Wednesday, February 23, 2005
The press seems to be having a field day with Pope John Paul II's reference to gay marriage as being part of an "ideology of evil." One vital benefit of Catholic social thought is its ability to engage those outside the Church through language that is accessible. In today's culture, my fear is that such labels close off any further potential conversation on a key societal trend. It seems too easy for proponents of gay marriage (and those who are conflicted on the issue) to write off anything the Catholic Church has to say, as these labels produce headlines that support a caricature of the Church as an unthinking, anachronistic institution. Am I missing something? (Note that I am not addressing the merits of the gay marriage debate, only the language with which we approach it.)
Our colleague Steve Bainbridge has two excellent posts (here and here) up at his other blog on the Kelo case now pending before the Supreme Court. The case involves a decision by the City of New London to "take" (that is, to condemn) Susette Kelo's house and give it to "the New London Development Corporation (NLDC), a private non-profit body", for some unspecified urban-renewal project. The Fifth Amendment to the United States Constitution, though, provides that private property may only be taken for "public use." As Steve notes:
The Supreme Court has held that private property can be seized via eminent domain as part of an urban renewal project when the property is blighted, a loophole that local authorities have greatly abused to seize private property. Yet, in this case, the government doesn't even bother trying to hide behind that fig leaf. They assert baldly the power to seize private homes because they think some other user can put them to a higher tax generating use. Except, in this case, they don't even know what the land will be used to do!
It strikes me that this case, and this issue, are connected to our project here at MOJ in at least two interesting ways. First, consider this statement (quoted by Bainbridge) of Russell Kirk:
[F]reedom and property are closely linked. Separate property from private possession, and Leviathan becomes master of all. Upon the foundation of private property, great civilizations are built. The more widespread is the possession of private property, the more stable and productive is a commonwealth.
Now, the Catholic Social Thought tradition -- from Leo to John Paul II -- has been careful to avoid excessively individualist or libertarian understandings of the right to private property. At the same time, it has certainly and consistently embraced the idea that freedom and property-rights are linked, and also the idea the the widespread ownership of property -- coupled with reasonable regulations directed toward the common good -- is more likely than collectivization to yield a just and stable society. (Consider, for example, the Distributism movement.)
A second point sounds, I think, in "subsidiarity." "Private property" itself -- like labor unions, voluntary associations, local governments, etc. -- is a kind of "mediating institution," providing both a buffer and a bridge between the state and the family. (If I remember correctly, Professor George Garvey once gave a lecture in which he developed this point). Thus, we ought to be concerned when governments appear to be abusing their eminent-domain power -- a power that should, for both constitutional and moral reasons, be directed toward the common good -- and "taking" private property either for their own ends, or for the ends of other, privileged, private parties.
Tuesday, February 22, 2005
The Supreme Court has agreed to review a recent decision by the Court of Appeals for the Ninth Circuit invalidating a federal effort to regulate the use of assisted-suicide drugs in Oregon, notwithstanding that State's policy choices. Law professor Ann Althouse has an interesting post on the federalism (and, we might say, subsidiarity) and enumerated-powers aspects of the case.
In light of the Ward Churchill, Larry Summers, and "Vagina Monologues at Notre Dame" debates that are so much in the news these days, I wonder if anyone has any thoughts about what, for those of us hoping to contribute to the development of something called "Catholic Legal Theory" -- and hoping to do so in the context, by and large, of universities -- "academic freedom" should mean?
In today's Washington Post, Eugene Robinson joins the critics of Larry Summers, adding:
Academic freedom? I agree that it's sacred, but Summers isn't just an overcaffeinated economics professor, bloviating in a seminar or holding court at the faculty club. He's the president of Harvard. He sets policy and has absolute power over careers, and now he has put himself on the record as extremely skeptical, to say the least, about any "special efforts" to increase diversity.
Professor Brian Leiter (and many others) have discussed the academic-freedom dimensions of the Ward Churchill fracas (Churchill is the loathesome poseur who compared the victims of the 9-11 attacks to Eichmann). Eugene Volokh and Steve Bainbridge have provided helpful thoughts on this case, too.
And, finally, Bishop John D'Arcy (of the Ft. Wayne - South Bend diocese) has weighed in -- addressing the academic-freedom issue -- on the recent presentation at Notre Dame of the "Vagina Monogues." About academic freedom, Bishop D'Arcy had this to say:
Freedom in the Catholic tradition, and even in the American political tradition, is not the right to do anything. Freedom in the Catholic tradition is not the right to do this rather than that. That would be an entirely superficial idea of freedom. Freedom in the academy is always subject to a particular discipline. It is never an absolute. The parameters of the particular discipline guide research.
Freedom is the capacity to choose the good. In “Ex Corde Ecclesiae,” John Paul II makes it clear that a Catholic university “guarantee its members academic freedom, so long as the rights of the individual person and of the community are preserved within the confines of the truth and the common good.”
Here, the Holy Father, a long-time professor in a Catholic university, indicates certain parameters relative to freedom, namely, truth and the common good.
This play violates the truth about women, the truth about sexuality, the truth about male and female and the truth about the human body.
It is in opposition to the highest understanding of academic freedom. For freedom which is not linked to truth is soon extinguished. A Catholic university seeks truth. It is never afraid of truth; but seeks it with respect for both reason and faith. Each gives light and guidance to the other. How has the light coming from faith, or indeed from right reason, been brought to bear on the decision to present this play?
Notre Dame philosophy professor Ed Manier, however, had this to say:
"Academic freedom" . . . is a term whose meaning has been settled by appropriately academic means. It is clearly not a term whose meaning is open to manipulation by political or religious authorities. If the University or the bishop were to require six of its departments to present topics challenging Catholic Orthodoxy in a specific format intended to protect or defend religious orthodoxy, the academy would have no difficulty recognizing that as a violation of the academic freedom of the departments and individuals involved.
The bishop muddies the waters of intelligent public discussion of the relationship between the Church and Catholic universities in the United States by confusing "freedom of religion" with "academic freedom." The liberties involved are always in active tension with each other and will always be so unless Churches were to be required to restrain their teaching by the "requirements of reason alone."
The assumption that this tension can or should be overcome by authoritative fiat is at odds with my reading of the Gospel.
Now, to be clear, I am saying nothing about or on the merits of any of these disputes. (Well, I am saying that Churchill is loathesome). I am only asking -- in light of the fact that "authentic freedom" is a theme that runs through Catholic thinking and teaching -- what "academic freedom" can and should mean for us? I admit that my own libertarian bent on free-speech questions inclines me toward the "tolerate it all" position, but maybe this is the wrong approach? Should things be different at a Catholic university or law school? Can they be, though?
Monday, February 21, 2005
Today's newspapers are reporting that the United Kingdom is about to register gay and lesbian partnerships under a new Civil Partnerships Act. Moreover, the Associated Press reports:
Britain's navy, which until five years ago banned gays from its workforce, said Monday it is joining a campaign to ensure homosexual employees are fairly treated.
The military also announced gay servicemen and women will be able to live in married quarters with their partners starting later this year.
The Royal Navy said it was entering a program organized by gay rights group Stonewall which advises employers on dealing with gay, lesbian and bisexual staff.
The government lifted a ban on gays serving in Britain's armed forces in 2000 after a lengthy campaign spearheaded by Stonewall. The Ministry of Defense had said lifting the ban would undermine morale and fighting capability, but the European Court of Human Rights ruled in 1999 that the restriction was a violation of human rights.
``The armed forces regard sexual orientation as a private matter,'' a Defense Ministry spokesman said Monday. The Royal Navy's decision to join the Stonewall Diversity Champions program was ``part of our equal opportunities and diversity policy anyway,'' he added.
During the first year of the program, seminars, pamphlets and specific advice will be on offer for servicemen, Stonewall said.
Lt. Cmdr. Craig Jones, who has served with the Royal Navy for 16 years but has only been openly gay for the last five, described the move as ``superbly positive.''
Navy spokesman Anton Hanney said gay and lesbian couples would be able to live together as long as their relationship was registered under the new Civil Partnerships Act. The Ministry of Defense said the move applied to the army and air force as well as the navy.
Civil partnership legislation, which gives gay couples some of the same legal rights as married heterosexuals, has been passed by Parliament and is expected to take effect later this year.
``We will be complying with the law. We are obliged to give equal treatment to gay and lesbian partnerships under these terms,'' Hanney said.
All this is to the good, in my judgment. Why? Some of the discussion in chapter 4 (pp. 55-80) of my book Under God? Religious Faith and Liberal Democracy (2003) is relevant.
I received recently, and am working through, a book by Professor Samuel J.M. Donnelly, of the Syracuse University College of Law, called "A Personalist Jurisprudence, The Next Step: A Person-Centered Philosophy of Law for the Twenty-First Century." Here is the publisher's blurb:
In 1880, Oliver Wendell Holmes, Jr., defined law as the predictions of what courts would do. Others, particularly his intellectual opponent Christopher Columbus Langdell, perceived law as a system of language and rules. This book offers an interpretation of American law and a method for judicial decision making. Donnelly offers a vision of American law “as an activity engaged in by a variety of players including judges, advocates for the plaintiff and defendants, law reformers, scholars and perhaps all of us.” A central argument is that law is concerned with persons and their relations. Arguably, during the 20th century there was, in jurisprudential thought, a step-by-step, piecemeal recovery of a role for the person in the law. The next logical step in the 21st century is an explicitly person-centered jurisprudence as interpretation of American law.
Here is a link to the book's introduction. I have not read enough to have an informed opinion about the book, but it certainly looks like the kind of thing that would be of interest to MOJ readers. If any of my colleagues have read it fully, I'd welcome their views.
From this morning's online Chronicle of Higher Education:
* IN A SHARPLY DIVIDED VOTE, a United Nations committee passed
a nonbinding declaration on Friday prohibiting all types of
human cloning that are incompatible with "human dignity" and
the protection of "human life." The United States praised the
measure, but other nations criticized it for failing to
distinguish between types of cloning.
For the UN Press Release, with all the details, click here.
Sunday, February 20, 2005
A couple of quick points in response to Rick's defense of Justice Thomas's administration of the judicial oath to Justice Parker: First, do most judges today conceive of their oath as being sworn to God? The dictionary definition of an oath is that of a "solemn, formal declaration or promise to fulfill a pledge, often calling upon God or a god as witness." I think that's quite different than Justice Thomas's understanding that judges are somehow making the promise to God directly. (I'm sure many today would go further and insist that "so help me God" is akin to "under God" in the pledge.)
Second, I don't think we can disconnect the import of Justice Thomas's statement from the context in which it was offered. To borrow from Stanley Fish, this seems an obvious instance where meaning is created by the audience. Just as we can't understand Reagan's famous speech on states' rights without acknowledging the audience to whom it was delivered (in Philadelphia, Mississippi), Justice Parker's past looms large here. If Justice Thomas was presenting a public lecture on his understanding of judicial oaths, no problem. But he was administering the oath to an individual who has repeatedly shown an inclination to equate his judicial responsibilities with his religious responsibilities. Just to cite one example from his campaign, Justice Parker dismisses the case for gay marriage with the less-than-helpful reasoning that "the rule book on marriage has been around since the Garden of Eden." I'm sure that Justice Thomas could have provided much valuable insight and wisdom to Justice Parker; an instruction that his judicial promise is to God, not to the people or the law, is not something that Parker really needs to hear. I have no idea how frequently Justice Thomas performs these private inaugurations for state court judges; if it's somewhat routine, perhaps he just recycled a talk without being cognizant of Parker's background. I agree with Rick that the event should not be blown out of proportion, but Justice Thomas can't escape culpability altogether for an episode that displays either a lack of due diligence or a lack of judgment.
With all due respect to my friend Rob, I guess I don't see anything particularly worrisome about Justice Thomas's (reported) statement, during the swearing-in of Alabama's Justice Tom Parker. (I agree, though, with Rob that Parker's mentor, Roy Moore, "dealt a significant blow to those of us who advocate for a religious presence in the public square" and also wish that Justice Thomas -- for whom I have huge respect -- had not participated in swearing in Justice Parker, who has a troubling record.)
According to one blogger, who personally transcribed Parker's remarks, Parker said:
Just moments before I placed my hand on the Holy Scripture, Justice Thomas soberly addressed me and those in attendance. He admonished us to remember that the worth of a justice should be evaluated by one thing, and by one thing alone: whether or not he is faithful to uphold his oath - an oath which as Justice Thomas pointed out is not to the people; it's not to the state; it's not even to the Constitution, which is sworn to be supported, but it is an oath which is to God Himself.
Assuming, of course, that Justice Parker recalled accurately Justice Thomas's statement, it seems to me that what Justice Thomas said is quite correct (or, at least, perfectly reasonable): A judge's oath -- and a judge's faithfulness to his or her oath -- is an all-the-more-weighty matter because it is not "to" the state or "to" the Constitution -- although, of course, it is the "Constitution" "which is sworn to be supported" -- but is "to God Himself."
So, in response to Rob's question -- "was Justice Thomas suggesting that a judge's accountability is not to the people, or the Constitution, but to God?" -- I think the answer is, pretty clearly, "no." (Or, "not in any troubling sense.")
It is unfortunate, though, that the incident appears widely to have been misleadingly misreported. As blogger (and law professor) Orin Kerr suggests, it seems that the whole "controversy" (see Legal Times) about Justice Thomas's remarks has been in no small part engineered to advance the agenda of crusading anti-Thomas activist, Barry Lynn, who charges that Thomas "condones religiously based defiance of the federal courts by state officials." Nonsense.