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.

Sunday, February 26, 2006

Conscience, Human Dignity, and Livelihood

As a past participant to some of the MOJ discussion on conscience and related issues, I would like to offer a few thoughts in response to some of the recent postings. It is clear that a wide variety of individuals today, both in the US and abroad, are facing challenges to their consciences. In this context, I often think of our fellow Catholics in the People’s Republic of China. Some of the recent MOJ debate has concentrated on physicians and pharmacists. In some of this dialogue, a distinction was drawn between members of these two professions. It seems that one view makes a distinction between these two groups in that the sanctions they face can lead to a threat of livelihood for physicians but not for pharmacists. Is that really the case?

Let me suggest that any person has a right to claim the exercise of conscience and that those opposed to this exercise of conscience may take actions that threaten that person’s livelihood and possibly even that individual’s life. Let us take the case of the auto mechanic who is employed by the only place where his specialty and trade are in need. The employer (and only employer) runs a so-called “chop shop” in which stolen cars are broken up into components and sold. Our mechanic of conscience so far has worked only on legal activities, but his employer begins to apply pressure that he must now participate in the shop’s illegal activities. Knowing that there is no other place to go (the mechanic must stay in this community because of his family) for employment, does this fellow not risk loss of his livelihood?

Let us take another case of high school students. Most are good kids; a few get into mischief; some engage in dangerous anti-social behavior. In this case, there is student who minds her business, but she is targeted by a clique from the last group I identified. She is pressured and threatened to engage in dangerous, illegal conduct by members of this last group. There is no escape in that she cannot leave school; if she says anything to her parents or the school authorities, she has good reason to believe that the bullies will initiate reprisals that will lead to serious injury or death. In conscience, she stands her ground and refuses to comply with the demands. Does she not risk loss of her livelihood?

Let us take a third case. Private Jones is a member of an elite military unit in a dangerous foreign assignment where the military are pursuing terrorist suspects. The military unit finds and detains suspects. A superior decides to use interrogation methods that violate applicable international humanitarian law and international law. Private Jones realizes this and finds ways of not participating in these illegal activities for a while. But the day comes when pressure is put on Private Jones to assist in these unlawful methods. In conscience, the private resists, but more pressure is applied—pressure that threatens the private’s status in the elite unit. Does Private Jones not risk loss of livelihood?

Let us take a fourth case. After much difficulty in finding a university teaching post because of national financial constraints in higher education, Professor Davis has recently joined the faculty of Mosquito State University. She weathered the hiring battles and finally got a prized teaching post. What initially seems to be a stroke of good luck is not. The University has authorized the faculty to hire another person in an increasingly difficult job market. Thousands of candidates apply and a few are called on campus to be interviewed. Professor Davis is attracted to one candidate in particular because they both share similar philosophies on life and teaching. However, just before the faculty vote that will determine who will be the successful candidate, a senior member of the faculty who also chairs the rank and tenure committee stops by Professor Davis’s office and “suggests” that Professor Davis not vote for Davis’s favorite candidate. Even though the hiring vote is done by “secret” ballot, Davis knows that how each member of the faculty votes can be determined. Professor Davis, in conscience, is compelled to vote for this candidate, but Davis also knows the consequences for her presently untenured career. Does Professor Davis not risk loss of livelihood because of the exercise of conscience?

I believe that the distinction between physicians and pharmacists about losing or not losing their livelihood is not a helpful one. All persons have human dignity, and all persons of conscience can find themselves in situations where their integrity and their well-formed consciences in which they rely on the objective moral order can be assaulted. These assaults can occur in the daily life of the person wherever he or she works and lives. They can occur to someone who is a member of a learned profession and someone who is not. These pressures know no boundaries that are based on age. They can exist throughout the human condition. They do not visit only members of elite professions; they can threaten virtually anyone including our local pharmacist.   RJA sj

February 26, 2006 in Araujo, Robert | Permalink | TrackBack (0)

Saturday, February 25, 2006

Pharmacists and Contraceptives

This USA Today article suggests that at least some pharamcists are simply refusing to fill prescriptions for oral contraceptives (not just the morning after pill, etc.), although it also supports Kim's point that there is more concern about abortifacients:

For a year, Julee Lacey stopped in a CVS pharmacy near her home in a Fort Worth suburb to get refills of her birth-control pills. Then one day last March, the pharmacist refused to fill Lacey's prescription because she did not believe in birth control.


Sonfield says medical workers, insurers and employers increasingly want the right to refuse certain services because of medical developments, such as the "morning-after" pill, embryonic stem-cell research and assisted suicide.

February 25, 2006 | Permalink | TrackBack (0)

Conscience and Professions

In response to the comment by Kim Daniels:

(1) I think the fact that (assuming doctors face professional sanctions for participating in an execution) the presence of a professional norm makes the case quite different from the pharmacist situation for the simple reason that state compulsion puts them in the impossible position of (possibly) losing their livelihood for complying with the state's demand.  Granting that violating your own conscience is a serious harm, I think it's safe to say that violating your conscience plus the possibility of losing your livelihood is even more serious, and something that pharmacists do not face.

(2) My comments were directed towards doctors refusing to dispense run-of-the-mill oral contraceptives.  (I believe another post addressed the question of cashiers dispensing condoms.)  I'm not familiar enough with the run of these cases to assess the accuracy of the statement that most of them involve abortifacients.  Obviously, the considerations I discussed would be substantially different in the case of a medicine that someone's religion teaches is evil in itself (i.e., one that has no legitimate uses). (I would disapprove of the state's attempts to compel someone to sell such a medicine against their conscience in the same way that I would think it wrong for the state to compel a Catholic hospital to provide abortions.)

February 25, 2006 | Permalink | TrackBack (0)

Friday, February 24, 2006

Beinart on religion, secularism, and the cartoons

Peter Beinart, of The New Republic, contributed to a recent issue of the magazine what I thought was a very thoughtful essay on the whole "free speech / offensive cartoons/ riots in the streets / religion and liberalism" debate.  One the one hand:

The riots currently engulfing the Islamic world, prompted by a Danish newspaper's decision to caricature the Prophet Mohammed, require two responses. The first is easy: horror. In the physical assault on Denmark's embassies and citizens, and in the diplomatic assault on Denmark's government--all because a free government won't muzzle a free press--multiculturalism has become totalitarianism. Religious sensitivity, say the zealots marching from Beirut to Jakarta, matters more than liberty. Indeed, it matters more than life itself. To which the only answer, from democrats of all religions and of none, must be: In this matter, we are all Danes.

As I have suggested in earlier posts (though not so eloquently), I agree. On the other hand:

Responding to the thuggishness is easy. Responding to the cartoons themselves is harder. It is hard to condemn them when the barbaric response in parts of the Islamic world so vastly dwarfs the initial offense. And yet, the cartoons should be condemned nonetheless. Of course, the Danish newspaper had the right to publish them. But, in doing so, it revealed a particularly European prejudice, one that the United States must take care not to repeat.

The prejudice is not simply against Islam. Rather, it stems from Europe's--or at least Western Europe's--inability to take religion seriously at all.

Later, after expressing concern that many conservatives in the United States seem not to share President Bush's "conservative ecumenism," Beinart writes:

Now, in the wake of the cartoon saga, the election of Hamas and the ongoing trauma in Iraq, that universalism is being challenged, and the older, more pessimistic conservatism is resurfacing. And that's a very bad thing. No matter what you think of the religious right's domestic agenda, the United States is much better off with a religious right than with a Christian right or a Judeo-Christian right. When conservative American Christians lose their ability to identify with conservative Muslims--to imagine their faith as in some basic way the same and deserving of the same basic respect--the United States will find itself less able to speak to the Muslim world, and less able to listen to it. It will find itself, in other words, in the place Europe is now. And that's a place no American should want to be.

While I imagine my own views of the so-called "religious right" differ from Beinart's, it seems worth working to hold on to the very Dignitatis humanae-type theme that Muslims' faith is "in some basic way the same and deserving of the same basic respect" as Christians' (which is not to say that one must suspend or bracket one's view that Christianity is true or shield one's eyes from the fact that there are serious problems in the Muslim world).

February 24, 2006 | Permalink | TrackBack (0)

"Not in the Heavens"

In the February 20 issue of The New Republic, my friend Noah Feldman has a very critical review of Jay Sekulow's book, Witnessing Their Faith: Religious Influence on Supreme Court Justices and Their Opinions.  Feldman writes:

In this political-religious environment, the relation of an official's faith to his political practices has become a renewed topic of conversation in evangelical circles. That is the best reason to examine the new book by the lawyer-activist Jay Sekulow, a central figure in the evangelical rethinking of constitutional law and practice. He serves as chief counsel for the cleverly initialed American Center for Law and Justice (ACLJ), a law firm founded by Pat Robertson to represent evangelicals in constitutional litigation. He has appeared several times at the Supreme Court on behalf of evangelical causes. . . .

Witnessing Their Faith, it turns out, is Sekulow's doctoral thesis, written for the School of Leadership Studies at Pat Robertson's Regent University in Virginia Beach. Whatever its merits as an example of "leadership studies," Sekulow's work is a failure as history. This is not because his facts are wrong. Most of them are correct, and a reader new to the subject could certainly pick up some useful things about the history of church and state in America. The trouble with Sekulow's book lies in its selection and its interpretation of biographical materials about nine Supreme Court justices and their opinions. The choice of examples is highly selective, and the interpretations are pervasively tendentious. Witnessing the Faith is an important document of a disturbing phenomenon. . . .

The central claim of Sekulow's book is that in the cases he analyzes, "the opinion of the justices coincided with the official positions held by the religious denomination that had influenced them." In practice, Sekulow cannot successfully demonstrate this claim. Yet the story he tells is worth considering, more for what it fails to show than for what Sekulow claims it does show. A reasonable argument can be made that in fact Sekulow's subjects overwhelmingly separated their religious faith (which was often quite minimal) from their constitutional decision-making. The faith that they witnessed, in other words, was not religious, it was constitutional. . . .

There's a lot more, and the view is well worth reading.  Like Feldman's book "Divided By God," the review is -- even in those places where one might have questions or even disagreements -- respectful, charitable, and generous.  Some MOJ readers and bloggers might quibble with this line, though:

Presumably Brennan's liberal activism would not have squared well with his Catholic upbringing and commitments (although one can imagine some historian trying to connect Brennan to the social justice tradition of the Catholic Worker movement).


February 24, 2006 | Permalink | TrackBack (0)

Daniels on executioners and pharmacists

Regarding our recent discussions of pharmacists' and doctors' conscience-based objections to morning-after pills and lethal injections, Kim Daniels (a lawyer with the St. Thomas More Law Center) writes:

Just a quick note from the trenches regarding the MOJ discussion [about doctors, pharmacists, and conscience].  I think that in fact there are important similarities between a doctor's refusal to participate in imposition of the death penalty and a pharmacist's refusal to prescribe certain drugs.

Prof. Penalver notes that in the death penalty case,  the doctors were not acting merely on their personal views, but on their "professional obligations."  I'm not clear on the moral difference between these two categories; after all, to value professional obligations is itself a personal moral view, and the doctors were "obligated" to act the way they did only because they share the widely-held views of their profession.  While the doctors may or may not have faced professional consequences as a result of their actions, this was just a factor in their personal moral evaluation of the situation they faced.

Prof. Penalver next argues that  "in one case, doctors are being asked to directly cooperate in the killing of a human being; in the other case, they are being asked to sell someone something that is not even considered evil in itself."  But the current pharmacist cases largely involve Plan B, an abortifacient that these pharmacists are unwilling to dispense precisely because they believe that doing so amounts to illicit cooperation in the intrinsically evil act of abortion.  As far as I know, in those cases involving pharmacists' refusal to fill prescriptions for hormonal contraceptives, the pharmacists similarly objected to the abortifacient actions of those medications.

18 USC s3597(b) prevents any state or federal employee or service provider from being required "as a condition of that employment or service obligation" to attend or participate in an execution "if such participation is contrary to the moral or religious convictions of the employee."  I heartily support this law; I'm still unclear, though, as to why pharmacists who object to cooperating in the taking of a life don't deserve similar protection.

February 24, 2006 | Permalink | TrackBack (0)

New books

A few weeks ago I reviewed a book proposal for an academic press.  In return, I was given a choice between $150 in cash or $300 in books.  I ended up taking the books, which arrived today.  I'm looking forward to a wonderfully geeky Spring Break!  The new books include several by MOJ-ers, including Steve Shiffrin's "Dissent, Injustice, & the Meanings of America" and Patrick Brennan's "By Nature Equal:  The Anatomy of a Western Insight."  I'm also really looking forward to Dan Philpott's "Revolutions in Sovereignty", which has a Harold Berman / "Law and Revolution"- type "vibe" to it.

February 24, 2006 | Permalink | TrackBack (0)

A "Catholic voice" against torture?

If you care about torture, Jane Mayer's "Annals of the Pentagon: The Memo," in The New Yorker dated Feb. 27, 2006, won't disappoint.  General Alberto Mora -- the thwarted hero of the story, as I read it -- attended a Catholic school in Jackson, Mississippi.  That he now works for Wal-Mart should be a lesson to us all. 

February 24, 2006 in Brennan, Patrick | Permalink | TrackBack (0)

Making Sense of the Gay Adoption Ban

I was hoping someone would respond to Eduardo's earlier question on the Massachusetts bishops' attempt to gain an exemption allowing Catholic Charities to categorically exclude gay couples from adoption.  I generally resist state efforts to impose contested moral norms on religious groups, but I'm troubled by the bishops' decision to contest this moral norm, at least to the extent that it impacts the well-being of children.  This news report underscores, in my view, the difficulty with the bishops' position:

Of the 720 adoptions handled by Catholic Charities of Boston since 1987, roughly 60 percent involve foster children with the DSS, and 40 percent are babies and children who come into the agency from individual families.

Of the approximately 430 foster children adopted through Catholic Charities during that time period, 13 were placed with same-sex couples, said Virginia Reynolds, a spokeswoman for the agency.

They were all children who had been abused or neglected and were considered hard to place because they are older or have special needs, Reynolds said.

It is easier to understand the Church's opposition to civil marriage being opened to homosexuals if we understand marriage as not just a reflection of human relationships as they are, but as an aspirational statement of relationships as they should be.  (There is still the potentially insurmountable problem of translating the aspirational quality of marriage from a religious notion into an aspiration that resonates in non-religious terms.)  But for adoption, it seems that we need to view public policy as a reflection of reality, not aspiration: there are abused and neglected children who are very difficult to place in loving environments.  Why would we want to categorically preclude a segment of the population from providing such environments simply because the Church's ideal form of relationship is not reflected in that environment?

If the Massachusetts bishops' opposition to gay adoption under all circumstances emanates from the same aspirational norm as the opposition to gay marriage, that seems problematic.  But if the opposition emanates from a conviction that the discernible measures of children's well-being are negatively impacted in gay adoption scenarios such that those adoptions should be precluded outright, then it seems that it will boil down to a battle of empirical studies.  So would the bishops drop their opposition if a study showed that children of gay couples can thrive under the criteria that generally apply to measure children's well-being, or would the bishops argue that the children of gay couples are, by the very nature of their environment, not capable of thriving?


February 24, 2006 in Vischer, Rob | Permalink | TrackBack (0)

More on the O Centro case

Here is a short op-ed of mine about the Court's recent RFRA case, Gonzales v. O Centro Espirita Beneficiente Uniao do Vegetal:

. . . [L]ike the Court's decision last year in Cutter v. Wilkinson — which rejected the argument that another religious-accommodations law, the Religious Land Use and Institutionalized Persons Act, was an illegal "establishment" of religion — the ruling in O Centro Espirita was unanimous. True, the justices have been and remain sharply divided in church-state cases involving public displays and government funds; but when it comes to legislative accommodations of religious exercise, they are united in recognizing that the Constitution permits special accommodations of religion and in insisting that accommodations laws secured through the political process should be meaningfully enforced. The fact that the Constitution rarely requires accommodations and exemptions does not and should not mean that they are or should be disfavored. . . .

Thinkers from St. Augustine and Pope Gregory VII to Roger Williams and James Madison have taught us that the "separation of church and state," properly understood, is an important component of religious freedom. That is, the institutional and jurisdictional separation of religious and political authority, the independence of religion from government oversight and control, respect for the freedom of individual conscience, government neutrality with respect to different religious traditions, and a strict rule against formal religious tests for public office — all these "separationist" features of our constitutional order have helped religious faith to thrive in America. Properly understood, the separation of church and state is not an anti-religious ideology, but rather, as John Courtney Murray put it, a "means, a technique, [and] a policy to implement the principle of religious freedom." And, as the Court's decision reminds us, one permissible and praiseworthy way to implement this principle is through popularly enacted, reasonable, and balanced religious-accommodations laws.

February 24, 2006 | Permalink | TrackBack (0)