Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Saturday, July 31, 2004

"When One Is Enough" con't

[These are the letters to the editor published in the New York Times Magazine, Aug. 1, 2004.]

When One Is Enough

I sat in stunned silence after reading the Lives column about Amy Richards (as told to Amy Barrett, July 18).

The casualness of Richards's decision to decide which fetus to keep was heartbreaking beyond words. The surviving child is the doomed one.

Thea Roeser

I have always been pro-choice. What I realized after wrestling with my disturbance at your article is that "pro-choice" seems to preclude any choice but one. If the freedom to choose removes a sense of awe from the realm of human possibilities, is it freedom or a cruel burden?

Elaine A. Zimbel

Of all the reasons for having an abortion, I never thought that the prospect of living in Staten Island and shopping at Costco would be among them.

Elizabeth Cosenza
Coram, N.Y.

I would suggest that "one is too many" for a woman who risks unwanted pregnancies by not taking the pill because it makes her moody, who is not married and who is willing to eliminate innocent offspring out of inconvenience.

My compassion goes to those infertile readers of this horrible and horribly cavalier story.

Laura Schlessinger
Los Angeles

Kudos for daring to print this. For better or worse, your readership needs to know that such women exist, that such things occur and why they do. The story from Peter's point of view would be well worth a follow-up.

Bruce Bender
Oceanside, Calif.

Richards's decision brought back memories of "Sophie's Choice." How does one "choose" which of her children will live and which will not? A woman's right to choose is a never-ending moral and legal debate. A woman's right to "select," as Richards did, must certainly be divisive within the pro-choice movement.

David Vermylen
Lake Forest, Ill.

I was frozen by the coolness and apparent indifference of Amy Richards toward the twin babies she found would complicate her life.

Upon concluding her essay, I wondered how many new members she brought to the ranks of the pro-life movement and, on a positive note, how many women's minds were changed among those who were pondering an abortion in their own lives.
Robert R. Farley
Elizaville, N.Y.

I am speechless. As the mother of multiples (identical twin daughters), I was hoping there would be a different ending. I used to think I was pro-choice. Not anymore. Not after reading that Richards wanted to "get rid of one of them. Or two of them."

Margaret Cate
Ocean Grove, N.J.

This is perhaps the bravest story I have ever heard. I am sure that it will cause a barrage of hate mail from those who will mourn the lives of the unborn children, and it is sad that there are so many who would impose their morality.

The issue of having children, how many and the choice of when and even if one bears them once conceived is among the toughest an individual will ever make. There will always be those who say the rules in life are simple and inflexible, but life really isn't that way.

David J. Melvin
Chester, N.J.

Though I respect Richards's right to choose — and she obviously has a keen awareness of that right — I find it surprising that she seems to have neglected adoption as one of her possible choices. There are people who would have been thrilled to raise her twins. I suspect that the joy of helping someone start a family might ease the burden of a difficult pregnancy.

Dave Smith
Blauvelt, N.Y.

July 31, 2004 in Perry, Michael | Permalink | TrackBack (0)

Friday, July 30, 2004

The Anti-Semitism of the Presbyterian Divestment

When the PC(USA)'s General Assembly voted to divest the denomination's funds from corporations doing business with Israel (see my post), many folks in the blogosphere jumped to condemn the action as anti-Semitic (including the big guy). At the time, it struck me that people were being too quick to play the anti-Semitism card. Playing that card whenever Israel comes into criticism is a problem for two reasons. First, it tends to silence legitimate criticism of Israel, which is no more perfect and no more immune from constructive criticism than any other polity. Second, over time, playing the anti-Semitism card every time somebody criticizes Israel tends devalue the moral authority of that card. (Remember the story of the boy who cried wolf?)

In an Opinion Journal column, however, Jay Lefkowitz suggests:

A more nuanced standard, and one that properly recognizes that legitimate criticism of Israel is perfectly appropriate, was articulated last year by Natan Sharansky. A member of the Israeli cabinet who for years had been a prisoner of conscience in the Soviet gulag, Mr. Sharansky defined one current expression of anti-Semitism by three features: the application of double standards to Israel, the demonization of Israel and the delegitimization of Israel.
Fair enough. A nuanced standard indeed. Applying it, Lefkowitz goes on to make a persuasive case that the Presbyterian divestment was anti-Semitic:
The recent action by the Presbyterian Church sadly satisfies Mr. Sharansky's test. The church has singled out Israel, alone among all the nations of the world, for divestment. It has demonized Israel's treatment of the Palestinians, and it has delegitimized Israel's right to self-defense.
The church is not calling for divestment of its $7 billion portfolio from China, despite China's denial of the most basic political and religious rights and its particularly harsh treatment of followers of Falun Gong. It is not condemning Russia, even though Russia's policies in Chechnya are by any human-rights standard atrocious. It is not even calling for economic sanctions against Syria or Iran, whose human-rights records for their own people are egregious and whose Jewish citizens are denied the basic civil rights and liberties afforded to all Israelis, including its Arab citizens, some of whom even serve in the Knesset.
Lefkowitz also notes:
In contrast to the action taken by the Presbyterian Church this month, the Roman Catholic Church has recognized that one-sided criticism of Israel can at times be so grotesque that there is no name to describe it other than anti-Semitism. And in a document ironically signed the same week as the Presbyterian General Assembly, the Catholic Church equated anti-Zionism with anti-Semitism.
As regular readers know, I left the Presbyterian Church several years ago and converted to Catholicism. These events are just one more reason I'm glad I changed teams.

July 30, 2004 | Permalink | TrackBack (1)

Corporations Are Mediating Institutions

At the risk of blowing my own horn (a risk I seem unduly inclined to take!), I wanted to note that I tackled the role of the corporation as a mediating structure (the subject of Rob's latest post) in my article Community and Statism: A Conservative Contractarian Critique of Progressive Corporate Law Scholarship, in which I argued that:

Most people belong to a host of communities with the potential to inculcate virtue and other communal values: churches, schools, fraternal organizations, and the like. While it may be unrealistic to think of a large multinational corporation as constituting such a community, it is perfectly plausible to think of the corporation as an intermediary institution standing between the individual and Leviathan. In other words, while virtuous citizens are developed by smaller institutions with roots in the local community, the corporation still can act as a vital counter-vailing force against the state. Resistance to expanding the realm of mandatory corporate law rules thus responds to the “notion that the prevailing moral threat in our era may not be the power of the corporations, but the growing power and irresponsibility of the state.”
Turning to the question Rick posed, I'm still exploring the concept of corporate entities in Catholic thinking. Thus far, however, I have been unpersuaded that there is any reason in theology or economics to treat the corporation as a real person. Reification is a useful fiction and semantic convenience, but one must always remember that reification is a fiction.

July 30, 2004 | Permalink | TrackBack (0)

Thursday, July 29, 2004

Corporations as Mediating Structures

I am entirely unqualified to speak on corporate law issues, but since Rick threw out the invitation (below), I'll chime in on a broader point. I'm not sure whether corporations should be able to sue for discrimination, but I'd be very hesitant to categorically characterize corporations as "pieces of paper sitting in a secretary of state's office" (as Larry Ribstein does) for purposes of framing their legal standing.

Richard John Neuhaus and Peter Berger famously characterized the dilemma of modern life as emanating from the interplay between the public sphere -- where alienating "megastructures" hold sway -- and the private sphere -- where meaning, fulfillment, and personal identity are to be realized. According to Neuhaus and Berger, this public/private split:

poses a double crisis. It is a crisis for the individual who must carry on a balancing act between the demands of the two spheres. It is a political crisis because the megastructures (notably the state) come to be devoid of personal meaning and are therefore viewed as unreal or even malignant. Not everyone experiences the crisis in the same way. Many who handle it more successfully than most have access to institutions that mediate between the two spheres. Such institutions have a private face, giving private life a measure of stability, and they have a public face, transferring meaning and value to the megastructures. Thus, mediating structures alleviate each facet of the double crisis of modern society. Their strategic position derives from their reducing both the anomic precariousness of individual existence in isolation from society and the threat of alienation to the public order. [To Empower People at 215]

Corporations may function as mediating structures. Smaller, non-profit corporations are especially likely to bring folks together in pursuit of a bonding, identity-shaping objective -- i.e., provide a vehicle for participants to define themselves in a way that sets them apart from the surrounding, impersonal society. Large corporations focused on the bottom-line are less likely to meet that need. Microsoft, for example, is an obvious megastructure.

But to the extent that particular corporations do serve a mediating function, it is important to acknowledge that function and protect it where possible, just as it's important to protect the mediating functions of voluntary associations. (That's why Dale was such an important case for the Boy Scouts to win, regardless of whether one approves of their policy toward gays.) My concern with the "piece of paper" rhetoric is that it encourages our society's tendency to view legal issues through the one-dimensional lens of individual rights versus collective will. If we want to bring about a society with a robust system of bulwarks against alienating and coercive megastructures, we may need to think seriously before poking holes in corporations' claims to be something more than the sum of their parts.


July 29, 2004 in Vischer, Rob | Permalink | TrackBack (0)

The Corporation as Person

Our own Professor Bainbridge has a post up about a recent Ninth Circuit decision concluding that (in Steve's words): "A corporation can acquire a 'racial identity' and therefore have standing to sue in its own name and right under federal civil rights laws on grounds that it was unlawfully discriminated against." As Steve says, "this is just nuts." Steve continues: "There is no such thing as a corporate person. The corporation is simply a legal fiction - albeit a very useful one - by which we describe a complex set of contracts having as their nexus a board of directors."

Steve also links to some other posts on the matter, including one by law professor and corporate-law expert Larry Ribstein.

I am, to be sure, *not* a corporate-law expert. I have written, though (as has our colleague Rob Vischer) about the role and function of "associations" in the first amendment context, suggesting -- among other things--that we ought not to view "expressive associations" merely as vehicles for individuals' expression, but also as educators, as "players" in civil society, and as competitors with the state in the citizen-formation game.

It might also be worth thinking about Kathleen Brady's latest (see this post) paper on the free exercise rights of religious organizations.

I assume that Steve is right, and that -- for corporate-law purposes-- a corporation is not reallya "person", but is a set of contracts. I wonder, though, if Catholic scholars -- living and thinking, as we do, in a Church that claims to be, in a meaningful sense, the body of Christ -- might want to resist reducing the corporation to (merely) such a set?

Just a thought. Kathleen? Rob? Steve?


July 29, 2004 | Permalink | TrackBack (0)

Wednesday, July 28, 2004

Ron Reagan, Jr. versus the Gospel of Life

Ramesh Ponnuru's NRO column starts off with a bang and then just gets better:

Ron Reagan junior's speech tonight was not nearly as contemptible as I had expected it to be. He didn't exploit his father's death or his family's suffering in the text of his remarks, although of course the mere fact of his speaking at the Democratic convention was exploitative enough. (He certainly was not picked for his excellence in delivering speeches.) The idea that his speech was not "political" or "partisan," as he put it, is probably not an insult to our intelligence; it is probably his speechwriter's insult to his.
Reagan's basic argument was that it would be cruel to deny sick people treatments because some people have "theological" objections to funding embryonic-stem-cell research. Other people will think it is cruel to run a political campaign that exaggerates the potential for this line of research to generate cures. Reagan said he wanted to "try and paint as simple a picture as I can while still doing justice to the incredible science involved." He failed to do that justice. The scenario he outlined — of medicine that would repair the brains of Parkinson's sufferers, of "your own personal biological repair kit standing by at the hospital" — is generally considered unlikely. To say that it could bring "the greatest medical breakthrough in our or any lifetime" is to show that no real attempt was made at doing justice. Rep. Langevin's introductory remarks, in which he suggested that taxpayer subsidies would make him walk again, and implicitly also help others in his situation, was also unrealistic — and, to that extent, it was cruel and contemptible.
Go read the whole thing. Oh, and while you're at NRO, also check out Robert George's column too:
What was most shameful about it was his dishonesty in eliding the distinction between human embryonic stem cells and the human embryos that are deliberately killed in the process of stem-cell harvesting. After promising to "do justice to the science," Ron Reagan described the process of obtaining embryonic stem cells in a way that left out the fact that the cloning process he described creates a human embryo which is killed in order to harvest its stem cells. Ordinary listeners who are unfamiliar with cloning technology — and, by the way, Ron Reagan was careful not to use the word "cloning," though that is exactly what he was describing — would be left with the impression that the process generated embryonic stem cells without generating an embryo! Indeed, by ambiguously referring to "these cells," in order to avoid revealing the fact that the cloning process generates a living human embryo which is then deliberately killed, Ron Reagan no doubt left some people with the impression that opponents of embryonic-stem-cell research consider embryonic stem cells, rather than the human embryos from which they are harvested, to be human beings. But this is the very reverse of the truth. No one believes that stem cells — embryonic or otherwise — are human beings. Those of us who oppose embryonic-stem-cell harvesting object to the practice because it necessarily involves the killing of human embryos. And human embryos are nothing other than human beings in the embryonic stage of their natural development. Ron Reagan refuses to face up to this fact.

July 28, 2004 | Permalink | TrackBack (0)

Did we forget to mention . . . ?

In an editor's note today, the New York Times has the following helpful background on the infamous triplet-abortion column from last week (you can read the previous MoJ posts on the colum here, here, here, and here):

The Lives column in The Times Magazine on July 18 gave a firstperson account of the experience of Amy Richards, who had been pregnant with triplets and decided to abort two of the fetuses. Ms. Richards, who told her story to a freelance Times Magazine contributor, Amy Barrett, discussed her anxiety about having triplets, the procedure to terminate two of the pregnancies and the healthy baby she eventually delivered; she expressed no regret about her decision.

The column identified Ms. Richards as a freelancer at the time of her pregnancy but should have also disclosed that she is an abortion rights advocate who has worked with Planned Parenthood, as well as a co-founder of a feminist organization, the Third Wave Foundation, which has financed abortions. That background, which would have shed light on her mind-set, was incorporated in an early draft, but it was omitted when an editor condensed the article.

Not to be too conspiratorial, but that seems to be a fairly significant omission, for by erasing her background, the Times effectively laundered the column into a woman-on-the-street perspective of a (purportedly) average New Yorker basking in the amoral wonders of lifestyle-preserving medical technology, rather than a professional abortion rights advocate pushing the boundaries of pro-choice ideology.


UPDATE: A reader steered me to another blog raising the possibility that the column was timed to coincide with Planned Parenthood's launch of the "I had an abortion" shirts. At a minimum, there's some eyebrow-raising connections to all of this. Read about them here.

July 28, 2004 in Vischer, Rob | Permalink | TrackBack (0)

America-Worship and the Presidency

In this election season, Martin Marty has offered some sage advice for candidates contemplating an inaugural address. Work done by Michael Bailey and Kristen Lindholm traces changes in inaugural addresses over the decades, with recent addresses increasingly reflecting a "new element of divinity," which "is nothing less than an idealized version of American democracy itself." Marty extracts an insightful critique from their findings:

What [Americans] heard in the first half of our presidential history is very different from what has come up ever since. Originally, inaugural addresses, prime-time summations of presidential philosophies and intentions, had three main elements: 1) modesty; 2) American exceptionalism; 3) accent on "the operations of the Constitution."

No more. Instead, bipartisanly, with boosts from Woodrow Wilson and climax in Ronald Reagan, over a century of talks abandon "civic education," often to partisan or universal acclaim. The three marks now are: 1) immodesty about limitless America; 2) American universalism; and 3) "paeans to America." What the authors' counting and listening turn up amounts to something that prophets in Judaism, Christianity, and Islam would have summarized in a simple term: idolatry of the nation. . . .

Since FDR, "God is still invoked, but America's real faith is faith in America: not in the government, not in the Constitution, not strictly speaking, in the people (though this comes closer), but in America as Idea. The American way is God's way," and offers a "glimpse of perfection." . . .

One would believe, or like to believe, that there is some hunger for return to the earlier style of inaugural addresses. There must be some market for moral and civic education and not worship of nation and, hence, of self. Serious question: could a candidate be elected who doesn't address the public this way?


July 28, 2004 in Vischer, Rob | Permalink | TrackBack (0)

Brady on "Religious Organizations and Free Exercise"

Our own Kathleen Brady has a new paper available on SSRN, "Religious Organizations and Free Exercise: The Surprising Lessons of Smith." Here is the abstract:

Much has been written about the protections afforded by the Free Exercise Clause when government regulation impacts the religious practices of individuals, and if one looks for guidance from the Supreme Court, the rules are fairly clear. Prior to 1990, the Supreme Court had long employed a balancing approach that afforded - at least in theory - significant relief. Under this approach individuals were entitled to exemptions from laws which substantially burdened religious conduct unless enforcement was justified by a compelling state interest. In 1990, in Employment Division v. Smith, the Supreme Court abandoned this balancing test for all but a few categories of cases. Under the Court's new rule, the Free Exercise Clause does not excuse individuals from compliance with neutral, generally applicable laws that are not intended to burden religious exercise. Relief is only appropriate where laws are designed to thwart religious exercise.

The judicial landscape is much different when one turns to the free exercise rights of religious organizations. Government regulation frequently impacts the activities of religious groups, and clashes between religious organizations and regulators are common. Surprisingly, however, the Supreme Court has never directly addressed the scope of free exercise protections when government regulation interferes with the internal affairs of religious groups. There are cases involving religious organizations, to be sure, but in none of these cases has the Court addressed neutral government regulation that directly impinges upon internal church affairs.

This article begins by identifying three possible approaches to such regulation, all of which can be supported indirectly by Supreme Court precedent. The article then examines the Supreme Court's decision in Smith for guidance in choosing from among them. For some courts and scholars, the meaning of Smith for religious groups is simple: religious groups, just like religious individuals, are not entitled to special exemptions from neutral state action. For others, however, Smith is not relevant at all to the free exercise rights of religious groups, and they look to other lines of Supreme Court precedent for appropriate standards. My examination of Smith reveals that Smith is not only relevant to an analysis of religious group rights but is also very helpful for choosing among the available options. The opinion in Smith raises a number of issues that clarify what is at stake in making this choice, and its lessons are surprising. When read carefully, Smith supports a broad right of church autonomy that prohibits government interference with internal church affairs regardless of whether the interference is intentional and regardless of whether the activities affected are religious in nature or more mundane matters.

MOJ readers might remember that Justice Brown, of the California Supreme Court, flagged the "How, if at all, does Smith apply to religious organizations?" question in her dissent in the Catholic Charities case. (Here is a comment I had on the case).

Kathleen's paper looks interesting and important. As one of those who is constrained to conclude that Smith is basically right, and that the First Amendment does not *require* (nor does it prohibit) governments to exempt religious believers from generally applicable laws, I'm particularly interested in learning how Smith supports a "broad right of church autonomy" -- a right that, in my view, is at the very heart of any attractive and plausible understanding of religious freedom.


July 28, 2004 | Permalink | TrackBack (0)

Tuesday, July 27, 2004

The New York Times Comes Clean

The New York Times is a must-read, in my view, for anyone who's serious about cultural engagement, but its seemingly willful ignorance of the blatant sociological, political, and religious predispositions with which it approaches the world is often mind-boggling. For those who have shared this reaction, read today's column by the Times' public editor, Daniel Okrent. He admits that, "if you think The Times plays it down the middle on any [social issues], you've been reading the paper with your eyes closed." Further,

if you're examining the paper's coverage of these subjects from a perspective that is neither urban nor Northeastern nor culturally seen-it-all; if you are among the groups The Times treats as strange objects to be examined on a laboratory slide (devout Catholics, gun owners, Orthodox Jews, Texans); if your value system wouldn't wear well on a composite New York Times journalist, then a walk through this paper can make you feel you're traveling in a strange and forbidding world.

Now if only Fox News would show the same candor.


July 27, 2004 in Vischer, Rob | Permalink | TrackBack (0)