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, October 29, 2008

Cardinal Egan's vision and voice

The posted article by William Gould names a few of the some 80 bishops who have insisted that life is the crucial issue for us in this election, but he fails to mention the powerful vision and voice of Cardinal Egan.

See Cardinal Egan's "Just Look" column:

October 29, 2008 | Permalink | TrackBack (0)

Pro-life, Pro-Obama?

Why this election can’t be reduced to one issue

William J. Gould

Significant portions of the Catholic Church in the United States appear committed to the proposition that the only acceptable political manifestation of being a Catholic entails embracing the Republican Party. Clearly this is the (at least de facto) position of many prominent prelates such as Archbishop Charles Chaput of Denver and Bishop Joseph Martino of Scranton. It is also quite clearly the position of EWTN, which furnishes a one-hour commercial for the Republican Party every Friday night at 8 Eastern (Of course, I’m referring to The World Over, hosted by Raymond Arroyo). Nor is that support confined to high-ranking church figures and leading Catholic media outlets. On the contrary, at Mass in my parish two weeks ago, a very young, newly ordained priest encouraged his listeners to vote Republican solely on the basis of the abortion issue.

In this political and religious climate, I find Doug Kmiec’s support for Sen. Barack Obama a salutary and refreshing development. I say this as someone who does not fully share Kmiec’s enthusiastic embrace of Obama or his high expectations regarding what an Obama presidency is likely to achieve. Instead I write as someone who has long been disenchanted with American politics and who fully expects that we will continue to be ill-governed no matter who wins the election.

Why then do I regard Kmiec’s contribution in such a positive light? For two reasons.

[To read the rest, which appears in Commonweal (web only), click here.

William J. Gould
is Assistant Dean of the Juniors at Fordham College.]

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

Elections and the shocking objective truth

Those who ask whether a Republican administration makes a difference for life or reason should read the left-hand front-page column in today’s (Oct. 29) NY Times, expressing deep concern that Bush’s judges have moved the federal appeals courts to the right. The lead evidence offered by the Times is this: "This past June, the full United States Court of Appeals for the Eighth Circuit voted 7 to 4 … that it is objectively true that human life begins at conception, and that the state can force doctors to say so. Mr. Bush had appointed six of the seven judges in the conservative majority."

To recognize this objective truth regarding the nature of abortion is highly important -- not only for the future protection of human equality and dignity, but for public reason itself.

If the most fundamental of all issues—who belongs to the human community—is to be settled by Roe’s unreasoned doubt that actual human life exists before birth, it’s no wonder people stop talking to each other about lesser matters. If we can’t agree that a child of human parents who is active in the womb is human and alive and a member of our community, how can we trust each other’s good faith concerning less obvious and important truths?

In line with Roe v. Wade, many today aver that factual as well as value judgments are just stipulations and so need not be checked against reality. This is an excuse for indifference to others’ views. As a result, conversation comes to seem hopeless. Many become discouraged with logical, clarifying discourse and lapse into apathy. If Roe has not by itself caused this breakdown of public reason, it certainly has contributed mightily to the decline of civil debate in our nation—and not just on abortion. Our Catholic tradition, to the contrary, insists upon reason as an essential foundation for the rule of law.

October 29, 2008 | Permalink | TrackBack (0)

"A Matter of Life and Debt"

Margaret Atwood recently published an interesting reflection on the financial crisis for the New York Times with a number of references to aspects of Catholic legal theory.  Some excerpts:

. . . [W]e’re deluding ourselves if we assume that we can recover from the crisis of 2008 so quickly and easily simply by watching the Dow creep upward. The wounds go deeper than that. To heal them, we must repair the broken moral balance that let this chaos loose.

Debt — who owes what to whom, or to what, and how that debt gets paid — is a subject much larger than money. It has to do with our basic sense of fairness, a sense that is embedded in all of our exchanges with our fellow human beings.


We are social creatures who must interact for mutual benefit, and — the negative version — who harbor grudges when we feel we’ve been treated unfairly. Without a sense of fairness and also a level of trust, without a system of reciprocal altruism and tit-for-tat — one good turn deserves another, and so does one bad turn — no one would ever lend anything, as there would be no expectation of being paid back. And people would lie, cheat and steal with abandon, as there would be no punishments for such behavior.


Once you start looking at life through these spectacles, debtor-creditor relationships play out in fascinating ways. In many religions, for instance. The version of the Lord’s Prayer I memorized as a child included the line, “Forgive us our debts as we forgive our debtors.” In Aramaic, the language that Jesus himself spoke, the word for “debt” and the word for “sin” are the same. And although many people assume that “debts” in these contexts refer to spiritual debts or trespasses, debts are also considered sins. If you don’t pay back what’s owed, you cause harm to others.

The fairness essential to debt and redemption is reflected in the afterlives of many religions, in which crimes unpunished in this world get their comeuppance in the next. For instance, hell, in Dante’s “Divine Comedy,” is the place where absolutely everything is remembered by those in torment, whereas in heaven you forget your personal self and who still owes you five bucks and instead turn to the contemplation of selfless Being.

I find her reflections on the human dimension of the crisis interesting, but the Dante reference confuses me a bit.  Is she suggesting we'd all be more heavenly if we just ignored the crisis and prayed right now?  Should Catholic members of Congress have voted against the recent bail-out (or at least abstained), and devoted themselves instead to prayer?   Or is the bail-out an example of heavenly willingness to forgive people their debts?   

October 29, 2008 in Schiltz, Elizabeth | Permalink | TrackBack (0)

Abortion "Rhetoric": A Response to Steve S.

In response to my Abortion “Rhetoric” post, Steve S. asked me via email to address his post, to which Eduardo refers in a recent post.  I’ll respond to Steve here and Eduardo later.  Steve’s post concerns “what most citizens believe” about abortion.  “What most citizens believe” is clearly relevant to the political landscape, but I guess I don’t see its relevance to the truth of the matter asserted, to wit, abortion is the brutal and intentional taking of innocent human life.  Is this claim true or not?  In an earlier time, we might have asked is the world round or not.  The fact that most residents of


may have believed it flat doesn’t change the truth of the proposition.  In the nineteenth century (maybe even into the mid-20th century), most citizens probably thought that blacks were not equal to whites.  These beliefs hampered political efforts moving toward equality, but the beliefs didn’t change the truth of the proposition.  The prudential question, I think is this:  when a citizenry’s beliefs are out of sync with reality, is it better to tell them the truth even at the risk of angering them, or is it better to shade the truth and bring them along to the truth more slowly?  However this question is answered, it still doesn’t change the fact that abortion is the act of intentionally killing an innocent human being.

October 29, 2008 in Scaperlanda, Mike | Permalink | TrackBack (0)

When I was hungry, when I was cold

We are all understandably focused on the election and politics, but let's also devote attention to the immediate needs of those around us.  This is the post I made on my blog this morning:

Here in the Twin Cities, the weather is already starting to turn colder.   With heating bills expected to be at an all time high this year, winter will bring increased challenges to those living on the economic edge.  Some won’t be able to pay their heating bills, others don’t have a home to heat.  The St.  Vincent de Paul Society is already reporting an increased need for blankets and warm clothing.

In addition, every day we read reports from food charities and food banks that donations are down, even as increasing numbers of people are seeking aid.   The number of Americans living in households at risk of hunger was increasing even before the current economic fiasco, and the situation for many is getting worse day by day.  The needy keep coming and the food pantry shelves simply do not have enough food to provide to all who need it.

I’m probably not saying anything here that anyone reading this doesn’t already know, but I write it anyway to urge us all to dig a little deeper to see how we might help in whatever way we are able.  If you haven’t already gone through the closet to see if there are extra jackets and blankets to donate, this would be a good time to do so.  If you are able to make an extra donation this week (and next week) to your food pantry, do it.   If your own situation is such that you can’t do either of those, then add the poor and the hungry and the homeless to your daily prayers.  And as you do whatever you can, hear Jesus reminding you that “whatever you do for these least brothers and sisters of mine, you do for me.”

We have different views here about what the role of the government should be in alleviating poverty.  But this isn't about politics and what the governmnent should do.  It is about recognizing that there is an enormous and immediate need...and about each of us thinking about what we can do to improve the lives of our brothers and sisters.

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

Tuesday, October 28, 2008

Public Attitudes and “Murder” as a Description of Abortion – A Response to Steve

In an earlier post, Steve wrote that “most citizens will think that the abortion murder rhetoric is out of place and they will think that the abortion issue (significant as it is) should not be politically privileged over issues such as the killings of civilians in war or allowing children to starve or other issues of significant moral consequence.” 

The truth of the matter, however, seems far more complex.  Indeed, the public appears much more open to the use of the term “murder” as an apt description for the act of abortion than Steve’s post suggests.  This article summarizes polling data from the 1990s through 2002 in which those agreeing with the statement that “abortion is murder” was (with one exception of 38%) always above 40% and as high as 57%.

Of course, even if the public thinks that it is correct to understand abortion as a kind of murder, they may not want to codify this understanding in the criminal law.  There are a variety of reasons that help explain this phenomenon, some of which have been explored in prior posts.  It is often difficult to own up to the consequences of what we know intuitively to be the case.

October 28, 2008 | Permalink | TrackBack (0)

The Rhetoric of Murder

Michael S. asks:

Is abortion the taking of a life? Is the form of the taking an act of intentional killing of a life? Is the life taken innocent of any wrongdoing? Is the life taken human? Is the method of taking the innocent human life brutal? If the answers to these questions are “yes,” then Cardinal George’s “blood-drenched language” is a form of truth telling, not merely rhetoric, political or otherwise. And, it seems to that it is beyond dispute that the answers to these questions are “yes.” Don’t misunderstand. By saying that it is beyond dispute, I am not attempting to shut down the conversation. Quite the opposite, I am inviting the conversation. I would like someone who is opposed to this truth telling rhetoric to explain to me how abortion is not the brutal and intentional taking of innocent human life.  In other words, what is untrue about the rhetoric?

I think this substantially oversimplifies the problem in a way that is nicely brought out by Steve S.'s post below.  Take the most extreme example:  Is an eight-cell embryo a human being?  Yes, in some sense.  Is taking a chemical compound designed to prevent it from implanting its intentional destruction?  Yes.  Is it brutal?  I'm not sure.  Is it blood-drenched?  Certainly not, since the embryo has no blood cells.  Is the language of murder helpful in illuminating the moral reality of the situation in which a woman takes the morning after pill because she's been raped or suffers from a condition that, were she to carry a child to term, could endanger her life or health?  I doubt it.

October 28, 2008 | Permalink | TrackBack (0)

Abortion and Murder, Comment from Chris Green

I've been out of pocket for several days, and still am to a degree, but I wanted to be sure to post this comment that Chris Green sent me in response to my response to his comment (!) to Rick.  I don't have anything to say at the moment, but I hope to be able to give my take on it shortly:

You ask, "[I]s there any example from the law of homicide where a person is, by virtue of the identity of the victim , presumed to be entitled to such an excuse?" My suggestion isn't that the mother is entitled to an excuse because of the nature of the victim--my suggestion is that the mother might reasonably be seen to be entitled to an excuse because of her relationship to the victim (to wit, the fact that the victim is embeded within her body, a fact of Thomson-violinist-style moral relevance). My point is that the abortionist is not entitled to an excuse , even though the victim is the same. As someone pointed out in the Prawfs <http://prawfsblawg.blogs.com/prawfsblawg/2008/10/abortion crimina.html thread, punishing assistance to attempted suicide, but not attempted suicide itself, is an example where the relationship of someone to the victim (in that case, identity) counts for an excuse.  In general there is a "victims can't be accomplices" rule. See, e.g., Model Penal Code sec. 2.06(6) ("a person is not an accomplice in an  offense committed by another person if ... he is a victim of that offense"); for one recent case, see


v. Hedlund, 155 P.3d 149 (Wash App. 2007) (DUI).

October 28, 2008 | Permalink | TrackBack (0)

Catholic Schools, Selectivity, School Choice and Obama

Friend of MOJ and Univ. of St. Thomas Law Professor Elizabeth Brown wrote the following e-mail to me in response to my post on Obama and school choice which I am happy to reprint with her permission:

Your post on MOJ might have reflected what Obama said but it did not accurately reflect how Catholic schools operate.

Mr. Obama's original point that private schools can be selected still applies to Catholic schools even in the poor neighborhoods.  Catholic schools do not take everyone.  They are very selective.  St. Ignatius College Prep and Cristo Rey Jesuit High School both have very demanding entrance requirements that weed out many students that perform poorly academically for a variety of reasons.  In addition, as Lisa Schiltz has pointed out elsewhere, Catholic schools do not take children with disabilities.  Finally, Catholic schools can always expel a student if he or she fails to meet the standards (discipline, academic, etc.).  Such students are then forced back into the public schools (where it is much harder to permanently expel a student) until they have met the mandatory age requirements and can drop out of the system. 

The fact that Obama did not note this in his response to you might be due either to lack of familiarity with how Catholic schools are actually run or it might be due to a desire on his part not to say negative things about the institution (the Catholic Church) which was integrally tied to the university hosting him.

I am quite sure that my post accurately reflects what Mr. Obama said, and I am also confident that I have not misrepresented how Catholic schools operate in the Archdiocese of Chicago.

Elizabeth makes one point that is beyond dispute: some Catholic schools (in Chicago and elsewhere) are selective.  Indeed, one school to which she refers, St. Ignatius College Prep, is highly selective (admitting only 64% of applicants) though not quite as exclusive as the Univ. of Chicago Lab School (admitting only 47% of applicants) where Senator Obama's children attend school.  This selectivity is not however the norm for Catholic high schools in the Archdiocese.  Far from it.  Indeed, as this article makes plain, some high schools in the Archdiocese such as St. Joe's in Westchester (one of the high schools featured in the film Hoop Dreams) accept 100% of their applicants, while many others approach this figure (e.g. Brother Rice 98%, Carmel 96%, St. Patrick’s 99%, etc.  N.B. The article discusses private schools (religious and secular) in the Chicago area which, as concerns Catholic schools, includes not only the Archdiocese of Chicago but the Dioceses of Joliet and Rockford as well). These figures don’t support the claim I took Obama to be making, namely, that Catholic schools perform better than public schools because they cherry-pick the best and the brightest students.

In a subsequent e-mail, and more with respect to Catholic grade schools, Elizabeth added:

From what I could tell by looking at the websites of Catholic elementary schools in the poorer areas of Chicago, most do not disclose on what basis they select students.  It is, thus, hard to tell which ones do use academic standards as a basis for admissions and which ones do not.

One Catholic elementary school that did disclose its admission criteria was Our Lady of Guadalupe, which indicated that it gave preference to siblings of existing students, then children of parishioners, then Catholic children of non-parishioners, and then others in the neighboring area.  These criteria are still "selective" even if they are not based on academics.  For example, students of parishioners are more likely than the average student in the Chicago school system to come from relatively stable families and students whose families are seeking to enroll them in a Catholic school even though they are not Catholic are probably more concerned about education than most low income families.  As a result, the school is already focusing on a smaller group of students who are likely to succeed better in school than most low income students because of their family circumstances.

As Elizabeth notes, the fact that a Catholic school gives preferences to siblings and parishioners isn’t being selective in an academic sense.  Indeed, given that siblings often live in the same household and parishioners live close to a parish, these criteria are similar to the geographic criteria that serve as the primary means of determining which public school a child will attend.  Elizabeth’s e-mail also quotes Our Lady of Guadalupe’s website which states that "Students desiring entrance to our school are not accepted on the basis of academic achievement or natural intelligence.”

Like Elizabeth, my survey of Chicago Catholic grade schools didn’t indicate that schools make use of academic criteria when considering admission.  Accordingly, I think it would be wrong to presume that academic aptitude is an important criteria, or even that it is factor at all.  I did find some information regarding the academic criteria for admission from the Catholic school that is literally right around the corner from Senator Obama’s house. St. Thomas the Apostle School requires students seeking admission to be performing “at grade level.”   While this suggests that at least this school is not actively seeking under-performing students, it does not suggest that the school is only seeking the best and the brightest.

Catholic schools can, of course, be selective, in terms of a student’s ability to pay for tuition (hence the call for vouchers).  Still, the students in Chicago’s Catholic schools are a diverse group with respect to race and ethnicity, and with the help of the Big Shoulders Fund and other forms of financial assistance, economically as well. (See here and here).

I agree that Catholic schools may be “selective” in the qualified sense that Elizabeth notes, namely, that the children who attend these schools may be more likely to come from families that appreciate the importance of education.  That is, parents of Catholic school children have to be at least somewhat pro-active in seeking out an alternative to the local public school.  It is unclear, however, whether and to what extent this general interest in education translates into enhanced performance.

As this article makes clear, studies that account for academic selectivity have shown that Black and Hispanic children enrolled in Chicago Catholic high schools enjoy much higher rates of attendance and graduation than their public school counterparts.

With respect to Catholic schools and children with disabilities, I have not found any information from the Archdiocese that is publicly available.  I have, however, been in touch with someone who works for the Archdiocese in the hopes of learning more about this subject and sharing it with MOJ readers.  Several school sites indicate that they consider such children on a case by case basis.  Even if we assume that public schools are responsible for a higher percentage of children with disabilities (an altogether fair assumption), I’m not aware of any proof that this fact alone can account for the markedly greater success of Catholic schools.

Elizabeth notes that Obama may have been unfamiliar with Chicago Catholic schools when he made the remark that he did.  I took his point to be that Catholic schools have an unfair advantage when compared with public schools in that they can pad their student rosters with the best students.  While St. Ignatius may fit this description, this is not an accurate characterization of Chicago Catholic schools in general.  Moreover, I hope that everyone would agree that we should expect our public officials to base their policy determinations on something more than uninformed assumptions.  Rather than acquaint himself with the relevant facts, it seems to me that Obama had a ready-made answer and a policy determination that aligned with a constituency whom he felt he needed to satisfy.

October 28, 2008 | Permalink | TrackBack (0)