health) was unwise. But, both decisions went beyond merely being unwise: they were and are wrong. And, if it takes a constitutional amendment, state or federal, to rectify these mistaken judicial opinions, so be it! Fr. Reese suggests that this “issue” (of same-sex marriage) should be dealt with by state legislatures, “not by the courts or referendums.” I wish I could share his optimism about this, but in fact the work of state legislatures has been compromised when the will of the people, as has happened in Massachusetts in the call for a constitutional convention to reiterate the definition of marriage as the union of one man and one woman, has been stymied by the legislature.

Fr. Reese notes that “Homosexual relationships exist in American society in not insignificant numbers.” I am not sure what insignificant means here, but I shall put the best interpretation on what Fr. Reese says for the time being. But I must add that even if they do exist “in not insignificant numbers”, that does not make them relationships meriting the moniker of “marriage.” If the alternative were true, then sooner or later any relationship, and those who lobby for its cause and legal protection, will want the same rights, privileges, and protections of the law. And for those who question this point, I refer them to the current legal debate that is ongoing in the Texas courts regarding the polygamist relationship. When our apartment buildings, our suburban tract homes, our pup tents, and any other shelter of modest of generous proportions is filled with “unmarried couples”—hetero- or homosexual—what will happen to our future posterity as a people, as a nation, as the human race?

Like Fr. Reese, I would not only prefer to reserve the word “marriage” for the union of one man and one woman. I would insist on it, and “it is worth fighting over.” Not in the streets and not with threats or bullying, but with reason and, if am permitted, with prayers. It is not foolish for anyone to expend his, her, or its “political capital” on this issue. After all, this is what democracy and the rule of law are about. While I agree that abortion, hunger, war, education, health care, etc. are issues of great importance, I would also include the question of marriage which Fr. Reese has deleted from the list. He suggests that “money and resources that would have gone to pro-life work are being siphoned off to oppose gay marriage” and this seems, from his perspective, to be awkward. I wonder what other issues that are important to people also “siphon off” limited resources that could be used elsewhere in other political and legal debates? To place a monetary value on any issue seems to me to substitute democracy and the noble work of a virtuous people and their society with a utilitarian calculus. I, too, agree that those who are most civil will win the day, but I do not think that civility requires the silencing of civil tongues that are motivated not by the problematic language of Casey but by the objective moral order that has for centuries been at the heart of Christian public life and public discourse.    RJA sj

On Happiness and the Law

Here is the response of one attorney to my recent post, "Sex, the Married Man, and the Practice of Law."  I would appreciate other testimonies - both positive and negative - as well as advice for those who struggle with their law careers.

Prof. Scaperlanda,

        I read your recent post on happiness where you note that "in short, this student – and I don't know if she is part of a small minority or a majority of students – couldn't dare to hope for true happiness, true love, true contentment, and true joy.  Like Augustine, a restlessness seemed to reside in her heart, but unlike Augustine, she seemed to conclude that the search would be too painful and ultimately prove fruitless.  Therefore, the restlessness needed to be muffled."

      You note that you have foundational questions which you deal with in the second half of your course, namely "How does the law fit into this vision for my life?  Is a legal career a vocation or merely a means to an end – monetary or otherwise?  Can I live an integrated life or must I fragment myself to be a successful attorney?  How do I balance work and family?  Is it possible to live a happy fulfilled life?  Is it possible to live a happy and fulfilled life and be an attorney?"

      I have been practicing law for roughly three years now, have taken two bar exams, and work for a small Midwestern town. I consider that I am probably far enough into the practice of law to have taken its measure, and can only now begin to deal with the questions you have asked. Balancing work and family is relatively easy with this firm, due to low billable-hour requirements. Nonetheless, I am not happy in the firm, and despite suggestions that a change of firm is what I need, I suspect that given the reasons for my unhappiness are more related to the law itself.

     I would say that, due to our system of law as it is now, it takes a very certain kind of person to practice law and be both happy and successful doing so. In any given area, one must be willing to both love the law, and to divorce oneself from exploration of the law in a philosophic manner. Equity, the incredible and wonderful modifier of the law, is dead when not directly encoded. One rarely gets to make "good faith" arguments that some area of the law ought to be changed, because such arguments are made almost always on appeal, and no person or corporation is mad enough to appeal given the costs in any suit. Therefore, judges are often not interested in arguments from equity or reason, and are truly only interested in if one's client wins or loses on the letter of the law. In short, we now live in a system of complete legal positivism. The only place one finds arguments not based in the code is usually in procedural venues, where the court is often free to take any approach it pleases, despite the rules of procedure saying otherwise (soon-to-be lawyers take note, if you were not told this already in your civ. pro. class - the judge always wins until you convince the appellate court otherwise).

    And these are just a few of the problems within the law itself. If one works for a firm, then one must always practice "partnership happiness" law, whereby each partner with whom one works must be kept utterly happy - otherwise, it is a ding in the six-month associate review. In such reviews, the focus is always on the negative, and rarely on the positive. The hours billed are rarely high enough (even if the work flow comes through the partners), the analyses of the law never in-depth enough. And, of course, in a small firm, one is never paid quite enough to pay down the law school loans significantly.

   In short, practicing law and achieving happiness depends greatly on one's turn of mind. If one is a thoroughgoing pragmatist, and willing to practice law simply as a means to an (eventual) economic end, then one will be happy in law. If one is idealistic, and practicing in an area where such ideals are appreciated (civil rights / constitutional law), then one will likely be happy. If one is curious about the philosophy of law, and are practicing law (and not in academia), then one will likely be disappointed and frustrated, and with a large amount of law school loans on one's back, likely to be trapped and quite unhappy. Then, it is essentially waiting for partnership, 7-10 years down the road, where an attorney may be paid closer to what he / she earns for the firm, and can begin paying off debt from school at a greater than minimal-interest rate.

   I suppose, then, that I am somewhat pessimistic about the ability to be happy with law practice as anything other than a means to the end of supporting one's family and paying off debts. I do not find it intellectually, spiritually, or even ideologically fulfilling, and I do not see that it could ever be so for most people.

Sincerely,

XXXXXXXXXXXXX

Sex, the Married Man, and the Practice of Law

My Professional Responsibility (PR) course is taught in two halves.  The first half uses problems to focus on the Model Rules of Professional Responsibility.  Although the larger – more foundational and fundamental issues – arise and are discussed, they take a backseat to the Rules.  This part concludes around the time of the MPRE. 

During the second part of the course, the foundational issues come to the fore through the use of film, novel, and guest speakers using Shaffer & Cochran’s four models of lawyering as a framework.  We watch “A Man for All Seasons” and “To Kill a Mockingbird.”  We read “The Death of Ivan Ilyich.”  And, we have guest speakers, including lawyers who are recovering alcoholics and who work with lawyer assistance programs.  The focus here is on questions such as what is my life about?  How does the law fit into this vision for my life?  Is a legal career a vocation or merely a means to an end – monetary or otherwise?  Can I live an integrated life or must I fragment myself to be a successful attorney?  How do I balance work and family?  Is it possible to live a happy fulfilled life?  Is it possible to live a happy and fulfilled life and be an attorney?

With this background, I turn to Rob’s recent post on “Sex and the Married Man.”  In that post, he quotes a New York Magazine article:

A relationship is a myth you create with each other. It isn’t necessarily true, but it’s meaningful. The key to that myth is that the other person is enough for you. You know in your head that another person isn’t enough for you. But if you don’t honor the myth, then it crumbles.

I learn so much from my students.  A couple of years ago, a student in my PR class was addressing some of these foundational issues and it struck me - like a brick hitting me between the eyes – that a number of students, including this particular student, didn’t believe that they could live truly happy and fulfilled lives.  For these students, “happiness is a myth you create.  It isn’t necessarily true, but it’s meaningful.  The key to that myth is that the life you have settled for is enough for you.  You know in your head that it isn’t enough for you.  But if you don’t honor the myth, then it crumbles.”  In short, this student – and I don’t know if she is part of a small minority or a majority of students – couldn’t dare to hope for true happiness, true love, true contentment, and true joy.  Like Augustine, a restlessness seemed to reside in her heart, but unlike Augustine, she seemed to conclude that the search would be too painful and ultimately prove fruitless.  Therefore, the restlessness needed to be muffled.

This classroom epiphany caused me great sadness.  Two questions.  Have others seen this in some of their students, classmates, or fellow lawyers?  And, how can we – I – model our lives and teaching to foster a sense of hope in these students about to embark on a legal career?

More on the Ethics of Immigration

My exchange with William Chip over immigration policy has continued in the June/July issue of First Things (subscription required).  I would welcome comments, questions, and criticisms from those who read our exchanges in the May issue and/or in the current issue.

CST and entitlement reform

John Heitkamp brings to my attention a Wall Street Journal op-ed by a Catholic GOP Congressman, Paul Ryan, on how to tackle the looming entitlement crisis.  John suggests that Rep. Ryan is serious about reflecting CST principles in his policymaking, though this plan's emphasis on lowering the corporate tax rate and individualized accounts for social security and health insurance are not normally associated with the more socialist (?) economic themes of traditional CST.  I'm not an expert on entitlement reform, though, so I invite others' comments. 

Sex and the married man

I've been reading a lot of academic articles and books about competing visions of marriage and family law's rapid move from status to contract.  I just read a depressing pop culture example of the contractual premises on which modern marriage seems to be based.  The gist of the New York magazine article is that virtually all married men fulfill their sexual needs outside the marital relationship, whether through affairs or pornography.  It's a reality that we can't really talk about because we're not enlightened enough to dispel the myth of relationships.  Here's the concluding quote:

A relationship is a myth you create with each other. It isn’t necessarily true, but it’s meaningful. The key to that myth is that the other person is enough for you. You know in your head that another person isn’t enough for you. But if you don’t honor the myth, then it crumbles.

If I view marriage as a contract I enter in order to fulfill my needs, that quote is probably pretty accurate.  If I view marriage as a mutual self-giving that is part of a broader covenant (including God, children, and my spouse), the quote is outlandish. 

Charity and Politics

I read Lorenzo Albecete's column, Inside America, first every month when I receive Traces.  In April (for some reason not available online) his essay was entitled "Charity and Politics."  He says, in part, "charity is a reality of another world.  It is a 'supernatural,' divine reality.  But for those who believe in the Incarnation, the 'other-worldliness' of charity doesn't prevent it from building a new kind of life, a new culture, a 'civilization of love' in this world.  To understand how this can happen, it is important to understand how it has already happened, and to be faithul to the unimaginable, absolutely exceptional, and unique meeting point between this world and the divine world.  The meeting point between charity and politics cannot be deduced from theology, nor philosophy, nor even less political ideologies.  It cannot be constructed by human thought, by reason.  It can only be recognized by faith.  The meeting point between charity and politics is Someone, a Man who is 'God from God.'  The meeting point in this world with 'another world' is Jesus Christ.

"The starting point for the Christian contribution to the struggle for liberation and social justice can only be faith in Jesus Christ.  However, faith cannot be separated from reason.  Politics is an exercise of human reason.  The fact that faith in Jesus Christ - not simply 'in God,' but this Man, Christ - makes love (charity) present in this world happens because faith has an impact on reason.  It doesn't depend upon us; it is not that faith inspires us or imposes moral obligations on us.  Faith changes the way we see reality, the way we think about it and respond accordingly.  Pope Benedict said it very clearly in Aparecida, Brazil:  'If we do not know Christ, all of reality is transformed into an indecipherable enigma.'

"Without Christ, there is no way because there is no hope strong enough to overcome the law of corruption and death.  Only love (charity) can overcome death and has already overcome death in Christ.  Without Christ, therefore, charity is not present in this world."

Judging Catholics, Catholics Judging

Next week, Aidan O'Neill--who is a Catholic and a (British) lawyer--will engage in a disputatio at Princeton University with Robby George, as part a conference on law and religion sponsored by Princeton's Program in Law and Public Affairs.

Aidan is interested is receiving comments on his paper:  Judging Catholics: Natural Law, The Catholic Church, and the Supreme Court.  Comments may take the form of posts here at MOJ or as e-mails to Aidan:  aoneill@Princeton.EDU

You can download Aidan's fine, provocative paper here:  Judging Catholics.

John Witte (and Others) on Marriage in Law and Theology

This month, the Marty Center's Religion and Culture Web Forum features an essay by John Witte, Jr. of Emory Law School: "More than a Mere Contract: Marriage as Contract and Covenant in Law and Theology"

Commentary from Brian Bix (University of Minnesota), Don Browning (University of Chicago), Christine Hayes (Yale University), David Novak (University of Toronto), and Charles Reid, Jr. (University of St. Thomas) can be found on the forum's discussion board, where readers may also post responses.

Access this month's forum at:
http://marty-center.uchicago.edu/webforum/index.shtml.

Access the discussion board at:
https://cforum.uchicago.edu/viewforum.php?f=1

When Religious Liberty Becomes Lethal

Sightings 5/22/08

When Prosecutors Grapple with Prayer

-- Shawn F. Peters

In recent months, prosecutors in both Oregon and Wisconsin have been confronted with a complex problem:  Should parents who choose to treat their children's illnesses with prayer rather than medicine be charged with abuse, neglect, or even manslaughter when their children die? As these cases begin to play out in the courts, it has become apparent that their task in answering that question is going to be anything but straightforward, thanks in part to the ambiguity of laws that might be applied to spiritual healing practices.

The Oregon case involves members of the Followers of Christ Church, whose faith healing practices generated an intense statewide outcry in the late 1990's. Church members Carl and Raylene Worthington currently face manslaughter and criminal mistreatment charges stemming from the death of their fifteen-month-old daughter, Ava. The toddler died on March 2 from bacterial pneumonia and a blood infection – ailments that her parents, citing the tenets of their religious faith, had chosen to treat with prayer rather medicine.

The Worthingtons appear ready to mount a vigorous defense. Their attorneys already have launched a website dedicated to both outlining the contours of their defense strategy and raising money to fund it. But, legally, this promises to be an uphill climb, thanks to changes in Oregon law that eliminated apparent exemptions from criminal charges for parents who engaged in faith healing practices. They most likely will fall back on the claim that their religious practices are shielded from regulation by the First Amendment and analogous provisions in Oregon's constitution.

 

The Wisconsin case is every bit as tragic, but it might proceed slightly differently in the legal arena. On Easter Sunday, an 11-year old girl named Kara Neumann died from diabetic ketoacidosis. Treatments of insulin almost certainly would have controlled the ailment, but Kara's parents – their beliefs about physical healing shaped in part by a Flordia-based online ministry – chose to treat her with prayer in lieu of medical science. Dale and Leilani Neumann later told police that their daughter had not been examined by a physician in more than seven years.

In late April, authorities charged the couple with second-degree reckless homicide, a felony punishable by up to twenty-five years in prison. But several observers have cautioned that the prosecution of the Neumanns is bound to be complicated, if not simply derailed, by the apparent exemption for faith healing practices that remains in place in the state's child abuse and neglect laws. The couple is likely to claim that this conflict in the laws (spiritual healing practices appear to be protected under one part of the criminal code but not under another) violates their right to due process of law.

 

Wisconsin's "treatment through prayer" provision is not unique:  More than thirty other states offer similar kinds of apparent legal protections for devout parents who reject medicine and turn to prayer when their children are ailing. A number of groups have lobbied for the repeal of such religious exemptions, chief among them the advocacy organization Children's Healthcare Is a Legal Duty (CHILD).  Its head, Rita Swan, has argued that these stipulations, while safeguarding the religious liberty of parents, endanger the health of children and violate several different interrelated constitutional standards.

 

Groups ranging from the United Methodist Church to the National District Attorneys Association also have called for the repeal of religious exemptions to child-abuse and neglect laws. Several prominent medical organizations – among them the American Medical Association and the Bioethics Committee of the American Academy of Pediatrics – have echoed those calls. In 1988, the latter body issued a statement declaring that "all child abuse, neglect, and medical neglect statutes should be applied without potential or actual exemption for [the] religious beliefs" of parents. Deeply committed to "the basic moral principles of justice and of protection of children as vulnerable citizens," the members of the bioethics committee called upon state legislatures to remove religious exemption clauses and thereby ensure "equal treatment for all abusive parents."

 

A decade after that call for reform, however, a majority of states, including Wisconsin, have failed to act. Unfortunately, it seems that legislators might only lurch into action and address the law's shortcomings if the prosecution of the Neumanns misfires.

 

[Shawn Francis Peters' latest book, When Prayer Fails: Faith Healing, Children, and the Law, was published in November by Oxford University Press. He teaches at the University of Wisconsin-Madison.]
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Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.