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.

Monday, September 29, 2008

USCCB on the "Freedom of Choice Act"

This letter, from Cardinal Rigali, on behalf of the USCCB, to members of Congress, regarding the "Freedom of Choice Act", is a must-read.  (The letter is not, to be clear, a brief for any particular presidential candidate.)  As he puts it, "we can't reduce abortions by promoting abortion."

The Act would, as I've mentioned many times, do much more than "codify Roe" (though that would be bad enough); according to some estimates, the Act's passage could increase the number of abortions by 125,000 per year.

Sen. Obama, of course, strongly supports the FOCA.  That said, I assume that "Democrats for Life" has publicly criticized the FOCA, but I have not been able to find a link.  If someone else has one, I will add it.

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

Sunday, September 28, 2008

A Guide to the Catholic Blogosphere


September 28, 2008 in Perry, Michael | Permalink | TrackBack (0)

Saturday, September 27, 2008

Same-Sex Marriage and Religious Liberty

My copy of a new book arrived in the mail today:  Douglas Laycock, Anthony R. Picarello, Jr., & Robin Fretwell Wilson, eds., Same-Sex Marriage and Religious Liberty:  Emerging Conflicts (Rowman & Littlefield, 2008).

In the best of all possible worlds, Rob Vischer would write an essay-review of this book.  Pending that review, Doug Laycock's conclusion (at page 207) seems to me compelling:

The nature of marriage is a question with profound religious significance and fundamentally disputed answers.  The state has no more business imposing a single answer to that question than to any other religious question.  Marriage is for the churches; government should confine itself to civil unions.  And then we should try as best we can to create rules that enable Americans with fundamentally different views of marriage to live in peace and equality in the same society.


September 27, 2008 in Perry, Michael | Permalink | TrackBack (0)

Benedict on Catholic schools

Here's the Pope, on my favorite topic:

Catholic schools are a concrete manifestation of the right to freedom of education, says Benedict XVI.

The Pope expressed this conviction today during an address in the apostolic palace at Castel Gandolfo to representatives of Italian Catholic educational centers, who are taking part in a meeting organized by the Italian episcopal conference's Center of Studies for Catholic Schools.

"The Catholic school is an expression of the right of all citizens to freedom of education, and the corresponding duty of solidarity in the building of civil society," said the Pope, quoting a document of the Italian episcopate.

"To be chosen and appreciated, it is necessary that the Catholic school be recognized for its pedagogical purpose; it is necessary to have a full awareness not only of its ecclesial identity and cultural endeavor, but also of its civil significance," he explained. This "must not be considered as the defense of a particular interest, but as a precious contribution to the building of the common good of the whole society."

In this connection, the Pontiff called for equality between state and Catholic schools, "which will give parents the freedom to choose the school they desire."

"It has become evident that recourse to Catholic schools in some regions of Italy is growing, compared to the preceding decade, despite the fact that difficult and even critical situations persist," he noted.

The Catholic school has an important role, Benedict XVI concluded, as it is the instrument of the "Church's salvific mission" in which "the close union is achieved between the proclamation of the faith and the promotion of man."

Right on.  There's so much here:  Catholic schools are civil-society institutions and crucial vehicles for the Church's mission.  A nice reminder, as we're thinking about the "issues" that really matter, that knee-jerk opposition to school-choice programs is not very, well, Catholic.

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

"Turning the First Amendment on its head"

An excellent primer / post, by Fr. Richard Neuhaus, on religious freedom and the First Amendment:

Fr. John Courtney Murray, author of We Hold These Truths and a champion of religious freedom at the Second Vatican Council, observed that, while in theory politics should be unified by revealed truth, “it seems that pluralism is written into the script of history.” I would go further and suggest that it is God who has done the writing.

Pluralism is our continuing condition and our moral imperative until the End Time, when, as Christians believe, our disagreements will be resolved in the coming of the kingdom. The protection against raw majoritarianism depends upon this constitutional order. But this constitutional order depends, in turn, upon the continuing ratification of the majority who are “we the people.” Among the truths these people hold is the truth that it is necessary to protect those who do not hold those truths.

It is a remarkable circumstance, this American circumstance. It is also fragile. We may wish that Lincoln was wrong when he observed that “In this age, and this country, public sentiment is everything.” But he was right, and in the conflict over slavery he was to see public sentiment, both among the abolitionists and the slave owners, turn against the constitutional order and nearly bring it to irretrievable ruin. We are dangerously deceived if we think that Lincoln’s observation about our radical dependence upon public sentiment is less true today.

The question of religious freedom, then, is not—at least not the first instance—about church-state relations. As a matter of historical fact, very few of the controverted questions coming before the courts that are described in terms of church-state relations have to do with the relationship between government and churches. The question is the access, indeed the full and unencumbered participation, of men and women, of citizens, who bring their opinions, sentiments, convictions, prejudices, visions, and communal traditions of moral discernment to bear on our public deliberation of how we ought to order our life together in this experiment that aspires toward representative democracy. It is, of course, an aspiration always imperfectly realized. . . .

Read the whole thing . . . .

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

Friday, September 26, 2008

Response to Rob Vischer re conscience protection

Just a quick response to Rob's point that institutional autonomy argues against federal conscience protection for health care providers

(1) The reguation in question is not attempting to make new law, but only to better enforce existing law.

(2) I agree that institutional autonomy should be weighed in the balance. But in this case I think it outweighed by the following three considerations:

(a) We do not at present have a set of autonomous communities that have made delibrative judgements, but rather a set of legal and quasi legal vectors that are disrupting that autonomy. Unless i'm mistaken,  there are legally-empowered acrediting agencies insisting on the quashing of conscience; at least in New York City there is a law requiring all medical students to be trained in abortion. So the reg is a counter vector.

(b) To my knowledge, no institutions would be forced by these regs to act in violation their collective consciences. Indeed, federal law protects and secures institutional as well as individual conscience. It is true that some institutions may thus find it more difficult to do what their consciences permit (or occasionally perhaps require), but this does not wound their consciences as does forcing someone or some institution actively to facilitate evil. Note that the institutions are not required to follow the moral policies of the conscientious objectors. They can spend a little more time and money and work around them. So it's not as though the federal government were dictating what hospitals etc. may or may not provide or do.

(c) The swelling ground-level doctrine that the reg would combat is truly and deeply dangerous. It's not just that people's consciences are being overridden in extremis, like forcing a blood transfusion on an otherwise dying child over the parents' objection. Rather the argument is being commonly made that a health care provider must always facilitate what s/he considers evil without any showing at all of a pressing need on the part of the client or the institution. This turns human beings into mindless cogs in a machine.

September 26, 2008 | Permalink | TrackBack (0)

Giving Human Trafficking a Human Face

MOJ-reader Denise Hunnell sent me this reaction to the final paragraph of Chato Hazelbaker's comments on yesterday's University of St. Thomas Law Journal symposium on human trafficking:

When my oldest was a high school junior, my mother gave him a subscription to Sports Illustrated. That was great until the February swimsuit issue rolled around. I had teased him saying that I would take a Sharpie marker to it when it arrived. However, when it did show up in the mail, I realized a Sharpie wasn't going to take care of those pictures. I had no idea that Sports Illustrated was now at the level of what I remembered Playboy to be 20 years ago. No telling what Playboy is like now. In any case, my husband and I sat down with him and looked at a couple of the milder pictures. Then I told him to remember that the women in these pictures were mothers, daughters, and sisters just like his own mother and sister. He handed the magazine to us and said, "I don't need this." By humanizing the women in the pictures, the images became distasteful rather than erotic. I think the key to fighting against human exploitation is to always fight for human dignity.

September 26, 2008 in Stabile, Susan | Permalink | TrackBack (0)

Human Trafficking

Yesterday, the University of St. Thomas Law Journal sponsored a terrific symposium on Human Trafficking.  At some point soon, I'll write a post with some of my own thoughts on the day, but in the meantime, let me share the powerful and thought-provoking comments Chato Hazelbaker, our Director of Communications, posted on his blog:

The symposium gave attendees a lot to think about, particularly from the remarks of Norma Ramos one of the cofounders of the Coalition Against Trafficking in Women. In discussing her rejection of the term “sex-worker” she asked the simple question when did sex become work, and do we have to live with the commoditization of everything? Is human sexuality something to be traded on and with? In her talk and as part of a panel later in the day Ramos draws clear lines between a “porn” culture, prostitution, human trafficking and abuses that I cannot even bring myself to write about.

This issue of ending the sex-trade in all of it forms really does rise above political points of view and gets at something we may have already lost, the dignity of each human being as a person. Norma Ramos is a card carrying liberal of great pride and accomplishment, but what I heard her talking about are the very things that the right should be caring about and talking more about. This is not an issue of first amendment, this is an issue where we look at the degradation of the individuals involved in the sex trade, and the devastation to the communities in which we live and we have to ask ourselves simply, “Is this something that any reasonable society should live with?” Again, Ramos makes a powerful point here. She took the examples of theft and murder, and pointed out that no society has ever said that theft and murder and going to happen so we should just figure out how to regulate these things.

It is a Christian point of view that looks at a society and cares for the most vulnerable, and here is a place where we are clearly failing miserably. Beyond just the Christian, for a long time people have been told that to speak up against pornography in any form is to be a prude, to reject a reasoned approach to life, and to infringe on the rights of others. Yesterday, Norma Ramos gave me permission to get over that.

I have two daughters, and when she gave the example of a parent holding a young child and the dreams that go through a parents head of what that child will become: doctor, lawyer, missionary, on that list no parent ever thinks “prostituted person”. So today I’m coming before my God and asking myself, why I would ever support or watch something that I would make me angry, sad, or disappointed in what I had accomplished as a parent if I see my child in it?

There is room for broad agreement on this issue. We have sold enough of our dignity. The solution for me personally is not in legislative action outlawing obscene material, it is the simple act of looking at movies, television shows, advertisements and the flood of media in my eyes and saying, that is someone’s child and a child of God.

September 26, 2008 in Stabile, Susan | Permalink | TrackBack (0)

Why I oppose the HHS conscience rule

If I provide comments to HHS about its proposed new conscience rule, I'm afraid my comments will not be favorable.  Consider this sweeping grant of individual rights in the proposed rule:

Any entity "that carries out any part of any health service program or research activity funded in whole or in part under a program administered by the Secretary of Health and Human Services" shall not "require any individual to perform or assist in the performance of any part of a health service program or research activity funded by the Department if such service or activity would be contrary to his religious beliefs or moral convictions."

Our society's ongoing debates about conscience are important and difficult.  This rule provides a single resolution to the debate to more than 584,000 different health care entities.  As explained in this paper (and in a forthcoming book), I am very leery of top-down solutions to our ongoing battles over conscience.  Those of us who favor the idea behind charitable choice should be especially leery of imposing contested moral norms on organizations that receive federal funding.   You might like the "strings" this time around, but you'll have less basis on which to object next time around.  Freedom of conscience is best viewed as a negative liberty, protecting against state encroachment, not as a positive liberty, empowering individuals to act as they wish without the possibility of any negative fallout from the organizations that employ them.  This proposed rule advances an individualist, rights-driven understanding of conscience, further weakening our political commitment to institutional autonomy and suggesting a lack of confidence in the potential power of mediating structures.

September 26, 2008 in Vischer, Rob | Permalink | TrackBack (0)

Abortion rates lowest in 34 years

According to the Guttmacher Institute, "the overall U.S. abortion rate is at its lowest level since 1974."  (Of course, this report cannot be right, because we know that, during the last eight years, the poor have been neglected by an administration that is hostile to the social-welfare programs that reduce the need for abortions and that has instead tried to distract and deceive pro-life voters with symbolic anti-abortion legislation and hype about Roe v. Wade.  Still, if it were true, it would be good news.)

September 26, 2008 in Garnett, Rick | Permalink | TrackBack (0)