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, November 27, 2007

More on Collegiate Contraception and Public Subsidy

I am grateful that Michael posted Professor Ellen Wertheimer’s thoughts on our postings concerning the public subsidies of collegiate contraception. I had the pleasure of meeting her almost four years ago when I visited Villanova Law for a couple of days. I am also very grateful for Rick’s thoughtful response. Since I have already spent some time on commenting on this issue, I will present my agreement with Rick’s response to Professor Wertheimer.

However, there is one additional point that I would like to make on this issue. To those who would vote “yes” to repealing the law reducing public subsidies, I pose a question: will the public subsidies end with the underwriting of contraceptives for collegians? I previously indicated that I believe this would encourage more (casual) sex amongst young people: if contraceptives are free or low-cost, why not? What is there to lose? Lots, I suggest; lots. For example, what happens when the incidence of sexually transmitted disease increases if sexual activity is promoted and also increases? Who will pay for the costs associated with these additional expenses? Moreover, who will claim responsibility for the psychological damage that will likely result to young people who come to realize that premarital sex brings other burdens (such as self-objectification and objectification of the other)? What are the costs—financial, social, and individual—that will result when these concerns become manifested? Moreover, what precedents will these subsidies instigate? I can think of several, but I’ll offer a general response for the time being: if someone’s sexual gratification is to be subsidized, what should the response be to claims such as this: “I want whatever gratifies me to be subsidized too!”

If the “yeas” carry the day on the issue of collegiate contraception, will those voting in the affirmative be prepared to vote “yes” when high schoolers, junior highschoolers, and elementary schoolers want their contraception publicly subsidized, too? If any MOJ contributor or reader thinks I am getting a bit carried away on the topic, I take the opportunity to refresh their recollection about what is going on in one region of the country that is contributing to the promotion of sexual activity amongst much younger people in a public school system [HERE].    RJA sj

November 27, 2007 in Araujo, Robert | Permalink | TrackBack (0)

Coontz and Marriage

Thanks to Michael for his posting on Professor Stephanie Coontz’s interesting but defective account of history—particularly within the Christian and western tradition of which she speaks. I have some questions about how she portrays the “state” of the 16th century, but I’ll put them aside for the present moment. I shall, however, pursue another issue of hers today. She tailors history to suit her purpose (e.g., she confuses the consent given in a Christian marriage by the husband and wife with the “couple’s wishes”), which appears in both the first and last observations she makes. She, and her legal authority, Professor Nancy Polikoff, are attempting to redefine marriage. To substantiate in part my claim, I turn to the American University law faculty profile of Professor Polikoff, which states:

For 30 years, she has been writing about and litigating cases involving lesbian and gay families. Her articles have appeared in numerous law reviews, and her history of the development of the law affecting lesbian and gay parenting appears as a chapter in J. D’Emilio, W. Turner, and U. Vaid, eds., Creating Change: Sexuality, Public Policy, and Civil Rights (2000). She helped develop the legal theories in support of second-parent adoption and visitation rights for legally unrecognized parents, and she was successful counsel in In re M.M.D., the 1995 case that established joint adoption for lesbian and gay couples in the District of Columbia, and Boswell v. Boswell, the 1998 Maryland case overturning restrictions on a gay noncustodial father’s visitation rights. She is currently at work on her forthcoming book, Valuing All Families, to be published by Beacon Press in 2007.

It seems that The New York Times is cooperating in their enterprise. Their tactic (Coontz and Polikoff) seems to be this: first let us forget history and then let us rewrite it the way we approve; second, let us privatize marriage so that whatever relationship someone wants they can have and call it marriage; and third, once the second point has been accepted by society because it is “private”, efforts will be pursued to institutionalize and mandate acceptance of alternative forms of “marriage.” I, for one, do not think that the Coontz-Polikoff schema is to privatize marriage. But if I am wrong in assessing their objective, I ask their pardon. However, I must ask something in return: that Professor Coontz correct her account of Christian marriage so that it will acknowledge what the Church has taught and continues to teach—that marriage is not a purely human institution, but is one established by God and protected by the Church—an institution that takes one man and one woman and brings them into a spiritual and physical union with one another because they were created for one another.     RJA sj

November 27, 2007 in Araujo, Robert | Permalink | TrackBack (0)

The Establishment Clause

Winnifred Fallers Sullivan is Associate Professor of Law and Director of the Law and Religion Program at SUNY-Buffalo. She writes about the intersection of religion and law in the modern period, particularly with respect to the comparative phenomenology of religion in contemporary legal contexts. She is the author most recently of The Impossibility of Religious Freedom (Princeton, 2005).

For two interesting posts by Professor Sullivan on recent developments in establishment clause jurisprudence, click here and here.

November 27, 2007 in Perry, Michael | Permalink | TrackBack (0)

Monday, November 26, 2007

Response to Prof. Wertheimer

Thanks to Prof. Wertheimer for reading, and for writing in to Michael.  In her message to Michael P., she writes, "I am at a loss to explain, much less justify, any position that creates a greater risk of more unwanted pregnancies and, a fortiori, more abortions, no matter what other issues may be lurking under the surface."  Really?  No matter what?  I yield to no one in my conviction that, as she observes, abortion is a "great[] evil".  That said, it remains unclear to me why one would think that this observation renders inexplicable or unjustifiable the position that perhaps not every measure that holds out the prospect of contributing to a reduction in the "risk of more unwanted pregnancies" is, therefore, a measure that must, or even ought to, be supported by those who oppose abortion.

She also writes, "[i]ncreasing the cost of contraception thus contributes to the divide between the rich and the poor in our society, surely not a goal devoutly
to be wished."  We all agree that increasing this divide is not the goal.  I wonder, though -- I do not have the figures -- how much of the proposed subsidy would go to the poor and how much would simply involve a transfer from some middle-class taxpayers to some middle-class or well-off students?  Does this matter?

In addition, Prof. Wertheimer notes that "[i] is also perhaps worth pointing out that many of those who will suffer by reason of the price increase are not themselves Catholic."  Why does it matter -- given that the subsidy-reduction does not involve coercion or burden non-Catholics' freedom-of-conscience -- that non-Catholics, and not just Catholics, are affected by a reduction in the subsidy?

Finally, and all this being said, it seems that the divide on Michael's initial question -- i.e., "How would *you* vote" -- is inevitably going to reflect, in the end, different views about the tricky connections between law, policy, culture, and conduct.  Questions about these connections are, of course, really tough; they are also, it seems to me, really important and interesting.  For example:  Prof. Wertheimer suggested that "any position that creates a greater risk of more unwanted pregnancies" is, for that reason, difficult to justify.  It seems to me, though, that the failure to communicate to unmarried college students that they ought not to be sexually active, and the failure to attend to the messages and values transmitted in law and through culture to unmarried college students with respect to sexual activity, "create[] a . . . risk of . . . unwanted pregnancies" (and therefore of more abortions).  How can these failures be justified?  How could they be -- should they be?  may they be? -- remedied?

November 26, 2007 in Garnett, Rick | Permalink | TrackBack (0)

One poor Jesuit's point of view?

Dear Fathers and Brothers, Pax Christi

We are all aware of the response given to the most recent encyclical of Pope Paul VI, Humanae vitae, about the problems raised by the question of contraception. While many completely accept the teaching of the encyclical, a number of the clergy, religious and laity violently reject it in a way that no one in the Society can think of sharing. Yet, because the opposition to the encyclical has become widespread in some places, I wish to delay no longer before calling to mind once more our duty as Jesuits. With regard to the successor of Peter, the only response for us is an attitude of obedience which is at once loving, firm, open and truly creative. I do not say that this is necessarily painless and easy.

In fact, on various grounds and because of particular competence, some of us may experience certain reservations and difficulties. A sincere desire to be truly loyal does not rule out problems, as the Pope himself says. A teaching such as the one he presents merits assent not simply because of the reasons he offers, but also, and above all, because of the charism which enables him to present it. Guided by the authentic word of the Pope -- a word that need not be infallible to be highly respected -- every Jesuit owes it to himself, by reason of his vocation, to do everything possible to penetrate, and to help others penetrate, into the thought which may not have been his own previously; however, as he goes beyond the evidence available to him personally, he finds or will find a solid foundation for it.

To obey, therefore, is not to stop thinking, to parrot the encyclical word for word in a servile manner. On the contrary, it is to commit oneself to study it as profoundly as possible so as to discover for oneself and to show others the meaning of an intervention judged necessary by the Holy Father.

Once we have correctly grasped the meaning of the encyclical, let us not remain passive. Let us not be afraid to rectify our teaching, if need be, while at the same time explaining why we are doing so. Let us develop our teaching as profoundly as possible rather than restrict it. Let is strive for a better pastoral theology of the family and of the young people. We must not forget that our present world, for all its amazing scientific conquests, is sadly lacking a true sense of God and is in danger of deceiving itself completely. We must see what is demanded of us as Jesuits. Let us collaborate with others in centers of the basic research on man, where the specific data of Christian revelation can be brought together with the genuine achievements of the human sciences and thus achieve the happy results that can be legitimately anticipated. In all this work of sympathy, intelligence, and love, let us always be enlightened by the Gospel and by the living tradition of the Church. Let us never abandon the papal teaching we have just received. Rather, we must continually seek to integrate it into an ever-widening anthropology. The present crisis makes clear this urgent need.

In so fulfilling our mission as Jesuits, which is to make the thought of the Church understood and loved, we can help the laity, who themselves have much to bring to the problems touched on in the encyclical, and who rely on us for a deep understanding of their points of view.

You understand well that it is the spirit of the Constitutions which inspires me as I write these words. For, as the Constitutions tell us in substance, each member of the Society must remember that his personal manner of serving God is realized through a faithful obedience to the Roman Pontiff. That is why I am certain that today too, the Society is able to show itself worthy of four centuries of complete fidelity to the Holy See.

It certainly cannot be said that the Second Vatican Council has changed all this. The Council itself speaks formally of "this religious submission of will and of mind," which "must be shown in a special way to the authentic teaching authority of the Roman pontiff, even when he is not speaking ex cathedra. That is, it must be shown in such a way that his supreme magisterium is acknowledged with reverence and the judgments made by him sincerely adhered to according to his manifest mind and will" (Lumen Gentium, n.25).

Nor can it be said that the Pope was speaking of matters that do not involve our faith, since the essence of his teaching directly concerns the human and divine dignity of man and of love. In the enormous crisis of growth which envelops the whole world, the Pope himself has been what the entire Church must be, and Vatican II affirmed, "both a sign and a safeguard of the transcendence of the human person" (Gaudium et Spes, n.76). For this reason the service we as Jesuits owe to the Holy Father and to the Church is at the same time a service we owe to humanity itself.

In my awareness of our obvious duty as Jesuits I could say much more, particularly at this time which seems to me crucial for the Church. Difficult times are times made for the Society, not to seeks its own glory, but to show its fidelity. This is why I am certain that all of you will understand my words. As for those for whom the encyclical presents personal problems of conscience, I wish to assure them that for that very reason I am keeping them in my affection and prayers.

May St. Ignatius help each of us to become, with the aid of the Holy Spirit, more Ignatian than ever. May he obtain for us the understanding that our legitimate desire to be totally present to this world demands of us an ever-increasing fidelity in the service of the Church, the Spouse of Christ and the Mother of all mankind.

I commend myself to the prayers of all of you. Most devotedly in Christ,

Pedro Arrupe, S.J., Praep. Gen. Soc. Iesu.

November 26, 2007 in Brennan, Patrick | Permalink | TrackBack (0)

"Taking Marriage Private"

With respect to Michael's recent post, "Taking Marriage Private?":

First, MOJ readers interested in the subject matter of, and questions raised in, the post might also be interested in this paper, by Joel Nichols, on "multi-tiered marriage."  Interesting stuff.

Second, it seems to me -- and, certainly, I invite correction by experts -- that if Professor Coontz is suggesting (and perhaps she is not) that, "for most of Western history", marriage was a matter of merely "private" concern, a matter with which the relevant public authorities were not concerned, then her suggestion is not supported by the historical record.  It has, it seems to me, "for [all] of Western history", been the case that communities have regarded marriage -- its formation, incidents, nature, dissolution, etc. -- as (among other things) a matter of community concern.  The fact that the Church recognized as "licit" marriages contracted in a haystack does not, it seems to me, indicate otherwise.

Finally, it seems to me that an argument against (what I take to be) the "let's privatize marriage" suggestion might go something like this:  Because marriage is at the heart of family -- which is the first and vital cell of society and about whose health the public authority will, as part of its obligation to attend to the common good, care -- the public authority ought not to (completely) privatize marriage.

Other thoughts?

November 26, 2007 in Garnett, Rick | Permalink | TrackBack (0)

Taking Marriage Private?

Stephanie Coontz, professor of history at Evergreen State College, is the author of Marriage, A History:  How Love Conquered Marriage (Penguin, 2006).  (Here's a link to the book.)  Is there any theological reason for a Catholic to oppose what Professor Coontz suggests in this op-ed, which appeared in today's New York Times:

Taking Marriage Private

Olympia, Wash.

WHY do people — gay or straight — need the state’s permission to marry? For most of Western history, they didn’t, because marriage was a private contract between two families. The parents’ agreement to the match, not the approval of church or state, was what confirmed its validity.

For 16 centuries, Christianity also defined the validity of a marriage on the basis of a couple’s wishes. If two people claimed they had exchanged marital vows — even out alone by the haystack — the Catholic Church accepted that they were validly married.

In 1215, the church decreed that a “licit” marriage must take place in church. But people who married illictly had the same rights and obligations as a couple married in church: their children were legitimate; the wife had the same inheritance rights; the couple was subject to the same prohibitions against divorce.

Not until the 16th century did European states begin to require that marriages be performed under legal auspices. In part, this was an attempt to prevent unions between young adults whose parents opposed their match.

The American colonies officially required marriages to be registered, but until the mid-19th century, state supreme courts routinely ruled that public cohabitation was sufficient evidence of a valid marriage. By the later part of that century, however, the United States began to nullify common-law marriages and exert more control over who was allowed to marry.

By the 1920s, 38 states prohibited whites from marrying blacks, “mulattos,” Japanese, Chinese, Indians, “Mongolians,” “Malays” or Filipinos. Twelve states would not issue a marriage license if one partner was a drunk, an addict or a “mental defect.” Eighteen states set barriers to remarriage after divorce.

In the mid-20th century, governments began to get out of the business of deciding which couples were “fit” to marry. Courts invalidated laws against interracial marriage, struck down other barriers and even extended marriage rights to prisoners.

But governments began relying on marriage licenses for a new purpose: as a way of distributing resources to dependents. The Social Security Act provided survivors’ benefits with proof of marriage. Employers used marital status to determine whether they would provide health insurance or pension benefits to employees’ dependents. Courts and hospitals required a marriage license before granting couples the privilege of inheriting from each other or receiving medical information.

In the 1950s, using the marriage license as a shorthand way to distribute benefits and legal privileges made some sense because almost all adults were married. Cohabitation and single parenthood by choice were very rare.

Today, however, possession of a marriage license tells us little about people’s interpersonal responsibilities. Half of all Americans aged 25 to 29 are unmarried, and many of them already have incurred obligations as partners, parents or both. Almost 40 percent of America’s children are born to unmarried parents. Meanwhile, many legally married people are in remarriages where their obligations are spread among several households.

Using the existence of a marriage license to determine when the state should protect interpersonal relationships is increasingly impractical. Society has already recognized this when it comes to children, who can no longer be denied inheritance rights, parental support or legal standing because their parents are not married.

As Nancy Polikoff, an American University law professor, argues, the marriage license no longer draws reasonable dividing lines regarding which adult obligations and rights merit state protection. A woman married to a man for just nine months gets Social Security survivor’s benefits when he dies. But a woman living for 19 years with a man to whom she isn’t married is left without government support, even if her presence helped him hold down a full-time job and pay Social Security taxes. A newly married wife or husband can take leave from work to care for a spouse, or sue for a partner’s wrongful death. But unmarried couples typically cannot, no matter how long they have pooled their resources and how faithfully they have kept their commitments.

Possession of a marriage license is no longer the chief determinant of which obligations a couple mustcan keep — who gets hospital visitation rights, family leave, health care and survivor’s benefits. This may serve the purpose of some moralists. But it doesn’t serve the public interest of helping individuals meet their care-giving commitments.  keep, either to their children or to each other. But it still determines which obligations a couple

Perhaps it’s time to revert to a much older marital tradition. Let churches decide which marriages they deem “licit.” But let couples — gay or straight — decide if they want the legal protections and obligations of a committed relationship.

November 26, 2007 in Perry, Michael | Permalink | TrackBack (0)

Still More on Contraception Subsidies at Colleges

[Ellen Wertheimer, professor of law at Villanova, sent me this message
--and gave me permission to post it:]

I have been following the debate on the increase in the cost of oral
contraception with interest.  I frankly do not understand the position
that cheaper contraception is a bad idea.  Surely the greatest evil
under discussion here is abortion.  I am at a loss to explain, much less
justify, any position that creates a greater risk of more unwanted
pregnancies and, a fortiori, more abortions, no matter what other issues
may be lurking under the surface.

The one issue that seems to have been neglected in the posts so far is
the disparate impact a price increase has on poorer students.  Students
with money will buy contraceptives no matter what they cost.
(Incidentially, oral contraceptives are being used therapeutically in
current medicine to combat anemia in young women.)  Students who do not
have enough money to buy the pill will therefore be at greater risk of
unwanted pregnancy.  (There is no evidence that teenagers stop having
sex in the absence of affordable contraceptives.  To the contrary.)
Presumably, students who do not have enough money to afford the pill and
become pregnant as a result will also be less able to afford a safe
abortion or to survive the educational disruption that will result if
they are unable or unwilling to terminate the pregnancy.

Increasing the cost of contraception thus contributes to the divide
between the rich and the poor in our society, surely not a goal devoutly
to be wished.  It seems to me that inexpensive, reliable contraception
serves both the goal of reducing the number of abortions and the goal of
equalizing those who have less money and those who have more.  It is
also perhaps worth pointing out that many of those who will suffer by
reason of the price increase are not themselves Catholic.

November 26, 2007 in Perry, Michael | Permalink | TrackBack (0)

Advent and the "Scandal of Christmas"

If Sunday was the Feast of Christ the King, then Advent is just around the corner, prompting each of us to ask: What am I doing to help birth Christ into the world. 

My friend John Freund over at famvin has been focusing attention on systemic change as a means to address poverty.  As Advent approaches, he shares the thought that the "first Christmas set off the greatest systemic change ever when God became one with us - in a stable no less: What a scandal!  God became one with us."  He desribes in his post an international movement called the "Advent Conspiracy", a movement "dedicated to restoring the scandal of Christmas by worshipping Jesus through compassion, not consumption."  Their website is here.

November 26, 2007 in Stabile, Susan | Permalink | TrackBack (0)

More on Contraception Subsidies at Colleges

In response to RIck's question:  I think that opposition to contraception subsidies for college students because of the message they send has to be based on the argument that they endorse or encourage nonmarital sex (or contraception itself if one argues that it's inherently undesirable).  I don't think one can avoid joining that issue by interpreting subsidies as sending the message that "[i]t is an understandable, and even an appropriate, decision for college students facing unplanned pregnancies to have abortions."

More precisely, defending contraception subsidies as a means of reducing abortions probably sends a version of the first message: that abortion in the context of an unplanned pregnancy is "understandable" in the sense that one can sympathize with college students in that difficult situation and understand why they might feel pressure from circumstances to have an abortion.  But I don't see how it sends the second message: that abortion in such situations is "appropriate."  If that were the case, then no one could ever argue for a program, however morally neutral or admirable in itself, on the ground that it would reduce incentives for people to do immoral things.  One could not defend after-school basketball programs on the ground that "they'll keep kids from hanging out on the streets and getting into crime and drugs," because that would assertedly send the message that it is "appropriate" for kids to get into crime and drugs if such programs don't exist.  Nor could one defend programs of support for pregnant women (child care, crisis pregnancy centers) on the ground that they reduce abortions, because that would assertedly send the message that it's appropriate to have an abortion if such supports don't exist.  In each case the inference of such a message is implausible.  Programs that seek to avoid or change conditions that create incentives for immoral behavior reflect a recognition that we are embodied, world-occupying beings, not abstractly rational ones -- and that, contrary to a hyper-Kantian account in which incentives and empirical conditions must be entirely disregarded in assessing morality (i.e. that only the pure will to do right is morally admirable), empirical factors and incentives will have an affect on whether people will do what is objectively the right thing.

This is a modest point; I'm not arguing for contraception subsidies at colleges.  I'm just saying that the debate over them has to be waged on the more familiar issues: whether contraception in this context is undesirable because it encourages nonmarital sex (or is inherently undesirable), to what extent contraception reduces abortions, and whether the government should respect the moral objections of a percentage of taxpayers by denying subsidies.


November 26, 2007 in Berg, Thomas | Permalink | TrackBack (0)