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, February 28, 2006

Torture Memo

Michael asks whether any MoJ-ers have written anything directly critical of the "torture memo."  Not that it's a particularly formidable task to criticize that memo, but here's my effort nonetheless.


February 28, 2006 in Vischer, Rob | Permalink | TrackBack (0)

Regarding the "New Impediment"

The article by Monsignor Candreva in the magazine America dated February 27 of this year concludes with this hope:  "I hope that the above reflections can help assure my brothers in the priesthood who may feel that the instruction [sic] makes them 'second-rate' that any of us who honestly made our ordination promises, who have faithfully accepted the burden of celibacy, and who have, no matter how we may have failed the Lord and his people, risen up through the grace of the sacrament of reconciliation to continue to carry our cross, can look forward with founded hope to being embraced by the Lord at the end of our journey."   America identifies Monsignor as a canon lawyer and retired priest of the Dicocese of Rockville Centre, N.Y. 

America attaches the following sub-title to Candreva's essay: "The Vatican's document regulating admission to seminaries and ordination revives an almost extinct legal device."  No doubt, Monsignor is right, in a way, that "Prohibiting men with certain characteristics from being ordained to the priesthood is nothing new in church [sic] discipline."  But does Monsignor see this as no more than a matter of (1) regulating (2)admission to (3) seminary or ordination as (4) a question of discipline or legal device?  There is a theology that is being applied, if clumsily, in the Instruction.

"Purposive interpretation," as we say in the law, would be of value here.  Failing that, a return to the "almost extinct legal device," the "impediment," might be necessary.  Or are there no "impediments" to the sacraments?         

February 28, 2006 in Brennan, Patrick | Permalink | TrackBack (0)

"Fundamentalism" Conference

While we're in the mode of fisking upcoming legal conferences, this notice I received about the "Fundamentalism and the Rule of Law" conference at Cardozo Law School on March 14 doesn't inspire huge confidence in its balance.  There are some very fine scholars speaking, including several friends of mine, and of course one can't tell precisely how the discussion will go; but a few concerns of note. . . .

First, the premise is that "[r]eligious fundamentalism is on the rise around the world.  Its truth claims often directly challenge not only competing social mores but also legal rules.  That clash . . . is just beginning to gain the attention of scholars."  This sounds like the subject will be the foundational challenge to modern democracy from radical groups, especially in Islam; and indeed there are a couple of addresses or papers on subjects such as "Islam and the Rule of Law."  Combined with those, however, are a couple of papers on the "faith-based initiative" and the funding of social services, and another on "the religious right and the politics of abortion."  Is it really fair to suggest that either (i) the effort to extend equal funding to religious social services that aid the poor and needy or (ii) the effort to enact restrictions on abortion (in many cases, comparable to restrictions that exist in Western European nations) constitute the same kind of fundamental challenge to Western democracy and the rule of law as we are seeing from truly fundamentalist groups?

Second, the conference conception seems to gloss over the important distinction in American religion between fundamentalism and evangelicalism -- the latter being a less separatist and more acculturated version of conservative Protestantism than the former.  The panel with a paper on the faith-based intiative (as well as others on intelligent design and abstinence-only programs), for example, is called "Fundamentalist Initiatives in the U.S."  But fundamentalists, with their highly separatist attitude toward society and the state, are generally unlikely to seek government funding for social service activities, and certainly are not as accepting as evangelicals of seeking such funds on simply the same basis as secular social services.  Of course there are not hard and fast lines between fundamentalism and evangelicalism, but it is hard not to see the thrust of this conference as lumping the two together (and with negative connotations, as for example in the question about the consistency of these viewpoinrs with "the rule of law").

Finally, the conference appears heavily weighted against the idea of conservative religion playing a role in politics and law.  The two papers on the faith-based initiative are by opponents, including Winnifred Fallers Sullivan (U. Chicago Divinity School) and Steve Green, the former general counsel for Americans United for Separation of Church and State.  Commenting on Steve's panel, along with a Cardozo professor, is . . . well, Barry Lynn of American United for Separation of Church and State.  Don't expect a strong clash of views there.  The perspectives of the panelists vary in some ways -- and some are objective social-science analysts -- but the normative views about conservative Christians, so far as I can see, run from very negative over to moderate/mixed.    I see no one on the roster who is an overall defender of evangelicals' activism in politics and law, no one really to counter the several panelists who are sharp critics of that activism.


February 28, 2006 in Berg, Thomas | Permalink | TrackBack (0)

Recommended reading ... on the Bush Admin's "Torture Memo"

In the February 24th issue of COMMONWEAL, Cathleen Kaveny (Notre Dame, Law and Theology) has a piece well worth reading.  Alas, there is no electronic version to which I can link, but here are the first two paragraphs:

Behind the Administration's "Torture Memo"

In the Bush administration's most infamous "torture memo," dated August 1, 2002, Assistant Attorney General Jay Bybee wrote to then-White House Counsel Alberto Gonzales:  "Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."  An American interrogator who inflicted anything short of this level of pain on a detainee in the war on terror
would not be committing torture, he argued, and therefore could not be charged with that crime under the federal antitorture law.

Bybee's purpose in adopting such a definition of torture was clearly to give interrogators maximum leeway to inflict physical pain in order to obtain information.  Where did his definition originate?  In international law?  No.  From scholarly commentary on torture?  No, again.  Bybee drew on an entirely unrelated body of law, federal health-care law, which mandates the alleviation of pain rather than justifying its infliction.  In my judgment, Bybee�s reasoning is not simply faulty, it is perverse.  It exemplifies the sort of reasoning that has given us lawyers a bad name.

[To read the whole piece, find Commonweal, 2/24/06, and go to pages 8-9.]

Have I missed something?  Has Robby George (Princeton, Politics) written anything critical of the "Torture Memo"?  Have any MOJers done so?


February 28, 2006 | Permalink | TrackBack (0)

Upcoming Statement by Catholic Democrats in the House

In the Washington Post, E. J. Dionne calls attention to a forthcoming "Statement of Principles By Fifty-Five Catholic Democrats in the U.S. House of Representatives":

"As Catholic Democrats in Congress," the statement begins, "we are proud to be part of the living Catholic tradition -- a tradition that promotes the common good, expresses a consistent moral framework for life and highlights the need to provide a collective safety net to those individuals in society who are most in need. As legislators, in the U.S. House of Representatives, we work every day to advance respect for life and the dignity of every human being. We believe that government has moral purpose."

The statement is only six paragraphs, which gives it clarity and focus. After a paragraph on Catholic social teaching about the obligations to "the poor and disadvantaged," the writers get to the hard issue, insisting that "each of us is committed to reducing the number of unwanted pregnancies and creating an environment with policies that encourage pregnancies to be carried to term."

What's significant is that this is not a statement from pro-choice Catholics trying to "reframe" the abortion question. The signatories include some of the staunchest opponents of abortion in the House, including Reps. Bart Stupak, Dale Kildee, Tim Holden, James Oberstar and James Langevin.

In other words, Democrats on both sides of the abortion question worry that it is crowding out all other concerns. And in very polite language, the Catholic Democrats suggest that their bishops allow them some room to disagree. "In all these issues, we seek the church's guidance and assistance but believe also in the primacy of conscience," they write in an echo of Kennedy. "In recognizing the church's role in providing moral leadership, we acknowledge and accept the tension that comes from being in disagreement with the church in some areas."

It will be interesting to read the full six paragraphs when they are released -- in particular, to see whether the pro-choicers signing the statement have dragged the pro-lifers in their direction, or whether the pro-lifers have influenced the pro-choicers in any significant respect.


February 28, 2006 in Berg, Thomas | Permalink | TrackBack (1)

A New Impediment

AMERICA, February 27, 2006

A New Impediment

By  Thomas D. Candreva

Prohibiting men with certain characteristics from being ordained to the priesthood is nothing new in church discipline. More than 40 years ago, when I was still in the seminary, church law laid down a number of such impediments. According to the theology of the time, the office of the priesthood required a certain level of physical perfection as well as a certain status in society. Thus men with prominent physical handicaps were excluded. Because they handled the sacred species, a man’s fingers were particularly important. A man who lacked even a pinkie was already impeded. If he lacked a thumb or index finger on either hand, a dispensation from the pope himself was required for him to be received into the priesthood. Likewise, a man born out of wedlock needed a dispensation in order to be ordained. A priest who had been born a bastard would present a spiritually sullied image to the congregation.

None of these impediments reflected in any way on the moral or spiritual character of the man. They were rather, in the view of the time, objective conditions inconsonant with the dignity and office of the ordained priest. Today Catholic theology and practice see such impediments as inappropriate. In the revision of canon law after the Second Vatican Council such impediments quietly vanished.

At least this was true until the recent instruction from the Congregation for Catholic Education entitled Instruction on the Criteria of Vocational Discernment Regarding Persons With Homosexual Tendencies in View of Their Admission to Seminaries and Holy Orders. This document, if I am not mistaken, establishes a new impediment to ordination of the type described above. In the text of the document there is absolutely no indication that those who have “deep-seated homosexual tendencies” are necessarily guilty in any way of behavior or thinking contrary to church teaching and discipline; nonetheless they are impeded from entering the seminary and receiving sacred orders. The document does not use the word “impediment,” but it seems to be the proper category under which this prohibition must be considered.

[To read the whole article, click here.]

February 28, 2006 in Perry, Michael | Permalink | TrackBack (0)

Contraception and the Double Effect

Denise Hunnell (an MD and MOJ reader) submitted my question to a service called the National Catholic Bioethics Center (www.ncbcenter.org).  Peter Cataldo responded by attaching an article he wrote, entitled Therapeutic Uses of Anovulents, which includes the following helpful discussion:

The theoretical possibility of a possible abortifacient effect from chronic use of therapeutic anovulants for female spouses is not a decisive factor in the moral evaluation of their use under these circumstances.  The reason is that at the present time there is no moral certitude that such use causes an abortifacient effect.[1]  There is no moral responsibility for effects that are not reasonably foreseen. If an effect does not follow from the nature of a cause or in the majority of cases, but instead follows accidentally and seldom, then it may be considered an unforeseen consequence not morally attributable to the agent (see St. Thomas Aquinas, Summa Theologica, I-II, 20, 5; Summa Contra Gentiles, III, ch. 6, ns. 4 and 7).

Evidence of a causal connection between the regular and long-term use of anovulants and the prevention of implantation of a possible embryo is tenuous.  There is both physiological evidence that the changes to the endometrium caused by anovulants are probably not sufficient to cause an abortifacient effect, and theoretical evidence that these changes might prevent implantation.  Moreover, there is no way of knowing that an embryo exists who might be affected by the drug. This uncertainty about a possible abortifacient effect disqualifies it as a foreseen bad effect.  A possible abortifacient effect would not follow from the nature of the pill because its primary mechanism is the suppression of ovulation, and if an abortifacient effect occurs infrequently it cannot be known with certitude.  For these reasons, the therapeutic use of anovulants is not an act that would violate the first condition of the principle of the double effect.

[1] For opposing medical and ethical positions from prolife physicians and a pharmacological expert on the question of the abortifacient effect of oral contraceptives see: Walter L. Larimore and Joseph B. Stanford, “Postfertilization Effects of Oral Contraceptives” and Walter L. Larimore and Randy Alcorn, M.A., “Using the Birth Control Pill Is Ethically Unacceptable” in The Reproduction Revolution: A Christian Appraisal of Sexuality, Reproductive Technologies, and the Family, eds. John F. Kilner, Paige C. Cunningham, and W. David Hager Grand Rapids, MI: Wm. B. Eerdmans Publishing Co., 2000), 179–191; Susan A. Crockett, M.D. et al., “Using Hormone Contraceptives Is a Decision Involving Science, Scripture, and Conscience” in The Reproduction Revolution, Kilner et al., eds, 192–201; Joel E. Goodnough, M.D., “Redux: Is the Oral Contraceptive Pill an Abortifacient?” Ethics & Medicine 17.2 (Summer 2001): 37–51; John Wilks, B., Pharm, M.P.S., Response to Joel Goodnough MD, ‘Redux: Is the Oral Contraceptive Pill an Abortifacient?’ ” Ethics & Medicine 17.2 (Summer 2001): 103– 109; and William F. Colliton, M.D., “Response to Joel Goodnough MD, ‘Redux: Is the Oral Contraceptive Pill an Abortifacient?’ ” Ethics & Medicine 17.2 (Summer 2001): 110–113; and Chris Kahlenborn, Joseph B. Stanford, and Walther L. Larimore,“Postfertilization Effect of Hormonal Emergency Contraception,” The Annals of Pharmacotherapy 36.3 (March 2002), 465–470).

February 28, 2006 | Permalink | TrackBack (0)

From Leiter Reports, 2/28/06:

Adoption Legislation We Can All Support (Leiter)

Details here; an excerpt:

If a Youngstown lawmaker's proposal becomes Ohio law, Republicans would be barred from being adoptive parents.

State Sen. Robert Hagan sent out e-mails to fellow lawmakers late Wednesday night, stating that he intends to ``introduce legislation in the near future that would ban households with one or more Republican voters from adopting children or acting as foster parents....''

Hagan said his legislation was written in response to a bill introduced in the Ohio House this month by Rep. Ron Hood, R-Ashville, that is aimed at prohibiting gay adoption....

Hood's bill, which does not have support of House leadership, seeks to ban children from being placed for adoption or foster care in homes where the prospective parent or a roommate is homosexual, bisexual or transgender.

To further lampoon Hood's bill, Hagan wrote in his mock proposal that ``credible research'' shows that adopted children raised in Republican households are more at risk for developing ``emotional problems, social stigmas, inflated egos, and alarming lack of tolerance for others they deem different than themselves and an air of overconfidence to mask their insecurities.''

However, Hagan admitted that he has no scientific evidence to support the above claims. Just as "Hood had no scientific evidence to back his assertion that having gay parents was detrimental to children", Hagan said.

February 28, 2006 in Perry, Michael | Permalink | TrackBack (0)

Some news about one of our own ...

Two MOJers at Cornell:  Eduardo Penalver is joining Steve Shiffrin at Cornell.  I lifted this from Leiter's Law School Reports (2/28/06):

Penalver from Fordham to Cornell

Eduardo Penalver (property, law & religion), a tenure-track professor at Fordham and a visiting professor this year at Yale Law School, has accepted a mid-level untenured (but tenure-stream) post at Cornell Law School.

Congrats, Cornell  Condolences, Fordham.

February 28, 2006 in Perry, Michael | Permalink | TrackBack (0)

Berkeley's Stem Cell Conference

This week UC-Berkeley is convening a pep rally conference titled "California's Stem Cell Initiative: Confronting the Legal and Policy Challenges."  (HT: Solum) Here is the description:

Most scientists concur that human embryonic stem cell research holds considerable promise for advancing human health. In 2004, California voters endorsed a bold initiative (Proposition 71) to fund stem cell research by the issuance of $3 billion in bonds, which will be allocated over a 10 year period to researchers.

However, foundational legal and policy issues remain to be resolved – from intellectual property rights to other ownership issues (e.g., the form of donor consent), to how (and whether) the state of California should expect to recoup its investment in the research, to name just a few. This conference seeks to provide insights and recommendations from leading thinkers that will enable California’s bold initiative to be successful.

A couple of presumptions jumped out at me.  First, the conference takes as a given that the health benefits of embryonic stem cell research are largely undisputed and that California's initiative is "bold" (used twice in two paragraphs!) and should be "successful."  With premises like these, the conference marginalizes many of the most pressing issues surrounding the initiative.  Second, how could the "foundational legal and policy issues" not include any discussion of the ethical or moral dimension of state-funded embryonic stem cell research?  Perhaps they just weren't significant enough to include in the description.  Or perhaps the conference organizers presume that such questions are not worth exploring in the first place.  Or perhaps they presume that such questions are not properly encompassed by a conference on law and policy.  The divinity school types need something to talk about at their conferences, I suppose.


February 28, 2006 in Vischer, Rob | Permalink | TrackBack (0)