Thursday, August 26, 2010
Doug Kmiec, a longtime friend and colleague of many MOJ readers and bloggers, and also the current Ambassador to Malta, was in a serious car accident yesterday afternoon in Malibu, California. I have not been able to find news coverage, and all I know is that Doug was taken to the UCLA Medical Center Trauma Center. Oremus.
Wednesday, August 25, 2010
British human rights attorney Aidan O'Neill responds to my skeptical post regarding the closure of the last Catholic adoption agency in the U.K. He notes that "things are a little more complex on the facts than my post implied":
It is of some note that the Charity Commission considered specific evidence as to the effect of the closure of the Catholic Care adoption agency on children seeking adoption, noting on this that the facts as found by the Commission did not support the claims by Catholic Care that if the charity had to close its adoption service, there were no other alternatives for the hard-to-place children who were matched with parents approved by the charity. The charity had on average provided parents for 10 children per year and the local authorities who placed children through them stated that there were in fact other agencies with as good a track record of finding adoptive parents and homes for such hard-to-place children.
The Commission also noted that as a matter of general child welfare law it is in the interests of children waiting to be adopted that the pool from which prospective parents are drawn is as wide as possible. The Commission heard and accepted evidence to the effect that same sex couples who registered for adoption were significantly more ready than opposite sex couples wishing to adopt to accept a sibling group as adoptees as well as children over 5.
In effect, then, hard to place children were more likely to be considered as potential adoptees by same sex couples and so it could not be said to be in the in best interests of a child seeking adoption that such potential adoptive parents should be screened out without consideration of the merits of placement with them by the application of an a priori rule such as Catholic Care sought to apply – i.e. no same sex couples accepted on their books as potential adoptive parents, albeit that single persons as adopters (without reference to sexual orientation) were considered by and sought by the charity.
I would also say that in my opinion the decision from Briggs J. which resulted in this case being remitted for the Charity Commissioners for reconsideration - seems to me to have been a masterly Solomon judgment if I may say so. Briggs J. came up with a well-thought out analysis for what he suggests is the correct interpretation of the relevant UK law prohibiting discrimination on grounds of sexual orientation – in particular Regulation 18 - which is to allows charities to discriminate on grounds of sexual orientation if - in the particular circumstances of their case - the public benefits of their so doing outweighed the disbenefits of the fact that they are so discriminating. The weighing of benefits against disbenefits was a matter which Parliament has entrusted to the Charity Commission which is why he ordered a to remit of the case back to it to allow it to conduct this exercise, which it has now done.
As Briggs J. notes - that if one accepts that in principle charities can properly be operated and provide their services having regard to sexual orientation issues (for example in providing help lines targeted at gay teenagers, or support to the heterosexual parents of gay children) then, in principle, there must be circumstances in which a charity may be justified in consciously targeting or restricting itself to a heterosexual majority. He suggest that such a targeting might be lawful if, on balance, good works resulted from it, regardless of the faith/motivation behind the targeting (all sounding rather like the Letter of James).
As it turns out the Charity Commission found in fact that the good work done by Catholic Care could in fact be done by other Voluntary Adoption Agencies which did not as a matter of policy discriminate on grounds of the sexual orientation of prospective adopters and which therefore thereby maintained the widest possible pool of adopters, which was clearly within the best interests of any children prospectively seeking adoption.
“We are awake to the hypocrisy and schemes of that designing, crafty, subtle, far-seeing and far-reaching Power, which is ever-grasping after the whole world, to sway its iron scepter with blood stained hands over the millions of its inhabitants.”
OSV's editorial tells us that these words were written not in protest to the proposed building of a mosque near ground zero but in protest of "of a gift by Pope Pius IX of a block of marble for the Washington Monument. The outrage felt by true-blue Americans was so great that the marble was reportedly tossed into the Potomac."
The editorial does not propose a solution to the mosque controversy but rightly hopes that legitimate dialogue and debate will trump heated rhetoric.
Tuesday, August 24, 2010
The last Catholic adoption agency in the U.K. has closed after losing its legal challenge to anti-discrimination laws that require agencies to consider same-sex couples as adoptive parents:
Since Labour’s homosexual rights law came into effect in January 2009, all the other 11 Catholic adoption agencies in England have either had to close down or sever their ties with the church hierarchy. Catholic Care was the last to hold out as it launched its legal bid.
Apparently, in certain "compelling circumstances," discrimination on the basis of sexual orientation is permitted, but the Catholic agencies have failed to establish such circumstances. Andrew Hind, the Chief Executive of the Charity Commission, explained:
“This has been a complex and sensitive decision which the Commission has reached carefully, following the principles set out by the High Court, case law and on the basis of the evidence before us. Clearly the interests of children are paramount."
Hmmm. . . I understand that there are other values motivating anti-discrimination laws, but I have a hard time figuring out how "the interests of the children are paramount" unless we are assuming that excluding same-sex couples from any single agency's pool of adoptive parents so compromises the pool's quality that it jeopardizes children's best interests. I haven't heard anyone make that argument, so I'm not sure what Hind means. I'd prefer if he said, "Look, we know we're losing an important service to children here, but our government has decided that equal treatment of same-sex and opposite-sex couples is so important that we're willing to make some hard trade-offs."
Monday, August 23, 2010
I seldom see, let alone recommend, Jon Stewart's takes on sundry topics of the day (don't have cable), but this one I've seen and can heartily recommend: http://tpmlivewire.talkingpointsmemo.com/2010/08/jon-stewart-is-fox-news-a-terrorist-command-center-video.php?ref=fpblg .
While travelling last week, I 'enjoyed' a rare opportunity to watch a bit of the Fox channel's treatment of the Cordoba House project (again, don't have cable at home), and was flabbrgasted. Stewart's ten-minute treatment of the fracas, with multiple clips from Fox, a confession of his own guilt during an earlier round of hysteria, and a nice clip of Charlton Heston addressing that earlier fracas, nicely captures why.
Saturday, August 21, 2010
What is the university? What is the Catholic university? These questions are at the core of three of Rick’s recent postings (here, here, and here). While each of these postings raises different issues about the nature of the university which, I believe, claims to be Catholic and American, they draw on common themes. Rick’s discussions take place in the context of: the Boston College brochure entitled “The Catholic Intellectual Tradition: A Conversation at Boston College”; Randall Smith’s study of the implications of John Paul II’s encyclical Fides et Ratio for Catholic universities; and R. J. Snell’s examination of universities and the graciousness of being. Some might ask the question: what has all this got to do with Catholic legal theory? Like Rick (I think), it has a great deal to do with how those of us who teach law and who teach about what law is about (or should be about) in educational institutions that claim to be simultaneously the academia and Catholica.
From my perspective, the Boston College document presents important questions (but not all the answers) which frame my replies to the questions to which Rick has sought responses. At the outset, I realize that this document includes some thoughtful discussion beneficial to the enterprise of the Catholic academy; but, it also generates some problems. The Boston College text uses at least six times an important word—conversation—to explain the role of the Catholic intellectual tradition (which is not defined) in a university that identifies itself as Catholic, or is it catholic? Both the capitalized and lower case words are employed in the BC brochure. The document asserts that the “conversation” at stake is the use of the Catholic intellectual tradition as a guiding influence in the “complex, contemporary university” that claims to be “Jesuit” and Catholic, or at least has the heritage described by both these latter monikers. This “conversation” maintains the objective of searching for “truth, meaning, and justice.” Here it is prudent to take stock of what this text means by the “conversation” to which “All are invited.” The authors rely on one particular definition of this crucial term: they assert that to converse originally meant “to live together” or “to share a life.” While this is one basis of the term’s meaning, I suggest that this understanding is problematic in the context of explaining the Catholic intellectual tradition: I can live with others or share my life with others with little or no discourse that engages and proposes ideas. But is this what the university and the C/catholic tradition are about? I don’t think so. I believe that the Catholic university’s raison d’être involves engagement of ideas and propositions about why some ideas and propositions are correct and true but others are not. So, I think the better understanding of converse and, therefore, conversation, is the interchange of thoughts and ideas that lead to the recognition of what distinguishes truth from what is false.
So, what might some of the core thoughts and ideas be that are to be proposed in this endeavor? Let’s try these for starters: the nature and essence and purpose of the human person—quid est homo; the proper relation between and among persons—the common good; the relation between the person and one’s societies; the relation between the person and one’s surroundings; the relation between the person and God; and, the big question about what’s it all about—salvation. These are some of the crucial issues that are at the root of finding the truth (the Truth) about which the Boston College pamphlet briefly speaks.
I am encouraged by the fact that this document concludes by stating that, “The true Catholic university, then, is a community of teachers, scholars, students, and administrators sharing an intellectual journey and conversation in the pursuit of truth.” But how is “truth” understood by its authors? The answer is ambiguous insofar as the text also asserts that the Catholic university is challenged “to engage all people, cultures, and traditions in authentic conversation—conversation undertaken in the belief that by talking across traditions we can grow in shared understanding that opens all parties to the possibility of changing their views.” Well, if any view can be changed, I gather that would include the Catholic one. One of my principal concerns with elements of this document, then, is that the Catholic view may be viewed as flawed, at least in part. To justify this claim about shortcomings of the document I rely on two statements from the Boston College text. The first is that, “The Catholic intellectual tradition can thrive only with the participation of all who seek the truth, including those whose inquiry leads them to question whether the search reveals purpose, meaning, or God, or to conclude that it does not.” Well, what happens if the skeptical view prevails or that the doubter or atheist wins the discussion, the engagement, and the debate not by reasoned argument but by force of numbers and the votes that go along with these numbers? So much for the Catholic intellectual tradition!
The second problematic statement is this: “The Catholic tradition of inquiry includes...a resistance to reductionism and an openness to analogical imagination—a disposition to see things in terms of ‘both/and’ rather than ‘either/or.’” This seems to me to be analogous to the clarion call often proclaimed in the American and western academy today to pluralism and diversity. I say “yes” to this if the discussions about pluralism and diversity engage the minds of one and all so that there is an appreciation that, notwithstanding the diversity and pluralism, there are universal answers to the questions examined and debated in the context of quid est homo rather than answers which proclaim only difference and nothing beyond differentiation. The proclamation of inflated difference and the abandonment of the universal remove man from man and man from God. Civility and graciousness can then easily disappear, and the objective reasoning critical to the discourse, the debate, and the inquiry necessary for discovery of both truth and the Truth in the institution that claims to be Catholic becomes the sacrifice on the altar of the academy the revels in fragmentation.
Maybe it's just because I'm in the middle of law-school orientation, but I seem to be thinking a lot (see my last post) about universities. In any event, this essay, by R.J. Snell at Public Discourse, struck me as thoughtful and inspiring. A bit:
It would be thought slightly quaint to suggest that universities exist to form scholars who are also good citizens, and perhaps ludicrous or offensive to add that they should form gentlemen at the same time. This reaction has some justification. Certainly some of the past formation of ladies and gentlemen was genteel and exclusive nonsense. Still, the new university seems to lack civility. Perhaps most glaringly obvious in the sexual norms on campus, incivility extends also to architecture, faculty culture, the lack of genuine intellectual and political diversity, the corporatization of the college (including naming rights for buildings and athletic facilities), cheating as common and accepted, politicization of the curriculum, grade inflation, careerism, and sadly the list goes on. Some of these phenomena reveal a failure of civility in the first sense, the lack of courtesy, while others link more closely to incivility in the second sense, an illiberality in the pursuit of the common good, but all these forms of incivility have at root incivility in the third sense, the stripping away of the very graciousness of being. For without confidence in the worth of things, very little mandates we act in modesty and grace in the face of that worth. . . .
Randall Smith asks, here, asks what taking John Paul II's important encyclical Fides et ratio seriously would mean for Catholic universities. A taste:
One of the greatest popes in history writes a remarkably nuanced and intellectually profound encyclical — one basically exhorting Western civilizatpes in history writes a remarkably nuanced and intellectually profound encyclical — one basically exhorting Western civilization not to lose its faith in reason — and a dozen years later the response from the halls of the academy is still a collective yawn: “We can’t be bothered with this. We’re much too busy doing cutting-edge scholarship.” Cutting-edge scholarship that very few people read, much less care about, and that is largely subservient to the categories of modern thought, rather than a challenge to them.
Like the modern corporate executive who is too busy doing whatever it is he does to ask why he is doing it, or to think more broadly about how what he does contributes to the larger goals of the corporation (let alone society) as a whole, so too the modern corporate Catholic university is much too busy doing whatever it does (raising money, seeking greater levels of prestige, sucking up to secular counterparts) to engage the kind of fundamental issues that Pope John Paul II is asking be considered in Fides et Ratio.esponse from the halls of the academy is still a collective yawn: “We can’t be bothered with this. We’re much too busy doing cutting-edge scholarship.” Cutting-edge scholarship that very few people read, much less care about, and that is largely subservient to the categories of modern thought, rather than a challenge to them.
Like the modern corporate executive who is too busy doing whatever it is he does to ask why he is doing it, or to think more broadly about how what he does contributes to the larger goals of the corporation (let alone society) as a whole, so too the modern corporate Catholic university is much too busy doing whatever it does (raising money, seeking greater levels of prestige, sucking up to secular counterparts) to engage the kind of fundamental issues that Pope John Paul II is asking be considered in Fides et Ratio. . ..
As Rob points out, the Citizens United decision continues to provoke controversies. We sorely need a clearer and more nuanced consideration of the meaning of Court's extension of the definition of corporate personhood to include rights of free speech. Publically traded corporations, like Target, are not natural persons. They are persons only as legal fictions. And, the shareholders of publically traded corporations are, often, likewise not persons, but other legal fictions or collective entitites. Typically, they fall into two categories that we might call Wall Street investors and Main Street business owners. The Wall Street investors (which includes institutional investors) buy equities as investment insturments for short term gain. They don't have much concern for the underlying business, beyond the quarterly yield and profit statement. The bulk of shares of most publically traded corporations are held for short periods by Wall Street investors. Main Streeters care about the long-term health and reputation of the business, often because they are involved with its operation in some way. But, they represent a minority of shares traded.
Citizens United appears to give corporate boards fiduciary duties with respect to the speech rights of both kinds of individual investors. Given the short-term concerns of Wall Street and the longer term concerns of Main Street, there will most like be conflicts between the two classes of investors over how funds should be allocated in furthering political speech. But this raises a number of issues that are unanswered. For example: how, if at all, can corporate boards be held responsible to both types of investors? What are the Board's fiduciary duties toward minority speech rights? Which type of investor's speech interest should take priority, and what kind of oversight a court can maintain over the board without running afoul of first amendment.
The "conscience" (to use Rob's analogy) of Wall Streeters would seem to be deformed by the short-term interests of institutional investors. Any decent underrstanding of conscience would seem to include a more robust moral sense than making a quick buck! While the Main Streeters would seem to have greater concern for long term well-being, they typicall hold only a minority of shares.
Moreover, given the business judgment rule and demand pleading requirements (at least in Delaware), it seems nearly impossible to maintain an action for breach of fiduciary duty once the board has issued a nonreviewable proffered interest for the corporation in issuing the expendature. So, Boards will be fairly free to spend corporate funds to back politicians of their own, private concern with little accountability to the shareholders beyond the need to proffer an attenuated "profit motive."
All of these issues stem from the extension of the legal fiction corporate personhood into the realm of political speech. Corporations, not being ontological persons, have no inherent rights. They are creatures of the states in which they are chartered by the authority of the executive, typically acting through the secretary of state. The Supreme Court seems to seek to federalize the ability to shape the rights that states give to the entities they create.
Catholics have traditionally affirmed that the physicality of real human persons is foundational for their dignity. Philosophical systems that have sought to gound the dignity of the person apart from the physical embodiment of actual beings run two risks--first, they devalue the dimensions to human existence that cannot be communicated conceptually--thus conscience can be viewed as a collective discourse. They mystery of persons revealed in Christ escapes such discourse. The mystery of the person is not disclosed in discourse, but in the mystery of the Eurchaistic presence and the mystery of the Church as communio. Second, by devaluing the physical, the body becomes an object of incovenience and subject to scorn when it becomes an interference with one's lifestyle. Life as a physical reality loses meaning.
I look on Citizens United as a dangerous development for the American democracy, both because it continues the process of aggregating power in an interelated complex of corporation and state interests that are insulated from the will of the people, and also (relatedly) because it further distorts and confounds the conception of the human person as the physical bearer of rights who must be served by the law, if the rule of law is to be admirable.