April 03, 2014

"Once we decide, there is no more hope."

Der Spiegel is running an interview with Justice Sotomayor keyed to the publication of the German version of My Beloved World (aka Meine Geliebte Welt)The interview concludes with some reflections on difficulties associated with having the final word on matters that are important to society. Because the Court's decisions are "final," it is hard for Justices in the majority to know that "there's a loser," "another side who is going to feel something negative about what has happened." And, the interview concludes, "[o]nce we decide, there is no more hope."

Perhaps something was lost in translation.

Surely the Supreme Court's supremacy does not extend to the elimination of hope. After all, spe salvi facti sumus; and that hope does not depend on the views of five out of nine.

Posted by Kevin C. Walsh on April 3, 2014 at 11:02 PM | Permalink

"Be Not Afraid"

"Be not afraid!"  These were the words with which the heroic soon-to-be St. Pope John Paul II opened his pontificate.  It is an encouraging challenge, and one that -- to me, anyway -- seems very timely.  

Yesterday was the anniversary of his death.  I remember, very clearly, that I was sitting in an auditorium at Indiana University, participating in a conference on the legacy and work of Chief Justice William Rehnquist, when someone interrupted to share the news that the Pope had passed away.  He was, and remains, a hero of mine.

A number of MOJ bloggers contributed reflections on the legacy -- jurisprudential, theological, philosophical, political, etc. -- of Pope John Paul II.  They might be worth re-reading this week (here, here, and here).  And (or), it's really tough to beat Redemptor hominis (here).

Posted by Rick Garnett on April 3, 2014 at 09:16 AM in Garnett, Rick | Permalink

Harvard conference on "Religious Accommodation in the Age of Civil Rights"

Starting tonight, and continuing through Saturday morning, a number of legal scholars -- including our own Tom Berg and I -- will be presenting at a conference, at Harvard Law School, called "Religious Accommodation in the Age of Civil Rights."  Here's the conference blurb:

Current controversies over marriage equality, antidiscrimination law, and the Affordable Care Act’s contraceptive mandate have raised conflicts between religious claims, on one hand, and LGBT equality and women’s rights, on the other. The conference seeks to deepen our understanding of the competing claims by bringing together nationally recognized scholars in the fields of sexuality, gender, and law and religion. 

I am hoping (and praying) for a civil and respectful set of conversations, unclouded and untainted by the unfair and uncharitable characterizations and accusations that have, unfortunately, seemed to dominate discussions about religious exemptions, public-accommodations laws, RFRA, etc., in recent weeks. 

Posted by Rick Garnett on April 3, 2014 at 08:58 AM in Garnett, Rick | Permalink

April 02, 2014

How many Supreme Court Justices "invest annually" in companies or funds that "directly support the production of drugs that always cause abortions"?

Over at dotCommonweal, Grant Gallicho has a post titled "On abortion, Hobby Lobby looking wobbly." Gallicho comments on a Mother Jones report by Molly Redden: "Hobby Lobby's Hypocrisy: The Company's Retirement Plan Invests in Contraception Manufacturers." The source of Hobby Lobby's alleged hypocrisy is its retirement plan's investments in mutual funds whose holdings include Teva Pharmaceuticals, Pfizer, Bayer, AstraZeneca, and Forest Laboratories. According to Redden, these companies manufacture drugs or devices that Hobby Lobby objects to providing coverage of in the insurance offered to its employees. 

Suggesting that Hobby Lobby is insincere in its objections to facilitating the use of abortifacient drugs and devices, Gallicho suggests that "the cooperation is more direct" through these mutual fund investments than through no-copay insurance coverage. These mutual-fund investments, Gallicho asserts, "brin[g] Hobby Lobby significantly closer to the evil in question than would any premium payments that could allow employees to use contraceptive services."

I would be surprised if many shared Gallicho's assessment of moral culpability. Is an employer more morally culpable for contributing to cigarette smoking because (a) its retirement plan owns mutual funds that own shares in Altria, or (b) it purchases an employee benefits plan that includes vouchers for Marlboros at no additional cost to its employees?

Gallicho asks: "What might last week's oral arguments [in Hobby Lobby's case] have sounded like had this been reported earlier?" He is unsure. But I think it's safe to say that the arguments would have either proceeded exactly as they did or have gone slightly worse for the government.

Unlike Gallicho, the government has not challenged Hobby Lobby's sincerity. And more to the point of Gallicho's question, it is highly unlikely that the Justices would share Gallicho's assessment of comparative moral culpability. From their financial disclosures, it seems the only Justices who would be free of moral taint for the activities of companies whose shares are owned by mutual funds owned by the Justices would be Justices Kennedy, Thomas, and Sotomayor. (This is based on their 2010 disclosures, which are the most recent available at Oyez.) The other six Justices all own or have recently owned shares of mutual funds. And it is safe to assume that some of those mutual funds, particularly the broadly diversified funds, own shares in the same pharmaceutical companies that the mutual funds offered to Hobby Lobby's employees do Hobby Lobby does. Moral or theological merits of the argument aside, it would be bad lawyering to argue that these Justices bear some moral culpability for the actions of these companies because they "inves[t] annually [in funds that own shares of companies that] directly suppor[t] the production of drugs that always cause abortions." 

[Update: Edited for clarity.]

Posted by Kevin C. Walsh on April 2, 2014 at 10:03 AM in Walsh, Kevin | Permalink

Podcast on Sebelius v. Hobby Lobby

My colleague Mark Movsesian and I discuss some of the background of the case and the oral argument, with a few predictions at the end, in this podcast.

Posted by Marc DeGirolami on April 2, 2014 at 09:51 AM in DeGirolami, Marc | Permalink

Alvaré on Windsor and a federal definition of marriage

Professor Helen Alvaré testified in March before the Kansas Senate Judiciary Committee in connection with a proposed Kansas Religious Freedom Preservation Act. The written version of her testimony, worth reading in full, touches on an underappreciated feature of Windsor and post-Windsor cases finding a constitutional right to same-sex marriage. Whether explicitly or implicitly, these cases develop and deploy a federal-law-based definition of marriage. A federal-law-based definition of marriage was not necessarily to resolve Windsor, which on its surface only invalidated but did not establish a federal definition of marriage, but such a federal-law-based definition of marriage is necessarily present in the post-Windsor cases extending the decision to invalidate state definitions of marriage that require one man and one woman for marriage. 

Alvaré writes: 

[A]fter paying lips service to federalism, [Windsor] substituted a new, federal definition of the meaning of marriage--an extraordinary and adult-centric meaning--for the meaning adopted by the vast majority of states, and every one of the relevant, prior Supreme Court opinions treating marriage. To summarize a great deal of material, the Supreme Court defined marriage as: the way people define themselves, as persons committed in a special emotional and sexual way to another person; as an acknowledgment of an intimate relationship between two people; as a protection of a person's "personhood and dignity"; and as a means for same-sex couples to "enhance their own liberty" and equality with opposited-sexed married couples.

Another interesting aspect of Professor Alvaré's testimony was a discussion of the limits of RFRA-style laws in protecting the religious freedom of individuals and businesses "who wish to live freely and conduct their businesses in [a state] with faithful integrity to their deepest beliefs, should legal recognition of same-sex marriage be imposed upon [that state] by a federal court." (Although it is not yet available online, Professor Alvaré's testimony as delivered also included a list of detriments conscientiously objecting individuals or businesses could suffer if same-sex marriage were imposed on a particular state. I will post or link to this list if it becomes available online.)

Posted by Kevin C. Walsh on April 2, 2014 at 08:51 AM in Walsh, Kevin | Permalink

April 01, 2014

Wolterstorff, The Mighty and the Almighty

I want to echo the enthusiasm from Rick and Marc about the excellent roundtable discussion at Notre Dame last Friday about Nick Wolterstorff's recent book, The Mighty and the Almighty. The meeting was a model of interdisciplinary engagement among law professors, theologians, philosophers, and historians. Building on Wolterstorff's earlier book, Justice: Rights and Wrongs (Princeton, 2010), The Mighty and the Almighty defends a rights-protective, limited, non-perfectionist state based on a creative interpretation of Romans 13 and other texts. As one observer noted, Wolterstorff argues that the state in Christian political theology providentially comes to look like a modern liberal democracy, a view at odds both with the rejection of legitimate political authority in authors such as John Howard Yoder and with Calvinist or Thomist perfectionism about the state in most Reformed and Catholic accounts. From my standpoint, there is much to agree and disagree with in the book--the rejection of "perfectionism," for example, might depend on a certain framing of the perfectionist/anti-perfectionist distinction. But thanks to Rick for hosting such an important and worthwhile conversation about an important and worthwhile book by one of the era's great Christian philosophers.

Posted by Michael Moreland on April 1, 2014 at 01:24 PM in Moreland, Michael | Permalink

Wolterstorff Conference

Rick has already posted about the excellent conference at Notre Dame discussing Nick Wolterstorff's fine work. I learned a great deal from the participants. In fact, it was just the right mix of people for a very useful exchange of views. Nobody too much on the inside of any discussion, and yet everybody enough on the inside to be able to talk well together.

I've posted a few times about Nick's book, The Mighty and the Almighty. My own small conference ticket focused on a fairly narrow issue in the book--the interpretation of certain lines in Romans 12 and 13 dealing with what St. Paul meant about the justification of state punishment, focusing specifically on what Nick called in the book a kind of expressivism. But I came away from the conference thinking that Nick's expressivism seems actually quite close to some communicative theories of retributivist punishment, and it was a pleasure to work through both some textual possibilities and some more general ideas about the relationship between the text and the justification of punishment. Another very interesting issue was the relationship of protectionist and perfectionist accounts of the state to all of these more particular issues. A wonderful event.

Posted by Marc DeGirolami on April 1, 2014 at 07:52 AM in DeGirolami, Marc | Permalink

March 31, 2014

"The Mighty and the Almighty"

On Friday, I had the pleasure and privilege of hosting a roundtable conference sponsored (thanks!) by Notre Dame's Program on Church, State & Society and dedicated to Prof. Nicholas Wolterstorff's (relatively) recent bookThe Mighty and the Almighty:  An Essay in Political Theology, a work that one of the participants characterized as the "first work in analytic political theology."  Prof. Wolterstorff is, of course, both a giant in his fields and a really good guy.  The conference's conversations were engaging and rich, and it was exactly the kind of academic "event" that makes one think there is hope for academic events.  

For someone, like me, who thinks about the church-state nexus primarily as a lawyer and from a perspective strongly shaped by the Catholic social tradition and thinkers like Murray, it was a challenge and a treat to work through the "big questions" with trained philosophers, historians, theologians (and lawyers!) from a variety of religious backgrounds.  Among other things, we considered Wolterstorff's rejection of "perfectionism", of the Gelasian "two rules" model, and of (a version of) the retributive theory of punishment.  And (natch), the group spent a fair bit of time with the whole "are religious institutions more than groups of religious individuals?" question that's been in air quite a bit lately.  

Posted by Rick Garnett on March 31, 2014 at 02:40 PM in Garnett, Rick | Permalink

Dignity as a Constitutional Principle


This past Sunday, March 30, The New York Times published an op-ed piece by Bruce Ackerman, the well-known professor of law and political science who has taught at Yale for many years. Ackerman’s contribution to the ongoing Constitutional debate was published under the title “Dignity Is a Constitutional Principle.” The focus of his opinion essay is on the same-sex marriage issue. The essence of his thesis, echoing the perspectives on human dignity found in cases such as Windsor v. United States and Lawrence v. Texas (relying on Planned Parenthood v. Casey: “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.”), is that laws prohibiting same-sex marriage are unconstitutional as they constitute an “assault on human dignity.” Professor Ackerman concludes his essay by quoting the Biblical Golden Rule cited by Senator Hubert Humphrey in the debate surrounding the passage of the Civil Rights Act of 1964: “Do unto others as you would have them do unto you.”

As an aside, it appears that Biblical references do not get automatically excluded from political and legal debate if they serve the interest, in some fashion, of the goal of the speaker who might otherwise argue that such a reference runs afoul of the Establishment Clause of the First Amendment. But let me return to my fundamental point for today.

Both Professor Ackerman and the resources upon which he relies do not define the important term dignity. Does an important term like this one which is used for advancing Constitutional claims require a sound definition so that when the term is used in political and legal discourse its meaning is clear to all who use it? Or is it assumed that the term needs no definition because there is universal understanding and acceptance of the term’s import? As friends and readers of the Mirror of Justice may recall, I, for one, think the clear and agreed meaning of language is critical to civilization and to the law that is a servant instrument of civilization. If the meaning of crucial language used in legal and political debates remains ambiguous, our legal and political discourse will be pointless.

If it is assumed that dignity is that which is due to anyone’s views, regardless of whether the views possess objectively reasoned merit, we are in trouble. We are in trouble because the position of the most aggressive totalitarian will be equal in dignity to the position of the most virtuous saint. If language’s meaning is relevant to legal theory, what is the Catholic take?

One can begin with a general understanding that human dignity has to do with qualities of the possessor that are worthy, have worthiness, and have worth. Worth (the root word used along with two of its derivatives in the previous sentence) means that there is honor in the holder who claims the dignity. Worth means that there is character or standing of a person in respect to that person’s moral and intellectual qualities and abilities. Jacques Maritain offered helpful insight about the sense of human dignity when he defined it this way: it “means nothing if it does not signify that by virtue of the natural law, the human person has the right to be respected, is the subject of rights, possesses rights. There are things which are owed to man because of the very fact that he is man. The notion of right and the notion of moral obligation are correlative.”

The first sentence presents the fundamental role of the natural law in defining dignity. I consider that natural law is the exercise of objective human intelligence comprehending the intelligible reality of the universe, which includes the nature of the human person. The third sentence of Maritain’s formulation is also crucial because human dignity is nothing if the claim to rights that are aligned with human dignity ignores the complementary and correlative moral responsibility that must attend all rights claims. These thoughts are absent from Professor Ackerman’s op-ed in yesterday’s Times. Although he cloaks his dignity argument in equality claims, he does not mention that while everyone is equal in certain fundamental ways (hence the equality between races in the contexts of voting and public accommodation) not everyone shares the same talents or interests. Hence, people do have differences that distinguish them from one another without these differences assaulting their human dignity and without undermining the importance of human dignity in rights discourse.

The op-ed article presents the view that there are no differences between opposite-sex unions and same-sex ones. Nonetheless, the distinction that many people still make between opposite-sex and same-sex couples demonstrates the need to consider legitimate distinctions when the topic of human dignity is under discussion. The rhetoric that these two kinds of relationships are the same for the purposes of marriage and human dignity does not, in fact, make them the same. Dignity may well be a Constitutional principle when it concerns the fundamental equality of humans on the basis of thoughts that correspond to the Maritain formulation. But it is not a Constitutional principle when the dignity/equality argument fails to consider and acknowledge the differences between people that are acknowledged not by human caprice but by objective intelligence comprehending the intelligible reality of differences in the nature and essence of the human person. Authentic human dignity is based on the truth about the human person and not the falsehood of political claims and the rhetoric used to justify these false claims. Objectively reasoned distinctions are critical to understanding equality claims and human dignity when they are considered Constitutional principles. Politically popular claims that do not take account of the reality of our objective intelligence that acknowledges authentic human nature do not advance but, rather, impede human dignity. Moreover, opinion polls siding with views that claim to be “on the right side of history” do not always serve authentic democracy, especially when they simply confirm the empty promises of a totalitarian regime.


RJA sj 

Posted by Robert John Araujo, SJ on March 31, 2014 at 11:14 AM in Araujo, Robert | Permalink