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.

Wednesday, May 31, 2006

Of subsidiarity, marriage, and such

I'm just catching up, and the Kmiec-Vischer exchange caught my eye.  Not that anyone's wondering, but I'm on record as favoring the proposed amendment.  Subsidiarity is one of the reasons that combine to get me there. 

I understand subsidiarity to be -- as worked out in the encyclicals of the last 125 yrs, the Catechism, the Compendium --  a principle in service of functions/authorities located by natural, divine, and, then, positive law.  Subsidiarity is, primarily, a principle of non-usurpation of function/authority. The principle is to the effect that functions/authorities that have been assigned cannot properly be re-assigned; it also places upon those with responsibility for the common good, as well as others, the duty to assist those individuals or societies that have difficulty fulfilling their respective functions. 

The function of marriage, with its correlative authority, is an example.  The responsibility of the state, and of others, is to respect and, as necessary, assist, the function/authority given, by nature and supernature, in the marriage society.  If you reject the proposition that marriage is naturally or supernaturally instituted, subsidiarity, as the Catholic social doctrine understands it, won't be relevant.

Assuming the Catholic s. d. perspective, the primary place of subsidiarity in the marriage amendment argument, as I understand it, concerns the government's responsibility to assist the body politic in giving effect to the particular function/authority that precedes the state.  I therefore agree with those who insist that subsidiarity does not necessarily assign this task to the lowest possible level, e.g., states, governments, or individuals.  Marriage needs help, and those charged with the common good are to provide it, consistent with their own proper functions.

As developed in the encyclicals, subsidiarity presupposes a world in which ruling power, such as the authority of the society that is marriage, has already been distributed.  (In a world in which authority didn't already have ontological traction, subsidiarity would be infinitely slippery).  If, then,  marriage is the goal, the question, as concerns subsidiarity, is how to achieve marriage through modes that both activate and respect other given functions and their correlative authorities. 

An alternative perspective on subsidiarity, if anyone would like to pursue it.  Devolution is not the answer, clearly; nor is centralization.     

May 31, 2006 in Brennan, Patrick | Permalink | TrackBack (0)

A chilling headline

"Babies Aborted for not Being Perfect," reports the Daily Mail.

May 31, 2006 in Garnett, Rick | Permalink | TrackBack (1)

Tuesday, May 30, 2006

A Chinese Dissident's Faith

Jim Hoagland had an excellent op-ed in the Washington Post on Sunday, called "A Chinese Dissident's Faith."  He notes, at the outset, that journalists are "suckers" for "political dissidents," but "skeptics about religious activists."  This is a problem, he suggests, in our "era in which religion has again become the driving engine of world politics."  Discussing the recent visit to Washington, D.C. of "Yu Jie, a Chinese writer who says his political opposition to the Beijing dictatorship is deeply rooted in Christian faith," Hoagland worries about the "journalistic habits of compartmentalizing the political and the pious."

May 30, 2006 in Garnett, Rick | Permalink | TrackBack (0)

The five key events . . .

. . . in the story of religion in American politics over the last 50 years, according to the philosopher William Galston (thanks to Rod Dreher):

1. The fall of the informal Protestant establishment. Started in 1960 with election of a Catholic president, followed shortly thereafter by the school prayer decision.

2. The expulsion of urban Catholics from the Democratic Party after McGovern.

3. The Roe v. Wade mobilization. By 1984, both party platforms on abortion had hardened.

4. The Carter disappointment. "I have a feeling that Evangelicals would not have moved so strongly toward the Republican Party as they did if Carter had not teased them and disappointed them. I think that sent the signal that if not even Jimmy Carter can be trusted to hold high the banner, what Democrat could?"

5. The Boomer schism. "I see Bill Clinton and George W. Bush as matter and antimatter, the two basic things that can happen to you if you went to Yale University." This is why things got very different in 1992. The traditional electorate looked at Clinton, the first Boomer, as different from his predecessors among the Democrats.

May 30, 2006 in Garnett, Rick | Permalink | TrackBack (0)

Ignoring pro-lifers?

In this post, from the American Scene blog, Ross Douthat wonders why the "mainstream" press has almost entirely ignored Ramesh Ponnuru's new book, "The Party of Death."  After all, even if one were of the view that the book is highly partisan (in the Ann Coulter or James Carville -- or Kevin Phillips -- vein), that would hardly distinguish it from all kinds of books that are reviewed and commented upon in the Times, the Post, etc.  Douthat writes:

I don't mean this just in a whiney, "pay-attention- to-us" kind of way - though of course the pro-life movement would be much better off if the mainstream press did take pro-life arguments more seriously. I'm also genuinely curious about what pro-choicers think about Ramesh's arguments. More generally, I'm curious about why so many sensitive, highly-intelligent writers - for whose opinions, on most questions, I have the utmost respect - seem to be so untroubled by America's completely-permissive approach to abortion law. I can understand why smart people are pro-choice; I have a harder time understanding why smart people are so blithe about it, so happy to caricature pro-lifers as women-hating religious fanatics and nothing more, so unwilling to consider any restrictions on what is, however you slice it, a practice that involves doing fatal violence to a form of human life.

May 30, 2006 | Permalink | TrackBack (0)

The Burdens of Parenting

Last week, Glenn Reynolds had this op-ed, "The Parent Trap:  How Safety Fanatics Help Drive Down Birthrates," in the Wall Street Journal.  Discussing (among other things) declining birth rates in developed (and other) countries, Reynolds notes:

Parenting was always hard work, of course. But aside from the economic payoffs, parents used to get a lot of social benefits, too. Yet in recent decades, a collection of parenting "experts" and safety-fascist types have extinguished some of the benefits while raising the costs, to the point where what's amazing isn't that people are having fewer kids, but that people are having kids at all.

He wonders also about the declining "prestige" of having children:

People in the suburbs buy SUVs instead of minivans not because they need the four-wheel-drive capabilities, but because the SUVs lack the minivan's close association with low-prestige activities like parenting, and instead provide the aura of high-prestige activities like whitewater kayaking. Why should kayaking be more prestigious than parenting? Because parenting isn't prestigious in our society. If it were, childless people would drive minivans just to partake of the aura.

In response, Ann Althouse had this post, asks how we can make parenting (in Reynolds's words) more "prestigious."  She writes:  "You can't make it cool to have kids just because we need kids. And the people with the kids aren't helping. Aren't they the ones who do the most to make folks without kids see raising kids as an unattractive proposition?  It's a deep, deep problem, and it's not going to change."

Is this a problem?  And, if it is, what (if anything) can law do?

May 30, 2006 in Garnett, Rick | Permalink | TrackBack (0)

The Bishops and the Federal Marriage Amendment

Maggie Gallagher linked to the U.S. Bishops' recent reaffirmation of a statement on marriage as indicating that the Church does not share my misgivings about the Federal Marriage Amendment.  I agree that Church leaders are supportive of the amendment; their statement, however, reflects the difficulty in articulating publicly accessible grounds to oppose the legal recognition of same-sex relationships.  Note that I am not saying that it is impossible to articulate such grounds, but it's difficult, and many attempts to do so either fall flat or resort to divine revelation via sacred texts.  Consider the opening paragraphs of the bishops' statement:

The Catholic Church believes and teaches that marriage is a faithful, exclusive, and lifelong union between one man and one woman, joined as husband and wife in an intimate partnership of life and love. Marriage exists so that the spouses might grow in mutual love and, by the generosity of their love, bring children into the world and serve life fully.

Moreover, we believe the natural institution of marriage has been blessed and elevated by Christ Jesus to the dignity of a sacrament. In this way, the love of husband and wife becomes a living image of the way in which the Lord personally loves his people and is united with them. God is the author of marriage. It is both a relationship of persons and an institution in society. However, it is not just any relationship or simply another institution. We believe that, in the divine plan, marriage has its proper meaning and achieves its purposes.

Therefore, it is our duty as pastors and teachers – a responsibility we share with the Christian faithful and with all persons of good will – to promote, preserve, and protect marriage as it is willed by God, as generations have understood and lived it, and as it has served the common good of society.

Because this statement leads to the conclusion that the Federal Marriage Amendment should be supported by all persons of good will, I'm not sure why it is relevant that "marriage has been blessed and elevated by Christ Jesus to the dignity of a sacrament" or why the model of Christ's love for His Church gives insight into the nature of civil marriage.  These statements by the bishops are not, and should not be, deemed inappropriate arguments in our public discourse, but they do seem unhelpful.  Thoughts?


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

Monday, May 29, 2006

The Gettysburg Address

Something for Memorial Day . . ..

May 29, 2006 | Permalink | TrackBack (1)

Sunday, May 28, 2006

Individuality and Personhood

I would like to thank several recent contributors, especially Rob, for posting several important topics that are a catalyst for my considering further the nature and essence of Catholic Legal Theory. I am also most grateful for the recent postings of Professors Robby George and Doug Kmiec brought in by MOJ regulars. Through these discussions, we see again how the “trigger” or “hot button” issues of the day are or may challenge not only Catholic Legal Theory but the Church, herself.

I have been trying to think why is there this conflict that today seems inevitable when the rule of law and democratic society are examined by a wide variety of thoughtful individuals given the context of topics like abortion, war, terrorism, euthanasia, same-sex marriage, etc.? I hasten to add that I read quickly a number of the Beckett Fund collection that are linked to Rob’s post “More on church autonomy and same-sex marriage”.

For me, the conflict, or the coming train wreck as some describe the growing controversy, emerges from a fundamental disagreement about the nature of the human person. If I may borrow from the work of Jacques Maritain and others here, this conflict (or coming train wreck) pits one conception of human nature that is based on “the person” against another that is concerned about “the individual.” Many may argue: aren’t they the same? In a way, I suppose so, but it is important to see the vital distinctions that others, such as Maritain, have identified and that can open, I believe, not only doors for CLT but also hope for avoiding the conflict—the train wreck—that is taking its toll on society, on the law, and on us.

Put simply, the notion of “the person” looks at the human being physically, spiritually, and metaphysically. With this background in mind, one sees the essence of human existence as being defined by the self in communion with something beyond the self. On the other hand, “the individual” is the autonomous being who, when all is said and done, is alone. Yes, “the individual” wants rights, equality, autonomy, etc. But there is little beyond the self that determines what the self wants, what the self is, and what the self needs. With “the person” there is much more. When supporters of these two views are asked: what is important to the human being; what is the human being’s destiny; etc.?, very different answers will appear. These answers are powerful, and they fuel the conflict; they propel the trains on the collision course.

I, for one, conclude that it is the notion of “the person”, as briefly defined here, that is crucial to our nature as human being and our destiny. It is therefore vital to understand why “the person” rather than “the individual” is at the heart of why we have law and why we have its rule. But, I hasten to add that there is another view inexorably racing in the opposite direction on the same track. This is one instance in which I hope I am very wrong, but after having taken account of many recent important postings on this site and those external discussions that have been linked, I find that I may not be—wrong.    RJA sj

May 28, 2006 in Araujo, Robert | Permalink | TrackBack (0)

More on church autonomy and same-sex marriage

Perhaps my confidence in the continued autonomy of religious associations in a legal system that recognizes same-sex marriage is a bit optimistic.  At least that's the feeling I had after reading today's story from the AP setting forth the views of scholars who believe that anti-discrimination norms should trump religious liberty, though I still believe hope that their views do not (yet?) occupy the mainstream. Also relevant is this recent Steve Chapman column espousing a conservative skepticism toward the amendment.  If there are problems with the Defense of Marriage Act's ability to limit one state court's ruling from affecting other states, as Prof. Kmiec suggests, Chapman's basic point is weakened considerably.


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