Mirror of Justice

Human dignity and the lawyer's role

Over at Legal Ethics Forum, San Diego law prof David McGowan has kicked off an interesting and provocative discussion on the meaning of human dignity (or lack thereof) and the role of moral considerations in the attorney-client relationship.

UPDATE: I responded here; I welcome comments.

Are the Gloucester girls a symptom of moral decay or ray of hope?

Writing in Time, Nancy Gibbs asks us to give the Gloucester girls a break, noting that there is conflicting evidence over whether the 17 high schoolers decided together to get pregnant, or whether they decided together to have their babies after learning that they were pregnant.  She also notes:

While 750,000 teens become pregnant every year, that number is at its lowest level in 30 years, according to the Guttmacher Institute, down 36% from a peak in 1990. This does not suggest that we are witnessing a mass moral collapse, especially since abortion rates have fallen even faster. According to the CDC, since the late 1980s the abortion rate for girls 15 to 17 fell by 55%, and this year the overall US abortion rate was at its lowest level since 1974.

So maybe the Gloucester girls are indicative of a larger trend:

I wonder if some soft message has taken hold, when the data suggests that more and more women facing hard choices are deciding to carry the child to term. This has been the mission of the crisis pregnancy center movement, the more than 4000 centers and hotlines and support groups around the country that aim to talk women out of having abortions and offer whatever support they can. If not in Hollywood then certainly in Gloucester, teen parents and their babies face long odds against success in life. Surely they deserve more sympathy and support than shame and derision, if the trend they reflect is not a typical teenager's inclination to have sex, but rather a willingness to take responsibility for the consequences.

When Is Discrimination Wrong?

MoJers might be interested in a new book by Deborah Hellman from Harvard UP titled When Is Discrimination Wrong?  Over at Balkinization, she's laying out her thesis in a series of posts.  Here's an excerpt:

Thus the question that must guide our inquiry is when does differentiation fail to treat the people affected as people of equal worth? The answer, in my view, is this: discrimination is wrong when it is demeaning and not wrong when it is not demeaning. This clean and simple formulation clearly raises many questions and likely engenders much disagreement. . . .
But why think demeaning is the key to what makes discrimination wrong? To demean someone is to treat that person as a person of lesser worth. Demeaning has both an expressive dimension and a power dimension. To demean is both to express that the other is less worthy and to do so in a way that has the ability to put the other down. Demeaning discrimination is thus differentiation that fails to treat those affected as moral equals. Demeaning is the key to what makes discrimination wrong because it responds to the moral concern that animates worries about differentiation in the first place.

Theophobia

Discussions of interest here and here regarding "theophobia" -- what NYU law prof Rick Hills calls "the academic’s irrational fear of, or intense discomfort around, theist and, in particular, Christian, beliefs."

Normative Methods for Lawyers

Hopefully one significant contribution of Catholic legal education to the profession is to maintain a focus on the moral dimension of legal practice.  I find it especially encouraging when I find a scholar affirming the basic impetus of our project from a secular perspective.  In that regard, I recommend a wonderful recent paper by Harvard law prof Joseph Singer, Normative Methods for Lawyers.  I'm going to assign portions of the paper to my first-year students because it so clearly lays out the problems we have in legal education when we attempt to avoid moral reasoning.  Singer explains why we can't escape the need for normative engagement through traditional approaches such as doctrine, efficiency, rights, democracy, or critique.  Here's an excerpt:

As a law professor, I have noticed this problem acutely among my students. They quickly learn to make sophisticated arguments about interpreting precedent and statutes, making analogies and distinguishing cases, debating the judicial role (active or restrained), and discerning the advantages and disadvantages of rigid rules versus flexible standards. They also learn to use cost-benefit analysis, measuring the expected consequences of alternative rules of law in monetary values and adding up the costs and benefits to determine which rules appear to maximize social welfare. But when I ask my students to make or defend arguments based on considerations of rights, fairness, justice, morality, or the fundamental values underlying a free and democratic society, they are mute. They get out the first sentence: "I have a right to use my property as I see fit" or "I have a right to be left alone." But then they go silent; they do not have a second sentence – they do not know how to go on. Their silence is partly caused by their not knowing what to say; they cannot figure out what vocabulary to use or how to make the argument. But the underlying reason for this uncertainty is their fear that such arguments are merely matters of opinion that have no objective basis. They know that others can disagree and they feel they do not have way to defend their arguments or ground them.

Those who are interested in the moral dimension of legal reasoning should read this paper, and those who are not interested in the moral dimension of legal reasoning must read this paper.  For my much less eloquent exploration of the topic, you can check out one of these papers.

The (never-ending) sex ed battles

Ryan Anderson has an interesting and disheartening update on the battles over abstinence education.  The middle ground between "abstinence only" and "abstinence as a wink-wink delusion before we get to the real stuff" approaches to sex ed appear more and more elusive.

Torture is "subject to perception"

In October 2002, a CIA lawyer reportedly told military and intelligence officials that torture is "subject to perception," and that "If the detainee dies, you're doing it wrong."

Can we agree that there was a woeful lack of legal and moral leadership on the subject of torture in the Bush Administration?

A voice for the voiceless: the dignity of my hibiscus

Apparently some Swiss ethicists have been watching Veggie Tales.  This morning my research assistant, in the course of collecting potential readings on human dignity, brought me an April 2008 report from the Federal Ethics Committee on Non-Human Biotechnology in Switzerland titled, The dignity of living beings with regard to plants: Moral consideration of plants for their own sake.  Looking through the report's conclusions was exhausting, if only because so many snarky comments piled up in my brain.  As an exercise of self-discipline, I'll just give you a sampling of the conclusions:

"Concerning the handling of individual plants, the majority takes the position that we need less strong reasons to justify their use than is required to use (vertebrate) animals . . . A minority is of the opinion that such hierachisation can only be decided on a case-by-case basis."

"The majority of the committee members at least do not rule out the possibility that plants are sentient, and that this is morally relevant.  A minority of these members considers it probable that plants are sentient."

"The Committee members unanimously consider an arbitrary harm caused to plants to be morally impermissible.  This kind of treatment would include, e.g. decapitation of wild flowers by the roadside without rational reason."

"For the majority the complete instrumentalization of plants -- as a collective, as a species, or as individuals -- requires moral justification."

"For the majority . . . plants -- as a collective, as a species, or as individuals -- are excluded for moral reasons from absolute ownership.  By this interpretation no one may handle plants entirely according to his/her own desires."

""[T]here is nothing to contradict the idea of dignity of living beings in the genetic modification of plants, as long as their independence, i.e. reproductive ability and adaptive ability are ensured."

SSM and religious liberty

Dale Carpenter has a long and thoughtful post about SSM and religious liberty.  I agree with Dale that concern for religious liberty is not a persuasive reason to oppose SSM, though I think there is more reason to be cautious than Dale suggests, as I've tried to explain here.  Dan Markel agrees with the gist of Carpenter's post, but adds a couple of layers that create even more tension with my own views.

Dan writes:

What seems to be doing the work in this area is that we want public places (both governmental and thick active markets) to be free of discrimination, but we are willing to endure some discrimination in the name of preserving small zones of personal freedom that don't intrude (substantially) into the spaces of civil society. Faith groups willing to comply with that anti-discrimination norm can compete with others and create larger empires of influence (universities, hospitals, adoption agencies).  Those that aren't willing to comply with that are permitted to flourish, but they must maintain their views within churches and homes alone. To the extent this line is attractive, it suggests that limiting the reach of permissible discrimination in the marketplace is one way of keeping avenues of opportunity available to all; indeed, it also intimates that the norm of anti-discrimination is instrumentally valuable rather than just something to be maximized or pursued simply for its own sake.

Why should the embrace of anti-discrimination norms be the price of admission for civil society participants?  The point of civil society, as I see it, is not to disperse public norms among a wide variety of private actors, but to allow the marketplace of moral claims -- including moral claims made in the context of providing goods and services -- to flourish.  The institutions and associations of civil society are not simply vehicles for the implementation of widely held norms; they are also bulwarks against the imposition of widely held norms.  I agree with Dan that access is important, but the universal enforcement of anti-discrimination norms outside "churches and homes alone" seems more concerned with the intrinsic value of the anti-discrimination message than with the instrumental value of access.  E.g., if 98% of colleges and universities admit students and hire faculty without regard to sexual orientation, why should our concern with "access" force a particular religiously affiliated college to stop discriminating on the basis of sexual orientation (or race, for that matter)?  If there are 5 adoption agencies placing kids with same-sex couples, why should Catholic Charities be compelled to do so?  Does access have to be universal in order to be meaningful?

Another position marked out by Dan is even more problematic, in my view.  He addresses the question of:

whether churches will lose (or should lose) their tax exempt status for refusing to perform same-sex marriages. If my analogy of gay=black is taken at full force, then there's not really much reason to treat churches that refuse to marry gays differently than we do churches that retain fundamentally racist norms: either we strip their tax-exempt status or we allow the racist churches to keep theirs (contra Bob Jones).

My tentative sense is that tax-exempt status is something that should probably be revisited more broadly, and in this scenario, there doesn't seem to be a good basis for allowing the effective subsidy associated with tax-exempt status to go to organizations that flout the anti-discrimination norm. It leaves churches alone to decide how they want to operate, but requires them to pay their taxes like everyone else.

Justice Powell, concurring in the Bob Jones case, stated the problem better than I can.  He recognized that the majority's language misconstrues the nature of the tax exemption; it is not a tool with which to “reinforce any perceived ‘common community conscience,’” but rather is an “indispensable means of limiting the influence of government orthodoxy on important areas of community life.”  Especially when we're talking about tax exempt status turning on churches' failure to alter their own religious conception of an inescapably religious act, the level of state intrusion is enormous.  This is not a parachurch ministry discriminating on the basis of sexual orientation in hiring office staff; this is at the core of the church's religious identity.

More on SSM's "statist orientation"

Tom asks me to clarify what I mean when I refer to SSM's statist orienation; he's correct that I'm primarily referring to state efforts to impose nondiscrimination norms on conscientious objectors.  But I think the tension is broader than that.  Heterosexual marriage, as a legal category, encounters relatively little resistance from the citizenry because it is not just a legal institution -- it's a social, cultural, religious, and biological institution.  Same-sex marriage encounters huge resistance from the citizenry, in part because it conflicts with the traditional religious conception of marriage, but also because it lacks the broader social/cultural supports that heterosexual marriage has, even outside the religious context.  Many religious individuals oppose same-sex marriage for specific religious reasons; some non-religious individuals will also oppose -- or at least not rush to support -- same-sex marriage for non-religious reasons (the lack of procreative capacity, history/tradition, the conviction that children need a father and mother, as well as outright prejudice against gays and lesbians).  We can't just answer these various grounds of opposition by saying, "If you oppose same-sex marriage, don't enter into one."  The individuals who oppose same-sex marriage operate the organizations and make up the associations that comprise civil society.  The state's task is to prudently discern how far to push the legal norms of same-sex marriage (e.g., requiring the extension of employee benefits to same-sex spouses, conditioning authority to perform state-recognized marriages on willingness to perform same-sex ceremonies, conditioning tax-exempt status on inclusion of same-sex couples in associational membership), as well as the moral norms underlying same-sex marriage (e.g., punishing anti-GLBT speech or discrimination).  Some of these same questions arise in the context of interracial marriage, but the breadth and depth of the resistance in the same-sex marriage context makes the resolution of these tensions even more difficult.  (This is not to suggest that the resolution of these tensions was easy in the racial context -- e.g., I find problematic the premise of the Bob Jones case that tax-exempt status should turn on an organization's furtherance of state policy.) 

CLT and Boumediene

Albert Brooks responds to my question about MoJ's relative silence regarding the Boumediene case:

In response to your MOJ inquiry about what, if any, the CST perspective on Boumediene should be, I think we absolutely have something to say.  First, the Chuch validates the role of the Judiciary as a check and balance on the power of the Executive (with the Legislature's assistance) to imprison and punish individuals:

The Church recognizes the responsibility of the State to defend its citizens, but insists that "In a State ruled by law the power to inflict punishment is correctly entrusted to the Courts; 'In defining the proper relationships between the legislative, executive and judicial powers, the Constitutions of modern States guarantee the judicial power the necessary independence in the realm of law.'" (Compendium of the Social Doctrine of the Church at Para. 402, quoting JPII's Address to the Italian Association of Judges)(emphasis in original).

Further, "In carrying out investigations, the regulation against the use of torture, even in the case of serious crimes, must be strictly observed: 'Christ's disciple refuses every recourse to such methods, which nothing could justify and in which the dignity of man is as much debased in his torturer as in the torturer's victim.'  Likewise ruled out is 'the use of detention for the sole purpose of trying to obtain significant information for the trial.'  Moreover, it must be ensured that 'trials are conducted swiftly: their excessive length is becoming intolerable for citizens and results in real injustice.'" Id. at Para 404 (emphasis added). Well, you might ask, isn't Terrorism different?  NO.

"This right [to defend oneself from terrorism] cannot be exercised in the absence of moral and legal norms, because the struggle against terrorists must be carried out with respect for human rights and for the principles of a State ruled by law.  The identification of the guilty party must be duly proven, because criminal responsibility is always personal, and therefore cannot be extended to the religions, nations or ethnic groups to which the terrorists belong.

The recruitment of terrorists in fact is easier in situations where rights are trampled and injustices are tolerated over a long period of time." Id at Para 514.  I believe Justice Kennedy's Majority opinion is fully in line with all of these principles that the Church insists upon. The four Justices who dissented?  Four Catholics appointed by Republican Presidents.

SSM's "statist orientation"

My awkward phrasing alone is enough to justify Michael's skepticism about my assertion of the "more statist orientation" of same-sex marriage, but I'll try to briefly explain what I meant.  I'm not sure that marriage as a legal category is fully distinct from marriage as a non-legal category.  As Don Browning puts it, marriage "builds on natural inclinations but requires additional powerful social, legal, cultural, and religious reinforcements."  Same-sex marriage, because it largely lacks the social, cultural, religious, and biological reinforcements, must rely more on legal reinforcements.  As I said, that is not, in my view, a compelling reason to oppose same-sex marriage, but it does warrant caution when evaluating state efforts to overcome social, cultural, religious, and biological obstacles to same-sex marriage that are not as formidable in the case of heterosexual marriage.

Robert Miller's response

Robert Miller responds to Michael Perry's critique of his testimony on SSM as follows:

I thank Michael Perry for his comments on my testimony before the Pennsylvania Senate re S.B. 1250, a proposed amendment to the state constitution that would limit marriages to unions of one man and one woman.

First, I agree with Professor Perry that, given my arguments in the testimony, the best solution would be an amendment that strips the courts of the power to decide the same-sex marriage issue and leaves the issue to the normal legislative process. I would happily vote for such an amendment. In fact, however, the political realities in Pennsylvania are such that if the legislature approves any amendment to the Pennsylvania constitution, it’s very likely to be in the form of S.B. 1250. Hence, for practical purposes, it’s S.B. 1250 or nothing. Since, as I argued in the testimony, the issue is very likely to be constitutionalized one way or another by the courts, if there is to be a genuine public debate on this issue and a democratic resolution, the only practical option is S.B. 1250.

Second, when I said that a decision by the Pennsylvania Supreme Court that the state constitution does not require same-sex marriages or civil unions would “for all practical purposes” have “roughly” the same effect as the passage of the proposed amendment, every word there counts. I was not speaking of *legal* purposes. Professor Perry is obviously right that S.B. 1250, but not a decision of the supreme court, would disable the legislature from creating same-sex marriages or civil unions in future. I said as much myself about S.B. 1250. But, as I expressly said, in the language Professor Perry quotes, I was speaking not about legal effects but “practical purposes.” I meant, that is, that given such a decision from the Pennsylvania supreme court and given too the political realities in Pennsylvania, there would be little chance in the foreseeable future of the state changing its laws from the status quo, i.e., no same-sex marriages and no civil unions. That statement, I still think, is correct.

Should Catholic legal theory have more to say?

This is the time of year when I confess to feeling some blawg envy.  Most blawgs are scrambling to offer immediate and insightful commentary on the Supreme Court decisions as they're handed down, as happened today with Boumediene v. Bush.  At MoJ, we tend not to have much to say, for the understandable reason that Catholic legal theory, whatever value it has in some contexts, is wildly indeterminate when it comes to analyzing judicial decisions that do not directly implicate natural law principles (e.g., abortion, marriage, parental rights).  In analyzing a case like Boumediene, we can (and should, in my view) point out that any meaningful conception of human dignity compels us to provide fair and effective procedures to detainees, but that might prompt the retort, "Yes, but you can't apply CST principles directly to court rulings as you might with legislative or executive actions."  There always seems to be a "limited role of the judiciary" defense available, and there does not seem to be a Catholic theory of constitutional interpretation (at least not yet).

So is this what keeps MoJ from weighing in as part of the annual Supreme Court festival of armchair judging?  Does Catholic legal theory have anything distinctive to say about Boumediene?

SSM and the expansive state

Given my recent posts on SSM, readers have been providing me with some good reading material on the subject.  Here's an interesting essay from the National Catholic Register addressing the religious liberty fallout from the creation of SSM.  The essay is overstated in spots, but in general I agree that the threat to religious liberty is serious.  (Though I'm not sold on the notion that the threat to religious liberty is itself a persuasive reason to oppose SSM.)  In any event, here's an insightful snippet about the the tendency of SSM to come with a more statist orientation than traditional marriage:

Marriage between men and women is a pre-political, naturally emerging social institution. Men and women come together to create children, independently of any government. The duty of caring for those children exists even without a government or any political order. . . .

Because marriage is an organic part of civil society, it is robust enough to sustain itself, with minimal assistance from the state.  By contrast, same-sex “marriage” is completely a creation of the state.

The case for a marriage amendment

Villanova law prof Robert Miller has posted his testimony before the Pennsylvania Senate in support of a state constitutional amendment banning same-sex marriage.  It's well worth reading; here's an excerpt:

Based on my work in moral and legal philosophy, I have views on many of the considerations that these arguments [about same-sex marriage] raise. In general, I think the first [traditional] view is more likely to be correct. That, however, is not what is important here. What is important is that I recognize, and I think any honest person who looks at the arguments has to recognize, that the issues surrounding same-sex marriage are both very complicated and very deep. Any definitive view of the matter requires that a person, at least implicitly, take positions on any number of moral, philosophical, political, sociological, and empirical questions. As I consider these matters, my overwhelming impression is that the only thing obvious and certain about the question of same-sex marriage is that reasonable people can in perfect good faith disagree about this question.

But if resolving the issue of whether the state should recognize same-sex marriages or the equivalent requires us to make many difficult judgments in, among other areas, morality, philosophy, and politics, and if the question is one about which reasonable people can disagree in good faith, then it is clear to me that the issue is not one that should be resolved by courts. Courts are composed of judges, and judges are lawyers, and lawyers have expertise in the law. Legal knowledge and legal skills of the kind we convey in law schools will not resolve deep moral, philosophical, and political issues like those involved in the same-sex marriage dispute. The issues involved in same-sex marriage are much bigger than legal issues. They touch on profound questions such as the foundations of morality and meta-ethics, the relationship between the individual and the state, and the meaning of human sexuality. Lawyers, even judges, are no better than anyone else in forming opinions on such profound questions. In fact, on average, lawyers may even be worse than other people in dealing with such questions, for lawyers are often tempted to apply legal methods, at which they are adept, to philosophical problems, for which such methods are necessarily inadequate.

"You've been left behind."

Christian compassion knows no limits: a Rapture-triggered email service for only $40 per year.

UPDATE: No, this service is not a joke.

Legal ethics forum

Since Steve, Rick, Eduardo, and Susan have paved the way for MoJers to plant the flag elsewhere in the blogsophere, I feel comfortable giving a quick plug for the Legal Ethics Forum, a group blog that I've joined this week.  In addition to blogging about more traditional questions of professional responsibility, I'll be doing my best to expand the conversation to include a more deliberate focus on the moral dimension of professional identity. 

The Lawrence mess

Yesterday the Tenth Circuit ruled that Lawrence v. Texas struck down state sodomy laws under a rational basis test.  The Ninth and First Circuits have ruled that Lawrence recognized a fundamental right to private adult sexual intimacy.  Dale Carpenter comments: "There is a real and growing circuit split on this basic doctrinal issue with potential consequences to a range of governmental policies. Whatever one thinks of the result in Lawrence, the Supreme Court has created a mess that only it will be able to clean up."

Stuntz on survival

In the course of updating readers on the progress of his cancer treatment, Harvard law prof Bill Stuntz offers a powerful and challenging reflection on the objectives of medical care:

Doctors see their job as fixing the broken places in our ailing bodies. When it comes to the kinds of brokenness that can be repaired, that is as it should be. But there is another set of medical problems that cannot be fixed: cancers that won’t disappear, pains that will last as long as life does. When it comes to those problems, repair is not the proper goal. A better word is redemption: the enterprise of carving out some space, however small, for life—not mere survival—in the midst of diseases that seek to squelch it. . . .

That mind-set follows naturally from my faith, I believe—but a good many of my fellow believers seem to disagree. One of the more surprising aspects of Christian culture in our time and place is the widespread embrace of longevity and survival not just as moral goods, but as moral imperatives. That embrace seemed all too evident in the Terri Schiavo controversy of a few years back, and in the long-running conversation about medical treatment of dying patients. I’m no fan of euthanasia, but I’m also no fan of the idea that physical longevity is a morally proper goal in circumstances like Schiavo’s—or in circumstances like mine. Just because medicine can sustain the body for awhile longer, that doesn’t mean it should always do so. Life is more than a beating heart. And life is what we should be seeking. The good news is, if you look in the right places, it’s usually there to be found.

Just a bit more on SSM

Regarding my earlier post, a readers asks why I have a problem with renaming civil marriage as "civil unions" and leaving marriage to religious communities.  My problem is with the set of norms (or lack thereof) that come with civil unions.  "Marriage" comes with a lot of cultural baggage -- some bad, but mostly good.  The expectations of permanence, exclusivity, and openness to child-rearing are hugely important signals and encouragements to marriage participants.  Maybe we could load some of that into the institution of "civil unions," but I'm not sure how.

I have two comments on Fr. Araujo's helpful response to my post.  First, if we're going to convince society to reject same-sex marriage, I'm not sure that it's enough to argue that, in light of the natural differences between the genders, marriage must consist of different genders.  There needs to be a nexus between the biological fact and the function/purpose of marriage, doesn't there?  With the prevalence of adoption and assisted reproduction technology, the nexus is not as obvious as it once was.  If studies could show that same-sex parenting leads to sub-optimal outcomes in children, we might have that nexus.  But I don't think we can know that at this stage.

Second, I agree that racial differences are a superficial distinction on which to base a marriage ban.  But propopents of those bans did not think so.  If they viewed marriage as the means by which to propagate the race, keeping marriage within the race might be an understandable (but erroneous) limitation flowing from marriage's purported nature.  There is a much stronger case for marriage, by its very nature, being limited to a man and woman, but we still need to connect the dots, and that's where it becomes trickier.  We can't just assert a biological fact as the public policy conclusion.

Finally, I hope that I do not come across as purporting to possess all the answers to these very difficult questions.  I'm struggling not only to articulate where I stand on these huge socio-legal-political-moral issues, I'm struggling to discern where I stand.  I greatly appreciate the constructive feedback and challenging perspectives offered by others.

More on friends with benefits (and same-sex marriage)

In response to the thoughtful observations/questions by Elizabeth and Michael, my concern with the push to recognize friendships legally is not so much focused on the good-faith desire to remedy a particular case of injustice, say where a friend cannot gain hospital visitation privileges; my concern derives from the extent to which the push is part of a broader effort to end the law's "privileging" of marriage.  Here's a quote from Laura Rosenbury's paper, Friends with Benefits:

"[A] more radical aspect of this type of proposal would be its rejection of private contracting to readjust the current consequences of marriage determined by the state. Instead, some or all of the benefits, obligations, and default rules currently reserved for spouses would be available alike to spouses, friends, or the other individuals designated. Such a proposal would therefore allow all individuals, not just married couples, to decide how they would like the state to support their personal relationships, if at all. Unlike the current state of the law, marriage or a marriage-like relationship would not be a prerequisite for taking on the packages of benefits, obligations, and default rules provided by federal, state and local governments. Instead, individuals could choose to apply those packages to other types of personal relationships without engaging in private contracting."

For a real-world example of the movement's vision, read the "Beyond Same-Sex Marriage" statement from 2006. 

Participating in a state-registered marriage entitles you automatically to certain benefits and privileges. In my view, participating in a state-registered friendship should not. I support the possibility of allowing individuals to contract with each other or with third parties to attain some of the benefits that automatically flow to married couples. Such contracts do not require the state to elevate friendship as a relationship of equal importance to marriage -- indeed, they do not require the state to do anything except to refrain from invalidating the contracts. I oppose the suggestion that groups of friends should be able to register their relationships and receive a certain set of benefits by operation of law (as opposed to the operation of the agreements they reach on a case by case basis).  Marriage should be privileged because of its channeling function: it calls us to a commitment (or at least should call us to a commitment) that is greater than our own cost-benefit maximizing episodic calculation.

Michael also asks why I assert that "It is difficult to imagine marriage maintaining its privileged status (as I believe it should) twenty years from now if a significant portion of the population is ineligible."  Our society is on the path toward extending full citizenship to gays and lesbians, and I do not think there is anything that can knock us off that path at this point.  I have not seen compelling arguments as to how full citizenship can be maintained without extending the same rights and privileges as heterosexuals enjoy in terms of the state's support of their intimate relationships. (I'm talking about as a matter of politically persuasive justification, not as a matter of constitutional right.)   For those who oppose SSM, the challenge will be to articulate (in secularly accessible terms) a distinction between opposition to SSM and opposition to interracial marriage.  The categorically procreative / biologically unitive argument is unlikely to do the trick.  If the compromise position becomes civil unions for same-sex couples, my fear is that civil unions will become the non-discriminatory norm, and that the state will eventually get out of the marriage business entirely, leaving it as a relic of "illiberal" religious communities.  For some, maybe that's the "least bad" choice, but to me, that would be a shame.

The status quo will not hold.  Gays and lesbians are visible, and they (and their relationships) are rapidly gaining acceptance as more Americans encounter them in their everyday circles.  The shift in attitudes on homosexuality from my parents' generation to mine has been remarkable, but I would predict it will be nothing compared to the shift in attitudes from my generation to the next.  From what I've seen thus far, moral opposition to homosexual relationships is just not conceivable to 98% of the law students I've taught.  I don't think a two-tier system is a long-term solution: eventually the most inclusive form of state-sanctioned commitment will win out, either because citizens vote with their feet or because the state decides that it no longer has a legitimate justification for maintaining the two-tier status.  My question is, what do we want marriage to look like 20 or 50 years from now, and what is the most likely path by which it will even remotely approximate that vision?  If same-sex marriage is not an option, what path should we take?

Friends with Benefits

Yesterday's Boston Globe had a lengthy article on the push by some legal academics to have the law recognize friendships.  The reporter did a fair job, especially considering who she had to work with as the designated skeptic (me).  The article does not focus on the SSM debate, but this issue does underscore, in my view, the cost of excluding an entire segment of the population from the institution of marriage.  Gays and lesbians understandably will seek state support through non-marital relationships, which takes us closer to a world where individuals simply choose the category of relationship through which to receive state support, and the state is neutral as to the form of, and committments embodied in, those relationships.  It is difficult to imagine marriage maintaining its privileged status (as I believe it should) twenty years from now if a significant portion of the population is ineligible.

Kmiec v. Carpenter on SSM

Doug Kmiec has an entertaining retelling of his debate last night on same-sex marriage against Dale Carpenter.  Maybe someone else can enlighten me, because this brief narrative is tantalizingly ambiguous -- does Prof. Kmiec, in reality, favor same-sex marriage?

Institutional moral identity and the secular university

Cathy Kaveny poses a fascinating hypothetical about the legitimacy of a private secular university staking out a moral identity that would warrant an institutional refusal to support pro-life student groups.  While I would disagree with the moral claims embodied in that identity, it’s well within a private university’s rights to do so.  I have one potential objection, though.  Assume that elite secular universities begin to adopt a moral identity celebrating individual autonomy, an identity that could be used to justify the exclusion of student groups that oppose abortion or same-sex marriage, or that limit their membership/leadership based on religion. Especially when implemented by the “ruling class” of American higher education, these policies seem geared less toward staking out a particular substantive moral worldview, and more toward the negation of disfavored alternative worldviews.  Put more simply, I am more comfortable with a Catholic university excluding certain student groups or honorees not only because I tend to agree with the Catholic university’s moral claims, but also because the Catholic university is staking out a countercultural moral identity. Elite secular universities are not staking out countercultural moral identities; they are squashing countercultural moral identities.  A Catholic university can be, at its best, a bulwark against the hegemony of intellectual orthodoxy; Yale is more likely to be a vehicle for that hegemony. To be sure, if we were still in Christendom and the Catholic Church was still the dominant intellectual and cultural force in society, I would probably feel less comfortable about Catholic universities refusing to affirmatively support dissenting voices within the university community.  But we’re long past Christendom.

Is solidarity utopian?

Thanks to Michael for forcing my paper on his captive audience.  As for his student's suspicion that my espousal of solidarity is "utopian," I disagree to the extent that "utopian" refers to an unrealistic vision for an entire society.  Solidarity is not premised on the likelihood of its universal adoption.  The Catholic notion of reciprocity does not hold that I should resist living out the truth of the Gospel until those with whom I interact also agree to live by that truth.  I am called to live out that truth regardless of consequences.  That's where subsidiarity comes in -- solidarity is so radically opposed to prevailing social norms (and fallen human nature?) that the best we can hope for from the state is freedom to strive to act according to solidarity's call.  (The state can and should act consistently with solidarity, but state action will never fully embody solidarity.)  Reciprocity requires me to recognize that my invocation of rights only makes sense if it occurs against a backdrop of corresponding responsibilities.  Of course I should encourage others to recognize, and act according to, this notion of reciprocity, but reciprocity does not function as some sort of trigger without which I'm relieved of observing other social principles that flow from human dignity.

So will the solidarity-observing human person lose out to the self-preferring person on a regular basis?  I suppose it depends on how we understand what it means to "lose out," but there will undoubtedly be times when the other-focused person misses out on some of the trappings of "success" and "enjoyment" in this life.  Some examples are easy -- who hasn't thought of really fun ways to spend the money that goes into the offering plate at church?  More generally, though, I agree with the student that the cost of solidarity is clearly a buzzkill in many areas of life where preferring the self is seen as a ready vehicle for pleasure maximization.  The legal academy is undoubtedly one of the more self-aggrandizing professions that I have encountered, and I think it makes the practice of solidarity significantly more difficult, at least for me.  I tell myself that I'm just promoting my ideas, not myself, but I'm dubious. 

In any event, you can download the paper in question here.  In fact, please download it!  Get your friends to download it!  Repeatedly!  Boost my SSRN numbers our society's understanding of solidarity!

Moyn on Maritain and Human Rights

Columbia history professor Samuel Moyn has posted his paper, Jacques Maritain, Christian New Order, and the Birth of Human Rights.  (HT: Solum) Here's the abstract:

This paper traces some changes in Catholic political theory eventually taken up and extended during World War II by Jacques Maritain, who became the foremost philosophical exponent of the idea of "human rights" on the postwar scene. I show that the invention of the idea of the "dignity of the human person" as embedded in the Universal Declaration of Human Rights occurred not in biblical or other longstanding traditions, but instead in very recent and contingent history. In conclusion, I speculate on what the restoration of Maritain's route to human rights to its proper contexts might suggest about the cultural meaning the idea had in postwar Continental Europe, which became its homeland.

More on the pedagogical impact of marriage law

Here are two more reader responses to the hypothetical about the lessons children will absorb from a loving and committed same-sex couple who are unable to marry. 

Jonathan Watson writes:

The argument seems to be that "homosexuals are going to raise children in happy environments, so you may as well have them be married so that your own children will not want to raise children outside of marriage if they encounter ."

1. As a commenter noted on the McArdle blog, children may also encounter unmarried heterosexual couples raising children, and are more likely to do so than encountering unmarried homosexual couples. What lesson will the child learn then, and why? If a child visits a friends house where a married heterosexual couple is unhappy, will the child then draw the lesson that marriage makes people unhappy? Given recent studies, it is much more likely that the child looks to his / her own parents for these sorts of lessons, and much less so other parents.

2. The hypothetical commits the fallacy of many questions. It assumes either that opponents of gay marriage do not know the parents of their children's playmates, or assumes that parents who are against gay marriage will have no problem with their child going to the home of a homosexual couple with a child.

3. The hypothetical is problematic insofar as its conclusion - gays ought to be allowed to be married - is based upon an effect of not allowing gay marriage. One cannot argue that something ought to be permitted by arguing backwards from the negative effects of not permitting it. One cannot argue for the good of abortion (to take an extreme case) by arguing that women who have abortions are financially better off in the future, or for a more controversial effect, that crime rates are lower because the poor who have abortions are aborting future criminals.

And Jeff Rowe writes:

While the hypothetical scenarios you've been posting, lately, are thought provoking, I'd suggest they might be too narrow in scope to capture the ultimate reality, as social phenomena, of what is being proposed in the same-sex marriage debates. I would agree that, in this case, #1 is preferable to #2, but if we're going to approach these questions in a comprehensive manner, we need to take a broader view. For example, at the same time as kids are getting the "loving couple" message from #1, what questions are they grappling with concerning the matter of sexuality in general? Adolescence and puberty confront kids with a wide variety of impulses and questions, so are they being helped or hindered as society broadens the landscape of "normality" when it comes to sexuality? I don't have an answer to this question, but it seems to merit asking.

Taking another step back from the personal, it also seems worth considering the potential stability of same-sex relationships. After all, we have plenty of evidence pointing to the detrimental impact of divorce on children, and I'd argue that anyone who has spent any time in a public school can see quite clearly that, far from being personal impacts, the ramifications of divorce are visible in both the percentage of resources being consumed by social problems stemming at least in part from the prevalence of divorce in society and, ultimately, in the quality of the education that all students are receiving. With this experience to guide us, then, it seems only reasonable that we should move cautiously and with careful consideration of the potential consequences of expanding the definition of what is arguably society's most important social structure.

At the very least, it seems ironic that, while we live in an age when research data emerging from the physical sciences are presented as beyond question when it comes to issues such as global warming, we seem more selective in our willingness to be guided by what we learn from the social sciences. Certainly, the social sciences are a bit fuzzier, so to speak, but that doesn't mean we can't learn from them and, more importantly, be guided by them as we consider codifying changes in the very fabric of society.

It's easy to sympathize with the desires of well-intended individuals. It's much more difficult, however, to determine whether what works in isolation will work for society as a whole. But that doesn't mean we don't have the responsibility to try.

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.

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.

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. 

Marriage as intrinsic good and contraception / divorce

A reader comments on Prof. George's argument regarding marriage between a husband and wife as an intrinsic good:

In his response to your hypothetical, Professor George offers a clear presentation of the intrinsic good of marriage in the language and logic of the natural law tradition. My worry is that the ready availability of divorce and easy legal access to contraception already compromises this "intrinsic good." So that, if we are to take seriously George's understanding of how the law should teach, we must be committed both to making divorce and the use of contraception within marriage illegal.  I don't know if George himself is committed to these positions, but I would hazard that many people who more or less subscribe to the "intrinsic good" of marriage articulated by George are not willing subscribe to them. So the question becomes, why should divorce and contraception remain legal while homosexual unions remain illegal?  I'm not sure that George's argument provides an answer.

Prof. George can correct me if I'm wrong, but my guess is that he would not favor the re-criminalization of contraceptive use / distribution because of the intrusiveness of such laws.  It is generally seen as less problematic to grant a negative liberty to engage in immoral conduct (the right to use contraceptives free of government coercion) than to grant a positive liberty to do so (the right to have my chosen relationship recognized and affirmed by the government).  I would also guess that Prof. George would favor the repeal of no-fault divorce laws.

Witt v. Department of Air Force

The Ninth