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, January 31, 2006

2006 Catholic blog awards

Shamelessness time:  Why not surf over to the 2006 Catholic Blog Awards and nominate "Mirror of Justice" for, say, "Best Blog by a Group"?

January 31, 2006 | Permalink | TrackBack (0)

Contraception and Population

I was reading Grisez's "Way of the Lord Jesus" today in preparation for Thursday evening's Natural Law Colloquium at Fordham.  (Here's my shameless plug:  Jean Porter is going to come to discuss her work as it relates to the controversy over gay marriage; Charles Reid will be coming from St. Thomas Law School to respond; I'll also be responding.  It starts at 6pm in Fordham Law School's amphitheater.).  Anyway, I was reading Grisez, and he makes the point that encouraging contraception for the purpose of avoiding overpopulation is not permissible.  My question is this (I know this sounds sarcastic, but I ask it in all sincerity and am interested in being pointed towards the appropriate resources):  Is there any community (of substantial size -- something like a country or tribe -- Ave Maria township does not count :-) ) that has achieved population stability in the absence of either high mortality or the widespread use of contraception?  In other words, is anyone aware of any data that any community has ever achieved population stability through the collective exercise of sexual self-control? 

January 31, 2006 | Permalink | TrackBack (0)

Ninth Circuit strikes down PBA ban

The United States Court of Appeals has affirmed a lower court's invalidation of the federal ban on partial-birth abortions.  (Thanks to Howard Bashman).  It appears, by the way, that today's decision is the first post-Ayotte consideration of such a ban.  It will be interesting to see how the new Supreme Court -- with Justice Alito replacing Justice O'Connor -- responds to the Ninth Circuit's ruling, and applies both Ayotte and Stenberg.

UPDATE (from Bashman):

BREAKING NEWS -- U.S. Court of Appeals for the Second Circuit affirms district court decision holding Partial-Birth Abortion Ban Act of 2003 unconstitutional but requests additional briefing on the question of remedy: Today's ruling by a three-judge Second Circuit panel, in which each judge on the panel has issued a separate opinion, can be accessed here.

Senior Circuit Judge John O. Newman delivered the opinion of the court. Chief Judge John M. Walker, Jr. issued a concurring opinion expressing dissatisfaction with the U.S. Supreme Court's current abortion jurisprudence. Chief Judge Walker's concurrence states, "I write separately, however, to express certain concerns with the Supreme Court's abortion jurisprudence generally and with Stenberg in particular."

Circuit Judge Chester J. Straub dissented from today's ruling and would have held constitutional the ban on so-called "partial birth" abortion. In the dissenting opinion, he writes, "I find the current expansion of the right to terminate a pregnancy to cover a child in the process of being born morally, ethically, and legally unacceptable." For those who care about such things, Judge Straub was nominated to the Second Circuit by President William J. Clinton.

January 31, 2006 | Permalink | TrackBack (0)

Child abuse and the confessional

The Concord Monitor reports:

For the second time in three years, lawmakers have proposed a bill that would require religious leaders to report suspected cases of child abuse, even if they learn about that abuse in the privacy of a religious confession.

The Diocese of Manchester opposes the bill, saying it would interfere with religious freedom without making children safer.

The Child Protection Act, enacted in 1979, requires any person in the state who suspects abuse or neglect to report those suspicions to law enforcement. That law specifically includes religious officials. But another state law exempts clergy from having to testify in court about anything said in confession or in a similar spiritual-advice setting.

That ambiguity led Rep. Mary Stuart Gile, a Concord Democrat, to introduce a clarifying bill three years ago. Lawmakers killed that bill in 2004. . . .

Northfield Police Chief Scott Hilliard, representing the New Hampshire Association of Chiefs of Police, also spoke, identifying himself as a practicing Catholic and eucharistic minister - and a former child-abuse investigator. "(We) feel it's important that there be no exemptions from the mandatory reporting statute," he said, supporting the bill. . . .

Getting Catholic priests to comply could be a major issue, said Rep. D.J. Bettencourt, the chairman of the subcommittee, whether or not the bill would be challenged legally. Bettencourt, a Catholic, said he consulted his own priest about the bill. His priest would rather go to prison than divulge something learned in confession, he said.

Stay tuned.

January 31, 2006 | Permalink | TrackBack (0)

Children, Media and Sex

Perhaps some common ground in the culture war divide is discernible given that even The New York Times expresses concern with the impact that our sex-saturated media culture has on children and the general failure to invest any resources in studying that impact.  The Times article goes so far as to assert that the rate of teenagers' sexual activity (notably not just teen pregnancy) is "staggering."  One of the only surveys on the question of media impact found that:

[W]atching TV with sexual content artificially aged the children: those who watched more than average behaved sexually as though they were 9 to 17 months older and watched only average amounts. Twelve-year-olds who watched the most behaved sexually like 14- and 15-year-olds who watched the least.

Much (but certainly not all) of the blame lies with parents, given that two-thirds of children 8 to 18 have televisions in their bedrooms.


January 31, 2006 in Vischer, Rob | Permalink | TrackBack (0)

Monday, January 30, 2006

more on "the hollowing out of Roe v. Wade"

Rick mentioned Dawn Johnsen's Slate essay entitled "The Outer Shell: The hollowing out of Roe v. Wade." This line of argument, that the right to abortion has already been gutted, is increasingly common. Chris Whitman published an article in the Michigan Law Review several years ago to the same effect. I wrote a short comment on Whitman's piece for a University Faculty for Life conference and my paper is available here.

This argument has several distinctive features. One is to, I think willfully, ignore just how extreme US law is abortion. For example, Whitman and Johnsen ignore the Stenberg decision and the still very large number of legal abortions in the US. Second, while expressing concern for the weak and vulnerable, this argument ignores the mounting evidence that abortion harms women. I cite to some of the literature on this latter point in my paper and there has been additional evidence published on this point in just the last several months.


January 30, 2006 in Myers, Richard | Permalink | TrackBack (0)

The Death Penalty and Constitutional Structure

This looks interesting (thanks to Larry Solum):

Broughton on Capital Punishment
J. Richard Broughton (United States Department of Justice - Capital Case Unit) has posted The Second Death of Capital Punishment on SSRN. Here is the abstract:

    This paper seeks to reexamine, and to reformulate, the terms of our national capital punishment dialogue by approaching death penalty jurisprudence as a problem of constitutional structure and form. As a factor contributing to the incremental demise of capital punishment in the United States, omnipotent and omniscient judicial regulation of capital sentencing has significant consequences for the political institutions responsible for controlling the people in our constitutional design. Examining the Supreme Court's recent categorical exemption cases, this paper confronts the raw moral judgments and political preferences that define the Court's immodest understanding of its own authority under the Eighth Amendment. It also examines recent capital habeas cases to demonstrate that the Court may be softening the rigorous standards for habeas relief especially for capital cases. Ultimately, these actions have weakened the death penalty and, more importantly, our political institutions. By serving as a forum for determining which criminal punishments are morally right and desirable, and by compromising the integrity of legal structures that safeguard vital state criminal law interests, the Court diminshes the essential distance that the Constitution places between the government and the governed, and between the institutions that govern. It also undermines the authority of the political branches as the primary institutional mediums for filtering out public passions and building coalitions for responsible democratic action to control the people. The paper therefore urges a greater awareness of, and endorses a constitutional law that safeguards, formal institutional arrangements.

January 30, 2006 | Permalink | TrackBack (0)

Benedict XVI, Deus Caritas Est, and the Role of the Church in Public Life: A Continuity With, Not a Departure From, the Witness of John Paul II

At the beginning of any papacy, people carefully look for signs of continuity with, or variation from, the vision or style of the previous Pope. Thus, observers understandably have been combing through the first encyclical issued by Pope Benedict XVI, Deus Caritas Est, in an attempt to decipher the themes of the new papacy and identify possible points of departure from the actions and messages of John Paul II. When the new pope so often has been caricatured as authoritarian and rigidly doctrinal, statements by him that reflect nuance regarding the role of the Catholic Church in public life and an emphasis of the removal of the Church from ordinary politics take on heightened importance.

In terms of the Church’s relationship with the temporal civil order, which of course is also a matter of primary concern for the Mirror of Justice and its participants, Benedict XVI had this to say:

“The Church's social teaching argues on the basis of reason and natural law, namely, on the basis of what is in accord with the nature of every human being. It recognizes that it is not the Church's responsibility to make this teaching prevail in political life. Rather, the Church wishes to help form consciences in political life and to stimulate greater insight into the authentic requirements of justice as well as greater readiness to act accordingly, even when this might involve conflict with situations of personal interest. Building a just social and civil order, wherein each person receives what is his or her due, is an essential task which every generation must take up anew. As a political task, this cannot be the Church's immediate responsibility. Yet, since it is also a most important human responsibility, the Church is duty-bound to offer, through the purification of reason and through ethical formation, her own specific contribution towards understanding the requirements of justice and achieving them politically.

The Church cannot and must not take upon herself the political battle to bring about the most just society possible. She cannot and must not replace the State. Yet at the same time she cannot and must not remain on the sidelines in the fight for justice. She has to play her part through rational argument and she has to reawaken the spiritual energy without which justice, which always demands sacrifice, cannot prevail and prosper. A just society must be the achievement of politics, not of the Church. Yet the promotion of justice through efforts to bring about openness of mind and will to the demands of the common good is something which concerns the Church deeply.” (Deus Caritas Est, para. 28a)

In emphasizing the proper role of the Church in the awakening and formation of conscience, while insisting that the Church must not enter into the “political battle” that remains instead the separate vocation of the laity, Pope Benedict XVI’s words have been portrayed by some as a departure from the public witness of his predecessor. After all, John Paul II addressed civil authorities regularly with boldness and spoke with prophetic directness on issues of human rights, pointedly including the sanctity of human life from conception to natural death.

I submit that these observers both have misread Benedict XVI as foreshadowing something of a withdrawal by the Church on direct engagement with civil regimes on basic matters of human rights (including sanctity of life issues) and have misunderstood the non-political nature of John Paul II in his forthrightly religious witness in the public square. In other words, I see Benedict XVI's first encyclical as steadily in continuity with John Paul II in the understanding of the appropriate role of the Catholic Church when it encounters the temporal civil order. John Paul II confronted tyranny in many areas of the world and the self-centered idolatries in our corner of the globe by speaking the truth plainly and by encouraging an evangelical spirit that would transform societies by first bringing spiritual renewal to the people. But John Paul II eschewed direct political involvement by the Church or its clery, particularly that of a partisan nature.

The priority of evangelical renewal in John Paul II’s messages was often overlooked, given the uncompromising power of his words regarding the sanctity of human life and the greater specificity of his teachings on the fundamental duty of civil society to protect human life and dignity (e.g., Evangelium Vitae). However, one should not extrapolate a general political agenda, much less a call for direct Church involvement in political campaigns or ideological platforms, from the Church’s teachings condemning such inherent evils as genocide, slavery, and abortion. As did John Paul II, Benedict XVI as the occasion arises undoubtedly will regularly reaffirm the dedication of the Church to the fundamental principles of human dignity in any civil society, beginning with the right to life and including the freedom of religion, to educate children, and to receive the basic necessities of life. As Benedict XVI now counsels, the Church’s primary salvific role and its necessary separation from political life was underscored as well by John Paul II.

In reading Benedict XVI’s encyclical, Deus Caritas Est, as it touched briefly on the role of the Church in public life, I was reminded of John Paul II’s strikingly parallel words at a similarly early point in his papacy. In his very first pastoral journey in January, 1979, the new pontiff visited the Conference of Latin American Bishops (Consejo Episcopal Latinoamericano) in Puebla, Mexico. Far fom praising the increasingly partisan and radical political activism of some bishops and clergy in Latin America, who were loosely gathered under the banner of “Liberation Theology,” the Holy Father wholly rejected the reconception of Jesus as a political, even violent, revolutionary, rather than the divine Son of God with a “redemptive mission.” In his Puebla address, John Paul II emphasized that the Church’s prophetic voice on behalf of the poor and oppressed must be grounded in the Good News of Christ Jesus. By restoring the Church’s spiritual mission, he said, “we are capable of serving human beings and our peoples, of penetrating their culture with the Gospel, of transforming hearts, and of humanizing systems and structures.” The truly revolutionary role of the Church is evangelism, changing the culture by changing the hearts of men and women through a transformative encounter with the Living God through His Son, Jesus. “[E]vangelizing is the essential mission, the specific vocation, the innermost identity of the Church.”

As John Paul II later explained in his Encyclical, Sollicitudo Rei Socialis, to achieve an authentic advancement of human dignity, bishops and priests must focus upon their pastoral vocation of teaching and service, that is, sharing the saving message of Christ, reminding the faithful of the social doctrine of the Church, and exercising Christian charity to feed the hungry, house the homeless, and minister to the sick. “For the Church does not propose economic and political systems or programs, nor does she show preference for one or the other, provided that human dignity is properly respected and promoted, and provided she herself is allowed the room she needs to exercise her ministry in the world.” (Sollicitudo Rei Socialis, paras. 41-42)

For those of us who live, work, and have our being in systems of law and politics, we need to be reminded that while we should always be guided by the Church’s teachings, especially those concerning the dignity of all persons, we may never insist that the Church endorse any particular political agenda. And we must never delude ourselves into believing that what we may accomplish by way of legal reform or political success can ever substitute for the way of salvation offered through Jesus Christ. During his one-month papacy, Pope John Paul I insisted that “it is a mistake to state that political, economic, and social liberation coincide with salvation in Jesus Christ; that the regnum Dei is identified with the regnum hominis.” (John Paul I, Catechetical Lesson on the Theological Virtue of Hope, (Sept. 20, 1978) From John Paul I, through John Paul II, and on to Benedict XVI, the Gospel message for the temporal world and more importantly for the transcendent future remains the same.

Greg Sisk

January 30, 2006 in Sisk, Greg | Permalink | TrackBack (0)

Political Bias and Brain Activity

I wonder if this study helps explain how Catholics can come to such wildly divergent political conclusions based on a common body of social teaching.


January 30, 2006 in Vischer, Rob | Permalink | TrackBack (0)

Sunday, January 29, 2006

Remedying "associational fraud": more reasons for skepticism

I agree with Rick's critique of the Ayres / Brown proposed remedy for "associational fraud."  Imposing a state-approved disclosure form on the membership process presumes that associations are nothing greater than the sum of their individual parts -- that is, an association's value is realized only to the extent that its members have subjectively and verifiably consented to the group's mission and message.  Seen in this light, required disclosure simply helps associations become more effective associations.  It is true that much of an association's mediating function would be lost if there was no correlation between the association's identity and the member's conception of that identity, but much of the mediating function would also be lost if associations were constrained to express that identity in a way that fits on a state-approved form.  The fact that an association's identity is defined, articulated, and pursued beyond the reach of the state is inseparable from the reasons we value associations in the first place.

Further, even for folks concerned with ensuring "correct" identities across the associational landscape, it's not clear that the Ayres / Brown remedy would deliver on its promise.  The proposal presumes that members will be empowered to demand change once a group's illiberal beliefs are brought into the light of day.  But one advantage of not having a formal process by which associations must declare their identities is that those identities maintain a higher degree of malleability than if every facet of an association's core beliefs must be put in writing and incorporated as part of every membership decision.  Institutional change may actually prove more difficult when the unspoken and uncertain beliefs are made explicit and certain.  E.g., I'd venture to say that the Dale litigation made the leaders of the Boy Scouts more wedded to their anti-gay policy than they would have been if the issue had never been pursued by New Jersey.  Just as a scholar's open mind can be jeopardized out of loyalty to his past work, an extensive paper record might prove a formidable obstacle to an evolving associational identity.


January 29, 2006 in Vischer, Rob | Permalink | TrackBack (0)