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.

Friday, August 27, 2004

Wilmot on Perry's "Under God"

A few days ago, Michael Perry linked to a recent review, by Villanova's Brett Wilmot, of Michael's latest book, "Under God? Religious Faith and Liberal Democracy." The review (and Michael's book) are worth reading. I particularly liked the opening line of Wilmot's review:

Change is afoot in the contemporary debate abou the proper role of religion in democratic politics. The ascendancy of Rawlsian liberalism may have finally passed its apex, and this has opened up the discussion considerably.


Toward the end of his (generally enthusiastic) review, Wilmot voices his disagreement with Michael's view that not every liberal democracy has to have a non-establishment-of-religion requirement. Wilmot rejects the view that "non- or disestablishment of religion is not essential to the ideal of democracy." Wilmot believes that even a mild, Church-of-England-type establishment effectively sets up a "religious test on membership in the political community", and is therefore incompatible with liberal ideals of political deliberation and community. Wilmot expresses similar concerns about (what he takes to be) Michael's belief that even "the explicit affirmation of theism on the part of our government does not represent cause for concern." Wilmot insists that "government must not express its own legitimacy or the legitimacy of its laws and policies on sectarian grounds, and this precludes . . . even fairly generic references to God and religion as a basis for such legitimacy."

Now, in Michael's response to Wilmot's review, he takes care to emphasize their common ground, and does not elaborate on his own claims about liberalism, legitimacy, theism, etc., that cause Wilmot concern. Michael does insist, though, that -- in his view -- there can be "no religious test on membership in the political community."

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."


August 27, 2004 | Permalink | TrackBack (0)

Thursday, August 26, 2004

A Recommended Reading

I think that many readers of this blog will be interested in the following essay--which, in my view, is excellent:

Stephen J. Pope, The Magisterium's Arguments Against "Same-Sex Marriage": An Ethical Analysis and Critique, Theological Studies, vol. 65, no. 3, September 2004, pp. 530-565.

Theological Studies, as many of you know, is published by Theological Studies, Inc., for the Society of Jesus in the United States. Stephen Pope is associate professor of theology at Boston College.


August 26, 2004 in Perry, Michael | Permalink | TrackBack (0)

More on "Catholics and the State"

Many thanks to Greg for his reply (below). I agree that "in light of the uncertainties that surround the prospects for . . . doctrinal change [i.e., change in the constitutional law of abortion] anytime soon, . . . it's crucial to think about what it means to be a pro-life public official in a broader moral-political-legal context." And, I think that Greg's work is going a long way toward helping us do just that.

But again, the kind of reasoned-dialogue-in-pluralism that Greg discussed in his paper (and about which Murray wrote) -- a dialogue that aims at achieving a moral consensus that, at present, does not exist -- can never be truly realized if a mis-shapen constitutional law precludes, from the outset, the end-game desired by half of that dialogue's participants. In other words, this "reasoned dialogue" requires, in a strong sense, significant, democracy-enhancing revisions to our constitutional law and, therefore, careful attention to the judicial-selection process.

On another front, I received an e-mail from a friend, in response to Greg's essay and my own earlier post, that raised the following points:

I find that a lot of confusion, especially among Catholics, is caused by a failure to see that the law's refusal of protection to unborn human beings is a grave injustice analytically distinct from acts of abortion. Let me put it another way: A legislator who voted to allow slavery is committing an injustice even if this law results in no actual slavery; a permissive abortion regime is unjust in its treatment of the unborn even if there are no abortions in our society. So it is not the case that the pro-life movement should focus exclusively on reducing the incidence of abortion. The twin goals should be "welcomed in life" and "protected in law."

Second, . . . it would be appropriate for a politician who believes that a flat ban on abortion would be imprudent--a conclusion that itself has to be evaluated in light of the above imperative--to insist on getting better judges. But he could also support prudent pro-life legislation such as the partial-birth abortion ban (assuming he considers it prudent). The assumption here seems to be either that the Constitution protects a right to abortion or that legislators are bound by some legal or moral duty to act as though erroneous judicial findings to this effect were true. Neither is the case.

More food for thought . . .


August 26, 2004 | Permalink | TrackBack (0)

Thoughts re Rick's Comments

I'm grateful to Rick for his thoughtful comments on my recent America essay. I'm in fundamental agreement with everything that he's said in his posting. My reference to abortion as a matter of constitutional right was meant only to note the current state of constitutional doctrine and the limits it places on what pro-life public officials are capable of doing through legislative efforts. As a matter of constitutional jurisprudence, I would agree with Rick that our current constitutional law on abortion is a profound mistake, and, given the gravity of the moral issue involved, it is a profoundly tragic mistake. I would certainly welcome the appointment of judges who are open to permitting legislatures to meaningfully regulate abortion. Our hope for such a doctrinal development, though, has to be tempered by the recognition that predicting what judges will do once they are appointed to the federal bench is not an exact science. Moreover, I think the way in which both parties at the national level can make a judge's position on Roe a litmus test can itself polarize and paralyze the appointment process in ways that may have detrimental implications for the common good. In a related vein, central as the abortion issue no doubt is, it is only one aspect of the courts' business, and it's possible that a judge who might look like a sure vote to correct the Court's mistakes in Roe and Casey might distort other areas of doctrine. Working for a change in constitutional doctrine is certainly an essential part of a pro-life jurisprudential strategy, but in light of the uncertainties that surround the prospects for such doctrinal change anytime soon, I simply think it's crucial to think about what it means to be a pro-life public official in a broader moral-political-legal context.

August 26, 2004 | Permalink | TrackBack (0)

Wednesday, August 25, 2004

Kalscheur on "Catholics and the State"

A recent issue of America magazine includes an essay by our colleague, Greg Kalscheur, called "American Catholics and the State: John Courtney Murray on Catholics in a Pluralistic Democratic Society." (Here is a link, but the full essay requires a subscription). The essay is an adaptation of Greg's paper -- which was discussed at MOJ a few months ago -- on John Paul II, Murray, and pluralism.

Like his longer paper, Greg's America essay is thoughtful, careful, charitable, and well worth reading. Greg uses the thought and work of Fr. Murray to explore the issues treated by the Congregation for the Doctrine of the Faith in its recent "Doctrinal Note on Some Questions Regarding the Participation of Catholics in Political Life" (link). He observes that "Catholic participation in public life is to be guided by, not separated from, fundamental moral concerns" and that "this insistence that moral beliefs inform policy choices is, in the end, a matter of integrity." From this and other points it follows, "inescapabl[y]," that -- among other things -- public officials have a "grave and clear obligation to oppose any law that attacks human life."

With respect to abortion, Greg says that how a public official ought to go about "promot[ing] justice and the common good by striving to reduce [its] incidence" is "complicated" because of the "the state of American constitutional law regarding the abortion issue. The legislator must oppose laws that promote abortion, but in the United States abortion is a matter of constitutional right, not an action authorized by legislation." "Morality . . . and law . . . are not," Greg reminds us, "coextensive in their functions. Legal prohibitions can have only a limited effetc on shaping moral character." So, "society should not expect a great deal of moral improvement from legal prohibitions." He continues, "for the law truly to serve the common good, some level of consensus as to the goodness of the law is essential. And, in the face of widespread moral disagreement on an issue, the public conscience may need to be clarified through nonlegal educative efforts in an atmosphere of reasoned dialoge and factual argument before the law can effectively promote the common good."

I won't reproduce the entire essay, which moves on to develop Greg's ideas about "how to promote fundamental moral values through law and policy" under conditions of pluralism, but I did have one reservation: Greg appears to take it as given that "abortion is a matter of constitutional right." And, in light of this "given" (which would prevent even the most pro-life legislature from enacting abortion laws that were fully in accord with morality), we are all -- citizens and legislators -- left with the tasks of (a) trying to reduce the number of abortions, and to create a society that better appreciates the dignity of life, through non-regulatory means, and (b) trying to create a consensus about the common good through "reasoned dialogue and factual argument."

What happens, though, if -- through reasoned dialogue and factual argument -- a consensus is created that abortion is a grave moral evil, one that should be closely regulated, if not prohibited? That is, assume we reached conditions where Murray would agree that our laws could reflect and honor moral truths? Our Constitution, as it is presently (mis)understood by a majority of the Justices, would prohibit us from acting on that consensus. Put differently, in light of our presently mis-shapen constitutional law of abortion, it doesn't matter whether or not there is consensus that abortion is evil (and, remember, there actually is broad consensus that abortion should be more closely regulated than it is now); abortion still may not be regulated (except in relatively insignificant ways).

This suggests to me that we ought not to regard -- and, that Catholic politicians who are committed to integrity and to the common good, but who also appreciate Murray's insights about law, morality, and pluralism, ought not to regard -- the constitutional status of the abortion right as "given," but should instead regard it as a basic political priority to bring about a new -- or rather, the correct -- understanding of the Constitution. So, just as -- pluralism notwithstanding -- a Catholic politician ought to oppose laws that fund or directly facilitate abortion, perhaps such a politician ought also to insist on measures to correct the Roe and Casey Courts' errors? Even a Murray-admiring politician who determined that, under present conditions, abortion could not prudently or effectively be regulated, might also think that -- in anticipation of the day when reasoned dialogue produced consensus concerning the grave evil of abortion -- steps should be taken (e.g., the appointment of judges who are open to permitting legislatures meaningfully to regulate abortion) to make it possible for a future legislature to act on that consensus.

Any thoughts?


UPDATE: Greg's essay is available on the Boston College Law School web site.

August 25, 2004 | Permalink | TrackBack (0)

Trading Places

The Pew Forum on Religion & Public Life's new poll (on which the post below is also based) has some startling statistics on the public's attitudes toward the bishops' threats to deny communion to public officials:

Fully seven-in-ten Catholics (72%) say it is improper for Catholic Church leaders to deny communion to politicians who defy church teachings on abortion and related issues.

By comparison, only 47% of white evangelical Protestants believe the denial of communion would be improper. Certainly this disparity may stem in part from white evangelicals' more consistent anti-abortion convictions, or perhaps (less likely) from a failure to appreciate the centrality of communion to the Catholic faith. Still, it is striking that the Christians devoted to the supremacy of individual conscience in matters of faith find the exercise of institutional authority more palatable than do the Christians whose faith tradition is rooted in institutional authority.


August 25, 2004 in Vischer, Rob | Permalink | TrackBack (0)

Tuesday, August 24, 2004

Stem cell support on the rise

A new poll shows that a majority of Americans now support embryonic stem cell research, and support is rising even among evangelical Christians and active churchgoers. It's no wonder, given the full-court publicity press by proponents of the research (see Rick's earlier post, for example). I assume the trend will continue for the foreseeable future. Especially in this political season, when we are constantly reminded of the unlimited potential of human progress, it is unlikely that a message focused on the inherent limits of the human condition will be given a comparable platform.


UPDATE: The full report on the poll results (available here) suggests that the media coverage is playing a significant role in the growing support: "By more than two-to-one (63%-28%), those who have heard a great deal about the issue believe it is more important to conduct stem cell research that may result in medical cures than to not destroy the potential life of human embryos."

August 24, 2004 in Vischer, Rob | Permalink | TrackBack (0)

Thought you might be interested ...

... in this review of my book Under God?--and in my response thereto. Both are forthcoming in the periodical Conversations in Religion and Theology, published by Blackwell.

Book Review


August 24, 2004 in Perry, Michael | Permalink | TrackBack (0)

The Revealer

If you haven't yet, be sure to check out The Revealer, a blog devoted to the news media's coverage of religion. As they explain:

We begin with three basic premises: 1. Belief matters, whether or not you believe. Politics, pop culture, high art, NASCAR -- everything in this world is infused with concerns about the next. As journalists, as scholars, and as ordinary folks, we cannot afford to ignore the role of religious belief in shaping our lives. 2. The press all too frequently fails to acknowledge religion, categorizing it as either innocuous spirituality or dangerous fanaticism, when more often it's both and inbetween and just plain other. 3. We deserve and need better coverage of religion. Sharper thinking. Deeper history. Thicker description. Basic theology. Real storytelling.


August 24, 2004 in Vischer, Rob | Permalink | TrackBack (0)

Legal Ethics and the Spirit of Dr. Mengele

This morning I taught my first legal ethics class of the new year. I start by trying to help students see the limits of role-differentiated morality (i.e., the notion that the role of a lawyer justifies conduct that would otherwise be considered immoral). To do so, I posed the following hypothetical:

"Suppose you were a scientist living in Nazi Germany. You are taken to a concentration camp and told to further your research by conducting experiments on live human subjects. Would you do so?"

Here are a sampling of the comments this provoked:

"If they are going to die anyway in the camp, their deaths might as well contribute to the greater good of medical knowledge."

"That society's morality would have been determined by military might, and could easily include the idea that the Aryan race should be advanced, so I would probably do the experiments."

"Scientists should focus on the advancement of science."

After considerable prompting, one student said "there's something to be said for dying with dignity, even if you're going to die anyway."

The conversation proceeded along similar lines last year, when I first used the Nazi example.


August 24, 2004 in Vischer, Rob | Permalink | TrackBack (1)