Tuesday, September 30, 2008
One MOJ reader sent the following in response to my post on the relationship between the Eucharist and Social Justice:
Others have the whole financial-crisis thing well in hand, it seems -- lucky for me, since all I have to offer is (a) I doubt Sarkozy's right; (b) I doubt Sen. McCain is more to blame than, say, Rep. Frank; and (c) I'm glad the Dow is up today -- and so I thought I'd register my regret that the intrusion of Serious Events overshadowed the news (or, maybe, "newslet") that I'd been anticipating for several weeks, i.e., "Pulpit Freedom Day" (link).
Anyway, the Washington Post reports, here, more than 30 ministers this past Sunday (intentionally) "[d]ef[ied] a federal law that prohibits U.S. clergy from endorsing political candidates from the pulpit." (Paul Caron has more, typically thorough, coverage here; I blogged about this general matter a few weeks ago, here; and my colleague, Lloyd Mayer, has a good paper on the religious-freedom issues here.)
But wait . . . there's more! Here's Martin Marty's "Sightings" column; here's Michael Sean Winters at America; here's pro-life activist Jill Stanek; and, for the usual overheated and underinformed rhetoric ("gambit to dash the pillar of church-state separation"), here's the New York Times editorial.
My views (for what they are worth): (1) It is impossible, and undesirable, to separate entirely "religion" and "politics". We should worry about a government that tries to separate them. (I explain this view, here.) (2) The question whether and to what extent churches should be exempt from taxation should be distinguished from the question whether and when contributions to churches should be tax-deductible. (3) I suspect there are few bright-lines available for us to deploy in order to put into practice the intuition that while we don't want the government supervising sermons and evangelization, we also don't want to subsidize purely partisan political enterprises.
Elizabeth Schlitz's discussion of "stewardship" [seems to reflect primarily] her subjective feelings about the difference between "stewardship" and "securitization". The point of both approaches, though, is to at least return the investor's money to him - and preferably with interest. That's why it's such a big deal when the money market funds "break the buck". I understand her argument about the FDIC, but I (my subjective belief) doubt that it provides much of a psychological check on banks.
Furthermore, her statement that "it's difficult to retain a sense of "stewardship" for funding that is coming from a source based on speculation and risk-taking" [seems to reflect] discomfort with the stock market in general. All investment is, by its nature, fraught with risk. When you invest in something, you're betting that it's going to make money. The question is whether you're making a prudent bet or an imprudent bet.
Russell Powell writes in "A Catholic Approach to the Financial Crisis?" that he is concerned that our policy choices in this crisis are likely to hurt the poor. That's very likely. However, the main reason we're in this mess in the first place is because banks and the GSEs made loans to people who were credit risks. Fannie and Freddie specifically exist to promote home ownership for people who can't get a loan from traditional banks. Congress urged banks generally to increase loans to minorities and low-income people who traditionally were unable to obtain mortgages. The reason that they weren't able to obtain mortgages before is because they don't make enough money to pay the mortgages. And then when they couldn't pay their mortgages - the whole thing came tumbling down. (For the record, there were also plenty of higher-income people who took mortgages larger than they could afford.) There's plenty of blame to go around - the GSEs are the worst combination of public and private, the banks shouldn't have made risky loans, etc. - but the poor were the beneficiaries of these risky policies along with the rest of us. Ignoring economic realities in the name of "progressivity" or "antidiscrimination" or even "social justice" eventually hurts everyone. Although it may seem unfair that some people will never own their own homes, it's much kinder than encouraging them to incur a debt they can't pay, and eventually losing something they've come to love. And blaming the credit instruments (i.e., credit swaps) for the crisis just ignores the fundamental unsoundness of the underlying mortgages.
Rob Vischer writes: "Politically, I don't think there is much perceived difference in forcing all organizations to accommodate every individual employee and forcing all organizations to accommodate every individual consumer."
What is muddied not just in this sentence but, as Rob says, in the ongoing political debate is the distinction between autonomy and conscience. Accommodating employee conscience is far more important and at the same time far less costly than accommodating consumer autonomy (especially, as here, when what is at stake is only autonomy in the frivolous sense of "freedom to get whatever i want, when i want, how I want").
Not every limitation of my autonomy goes against my conscience. In fact, very few do. Certainly forcing me to pick up a telephone and call around for a pharmacy where i can purchase a drug (which i know many find morally objectionable) burdens my autonomy only in the trivial sense defined above, and my conscience not at all.
Where consumers' consciences are somehow at stake, e.g. where would-be-doctor consumers of education are forced to do abortions in order to get their degrees, their conscientious objections should of course be accommodated. (I'm sure there must be a hypo where a client at a pharmacy would be forced to violate his/her conscience, but I couldn't come up with it. Anyway, if there were such a situation, that would be a strong claim, too.)
Russ Powell asks great questions about the "authentically Catholic approach" to the current financial crisis. I'd love to hear more responses to these questions, too.
Unfortunately, I don't think the Cathechism or any encyclical gives us a formula for the "proper approach to government intervention" in this crisis. But there are two general concepts of Catholic Social Thought that I'm not hearing much about in any of the discussion of this mess, through the din of all the finger-pointing and politicking.
One is "stewardship." Clearly, one of the reasons for this crisis is a lack of any sense of responsibility for the financial resources that were being entrusted to the institutions generating all of these enormous profits over the past few decades. In the world of real-old fashioned banks (the ones who were, to a large extent, making the home mortgage loans), some small degree of stewardship was traditionally been imposed by law, through the federal deposit insurance system. Every institution that takes federally-insured deposits has to pay high regulatory costs in return for the "privilege" of keeping its depositors funds safe with the extra security of federal insurance deposits. Traditionally, this operated as both a check on the bank's lending activities and, I think, in some measure a psychological check. In my experience, banks were on some level keenly aware of their responsibilities to depositors -- it was the reason and justification for extensive regulation, regulation that was considered to be worth the cost. I think that this sense of "stewardship", as attenuated as it was, disappeared, though, with the advent of securitization. Through securitization, the primary source of funding for banks' lending became Wall Street, the stock market. I think it's difficult to retain a sense of responsibility for "stewardship" of funding that is coming from a source that's based on speculation and risk-taking.
The other party (or parties) that I think failed to take seriously their responsibility as stewards is Congress. In 1999, they enacted the Gramm-Leach-Bliley Act, breaking down the barriers between traditional banking, investment banking, and insurance. I certainly don't know enough about economics to know whether it was that change in the markets that caused this crisis. (I know that most historians of the Great Depression now refute the "common wisdom" of many years that suggested that it was the intermingling of banking & investment banking that caused that Depression.) I do know, however, that Gramm-Leach-Bliley was NOT passed by Congress because of reasoned deliberation about what would be good for the economy. It was passed because the banking world (which is one of, if not the, largest source of campaign contributions for ALL of Congress, regardless of party affiliation) forced its hand -- most dramatically through the acquisition by Citicorp (then a bank holding company) of Travellers Group (an insurance conglomorate). (Yes, the same Citicorp that is taking advantage of the current crisis to buy Wachovia, with FDIC assistance.) And I also know that that landmark legislation did NOT include any thoughtful measures to structure a regulatory scheme that actually made sense for the conglomerates of banks (regulated largely through federal laws), investment banks (largely unregulated, except through the device of market transparency), and insurance companies (regulated largely through state laws). And I do believe that the lack of thoughtful regulation facilitated the activities of the market leading to our current crisis. I attribute this to a lack sense of "stewardship" by Congress, in this case, stewardship over our laws. Congress back in 1999 simply lacked the will to do the truly difficult work of setting up a responsible regulatory structure to accommodate the changes made by Gramm-Leach-Bliley. What I'm hearing and seeing about this current debate does not give me any confidence that things have changed much. Again, we're seeing Congress responding in a rush to deal with a crisis created by market behavior, and we're seeing almost no serious discussion about creating a rational, responsible regulatory structure to accommodate the changes that are being made.
The second concept from Catholic Social Thought that I'm not hearing much about in the current debate is "solidarity." Specifically (to borrow a phrase I've heard before in the context of environmental stewardship), intergenerational solidarity. Russ Powell alluded to this already -- we simply cannot ignore the impact of the massive amounts of public debt being considered in the context of this bailout on future generations. It's more than just an irresponsible putting off of the consequences to some future date to deal with a short-term crisis. It's a lack of solidarity with those who come after us -- both future generations, and future administrations, for the sake of looking like we're "doing something" dramatic.
Of course, I have absolutely no idea whether Paulson's right -- that failing to act now would have disastrous consequences. I do think, though, that acting without taking seriously the responsibilities of stewardship and solidarity cannot serve the "common good" in the long run.
Just a quick response to Richard Stith's thoughtful comments on the proposed HHS conscience regulation. First, if local governments (such as New York City's) are getting heavy-handed in negating the moral autonomy of health care providers, I think the proper response is to address those local governments through targeted regulation. The proper response is not to marginalize the entire lawyer of organizations that stand between the state and the individual. In terms of subsidiarity, assume that A is the highest level of social actor and F is the most localized. If C is unnecessarily limiting the freedom of F, A's proper response would be to address C's conduct, not to leap-frog all the intermediate levels by giving F a categorical trump over the identity-forming autonomy of D and E. I see the conscience regulation as unwisely leap-frogging several levels in the chain of prudently devolved authority.
Second, I agree that forcing a pro-choice pharmacy to incur the added financial and message-muddying cost of accommodating pharmacists who defy the organization's moral identity is not as personally intrusive as forcing a pro-life pharmacist to dispense products that conflict with her moral convictions. Nevertheless, it does pose a significant burden on those organizations. Further, it entrenches the notion that the battle over conscience is really a battle for the reins of state power in service of the individual. Politically, I don't think there is much perceived difference in forcing all organizations to accommodate every individual employee and forcing all organizations to accommodate every individual consumer.
Archbishop Harry Flynn, retired archbishop of the St. Paul and Minneapolis diocese, is giving a mission in my parish. Although I missed the taco dinner beforehand, I was able to make it for the evening program last night. The focus of the Archbishop's remarks was on the Eucharist and its relation to social justice.
He emphasized that Catholics do not have the option of viewing social ministry as something reserved for a few, as a parish sideline. Rather, it must be integrated into all of our lives and a central part of our lives as a parish community. He emphasized that this is not some new teaching of modern theologians, but is rooted in Scripture, particularly in the human life of Jesus. He reminded us that in Luke, the beginning of Jesus ministry is his action in the temple at Nazareth. Jesus stands up and quotes Isaiah: "The Spirit of the Lord is upon me, becuse he has anointed me to being glad tidings to the poor. He has sent me to proclaim liberty to captives and recovery of sight to the blind, to let the oppressed go free, and to proclaim a year acceptable to the Lord." He then tells the people that the scripture passage is today fulfilled in their hearing.
Flynn emphasized that social ministry means both charity and justice. Direct service to those in need is important, but we must also work to create a more just society. As Christians we can't just sit back, and we can't just write a check. We must be an active part of transforming the world into Kingdom by working to change the structures that allow the diminution of the human dignity of our brothers and sisters.
It was a powerful talk and a needed one, since I think too many people either don't understand the centrality of social justice to our lives as Christians or forget that social justice has two legs - justice as well as charity.
In a post on my own blog this morning, I focus on Flynn's remarks about the Eucharist transforming us into Christ. You can find that post here.
Monday, September 29, 2008
I would like to explore the question about the meaning of equality in the framework of the challenging American political and legal debate that generates passion among participants, i.e., same-sex marriage, since both Prof. Doug Laycock and Rick mention it. I begin by proffering the view that precision in the use of language in general, and legal language in particular, is critical to understanding the nature and substantive content of an argument—particularly one made in the name of Catholic legal theory. There should be no exception to this when the language addresses questions dealing with equality and marriage. Many, perhaps most, people would conclude that the word “equality” has a relatively clear meaning for virtually everyone. The same sentiment could well apply to the meaning of the term “marriage.” But the meaning of language can be manipulated by some interpreters who are not so much interested in objectively explaining its meaning as trying to convince others to adopt their subjective sense or impression of what is being addressed. As Lewis Carroll’s Humpty Dumpty told Alice, “When I use a word, it means just what I choose it to mean—neither more nor less.”
This is evident in the present day when equality and marriage are discussed in the context of same-sex relationships. But the subjective approach of Humpty Dumpty when used to define, explain, and interpret legal meaning is a perilous course to pursue, especially in the context of the present-day campaign for legal recognition of same-sex marriage.
The equality argument cannot sustain the legal justification for same-sex marriage which lawyers and courts, such as the Goodridge majority, offer. In support of my conclusion, I present an argument that the equality of human beings exists at certain fundamental levels—the most basic would be something guaranteed, albeit vaguely, in the essential equality of the multi-faceted right to be born, to live after birth, and to flourish (albeit in a variety of expressions). I believe that the understanding of the framers of the Declaration regarding equality is essential for making any equality argument that is legally justifiable in the American context—and most likely beyond this context considering the American influence on other legal systems. While most legal arguments require some flexibility regarding their meaning, as the common law tradition demonstrates, the argument from equality does not possess the unrealistic elasticity required to substantiate the quest for legal recognition of same-sex unions.
The basing of a legal argument on the claim of “equality” cannot guarantee that the manifestation or exercise of equivalence is the same for every claimant. Otherwise, the competition for who would be considered the best person in any particular field could never be determined. Nevertheless, each claimant who relies on an equality argument with some goal in mind should be able to present a coherent case that he or she is entitled to be the equal of all others in the right to be born, to live, and to seek what is needed to thrive until one’s natural death. Each person can also enjoy the equality to remain free from unwarranted, i.e., unreasonable, intrusion into one’s existence as long as this exercise does not interfere with anyone’s fundamental claims to enjoy a parallel human existence. Having made this last point, I must point out that there are contexts which may enable some claimants a right to pursue certain activities whereas others may not. For example, a company that is awarded a government contract to manufacture munitions would be entitled to fabricate explosive devices whereas a cell of anarchists or terrorists would not, because on several important fronts they are not the “equal” of the candidates to be government contractors.
In this regard, an individual claimant cannot expect that societies and their norms must be compromised on every front to reflect or adopt the equality argument advanced by some members of the community in which their claims cannot be factually and rationally supported. This, I submit, is especially true in the realm of public policy issues defining the meaning of marriage and the arguments advanced for recognizing same-sex relationships as marriages. By way of illustrating this point, when Chief Justice Margaret Marshall set the stage in Goodridge for the recognition of same-sex marriage in Massachusetts, her remarks that marriage is “a vital social institution” and the “exclusive commitment of two individuals to each other nurtures love and support” carefully avoided the claim that a couple comprised of two people of the same sex are equal to or the same as a couple consisting of a man and a woman in all regards.
Knowing that I am discussing a topic that bears great sensitivity among many people, I want to express clearly that it is not my intention to insult, demean, or marginalize anyone and the dignity that inheres to everyone. To disagree with someone with different views on any subject is not to insult, to demean, or to marginalize those with whom one disagrees. The nature of disagreement is, rather, to enter a debate with reasoned analysis and objective commentary supported by factual analyses. Thus, my objective is to demonstrate that for people to be the equal of one another in the context of marriage, there is a compelling need to analyze clearly the nature of marriage, as it has been understood and legally recognized, as the union of a man and woman and why certain relationships, including those between two people of the same sex, cannot constitute a marriage. As a consequence of Lawrence, a same-sex couple may be a private relationship that is protected by the law, but it would be inappropriate to confer on this relationship the status of marriage. While the associations of two persons of the same sex or opposite sex are relationships, the same-sex couple lacks something essential for the relationship to be a marriage that is constitutive of the family, the basic unit of society.
I am aware that there are those who disagree with me on this point. For example, Professor Mark Strasser has stated in one of his several commentaries on Lawrence that since “those with a same-sex orientation have a right to privacy with respect to other matters of family life including fundamental rights with respect to the children that they are raising, then they too should be given the right to enter the relationship that is the foundation of the family in our society.” In making his argument, he improperly relies on the Supreme Court’s decision in Loving v. Virginia. In that case, the Court concluded that Virginia could not deny interracial couples the right to marry because, according to the state, they had the right to marry as long as it was not someone of race different from their own. But Professor Strasser asserts that the argument is no more convincing in the same-sex context than it was in Loving. When it comes to marriage issues involving the propriety of same-sex relations, it is evident that any man, regardless of his sexual orientation, has the same ability and faces the same restrictions to marry a woman. And similarly, any woman, regardless of her sexual orientation, can marry any man regardless of his orientation. In this they are equal. However, Professor Strasser implies that under the rationale of Loving v. Virginia, the Supreme Court would have to conclude that no state could deny same-sex couples the right to marry by saying that such individuals had the right to marry, just not someone from the same sex.
But Loving v. Virginia does not have the application to same-sex relationships that advocates for same-sex unions, such as Professor Strasser, wish it to have. Loving addresses a man marrying a woman or a woman marrying a man; however, the difference in races of opposite-sex couples, according to Virginia law that was eventually struck down, precluded the marriage from taking place. Under Loving, the complementarity of the sexes was understood, respected, and honored by the courts involved with that litigation. In the drive for recognition of same-sex versus interracial marriages, the issue of complementarity is not considered in the same fashion. In addition, under Constitutional law, race has played a particular role in adjudication of cases dealing with due process and equal protection claims. In the quest for the legalization of same-sex unions, the race of the partners is immaterial because the prohibition of same-sex unions under state law does not consider racial composition but sexual complementarity. It is same-sex, not race, which is the driving force in the present day debate. But should this matter come before the Court, it may be that Lawrence will serve as an indicator of where the Supreme Court may go on the question of same-sex unions: the Court in Lawrence suggested that it will not go where same-sex union advocates want it to go, i.e., while private consensual adult sodomy is constitutionally protected, same-sex marriage is not.
Insisting through legislation or adjudication that one thing is equal to something else does not in fact make it so—for there must be some foundation based on facts and reason that can justify the claim. If this factual-rational foundation is lacking, the claim must necessarily fail unless the legal mechanism is a purely positivist one. This is patent when the physical differences of male and female and their biological complementarity essential to the continuation of the human race are taken into account. To promote as “legal argument” contradictions of reason and fact destabilizes the integrity of a legal system and its supporting substantive law. Reliance on an “equality” argument to advance legal schemes to recognize same sex-marriage does not make relations between two men or two women the same as the complementary relation between a man and a women when reason and fact state that they are equal in certain ways but not in other ways that are crucial to the institution of marriage. While the sexual relations between same-sex couples and opposite-sex couples may generate physical pleasures through sexual intimacy, they are substantively different in that the latter exemplifies the procreative capacity that is the foundation of the human race based on the ontological reality of the nuclear family (the fundamental unit of society) whereas the former is sterile from its beginning and cannot achieve this objective.
But let us assume for the moment that I am wrong and that the relationship between two men or that between two women is the equal of the marriage between a man and a woman. What conclusions do we then reach, considering the questions surrounding marital context, about equality claims made for other relationships in which proponents argue that these relationships can also be marriages if the relationship of same-sex couples can become a marriage, and that denying the marital status to the partners of these other relationships is a violation of equality? A list of such affiliations might include these: a collective of men or women—or a mixture of both sexes—who claim the right to be equal and therefore married in a polygamous context; an affiliation of someone in age-minority and someone in age-majority who claim the right to be equal and therefore married in spite of current prohibitions on age limitations; a relationship of closely related persons who, in spite of legal prohibitions due to degrees of consanguinity, claim the equal right to marriage; or any combinations of human beings who wish to associate with other biological entities who (at least the humans) insist that their relation is or should be considered the equal of a marriage between a man and a woman. When the state confers the legal recognition of marriage on the relationship of a same-sex couple and grants them the state-sanctioned benefits of marriage, are not these other citizens denied equality when their relations are not recognized as marriages?
As we begin to comprehend that the claim of equality has limitations necessitated not by personal choice but by reason and fact, no one should consider himself or herself free to assert that the law can make us precisely equal in every context—for that would be pushing beyond any limit the guiding force of the law which is reason itself. And, objective reason is the fundamental principle of the law in most legal traditions with the primary exception of the positivist system. The law simply cannot go beyond the limits of reason without entering the dangerous realm of becoming a tool in a totalitarian, positivist system. The differences and distinctions that exist among human beings are real and unmistakable and should not be forced into some kind of strained, artificial, irrational, and unsustainable notion of “equality.”
The positivist mentality that is regulated solely by the mind of the lawmaker and conditioned exclusively by what the lawmaker considers to be the end of the human purpose typically reflects the “dominant prejudices of the moment” and militates against the objective and moral compass that is essential to guiding democratic societies as Christopher Dawson once argued many years ago when several totalitarian systems that brought much harm during the twentieth century were beginning their offensive against the rule of law. Such positivism disregards longstanding tradition; it ignores legal history; it defies logic and reason; and, it contravenes facts including the reality of distinctions that make people not alike in some important regards.
The only way to equate opposite-sex and same-sex unions is to rely on a peculiar understanding of “equality” that relies not on fact and reason but on exaggerated legal positivism. But such a venture leads us into that problematic Orwellian dominion where all the animals in the barnyard are deemed equal; but, as it turns out, one day it becomes clear that some are more equal than others. In other words, the “equality” expected by same-sex marriage advocates will not likely be transferred to other interest groups seeking the public recognition and support of their relationships. The “equality” sought by those seeking the recognition of polygamous relationships, under-aged relationships, and relationships involving closely related family members, e.g., brother and sister; first cousins, will most likely be disappointed. It must be understood that the crusade for legal recognition of same-sex marriages is founded on a false notion of equality. But when the problematic rationale for justifying same-sex marriage is condoned by the law, the important idea of authentic equality is deprived of its meaning. And that is what the campaign to justify same-sex marriage has regrettably accomplished.
Today the Dow dropped the most it ever has in a single day. The administration argues that our financial system is on the verge of collapse. Despite lobbying by the President and senior cabinet members, the House did not approve the bailout plan today. I am curious what members of our blog community believe is an authentically Catholic approach to these critical issues, particularly in formulating legal solutions. Recent events have prompted me to reflect on my own assumptions about our economic system, and I am deeply concerned that the most vulnerable members of our community are likely to suffer the most significant harms in the short term. In the long term, I have deep misgivings regarding the debilitating debt we are leaving for future generations. Although I am not certain what our response should be, failure to act is an option that carries great potential costs if Secretary Paulson is to be believed. How can we best serve the common good here? What is an appropriate level of government intervention? How will our policy choices impact the poor?
I share Michael P's admiration for Prof. Doug Laycock, and so I take very seriously Doug's remark, to which Michael linked:
The nature of marriage is a question with profound religious significance and fundamentally disputed answers. The state has no more business imposing a single answer to that question than to any other religious question. Marriage is for the churches; government should confine itself to civil unions. And then we should try as best we can to create rules that enable Americans with fundamentally different views of marriage to live in peace and equality in the same society.
I'm going to bracket, for now, the possibility that, for public-policy purposes, the state might well have entirely non-"religious" reasons for believing (and legislating on the basis of the belief) that the public good would not be well served by a move to a civil-union regime (assuming, as I gather Michael does, that such a regime would not distinguish between same-sex and opposite-sex couples).
What are the "rules" -- to which, I gather, Michael is offering his "Amen" and support -- that would "enable Americans with fundamentally different views of marriage to live in peace and equality in the same society"? They would need to reflect, it seems to me, a thorough-going commitment by the public authority to *genuine* respect for those persons and institutions who do not believe that same-sex unions and marriage are morally equivalent. What would be the approach, in such a regime, then, to (just to pick two examples) (a) tax-exempt status for organizations that "discriminate" against same-sex unions, and (b) the applicability of non-discrimination laws to such organizations' hiring-and-firing practices?