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, May 31, 2008

Grave affronts to human dignity

Tom Smith, over at "Right Coast", uses Steven Pinker's recent anti-dignity rant (more here) as an occasion for gathering numerous grave, but oft-overlooked, affronts to human dignity.  They include:  going shirtless if you are a man who, you know, ought not to; "sporting a goatee"; "yammering on your cell phone within the hearing of others"; etc.  Clearly, more fodder for Catholic Legal Theory . . . (HT:  Bainbridge, who should have cross-posted this here at MOJ, but forgot).

May 31, 2008 in Garnett, Rick | Permalink | TrackBack (0)

Friday, May 30, 2008

"The Power of God" in Social Movements, And What Difference It Makes

Fleming Rutledge, among the first women ordained in the Episcopal church, is one of America's great preachers.  (Check out a video here.)  She proclaims a powerful message of orthodox, evangelical Christianity that involves the transformation of the world.  Here she writes on how social transformations like the civil rights, anti-apartheid, and Solidarity movements have rested on the power of God rather than "the possibilities inherent in human nature":

For some time now, the academic guilds have been moving away from a rationalistic mode of biblical interpretation. This development opens the way for a new appropriation of the conceptual world of the New Testament, in which the presence of the demonic is presupposed. This perspective shapes theo-ethical thinking in two crucial ways: First, it allows Christians to view opponents not as evil in themselves, but as those who are in the grip of external forces. This conviction empowered Martin Luther King in his consistent message that blacks and whites together were in need of deliverance. Second, the worldview that acknowledges the agency of an active Enemy in world events encourages Christians to look for the power of God not only in stories of individual deliverance, but also in the great social movements of our time.

What practical implications does this have?  Well, for example, in the context of exploitative factory conditions,

[i]f we are thinking theologically, we cannot in this illustration cast the corporate bosses as guilty exploiters and the workers as innocent victims. Rather, we see how the Enemy works to seduce and insulate powerful people from perceiving the suffering of their underlings. The bosses of workers in unjust situations are not evil in themselves. They are in bondage to the desire for profit, so that they think of their workers as means to an end, if they think of them at all. Who can loosen such bonds? God alone. Therefore, social action undertaken in the sight of God has the potential to liberate not only the workers but also the bosses, not to mention the activists themselves! This is the uniquely Christian vision based in the knowledge of the power of God for the justification of the ungodly (Rom. 4:5; 5:6).

Rutledge speaks in distinctively Protestant terms, but do these ideas resonate with Catholic themes?


May 30, 2008 in Berg, Thomas | Permalink | TrackBack (0)

NARAL's endorsement of Obama, cont'd

Following up on Greg's post, check out this video, released by NARAL Pro-Choice America, endorsing Sen. Obama (he "fully pro-choice"), who has a "100% record" on "choice", as opposed to Sen. McCain's "0% record" on "choice."  Particularly striking -- and, to me, sad -- are the exhuberant mini-testimonials by the (mostly young) NARAL staffers ("I can't wait to finally have a pro-choice president back in the White House, and I think Barack Obama is going to rock it out.").

May 30, 2008 in Garnett, Rick | Permalink | TrackBack (0)

Consensus on the "Remonstrance" and vouchers?

I've been away, for the past few days -- crashing Princeton's Reunion and participating in the annual Law and Public Affairs reunion conference (on "Law and Religion") and enjoying chatting with many MOJ readers.  In any event -- and I hope this is not too awkward or clunky a segue -- I was struck, at the conference, by the proximity-to-consensus revealed at the conference, among a wide range of engaged law-and-religion scholars, on the proposition that the Constitution's no-establishment rule need not, and should not, be understood to prohibit using public funds to pay the tuition of students attending qualifying religious schools.  The "Memorial and Remonstance" / "three pence" / violates the conscience argument seemed to receive -- again, from a number of people who disagree on many other things -- a respectful wave, but little more.  If I remember correctly, Sandy Levinson suggested that the argument is, in today's conditions, pretty much irrelevant to the school-voucher and charitable-choice questions.  (That said, Laura Underkuffler, I should emphasize, did present clearly and powerfully a no-funding argument.)

Now, this near-consensus is, in my view, a good thing.  Still, I couldn't help but be struck by the fact that what is often, in the First Amendment course, taught as, and treated in the cases as, something of a constitutional Ur-text, seemed to carry so little weight with respect to what was, just a few years ago, *the* law-and-religion question.  Interesting.

May 30, 2008 in Garnett, Rick | Permalink | TrackBack (0)

Catholic Thought in Seattle

Yesterday was the second day of the gathering of the Conference of Catholic Legal Thought in Seattle.  We had three panels: Teaching and our Pastoral Role (led by Amy Uelmen, via video, Greg Kalscheur and myself), Catholic Thought and Legal Theory (led by Patrick Brennan) and Scholarly Career Planning as a Christian (led by Lucia Silecchia, with presentations by Michael Scaperlanda, Lisa Schiltz and John Breen).  Just to give you a brief idea of what our day was like:

The first panel was a wide-ranging discussion of how we teach Catrholic Social Thought in the classroom, addressing both seminars devoted to the subject and the introduction of Catholic thought into other classes.  In the seminar setting, challenges include how to present CST when students lack formation in Catholic or Christian traditions and teaching, how to approach topics such as abortion, divorce and sexual identity, given that for many students these issues are a personal source of grief and how to deal with the fact that students are reared in an environment that discourages them from thinking in terms of absolute truths and from making absolute value judgments about the behavior of others. 

The Legal Theory panel took as its starting point a 1958 article by Anscombe titled Modern Moral Philosophy setting forth Anscomb's position that our usual way of talking about morality presupposes a divine lawgiver who is uniquely competent ot legislate for the entire cosmos, including humans.  The question for discussion is whether Anscomb was right that one cannot coherently and truthfully use a moral vocabulary without affirming the existence of a divinity that can and does legislate for us rational creatures?  No surprise that there was some difference of opinion on this issue.

In the third panel, John Breen focused on where there are currently gaps in Catholic legal scholarship, suggesting that the crucial issue as we move forward in the project of Catholic Legal Thought is articulating a proper understanding of the relationship between faith and reason.  Lisa Schiltz and Michael Scaperlanda each then shared some of their thoughts about the nature of our role as scholars in this tradition.

An important part of the benefit of our time at these gatherings is our time outside of the formal more academic sessions.  After enjoying dinner together, the group reconvened in the lovely St. Ignatius chapel on the Seattle U. campus, where Greg Kalscheur invited us into an Ignatian examen, something that has been part of my own daily prayer for at least the last six or seven years, and then presided over Mass with us.  It was a wonderful way to end the day.

Our gathering concludes with lunch today (except for those able to stay for an afternoon of fun, which lamentably does not include me).  One final note: Part of our aim is to be a resource and a community for those seeking to enter this area of teaching and writing and so it was terrific to see some new faces among our group this year.

May 30, 2008 in Stabile, Susan | Permalink | TrackBack (0)

Thursday, May 29, 2008

North Coast Women's Care Center v. Benitez

News reports of yesterday's oral argument are suggesting that the California Supreme Court is likely to rule against the doctors who claim a constitutional right to refuse to perform artificial insemination for a lesbian patient.  I do not believe that a doctor should be legally compelled to provide such a service when it violates his conscience, provided the patient has access to the service elsewhere (as the patient did in this case).  The fault, though, lies with the California legislature, not the courts.  Consider the wildly expansive language of the applicable state law, the Unruh Civil Rights Act: 

All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.

In a society that purports to care deeply about the vitality of conscience, that's a bad law.  At this stage, though, I'm not sure what the California Supreme Court is supposed to do about it.  Legislators can and should take account of context: 1) our society's conversation about sexual orientation is still in its early stages; 2) requiring a physician to help bring a child into a family setting that the physician believes is unhealthy and immoral is more intrusive than the application of anti-discrimination law in the run-of-the-mill "business" context; and 3) there are (apparently) plenty of physicians willing to provide their services to gays and lesbians even absent legal coercion. 

When courts are asked to recognize a "right" to discriminate, it's much more difficult to bring such factors to bear on the analysis, particularly under the framework of Employment Division v. Smith.  (Perhaps the California constitution gives the court more flexibility, but the justices sounded skeptical.) If the court recognizes the physician's constitutional right to refuse services to a lesbian, the resulting right would be more categorical than contextual, likely extending to the protection of discrimination against interracial couples looking to have a child, or against a lesbian requesting cosmetic surgery.  Maybe the courts are the only hope for conscience at this point, but we should bear in mind that they are not operating on a blank slate -- they're constrained by a conscience-trumping (but constitutional) statute.

May 29, 2008 in Vischer, Rob | Permalink | TrackBack (0)

"Gone Baby Gone"

I'm probably behind the curve on this one, but I just saw the (relatively) recent movie, "Gone Baby Gone."  Here's the opening line (spoken by the main character, a private investigator "from the neighborhood" in Boston):

I always believed it was the things you don't choose that makes you who you are. Your city, your neighborhood, your family.

I won't provide any spoilers, but here's a thought:  "Juno" and "Bella" (and "Knocked Up") notwithstanding, "Gone Baby Gone" was one of the most "Catholic" -- and, I thought, one of the most pro-life (in a subtle way) -- movies made in recent years.  Discuss.

May 29, 2008 in Garnett, Rick | Permalink | TrackBack (0)

Catholic Teaching on the Role of Authority

I'm in Seattle at the third annual meeting of the Conference of Catholic Legal Thought, along with fellow-MOJ'ers Russ Powelll, Michael Scaperlanda, Steve Shiffrin and Lisa Schiltz (and, via video this morning, Amy Uelmen).

As with the prior conferences, the first day of the conference (yesterday) was devoted to deepening our understanding of the some of the theological principles relevent to our consideration of the intersection of Catholic thought and the law.  In the first morning session, Professor William Buckley of Seattle University gave an introduction to Catholic Social Thought that was very useful for some of the newer members of our group.  The two afternoon sessions featured Frank Sullivan, S.J., from Boston College, a leading authroity on church authority and the role of the role of the Magisterium.

The focus of his talk was on the teaching authority of the church, in one session speaking about the definitive exercise of that authority and in the other on the non-definitive exercise of that authority.  I don't have the time this morning to do a full summary of his two talks, but there were a number of points that raised some interesting discussion and warrant further consideration.

The one I'll raise here (for perhaps obvious reasons) has to do with public expression of dissent from the teachings of the Church.  Having talked about what the church has said about expressions of dissent from teachings by theologians, Sulliavan was asked about expressions of dissent by lay persons and given the example of a lay person writing an editorial or blogging against the church position on things like homosexuality or contraception.  He expressed the view that how one evaluates such expressions of dissent depend on a couple of things.  First, how diligently the writer has tried to reach assent to the teaching?  Has the person proceeded from an attitude of obsequium religiousum (which Sullivan thinks is best translated as religious docility rather than religious submission or loyal submission), which includes an openness to a deeper examination of the issue and respect for the authority of the Church, and despite efforts be unable to give intellectual assent to the Church teaching?  Second, he also thought relevant what reasons the person has for expressing the opinion?  Re the last, he did not explore what reasons might justify public dissent and what would be considered improper reasons.

I hope others at the conference will chime in either expanding on Sullivan's comments of yesterday or in regard to today's sessions, which will begin shortly.


May 29, 2008 in Stabile, Susan | Permalink | TrackBack (0)

Same-Sex Unions, Revisited

About the development reported below:  Some MOJ-readers will lament it.  However, I welcome the development, because I regard the magisterial teaching on same-sex unions as deeply misguided and, worse, a font of serious injustice.

New York Times
May 29, 2008

New York to Back Same-Sex Unions From Elsewhere


ALBANY — Gov. David A. Paterson has directed all state agencies to begin to revise their policies and regulations to recognize same-sex marriages performed in other jurisdictions, like Massachusetts, California and Canada.

In a directive issued on May 14, the governor’s legal counsel, David Nocenti, instructed the agencies that gay couples married elsewhere “should be afforded the same recognition as any other legally performed union.”

The revisions are most likely to involve as many as 1,300 statutes and regulations in New York governing everything from joint filing of income tax returns to transferring fishing licenses between spouses.

In a videotaped message given to gay community leaders at a dinner on May 17, Mr. Paterson described the move as “a strong step toward marriage equality.” And people on both sides of the issue said it moved the state closer to fully legalizing same-sex unions in this state.

[To read this rest of the article, click here.]

May 29, 2008 in Perry, Michael | Permalink | TrackBack (0)

Prof. Moltmann on Benedict

We have had, I think, only a bit of commentary on the blog concerning Benedict's November 2007 encyclical Spe salvi facti sumus ("in hope we were saved").  Now the great Protestant theologian Jurgen Moltmann, who for years has set forth a "theology of hope," critiques the encyclical.  A couple of passages:

If we compare [Spe Salvi] with Vatican II's 1965 document on "Joy and Hope," or Gaudium et Spes[,] the peculiarity of Benedict's encyclical immediately catches our eye. Benedict's encyclical is intended for church insiders; it is aimed spiritually and pastorally at the bishops of the Roman Catholic Church and "all Christian believers." It limits Christian hope to the faithful and separates them from those in the world "who have no hope."

By contrast, Gaudium et Spes begins with the church's deep solidarity with "the entire human family." ...

What is lacking in the papal writing? What is missing is the gospel of the kingdom of God, the gospel that Jesus himself proclaimed. What is missing is the message of the lordship of the risen Christ over the living and the dead and the entire cosmos that we find in the apostle Paul. ...  In short, what is missing is the hope of the all-encompassing promise of God who is coming: "See, I am making all things new." By limiting hope to the blessedness of souls in eternal life, Benedict also leaves out the prophetic promises of the Old Testament. Christian hope then becomes hard to differentiate from a Gnostic religion of salvation.

Comments welcome.  Is this critique a fair reading of Benedict -- does he indeed "limi[t] Christian hope to the faithful" and "to the blessedness of souls in eternal life"?

Continue reading

May 29, 2008 in Berg, Thomas | Permalink | TrackBack (0)