Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Monday, August 9, 2010

Public Discourse on two raging controversies

At Public Discourse Matthew Franck has published a penetrating critique of Judge Vaughn Walker's reasoning in the Proposition 8 case:  Here’s a taste:

And now watch carefully, for here [Judge Walker's] fallacious reasoning enters the equation. When “the genders” are no longer “seen as having distinct roles,” it is revealed that at marriage’s “core” there is ample space for same-sex couples too. Since “gender no longer forms an essential part of marriage,” indeed since it never really did, “plaintiffs’ relationships are consistent with the core of the history, tradition and practice of marriage in the United States.” There, you see? There is something eminently conservative about the admission of same-sex couples to the marital bond. What could we have been thinking, denying them this right for all these centuries? Judge Walker seems to have committed the fallacy of composition—taking something true of a part and concluding that it is also true of the whole of which it is a part. If it is true that “gender” no longer matters as it once did in the relation of husband and wife, he reasons, therefore it no longer matters whether the relation is one of husband and wife; it may as well be a relation of husband and husband or of wife and wife, since we now know that marriage is not, at its “core,” a “gendered institution.” But restated in this way, it is quite plain that the judge’s conclusion doesn’t follow from his premises. To say that the status of men and women in marriage is one of equal partners is not to say that men and women are the same, such that it does not matter what sex their partners are. The equalization of status is not the obliteration of difference, as much as Judge Walker would like to pretend it is.

Also at Public Discourse are two important articles on abortion and healthcare reform.  The first is by the editors of Public Discourse (full disclosure:  I'm on the editorial board), responding to an attack launched by the editors of Commonweal.  See hereA taste: 

Our analysis of the billhas been concerned with protecting the unborn and guarding the consciences of those who bravely refuse to participate in their destruction. We have been guided by the conviction that it is our duty as citizens not only to extend healthcare but also to expand the circle of human care. Commonweal is free to flog whatever interests and flay whatever enemies it wishes, but those are distractions from the pressing task at hand.  We’re hardly happy with our assessment of the new health care law’s treatment of abortion. It would indeed be nice if the claims advanced by Commonweal and [Timothy} Jost were true and the position held by {Helen] Alvaré and every major pro-life group was false. But the law speaks for itself. There is nothing we can do except change it. One way to do so would be through the Protect Life Act, which was recently introduced into Congress. Here, surely, is a place where the pro-life movement can stand together. If Commonweal and Jost take protecting life as seriously as they took the imperative to pass the health care bill, they will stop sniping from the sideline and join us in the effort to restore the protections they helped destroy.

Helen Alvare's response to Timothy Jost’s critique is here. A taste:

In his responseto my piece on abortion and health care, Jost claims that pro-lifers have failed to cite relevant judicial decisions. This is a canard. Pro-lifers have cited the pertinent cases chapter and verse—especially in a legal analysiswritten by the United States Conference of Catholic Bishops. It is hard not to think that Jost is being disingenuous when he demands “[the name of a] single [judicial] opinion that has ordered abortion coverage in the face of a federal administrative regulation and an executive order that interprets a federal statute as prohibiting abortion coverage.  All that pro-life groups said—and all that I affirm after looking at the legal back-and-forth—is that between the plain language of the new health care law, its accompanying executive order, the legal precedents relevant to each, Congress’ rejection of proposed fixes, and the political processes leading to the enactment of the PPACA, pro-life citizens and legal experts were right to express grave concern over the final passage of this bill. They had more than reasonable cause to believe that it would move the United States toward a greater acceptance of abortion and the violation of moral conscience.




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