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 28, 2008

Hypo re the pedagogical function of marriage law

A blogger at Megan McArdle's site poses the following hypothetical to pro-marriage opponents of same-sex marriage:

An 8-year-old goes to play at the house of his friend, who is raised by two lesbian women. The environment is a loving one. So this playmate, whose straight parents are married, is going to absorb one of two possible norms.

1) My friend lives in a happy home. His parents are married. When people grow up and love each other, and want to have kids and a happy home, they get married. (I hope I get married one day.); or

2) My friend lives in a happy home. His parents aren't married. When people grow up and love each other, and want to have kids and a happy home, sometimes they get married like my parents. Other times they don't get married, like my friend's parents. (One day I may get married and have kids, but maybe I'll just have kids and live with the person I love.)

Shouldn't we prefer option #1 to #2?  Some might try an option #3, arguing that good parents shouldn't be allowing their children to play at the home of children with two lesbian parents in the first place.  That suggestion makes no moral or practical sense to me.  Other options -- some more thoughtful than others -- are discussed in the comments to Eugene Volokh's post of the hypo.

May 28, 2008 in Vischer, Rob | Permalink | TrackBack (0)

Tuesday, May 27, 2008

Is Compassionate Conservatism the Problem?

Senator Tom Coburn (R-Okla.) writes in today's Wall Street Journal that what has ailed the Republican party recently are its "big government" ideas, including not just the lobbyist-oriented "K Street Project" but also "compassionate conservatism":

Compassionate conservatism's starting point had merit. The essential argument that Republicans should orient policy around how our ideas will affect the poor, the widow, the orphan, the forgotten and the "other" is indisputable – particularly for those who claim, as I do, to submit to an authority higher than government. Yet conservatives are conservatives because our policies promote deliverance from poverty rather than dependence on government.

Compassionate conservatism's next step – its implicit claim that charity or compassion translates into a particular style of activist government involving massive spending increases and entitlement expansion – was its undoing. Common sense and the Scriptures show that true giving and compassion require sacrifice by the giver. This is why Jesus told the rich young ruler to sell his possessions, not his neighbor's possessions. Spending other people's money is not compassionate.

I wonder if this means Sen. Coburn wants to eliminate not just earmarks and the Medicare prescription-drug benefit (the big recent social spending increases), but also the Bush initiative for making more assistance available to faith-based and other community organizations helping the needy.  No doubt we all here agree that "policies [should] promote deliverance from poverty rather than dependence on government."  But let's suppose, as I think is true, that many private nonprofits receiving government social-service funds do aim to empower people to escape poverty, often in part through personal transformation, rather than just tide them over with material support.  Sen. Coburn's logic seems to reject assisting even these agencies with tax funds because "true giving and compassion require sacrifice by the giver" and "[s]pending other people's money is not compassionate."  Is that argument well-founded?  Assume that a certain form of help to the needy is truly empowering rather than dependence-inducing, and is properly administered -- then isn't it supported by demands of justice as well as of charity, and therefore proper for government to assist and promote?  Isn't compassion in part an obligation of justice as well as of charity?  Should government assistance in that context be dissed as "spending other people's money"?


May 27, 2008 in Berg, Thomas | Permalink | TrackBack (0)

McCain, Obama, and Abortion: By Their Friends/Enemies Ye Shall Know Them?

In her most recent column urging Democrats to rally around Senator Barack Obama, Ariana Huffington argues that women who supported Senator Hillary Clinton can be brought over to Obama by emphasizing the abortion issue. Huffington argues that, comparing Obama and Senator John McCain on the issues, “nowhere is the difference more profound than with reproductive rights.” The rest of the column is devoted to “unmasking McCain” for his “reactionary record on reproductive rights” (translatation: McCain is genuinely and consistently pro-life):

Since 1983, in votes in the House and the Senate (where he has served since 1987), McCain has cast 130 votes on abortion and other reproductive-rights issues. 125 of those votes were anti-choice.” . . . .

Of his anti-choice voting record, McCain has said, "I have many, many votes and it's been consistent," proudly adding: "And I've got a consistent zero from NARAL" through the years. And last month he told Chris Matthews: "The rights of the unborn is one of my most important values."

What's more, McCain has made it very clear that if he becomes president he will appoint judges in the Scalia, Roberts, Alito mold. His big judicial speech earlier this month was filled with coded buzz words that make it clear that, if given the chance, he'd replace 88-year-old Justice John Paul Stevens with an anti-choice Justice who would tip the scales against Roe v Wade. Throw in an additional anti-choice replacement for the 75-year-old Ruth Bader Ginsburg, and you can kiss the right to choose good-bye for a long, long time.

Hmm. Is running as the pro-choice candidate really the best way for Obama to win over those Catholics who voted against him by lop-sided margins in most of the Democratic primaries? Will Catholics for Obama publicly repudiate any effort to win over Hillary Clinton supporters by campaigning as the abortion rights candidate? Inquiring Catholic minds want to know!

Greg Sisk

May 27, 2008 in Sisk, Greg | Permalink | TrackBack (0)

"A Vice-President for Abortion"

There's been a lot of discussion -- here at Mirror of Justice, and on many other Catholic-themed blogs -- about Gov. Kathleen Sebelius, her veto of an abortion-regulation law, and Archbishop Naumann's criticisms of this veto.  Here is a news story, discussing Gov. Sebelius's increasing prominence in conversations about Sen. Obama's running-mate, and also about -- her professed "personally opposed" stance on abortion notwithstanding -- her abortion-related activities and record.  Gov. Sebelius is, as it happens, National Co-Chair of Sen. Obama's National Catholic Advisory Council.

UPDATE:  As a reader pointed out, the linked-to piece is probably better framed as opinion-and-analysis than as a "news story".  Which is not to say, of course, that the relationships described in the piece are not "news."

May 27, 2008 in Garnett, Rick | Permalink | TrackBack (0)

Monday, May 26, 2008

Archbishop Chaput on "Catholics for Obama"

In a recent column, Denver's Archbishop Chaput responded to a group called "Catholics for Obama" who had quoted him without providing the full context.  After confessing his own support (which he now views as midguided) for a pro-choice candidate decades ago and after noting that he "can't name any "pro-choice" Catholic politician who has been active, in a sustained public way, in trying to discourage abortion and to protect unborn human life -- not one," Chaput reiterated that Catholics who support Obama or any other pro-choice candidate "need a compelling proportionate reason to justify it. What is a 'proportionate' reason when it comes to the abortion issue? It's the kind of reason we will be able to explain, with a clean heart, to the victims of abortion when we meet them face to face in the next life - which we most certainly will. If we're confident that these victims will accept our motives as something more than an alibi, then we can proceed."

For his full statement, click here.

May 26, 2008 in Scaperlanda, Mike | Permalink | TrackBack (0)

Sunday, May 25, 2008

Fr. Reese’s: “Right or Rite, Civil Discussion in Order”

On April 16th of this year, I had the occasion to respond to Fr. Thomas Reese’s essay published in Commonweal Magazine concerning his thoughts about reforming the Vatican. [HERE] Today, I take this occasion to respond to his May 20th posting in the Washington Post-Newsweek weblog entry or “Right or Rite, Civil Discussion in Order”. [HERE] Fr. Reese has taken this recent opportunity to address the California Supreme Court decision In Re Marriage Cases that was handed down a few days ago. I am convinced that he intended that his posting be a conciliatory one in which reason rather than emotion or partisan perspective determine the outcome of the debate on same-sex marriage. I concur with his approach. Having said that, I must offer some additional thoughts to those he has offered regarding this “emotion filled issue.”

For those of us who have the responsibilities incumbent on Holy Orders, I think a few more words need to be proposed in order to assist the faithful and all people of good will on this “emotion filled issue.” The fact that it is emotion filled does not exclude the pressing need to address the “issue” with reason, compassion, and truth.

Fr. Reese is correct in asserting that for almost two thousand years Christians—and most others—have held that any sexual activity outside of marriage between a man and a woman to be sinful or wrong. The fact that people did engage in such activities did not make them virtuous or right.

The fact that we in the United States and other cultures around the world respect the separation of Church and state, as Fr. Reese states, does not mean that moral and rational argument is prohibited from the debates that take place in the public square. Moreover, he has asserted that “the desire to free private moral decisions from state control” has led to the legalization not only of divorce, birth control, and hetero- and homosexual relations. But it has also led to the wanton taking of innocent human life through abortion. I have criticized in the past and criticize here today that magical formula of Justices O’Connor, Kennedy, and Souter from Casey, which has fueled these “moral decisions” that, in fact, are not private but have had and continue to have mammoth public implications. But we must not forget that this tragic and problematic Casey formulation that “[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and the mystery of human life” fortifies the core of Lawrence which fortifies the core of Goodrich which reinforces the core of In Re Marriage Cases. It may well be that, as Fr. Reese suggests, “homosexuality is an orientation that is not chosen.” The fact that some citizens, as Fr. Reese further indicates, have changed their view on homosexuality and “celebrate these relationships as Christian marriages” does not make them marriages or admirable relationships. It is also true that over the course of the law’s development, extenuating circumstances have been used to restrict the ability of the State to sanction other human conduct, but this does not make the other problematic human conduct acceptable either. While the motivation that prompts a person to do something that is considered wrong may be better understood today with advances in the biological, sociological, and medical sciences (i.e., it is beyond a person’s control), the conduct itself does not become a model for virtuous human existence that must receive the protection of the state and its law.

For those interested in Catholic teachings that should still be heard by the faithful and all people of good will, might we consider what Pope Pius XI stated in his 1930 encyclical letter Casti Connubii about the nature of marriage:

For each individual marriage, inasmuch as it is a conjugal union of a particular man and woman, arises only from the free consent of each of the spouses; and this free act of the will, by which each party hands over and accepts those rights proper to the state of marriage, is so necessary to constitute true marriage that it cannot be supplied by any human power.

If some readers might think that Fr. Reese is looking for flexibility in interpreting the meaning of these words of Pius XI, he does not seem to, for he acknowledges that the Church (although he says “Catholic hierarchy”) does not sanction ecclesial or state-sponsored homosexual marriage nor sex outside of marriage, given the definition of marriage.

But the faithful and all people of good will need to take stock of several other matters crucial to evaluating the rightness and wrongness of same-sex unions. For example, in the 1983 Charter of the Rights of the Family approved by Pope John Paul II, it is clear that “the family is based on marriage, that intimate union of life in complementarity between a man and a woman which is constituted in the freely contracted and publicly expressed indissoluble bond of matrimony and is open to the transmission of life.” In furtherance of this point, the Pontifical Council for the Family noted in 2000 that, “With regard to the recent legislative attempts to make the family and de facto unions equivalent, including homosexual unions (it is good to keep in mind that their juridical recognition is the first step toward their equivalency),  members of parliament should be reminded about their grave responsibility to oppose them, for ‘lawmakers, and in particular Catholic members of parliaments, should not favor this type of legislation with their vote because it is contrary to the common good and the truth about man and thus truly unjust’.” Indeed, the Council concluded that making homosexual relations the equivalent of marriage is “much more grave” for this would be “contrary to common sense.”

The efforts of the Pontifical Council for the Family were later reinforced by the Congregation for the Doctrine of the Faith in its Considerations Regarding Proposals to Give Legal Recognition to Unions Between Homosexual Persons and approved by Pope John Paul II in 2003. While this document [HERE] merits careful consideration, its conclusion encapsulates the Church’s teaching that must not be forgotten:

The Church teaches that respect for homosexual persons cannot lead in any way to approval of homosexual behaviour or to legal recognition of homosexual unions. The common good requires that laws recognize, promote and protect marriage as the basis of the family, the primary unit of society. Legal recognition of homosexual unions or placing them on the same level as marriage would mean not only the approval of deviant behaviour, with the consequence of making it a model in present-day society, but would also obscure basic values which belong to the common inheritance of humanity. The Church cannot fail to defend these values, for the good of men and women and for the good of society itself.

While I take comfort in Fr. Reese’s reminding us that courts have stated that churches would not be required to perform marriages between same sex partners, the movement to make such unions an issue of the protection and advancement of “civil rights” and “constitutional rights” places the future of these consoling words into question. I recall the difficulty that Thomas More had with another “marriage” even though he was assured that his silence would be sufficient to protect him. It did not. When the State or those who influence its decision making take a different view, the well-formed consciences of its citizens are threatened when their consciences do not conform to the will of the State that is intent on mandating uniformity. As Christopher Dawson has reminded us, even the democratic state may not be satisfied with “passive obedience” when it demands of its citizens “full co-operation from the cradle to the grave.”

I share Fr. Reese’s view that the California court’s decision in In Re Marriage Cases (and I hasten to add in Goodridge v. Department of Public Health) was unwise. But, both decisions went beyond merely being unwise: they were and are wrong. And, if it takes a constitutional amendment, state or federal, to rectify these mistaken judicial opinions, so be it! Fr. Reese suggests that this “issue” (of same-sex marriage) should be dealt with by state legislatures, “not by the courts or referendums.” I wish I could share his optimism about this, but in fact the work of state legislatures has been compromised when the will of the people, as has happened in Massachusetts in the call for a constitutional convention to reiterate the definition of marriage as the union of one man and one woman, has been stymied by the legislature.

Fr. Reese notes that “Homosexual relationships exist in American society in not insignificant numbers.” I am not sure what insignificant means here, but I shall put the best interpretation on what Fr. Reese says for the time being. But I must add that even if they do exist “in not insignificant numbers”, that does not make them relationships meriting the moniker of “marriage.” If the alternative were true, then sooner or later any relationship, and those who lobby for its cause and legal protection, will want the same rights, privileges, and protections of the law. And for those who question this point, I refer them to the current legal debate that is ongoing in the Texas courts regarding the polygamist relationship. When our apartment buildings, our suburban tract homes, our pup tents, and any other shelter of modest of generous proportions is filled with “unmarried couples”—hetero- or homosexual—what will happen to our future posterity as a people, as a nation, as the human race?

Like Fr. Reese, I would not only prefer to reserve the word “marriage” for the union of one man and one woman. I would insist on it, and “it is worth fighting over.” Not in the streets and not with threats or bullying, but with reason and, if am permitted, with prayers. It is not foolish for anyone to expend his, her, or its “political capital” on this issue. After all, this is what democracy and the rule of law are about. While I agree that abortion, hunger, war, education, health care, etc. are issues of great importance, I would also include the question of marriage which Fr. Reese has deleted from the list. He suggests that “money and resources that would have gone to pro-life work are being siphoned off to oppose gay marriage” and this seems, from his perspective, to be awkward. I wonder what other issues that are important to people also “siphon off” limited resources that could be used elsewhere in other political and legal debates? To place a monetary value on any issue seems to me to substitute democracy and the noble work of a virtuous people and their society with a utilitarian calculus. I, too, agree that those who are most civil will win the day, but I do not think that civility requires the silencing of civil tongues that are motivated not by the problematic language of Casey but by the objective moral order that has for centuries been at the heart of Christian public life and public discourse.    RJA sj

May 25, 2008 in Araujo, Robert | Permalink | TrackBack (0)

On Happiness and the Law

Here is the response of one attorney to my recent post, "Sex, the Married Man, and the Practice of Law."  I would appreciate other testimonies - both positive and negative - as well as advice for those who struggle with their law careers.

Prof. Scaperlanda,
        I read your recent post on happiness where you note that "in short, this student – and I don't know if she is part of a small minority or a majority of students – couldn't dare to hope for true happiness, true love, true contentment, and true joy.  Like Augustine, a restlessness seemed to reside in her heart, but unlike Augustine, she seemed to conclude that the search would be too painful and ultimately prove fruitless.  Therefore, the restlessness needed to be muffled."
      You note that you have foundational questions which you deal with in the second half of your course, namely "How does the law fit into this vision for my life?  Is a legal career a vocation or merely a means to an end – monetary or otherwise?  Can I live an integrated life or must I fragment myself to be a successful attorney?  How do I balance work and family?  Is it possible to live a happy fulfilled life?  Is it possible to live a happy and fulfilled life and be an attorney?"
      I have been practicing law for roughly three years now, have taken two bar exams, and work for a small Midwestern town. I consider that I am probably far enough into the practice of law to have taken its measure, and can only now begin to deal with the questions you have asked. Balancing work and family is relatively easy with this firm, due to low billable-hour requirements. Nonetheless, I am not happy in the firm, and despite suggestions that a change of firm is what I need, I suspect that given the reasons for my unhappiness are more related to the law itself.
     I would say that, due to our system of law as it is now, it takes a very certain kind of person to practice law and be both happy and successful doing so. In any given area, one must be willing to both love the law, and to divorce oneself from exploration of the law in a philosophic manner. Equity, the incredible and wonderful modifier of the law, is dead when not directly encoded. One rarely gets to make "good faith" arguments that some area of the law ought to be changed, because such arguments are made almost always on appeal, and no person or corporation is mad enough to appeal given the costs in any suit. Therefore, judges are often not interested in arguments from equity or reason, and are truly only interested in if one's client wins or loses on the letter of the law. In short, we now live in a system of complete legal positivism. The only place one finds arguments not based in the code is usually in procedural venues, where the court is often free to take any approach it pleases, despite the rules of procedure saying otherwise (soon-to-be lawyers take note, if you were not told this already in your civ. pro. class - the judge always wins until you convince the appellate court otherwise).
    And these are just a few of the problems within the law itself. If one works for a firm, then one must always practice "partnership happiness" law, whereby each partner with whom one works must be kept utterly happy - otherwise, it is a ding in the six-month associate review. In such reviews, the focus is always on the negative, and rarely on the positive. The hours billed are rarely high enough (even if the work flow comes through the partners), the analyses of the law never in-depth enough. And, of course, in a small firm, one is never paid quite enough to pay down the law school loans significantly.
   In short, practicing law and achieving happiness depends greatly on one's turn of mind. If one is a thoroughgoing pragmatist, and willing to practice law simply as a means to an (eventual) economic end, then one will be happy in law. If one is idealistic, and practicing in an area where such ideals are appreciated (civil rights / constitutional law), then one will likely be happy. If one is curious about the philosophy of law, and are practicing law (and not in academia), then one will likely be disappointed and frustrated, and with a large amount of law school loans on one's back, likely to be trapped and quite unhappy. Then, it is essentially waiting for partnership, 7-10 years down the road, where an attorney may be paid closer to what he / she earns for the firm, and can begin paying off debt from school at a greater than minimal-interest rate.
   I suppose, then, that I am somewhat pessimistic about the ability to be happy with law practice as anything other than a means to the end of supporting one's family and paying off debts. I do not find it intellectually, spiritually, or even ideologically fulfilling, and I do not see that it could ever be so for most people.

May 25, 2008 in Scaperlanda, Mike | Permalink | TrackBack (0)

Saturday, May 24, 2008

Sex, the Married Man, and the Practice of Law

My Professional Responsibility (PR) course is taught in two halves.  The first half uses problems to focus on the Model Rules of Professional Responsibility.  Although the larger – more foundational and fundamental issues – arise and are discussed, they take a backseat to the Rules.  This part concludes around the time of the MPRE. 

During the second part of the course, the foundational issues come to the fore through the use of film, novel, and guest speakers using Shaffer & Cochran’s four models of lawyering as a framework.  We watch “A Man for All Seasons” and “To Kill a Mockingbird.”  We read “The Death of Ivan Ilyich.”  And, we have guest speakers, including lawyers who are recovering alcoholics and who work with lawyer assistance programs.  The focus here is on questions such as what is my life about?  How does the law fit into this vision for my life?  Is a legal career a vocation or merely a means to an end – monetary or otherwise?  Can I live an integrated life or must I fragment myself to be a successful attorney?  How do I balance work and family?  Is it possible to live a happy fulfilled life?  Is it possible to live a happy and fulfilled life and be an attorney?

With this background, I turn to Rob’s recent post on “Sex and the Married Man.”  In that post, he quotes a New York Magazine article:

A relationship is a myth you create with each other. It isn’t necessarily true, but it’s meaningful. The key to that myth is that the other person is enough for you. You know in your head that another person isn’t enough for you. But if you don’t honor the myth, then it crumbles.

I learn so much from my students.  A couple of years ago, a student in my PR class was addressing some of these foundational issues and it struck me - like a brick hitting me between the eyes – that a number of students, including this particular student, didn’t believe that they could live truly happy and fulfilled lives.  For these students, “happiness is a myth you create.  It isn’t necessarily true, but it’s meaningful.  The key to that myth is that the life you have settled for is enough for you.  You know in your head that it isn’t enough for you.  But if you don’t honor the myth, then it crumbles.”  In short, this student – and I don’t know if she is part of a small minority or a majority of students – couldn’t dare to hope for true happiness, true love, true contentment, and true joy.  Like Augustine, a restlessness seemed to reside in her heart, but unlike Augustine, she seemed to conclude that the search would be too painful and ultimately prove fruitless.  Therefore, the restlessness needed to be muffled.

This classroom epiphany caused me great sadness.  Two questions.  Have others seen this in some of their students, classmates, or fellow lawyers?  And, how can we – I – model our lives and teaching to foster a sense of hope in these students about to embark on a legal career?

May 24, 2008 in Scaperlanda, Mike | Permalink | TrackBack (0)

Friday, May 23, 2008

More on the Ethics of Immigration

My exchange with William Chip over immigration policy has continued in the June/July issue of First Things (subscription required).  I would welcome comments, questions, and criticisms from those who read our exchanges in the May issue and/or in the current issue.

May 23, 2008 in Scaperlanda, Mike | Permalink | TrackBack (0)

CST and entitlement reform

John Heitkamp brings to my attention a Wall Street Journal op-ed by a Catholic GOP Congressman, Paul Ryan, on how to tackle the looming entitlement crisis.  John suggests that Rep. Ryan is serious about reflecting CST principles in his policymaking, though this plan's emphasis on lowering the corporate tax rate and individualized accounts for social security and health insurance are not normally associated with the more socialist (?) economic themes of traditional CST.  I'm not an expert on entitlement reform, though, so I invite others' comments. 

May 23, 2008 in Vischer, Rob | Permalink | TrackBack (0)