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.

Tuesday, August 31, 2004

Creating a Pro-Parent Society

We hear a lot in the media about the legal viability of certain family structures, but significantly less about the practical viability of family structures, traditional or otherwise. Yale law prof Anne Alstott has made available sample chapters of her book, No Exit: What Parents Owe Their Children and What Society Owes Parents. It certainly should be of interest to those concerned with facilitating a concept of parenting based on single-minded devotion and care. Here's the abstract (link courtesy of Larry Solum's Legal Theory blog):

America's public policies have not kept pace with our rising standards for child-rearing. Child-rearing was once an economic bargain for parents who received a little worker and a retirement policy with each child. But thanks to technological and social change, parenthood has become a uniquely costly pursuit: we expect parents to protect their children's developmental chances, even at the expense of their own opportunities. Today, parenthood requires a decades-long restructuring of one's economic and personal life. Society expects parents to provide the continuity of care that is critical for children's development. Put succinctly, we tell parents Do Not Exit, and the great majority of parents - especially mothers - comply.

But the economic costs of this No Exit obligation are enormous, and borne primarily by mothers. In every income class, mothers work less, earn less, and achieve less (in economic terms) than childless women and than men. Mothers interrupt their working lives at high rates, and as a consequence, they enter middle- and old-age with less financial independence.

The libertarian reply is, essentially, So what? Mothers know - or ought to know - what they are getting into, and they should plan for the economic burdens of parenthood by saving, marrying, or remaining childless if need be. On this view, it is unfair to ask the childless to subsidize their peers who choose parenthood.

This book aims to demonstrate that the libertarian assertion of equality between parents and nonparents is superficial, because it overlooks the child in the picture. Once we recognize the social importance of parents' No Exit duty, we can begin to understand society's special obligation to parents.

The book also proposes a set of public policies that would offer practical assistance to modern families. Caretaker resource accounts would provide parents with $5,000 per year, to be used for child care, parents' own education, or retirement savings. For the average family, this program would mark a major new commitment of resources that could improve parents' own economic fortunes. At the same time, the program would permit parental choice, leaving it up to individuals to decide whether to stay in the workforce or take time out or in part-time work. Moreover, the initiative would direct resources to individuals, avoiding the partiality and potential side-effects of some family-friendly workplace initiatives.

Another set of policies, termed life-planning insurance, would enrich the resources offered to parents of special needs children - a group for whom the No Exit obligation is especially costly. Today, public policy underwrites special education and health care for children with disabilities - but largely ignores the economic plight of their parents, who often find their own working lives permanently disrupted.


August 31, 2004 in Vischer, Rob | Permalink | TrackBack (0)

A Double Standard?

Here's an example of what I mean by the double standard applied by at least some pro-life conservatives to pro-choice leaders within the GOP. Jerry Falwell seems to have discovered a pluralist, big-tent approach to governing, conceding that the "GOP is not a church":

Apparently some media reports have indicated that a few religious conservatives are upset that a preponderance of moderate and liberal members of the party has been assigned the high-profile primetime speaking slots.

The fact is, I have no problem with this. I think the party has picked the most visible and energetic speakers for this important event. I certainly don’t agree with some of the political positions of Rudy Giuliani or George Pataki and a few other high-profile party members, but I join them in their support of President Bush in this critical election. They are important voices of this diverse party.

I’m sure there are a few evangelical pastors who believe the Republican Party should be reflective of a Southern Baptist church, but that would be a big mistake. The party represents a wide range of political viewpoints and the leadership understands this; the GOP is not a church.

Most religious conservatives would agree with me that, as long as the Republican leadership remains chiefly pro-family, pro-life and pro-traditional marriage, we will continue to favor the party. At this time, the Republican platform, while not perfect, reflects respect for unborn life and traditional marriage — key issues for evangelicals.

I’ve often said that I wouldn’t have voted for my own mother if she were an abortion-rights candidate. But in the complex game of politics, we must work with people who have conflicting viewpoints on momentous issues in order to secure the greater good for the nation. While we must never compromise our Bible-based values in our churches, most conservative people of faith realize that we must work with a sense of cooperation in the political realm.

Besides noting some "disagreement," he offers not a peep of protest. You don't often hear Falwell strike such a laid-back, inclusive pose when the conversation turns to the Dems or the state of the country in general. Can you imagine him saying that "gays are important voices within this diverse country"? Indeed, much of his Moral Majority effort could have been met with his same logic: "the USA is not a church."

For another example, look at the Catholic League's index of recent press releases. Plenty on Kerry and abortion, but not a word (as far as I can tell -- please correct me if I'm wrong) about the GOP convention speakers.

Not to suggest that Falwell and the Catholic League comprise the universe of pro-life voices (heaven forbid), and certainly the convention lineup has not been embraced throughout the party, but I do find it puzzling that two of the most steadfast forces within the pro-life movement seem so willing to look the other way for perceived political expediency.


UPDATE: Add Lou Sheldon and his Traditional Values Coalition to the list. CBS reports Sheldon explaining that "We are very pleased that [the] campaign and the convention committee has selected people like Giuliani, Pataki, and Schwarzenegger to speak." "Their talk is for the undecided people watching television," Sheldon says. "President Bush is smart and Karl Rove is smart," he adds. "The undecided are not conservative Christians."

August 31, 2004 in Vischer, Rob | Permalink | TrackBack (0)

"Moderates" on Abortion

One of my pet peeves is the old-media habit of referring to politicians and political positions of which they approve as "moderate", no matter where on the political spectrum those politicians and positions actually fall. For example, the old-guard reporters have for the last few days returned -- as they do every four years -- to what they regard as the Republican Party's opportunistic and disingenuous use of "moderates" at its conventions. These folks include, we are told, Mayor Giuliani and Sen. McCain.

Here's the problem: McCain has, in fact, a 100% pro-life record. He is a "moderate" to unoriginal reporters because, well, they like him. (Oddly enough, the press loves McCain precisely because of his dangerous and extreme disdain for the First Amendment's Free Speech Clause). On the other hand, Mayor Giuliani is, on abortion, quite an extremist: He opposes all restrictions, all regulations, all notification laws, etc., and supports public funding. (By the way, I do not agree with my friend Rob's post, below, suggesting that GOP-leaning Catholics give Giuliani, etc., a "pass" on abortion. That's not my experience, anyway) (UPDATE: Here's a link, thanks to Amy Welborn, to a story about a new American Life League ad, criticizing pro-abortion-rights Republican politicians.)

In fact, the "moderate" position on abortion -- judging by polls, etc. -- is much more like George Bush's than it is like Rudy Giuliani's (or John Kerry's): abortion is bad, some restrictions are fine, informed consent and parental-notice laws make sense, partial-birth bans and born-alive-infant protections are good intermediate steps, let's change the culture, etc. So -- why does the press get this so wrong? Is it because political reporters tend overwhelmingly to hold fairly extreme pro-choice views, but also -- like all of us -- insist on regarding themselves and their friends as moderate, sensible, and reasonable?


August 31, 2004 | Permalink | TrackBack (0)

Monday, August 30, 2004

Abortion Politics and the GOP

Amy Sullivan has an interesting post at Washington Monthly (thanks to Christianity Today for spotting it):

Remember last spring, when John Kerry couldn't take a step without some reporter trying to examine his molars for evidence of unswallowed communion host? The issue of whether or not Kerry should, as a pro-choice Catholic, take communion was pressed by conservative Catholics with a partisan agenda and it was wholeheartedly accepted as a relevant story by most major news outlets.

How many reporters do you think are going to ask Rudy Giuliani or George Pataki or Arnold Schwarzenegger if they should refrain from taking communion? Or will call up the bishops of these men and ask whether these PCRCs should be denied communion? Shouldn't it be a story that Republicans get a pass for the sole reason that they are Republicans? And that certain conservative Catholic organizations only care about abortion when they can use the issue to knock around Democrats?

The silence coming out of the Catholic League regarding the prominence of a bunch of heretical babykillers at the GOP Convention is simply deafening.

Sullivan's argument can be expanded to raise questions about the GOP itself. Perhaps groups like the Catholic League are willing to cut back a bit on their prophetic role in order to facilitate what they perceive as the bigger picture considerations of the current political reality. The current political reality, though, may be murkier than it seems. The apparent double standard necessitated by the GOP's convention strategy lends support to those who are skeptical about the sincerity of the GOP leadership's intentions regarding abortion law. If the GOP wins the election by giving itself a pro-choice face, what does that say about the centrality of the pro-life position to its platform? Certainly you won't see a convention lineup of speakers calling for taxes on the wealthy to be raised, even though that could appeal to many swing voters. Is the pro-life commitment an identity-defining issue for the GOP hierarchy, or is it simply a mantra that ensures the continued party allegiance of abortion-focused evangelicals and Catholics?


August 30, 2004 in Vischer, Rob | Permalink | TrackBack (0)

Saturday, August 28, 2004

Partial-Birth Abortion and the Catholic Judge (cont'd)

In response to my post below, Fr. Bill Dailey, a priest and 2L at Columbia Law School, offers the following defense of Judge Casey's ruling:

My own sense . . . is that this judge got it right: I do not favor recusal because it suggests that Catholics can only be partial participants in a democracy (I think Scalia had it wrong when he argued that Catholic judges who believed the death penalty wrong were in a similar bind). As you note, this judge made it clear what he felt the facts of the matter were, and those with ears to hear would probably infer that he thought the law needed to change. But, for those like me who think that Roe et al. were legally as well as morally erroneous, it would be unsatisfying to get the morality right while getting the law wrong. (And, given the current composition of the Supreme Court, it would only give them the chance further to reinforce Stenberg).

It is not clear to me, some days, whether I should, as a citizen, be doing much more in the way of civil disobedience or public demonstration to stop abortion. But I'm not sure a greater burden rests upon judges because of their proximity to certain elements of the abortion regime. . . . the circumstance of the judge doesn't strike me as requiring dishonesty or law-breaking (which I regard bad judging to be) on her part simply because of potential gain to be had by getting the "right result." Thus, the pro-life judge shares the same obligation as any of us to respond to God's call to live in such a way that by our actions we preach the gospel of life. I tremble at how well I do and do not do that as a priest on the Upper West Side of Manhattan each day, but I don't think judges have a particular burden greater than my own to acquit.

You can also check out Times and Seasons for some provocative commentary on Congress's refusal to add a health exception to the ban (an exception that threatens to swallow the ban, as that blog's readers ably point out).


August 28, 2004 in Vischer, Rob | Permalink | TrackBack (1)

Response to Rick

In a posting yesterday, Rick wrote:

"I wonder if Michael would mind providing, for MOJ readers and bloggers, a bit more about how it is that a liberal state may speak about its own legitimacy and fundamental norms in religious terms (something that Michael's book on Human Rights discussed in detail), and may even authorize mild 'establishments' of religion, without setting up what Wilmot fears, namely, a 'religious test on membership in the political community.'"

I've tried to do just what Rick has asked me to do, in an essay I recently contributed to a symposium honoring Judge John T. Noonan's work. The essay has now been published, but I've provided a link below to my pre-publication copy of the essay, which is available from SSRN. The citation: Michael J. Perry, What Do the Free Exercise and Nonestablishment Norms Forbid? Reflections on the Constitutional Law of Religious Freedom, 1 University of St. Thomas Law Journal 459 (2003).

Here's the link to my pre-publication copy:


Michael P.

August 28, 2004 in Perry, Michael | Permalink | TrackBack (0)

Friday, August 27, 2004

Partial-Birth Abortion and the Catholic Judge

Judge Richard Conway Casey, a Catholic judge, struck down the partial-birth abortion ban yesterday. In his opinion, Judge Casey makes explicit findings of fact that the banned procedure is "gruesome, brutal, barbaric, and uncivilized." He also finds that the procedure causes the fetus severe pain. Nevertheless, he concludes that, under the Supreme Court's ruling in Stenberg, "this gruesome procedure may be outlawed only if there is a medical consensus that there is no circumstance in which any women could potentially benefit from it. A division of medical opinion exists, according to Stenberg, according to this Court, and even according to the testimony on which Congress relied in passing this law. Such a division means that the Constitution requires a health exception."

My question is this: on what basis is Judge Casey morally culpable for this ruling? To the extent that he, in good faith, interprets Stenberg as requiring a medical consensus and believes that the evidence presented to him in court fails to establish that consensus, what was Judge Casey morally obliged to do? Should he have sought to create the impression of indeterminacy in the law even if he did not believe it to be indeterminate? Should he have sought to twist the factual record to suggest a medical consensus even if he did not believe that that consensus exists? Should he have openly defied Stenberg? Should he have recused himself? Resigned from the bench entirely given the likelihood of similar cases in the future? Is it enough that he went out of his way and utilized his fact-finding discretion to emphasize how abhorrent the procedure is even though his legal analysis rendered those findings immaterial?

Put simply, what should a Catholic judge do when faced with pro-abortion precedents that he considers dispositive of the case before him? Before we reflexively conclude "recuse," isn't there something to be said for the pedagogical impact of Judge Casey's findings of fact? Wouldn't recusal have wasted that opportunity?


August 27, 2004 in Vischer, Rob | Permalink | TrackBack (2)

Self-Sacrifice, Self-Hatred, and Our Response to Suffering

Several days ago I posted some thoughts on The New Yorker's profile of Zell Kravinsky, a wealthy real estate developer who has dedicated himself to the joyless task of stripping himself of every dollar and organ that might benefit his fellow humans, opining even that letting his own child live at the cost of two other children's lives is morally indefensible. The article prompted some insightful letters from the magazine's readers, and a couple offer especially helpful perspectives on the proper vision of sacrificial giving.

Nancy Scheper-Hughes, a professor of medical anthropology at Berkeley, writes:

Zell Kravinsky should not be made into a hero for donating one of his kidneys to a sick woman he did not know, and then considering donating his second kidney to another stranger, or even becoming the first total (living) body donor, so that he could save even more lives. Sacrificing one human life in exchange for many lives is an impressive moral imperative, except that it is, of course, quite mad. In slowly dismantling himself, Kravinsky would not only be killing himself; he would be (emotionally) murdering his wife and children. . . . Kravinsky's Franciscan impulse to strip himself bare and rid himself of all his troublesome worldly goods (including his own body-self) speaks, albeit eloquently, to his self-loathing and narcissistic injury. Kravinsky's search for "ethical euphoria" is similar to that of the teen-age suicide bomber's. The surgeons who allowed the nephrectomy on such a vulnerable human being should be chastised. Pathological generosity, even in the service of humanitarianism, is not something to encourage. Kravinsky needs to find a better way to love mankind than by hating himself.

Frank J. Mininni, a philosophy prof at Marshall University, reminds us that:

Buddha's compassion for suffering mankind led to enlightenment, inner peace, and joy. St. Paul's inner struggle with the absolute demands of the law opened up a dimension of grace that permeates human existence. Taoism showed the limits and destructive effects of human efforts to seek total control over life's processes. The wise men and saints of history knew when to let go. . . . Kravinsky's obsessive guilt about the suffering of others leaves no room for grace, for joy, for peace. Real-estate deals may profit from mathematical reductionism; life does not.

It's reassuring to see folks defend the middle ground between care-free self-absorption and the sort of self-devouring conception of moral obligation that seems to have driven Kravinsky to despair.


UPDATE: For a more scholarly embrace of Kravinsky's ethics (minus the organ donation), a reader recommends Peter Unger's 1996 book Living High and Letting Die: Our Illusion of Innocence.

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

International law, the U.S. and the Holy See

Hi all,

it's been a long while since I've posted anything, so I thought I'd try to get started up again with a link to a short interview I did for ZENIT recently. It's not the sort of forum for carefully reasoned arguments, of course, but the discussion does touch on a number of issues that I have been trying to give more thought to recently, so I'd welcome any comments.

This fall I'm living and teaching in Italy, so in the coming months I hope to be able to share some provocative observations on our common endeavor, from a more European perspective. It is an interesting time to be here! Feel free to send questions...


August 27, 2004 | Permalink | TrackBack (0)

Gedicks and Hendrix on Religion in the Digital Age

This paper, by Fred Gedicks and Roger Hendrix, look fascinating. Here's the abstract of "Religious Experience in the Age of Digital Reproduction":

A "religious" experience is an extraordinary event that occurs against the backdrop of ordinary life, infusing that life with a meaning it would not otherwise have. Mass culture is now replete with portrayals of such experiences. Spiritually-themed television shows, movies, books, music, and fashion are now common and even popular. This is not necessarily good news for religion and religious experience. What mass culture portrays as sacred may be merely an imitation, resembling more the ubiquitous feel-good self-affirmance of popular psychology than authentic communion with the divine.

On the other hand, the appropriation and portrayal of religious experience by mass culture may be the inevitable and desirable effect of a postmodern digitized world. The digital revolution has served up an inexhaustible supply of religious information and images, stimulating individuals to an awareness of spiritual choices and possibilities that were unimaginable only a generation ago. At the same time, postmodernism has underlined the implausibility of achieving social consensus on reality and truth in the face of widespread and persistent religious difference. The coincidence of epistemological indeterminacy with direct individual access to vast global fields of information empowers individuals to choose for themselves from among the innumerable versions of the real and the true now available to them. In this world, the appropriation and portrayal of the sacred by mass culture liberalizes and democratizes religious experience, erasing the boundaries placed on such experience by traditional denominations, and permitting believers to define for themselves the spiritual meaning of their lives.

We argue that there are no reliable means of distinguishing classic religious experiences, like Moses's encounter with Jehovah in the burning bush, or St. Paul's encounter with Jesus on the road to Damascus, from the religious experiences of ordinary people triggered by vehicles of mass culture. We lack access to the template of "original" religious experience, and thus the means for determining which religious experiences are authentic, and which merely imitations. The combination of vast information about diverse religious experiences made accessible by the digital revolution, and epistemological uncertainty brought on by contemporary postmodern sensibilities, has moved religious experience beyond the control of denominational and institutional religion, to the control of the masses. Marketplace democracy now determines what is real and true, and only religions that adapt themselves to this reality will survive as mass phenomena.

Thanks much to Larry Ribstein (U. Illinois), at Ideoblog, for the link.


August 27, 2004 | Permalink | TrackBack (0)