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.

Saturday, April 29, 2006

Business Executives and Gay Marriage

Over time, we may see this argument increasingly split the business wing of the Republican Party from the cultural-conservative wing on the issue of same-sex marriage.

Earlier this month, more than 50 executives - in advertising, public relations, marketing and related fields - sent a letter to [Minnesota] Gov. Tim Pawlenty and the Legislature, warning that the proposed [state marriage] amendment could drive away talent from Minnesota. . . .

The argument, advanced in some other states [and in books by business theorist Richard Florida], is that there is a "creative class'' of talented workers, straight and gay, who are a driving force in the economy and seek out vibrant communities that are tolerant of differences.

Some of those who support the gay marriage ban reject the argument.

"Minnesota is such a fabulous state to live and work, it's a stretch to think people would choose not to live in Minnesota because our laws continue to reflect that marriage is between a man and a woman,'' said state Sen. Michele Bachmann, who has led the fight for the amendment.


April 29, 2006 in Berg, Thomas | Permalink | TrackBack (0)

Books on Torture

Here (in the previously-referenced excellent Books and Culture) is a fine review essay on several recent books concerning torture, including lawprof Sandy Levinson's anthology Torture and St. Thomas theologian (and my seminar co-teacher) Bill Cavanaugh's Torture and Eucharist.  Among the interesting questions raised is a challenge to the distinction between "torture" and "coercive interrogation practices," a distinction embraced (though with dramatically different degrees of ethical sensitivity and seriousness) by Christian ethicist Jean Elshtain and by the Bush administration.  The reviewer writes:

Is it not possible that the cumulative effect of many acts of torture lite would amount to torture proper? A steady diet of hooding, sleep and food deprivation, nakedness and shame, exposure to severe temperatures, deception, and intimidation can surely have the effect of creating servility, creating a environment of fear, and destroying a subject's world. Here it is telling to note that Elshtain tends to associate torture with singular acts of extreme physical torment; but if Parry and Scarry are correct, the cumulative effect of persistent torture lite—which plays as much on the mind as on the body—can be equally devastating to the person as a whole.

Christian ethicists (including Elshtain herself) hold that the image of God resides in the whole person, who is a complex, integrated whole of body and mind. If this richer understanding of coercion is correct, it might, then, appear better to draw the lines precisely where the Geneva Conventions did, putting torture and torture lite in their respective categories while proscribing both. Even if necessity drives agents beyond the pale, even if our courts allow for such a legal defense, the moral line remains clear in this murky terrain. To my mind, this line of reasoning hardly counts as "moral code fetishism"—least of all, for the Christian ethicist.


April 29, 2006 in Berg, Thomas | Permalink | TrackBack (0)

Evangelicals and their Catholic Overlords

John Wilson, editor of the evangelical book-review magazine Books and Culture (it's excellent -- check it out!), objects to yet another part of Damon Linker's recent attack on his former boss RIchard Neuhaus.  Linker's New Republic article managed to insult evangelicals even more than Catholic neocons:

Countless press reports in recent years have noted that much of the religious right's political strength derives from the exertions of millions of anti-liberal evangelical Protestants. Much less widely understood is the more fundamental role of a small group of staunchly conservative Catholic intellectuals in providing traditionalist Christians of any and every denomination with a comprehensive ideology to justify their political ambitions. In the political economy of the religious right, Protestants supply the bulk of the bodies, but it is Catholics who supply the ideas.

Wilson objects:

There's too much confusion here, as Bob Dylan said; it's hard to know where to begin. In general, the figures most readily identified with the Religious Right—Jerry Falwell, Pat Robertson, James Dobson, Tim LaHaye, et al.— have been negligibly influenced by Catholic thought. Among evangelical intellectuals, Catholicism is much more influential than it was a generation ago, but it is only one stream among many shaping public discourse among evangelical élites, and certainly not on a par with the Reformed tradition represented by thinkers such as Nicholas Wolterstorff, Richard Mouw, and many others. Hard as it may be for [critics like] Linker to grasp, evangelicals are not entirely dependent on crumbs from the Catholic table.

This is a good point; the media still wrongly tend to see evangelicals, as a Washington Post writer did a numbers of years ago, as "poor, uneducated, and easy to command."  Still, at the least, Catholics have had a very powerful influence on evangelicals on those "life" issues -- abortion, euthanasia, and embryonic stem-cell research -- that are central to evangelical political activism.  On these matters, not only did Catholics prod evangelicals to become involved (e.g. the initial evangelical reaction to Roe was pretty ho-hum), but Catholic formulations of human dignity and the "culture of life" have also become the moral vocabulary for many, many evangelicals.  Of course, the critique of abortion etc. comes from across the Catholic political spectrum, not just from conservatism: the central recent figure, John Paul II, resists political labeling.  (On other issues -- war, the death penalty, government anti-poverty programs -- evangelicals already tended more toward political conservatism.  On those they needed no Neuhaus, Novak, or Weigel to give them a lead.)


April 29, 2006 in Berg, Thomas | Permalink | TrackBack (0)

Friday, April 28, 2006

"Futile Care", Freedom of Choice, and Political Alliances

Jody Bottum has this, at the First Things blog, about a very disturbing case:

It is death by philosophy, it is murder by decree, and the curiously named “freedom to die” becomes a freedom only to die. Wesley Smith reports on the case of Andrea Clark, down in Texas—where a state “futile-care law” has allowed the bioethics committee at St. Luke’s, an Episcopalian hospital in Houston, to reject a patient’s desire for treatment.

As Smith puts it, “The idea behind futile-care theory goes something like this: In order to honor personal autonomy, if a patient refuses life-sustaining treatment, that wish is sacrosanct. But if a patient signed an advance medical directive instructing care to continue—indeed, even if the patient can communicate that he or she wants life-sustaining treatment—it can be withheld anyway if the doctors and/or the ethics committee believes that the quality of the patient’s life renders it not worth living.”

In other words, you’re free to choose, as long as your choice is for death.

Andrea Clark’s family faced a problem when they were delivered a notice that the patient must be removed from the hospital within ten days. The local hospitals have joined, Smith reports, in a “Houston City-Wide Guidelines on Medical Futility,” and will not contradict each other’s futility decrees.

But in response to the embarassment generated by the rapid response of the pro-life world, St. Luke’s has offered to pay the $14,000 or more it will cost to move Andrea Clark to a hospital in Illinois that contacted the woman’s family and offered to take her. Clark’s sister reports that the hospital gave them one day to decide—declaring that it would pay only half the cost if the family took a second day, and nothing if the family took more time.

The conservative pro-lifers moved this story, through the network and quick responses put in place by the death of Terri Schiavo. But the appeal for Andrea Clark originally appeared on a left-wing website, Democratic Underground, where the response was strong and heartfelt.

For years, many activists against euthanasia and physician-assisted suicide—Wesley Smith among them—pitched their appeal primarily to the Left. Smith was a Naderite, co-authoring books with Ralph Nader, and he, like many others, originally thought of the fight in leftist terms: the struggle of citizens against large-corporation hospitals, insurance companies, and HMOs. But they got very little traction on the Left, and gradually found themselves preaching to the pro-life community on the Right.

That the pro-life political connection isn’t necessary seems to be proved by the reaction to Andrea Clark’s story on Democratic Underground. But maybe that’s too strong a conclusion. Abortion has so badly skewed American politics, it’s hard to see what natural groups would be formed. Still, it does suggest there is a constituency for Democrats who could successfully buck their party on the life issues.

April 28, 2006 | Permalink | TrackBack (0)

Steve Colbert, redux

A few months ago, I blogged about Steve Colbert's interview with Terry Gross, of "Fresh Air."  Here's Ann Althouse, talking about Colbert's recent fun with hipster atheist Sam Harris.  And, here's more from Ambivablog:

[T]here's at least a double twist of irony here, if not a veritable dobos torte or puff pastry of sincerity and parody. Colbert is something far more subtle than a fundamentalist, but on some level he means what he's saying, and is making fun of himself for meaning it by impersonating a fundamentalist's absurdly over-the-top way of saying it. No wonder Harris is baffled: it's impossible to tell where Colbert is really coming from. If you assumed he was mocking religion itself and therefore agreed with you, you'd fall into a trap.

By contrast, Harris seemed very literal-minded, plodding and straight-ahead. If you assumed the rationalists were the smart ones, all I can say is -- watch out.

April 28, 2006 | Permalink | TrackBack (0)

Seeking Truth v. Proclaiming Truth

Fort Wayne-South Bend Bishop John D'Arcy has responded to Fr. Jenkins' statement explaining his decision to allow The Vagina Monologues to be performed at Notre Dame.  (HT: Open Book)  The bishop does not seem pleased:

The term truth is mentioned twice in Father Jenkins’ rationale, and, both times as something for which we search. The search for truth is central to the work of a Catholic university. Also central is that we hold some truths as revealed by God and taught by the church; for example, the dignity of the human person. Truth is something we search for, but it is also something we receive. Surely at Notre Dame we do not find any serious objection to the fact that it is possible for men and women, through study, prayer and faith, to know the truth and base their lives on this truth. . . .

What I found to be missing in the decision at Notre Dame and in the rationale of Father Jenkins that accompanied it is any sense that critical decisions for a Catholic university must be based on truth as revealed by Christ and held by the church. Also, I could not find there any mention of the essential link between freedom and truth. . . .

Only when Notre Dame makes its great decisions in light of the truths of faith will its Catholic identity grow. To set aside these truths, as seems to have happened in this case, at least in the campus-wide discussions and in Father Jenkins’ Closing Statement, is to turn away from its vocation. It lacks fidelity to Father Sorin’s original enterprise and to the vocation to which every Catholic university is called.


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

The Magisterium, Condoms, and AIDS

In the April 29th edition of The Tablet [London], there is an interesting article on condoms/AIDS, Cardinal Martini's recent statements, and Benedict XVI's authorization of a review of magisterial teaching.  Click here.

In the same issue, there is this editorial:

Aids and the lesser evil

The Vatican could no longer ignore the evidence of a serious division of opinion in the Catholic Church about the use of condoms in the fight against HIV-Aids. It was therefore judicious of Pope Benedict XVI to call for a review of the medical and theological issues soon after his election, a review now being undertaken by the Pontifical Council for Health Care. News of the review coincided with the publication of an interview with Cardinal Martini, widely regarded as the principal alternative candidate for the papacy in the conclave that elected Pope Benedict XVI a year ago, where he added his voice to those of other senior church figures who have expressed similar views in favour of a limited use of condoms. As he put it in an interview with an Italian magazine, there may be occasions where the use of a condom by a married person to protect their spouse from infection could be the lesser evil.

There are more than 39 million people with HIV, and Aids kills some three million a year. Every measure should be taken to reduce these totals, especially in Africa. The Catholic Church, through aid agencies such as Cafod and missionary organisations, is heavily involved in medical treatment, care for the victims, and care and education of orphaned children of victims. So the charge of callousness on this issue, so readily levelled by Western commentators, does not stand up. Many church leaders also oppose the use of condoms, sincerely convinced that widespread use can be part of the problem rather than part of the solution, on the grounds that it encourages promiscuity. Even those who advocate condom use agree that abstinence and fidelity remain vital in fighting the advance of Aids.

But the real problem for the Catholic Church lies elsewhere. Under the doctrine spelled out in the encyclical Humanae Vitae in 1968, any use of condoms, for whatever reason, is immoral. There is no leeway for arguments about a lesser evil; it is irrelevant how effective condoms are against Aids. But it is also well known that in the panoply of Catholic moral teaching, that on contraception is most often disregarded by the faithful. Can the Vatican approve the use of contraceptives in connection with Aids, even in the textbook case of a married couple, without reopening the wider debate? Would that not be interpreted as a retreat from Humanae Vitae? Indeed, has the time come for such a move anyway, with Aids as the catalyst for an overdue development of doctrine? The Pope will be well aware of all these questions.

n 1968 the most persuasive reason advanced in favour of retaining the ban on artificial birth control was that to lift it would signal that the Church could change its mind, and hence undermine its teaching authority. That is ironic, given the damage done to that authority by the furore that followed. Today, however, far from weakening its position, the Church would gain much public credit by admitting that condoms should not be ruled out as a protection against HIV-Aids, even if the practical questions concerning their advisability remain to be addressed. And if that opens the door to wider issues, then so be it.

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

Thursday, April 27, 2006

"Of Monks, Medieval Scribes, and Middlemen"

If you happen to have (as I do) a combination of interests in intellectual property and church history, you may want to check out this new article by IP scholar Peter Yu.  From the abstract:

Today's copyright debate has generally focused on the digital dilemma created by Internet and new media technologies. Threats created by emerging communications technologies, however, are not new. Throughout history, there have been remarkable similarities between the threats created by new technologies and those posed by older ones.

During the oral argument in [the Grokster case concerning online music copying, Justice Breyer quipped:] ["F]or all I know, the monks had a fit when Gutenberg made his press.["] . . . Many legal scholars have described copyright as a response to the emergence of the printing press. However, very few have examined the press's impact on a group of contemporary middlemen - the medieval scribes. This Essay undertakes this inquiry and explores the impact of the then - new technology on the now - obsolete scribal industry. It begins by tracing the emergence of medieval scribes and the printing press and concludes with observations on the policy responses to the challenge created by the Internet and new communications technologies.


April 27, 2006 in Berg, Thomas | Permalink | TrackBack (0)

"The Party of Death"

"The Party of Death" is the title of Ramesh Ponnuru's new book, which is subtitled, "The Democrats, the Media, the Courts, and the Disregard for Human Life."  As Amy Welborn writes, though, "[t]he title is provocative and a bit misleading.  The 'party of death' refers to those who support unfettered abortion access, assisted suicide, embryo-destructive research, and so on - politicians, activists, scholars, judges and medical types.  Included in that Venn diagram is the Democratic Party, but to tell the truth, that is really not the focus, nor the primary 'party of death' of which Ponnuru writes, although it gets its due attention, particularly in the chapters on abortion."  And, one might reasonably object, the title does not take account of the facts that (a) many Democrats are pro-life; (b) many Republicans are not; and (c) Democrats and Republicans alike support capital punishment, bombing suspected terrorists, etc.

Ponnuru answers some questions along these lines here.  This exchange is particularly relevant:   

Lopez: What do you say to people who say that conservatives are the "party of death," since they have supported the death penalty and the Iraq war?

Ponnuru: I get that a lot from people who haven't read the book. The most articulate defenders of abortion, some types of euthanasia, infanticide, and lethal embryo research argue for those things on the theory that the human beings they kill are not persons. My book argues against that theory and goes into the chilling implications of that view.

Articulate defenders of the death penalty and the Iraq war make very different arguments. They do not, that is, say that death-row inmates and Iraqi insurgents are "human non-persons." Thus the death penalty and the war raise very different issues. This is not to say that the moral issues raised by the war and the death penalty are not serious. (I think the moral issues raised by the death penalty are sufficiently serious that I oppose it.) It is only to say that they are mostly distinct from the ones that come up in this book.

Here is another interview with Ponnuru about the book.  On the other hand, Andrew Sullivan objects strongly to Ponnuru's book title and claims, here.  My quick surf through the blogosphere suggests that many others on the progressive / liberal side of things share Sullivan's view.

April 27, 2006 | Permalink | TrackBack (0)

Church Autonomy and the "Libertas Ecclesiae" at Georgetown

On Tuesday, thanks to Mark Tushnet's generous invitation, I presented a paper to the participants in Georgetown's Colloquium on Constitutional Law and Theory.  The paper was called "Religious Freedom, Church Autonomy, and the Libertas Ecclesiae," and it is forthcoming in Villanova's Journal of Catholic Social Thought.  In a nutshell, I try in the paper to use the "libertas ecclesia" ("freedom of the Church") idea as a way into current debates about church autonomy, religious freedom, and expressive association.  I really enjoyed the session; both Tushnet and his students were appropriately skeptical and generously helpful.  Here are the first few paragraphs:

We do not talk much in Constitutional Law courses today about an 11th century monk named Hildebrand, who reigned as Pope Gregory VII and who excommunicated the German king, Henry IV, for refusing to disclaim a royal right to select bishops.  The king later re-evaluated the wisdom – or, at least, the politics – of his refusal.  For three days, in late January of 1077, he stood barefoot in the snow outside a castle at Canossa, doing penance and seeking reconciliation with the pope.  As it happened, this dramatic standoff failed to resolve what we now call the Investiture Crisis.  (The pope lifted the excommunication, but Henry would eventually invade Rome, install an anti-pope, and force Pope Gregory into exile.)  Nevertheless, the confrontation has “entered indelibly into the memory of Western civilization,” and could well have been as important to the development of western constitutionalism as the later events at Runnymede or Philadelphia.

Hildebrand not only orchestrated the first great “propaganda” campaign in history in support of his struggle with secular powers for papal control over the Roman Church.  He led a “revolution” that, as the great legal scholar Harold Berman reports, worked nothing less than a “total transformation” of law, state, and society.  The battle cry for this papal revolution – an idea that would serve as the catalyst for “the first major turning point in European history” and as the foundation for nearly a millennium of political theory – was libertas ecclesiae, the “freedom of the Church.”  In this paper, I explore the possibility that this idea – or something like it – remains an important component of any attractive account of religious freedom under and through constitutionally limited government.

April 27, 2006 | Permalink | TrackBack (0)