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, October 28, 2008

Pope Benedict on church-state separation

In his address to the Philippine ambassador (thanks to Commonweal for the link), Pope Benedict had some important things to say about church-state separation:

The Catholic Church is eager to share the richness of the Gospel’s social message, for it enlivens hearts with a hope for the fulfilment of justice and a love that makes all men and women truly brothers and sisters in Christ Jesus. She carries out this mission fully aware of the respective autonomy and competence of Church and State. Indeed, we may say that the distinction between religion and politics is a specific achievement of Christianity and one of its fundamental historical and cultural contributions. The Church is equally convinced that State and religion are called to support each other as they together serve the personal and social well-being of all (cf. Gaudium et Spes, 76). This harmonious cooperation between Church and State requires ecclesial and civic leaders to carry out their public duties with undaunted concern for the common good.

Right on.  For more, see, e.g., Richard W. Garnett, "Church, State, and the Practice of Love" (Villanova L. Rev., 2007) (link) or (God willing) R. Garnett, Two There Are:  Understanding the Separation of Church and State (Cambridge, forthcoming).

October 28, 2008 in Garnett, Rick | Permalink | TrackBack (0)

Frs. McBrien and Reese are wrong

In the piece by Fr. Richard McBrien, to which Michael linked, we read the following:

The only way that abortions are going to be reduced, as Jesuit Fr. Thomas Reese insisted recently on his blog for The Washington Post ( Abortion: Rhetoric or Results), is by dealing directly with the causes that lead women to have abortions.

This is just wrong.  I won't burden readers with an endless stream of links, but the claim that the "only way" to reduce abortions is to "deal[] directly with the causes that lead women to have abortions" is badly mistaken.  Reasonable regulations of abortion (and rules against public funding of abortion) also reduce the number of abortions.  Fr. Reese also states:

Those wanting to do something about abortion must face the political reality that abortion is not going to be made illegal in the United States. Granted that fact, then the political question has to change from "Who will make abortion illegal?" to "Who will enact programs that will reduce the number of abortions?"

No, there is another question, i.e., "who will enact regulations, and who will nominate and confirm judges who will permit regulations, of abortion".  It it true, of course, that overruling Roe will not end abortion.  (As I have written before, though, Roe's wrong needs correcting even if that wrong does not prevent a single abortion.)  It is also true, though, that there is plenty of room for (and plenty of public support for) reasonable regulations of abortion, regulations of the kind that would (and do) reduce the numbers of abortion.

No one is saying -- certainly, I have never said -- that "dealing with root causes" is not one way to reduce the number of abortions.  (Will Sen. Obama ever endorse the Democrats for Life proposal in Congress?)  But, especially at this late date, and at this point in this election-year argument, it is bewildering -- and, frankly, frustrating -- that someone of Fr. Reese's stature would assert something that is so incorrect, i.e., that the "only" way to reduce abortions by dealing with root-causes (and, therefore, that we should not worry so much about Sen. Obama's commitment to Roe, to public funding, to the FOCA, etc.). 

Nowhere in Fr. Reese's piece (or in Fr. McBrien's) is the impact on abortion rates (which would seem to matter more than the raw numbers relied on in the pieces) of public funding, the FOCA (in all its glory), and the election of an Administration that is full-throatedly pro-abortion-rights.  This consistent refusal -- by Reese, McBrien, Kmiec, Cafardi, etc. -- to engage the effects of policies that will increase the abortion rate, in the context of their contentions that pro-lifers should stop worrying about Roe and put their hopes in an Obama administration's social-welfare programs, is inexcusable.

UPDATE:  Here's Professor Gerard Bradley, on the "root causes" argument.

. . . Public authority’s first responsibility is not, in any event, to counsel persons to make good choices.  Nor is it to make it easier for them to make good choices.  There are many institutions and people in society who can do those things, not least the charitable offices of churches.  The first responsibility of government, the indispensable core of social justice, is the equal protection of everyone from violent destruction by others.  Only government can see to that.  No one else and no other institution in society can see to it, because seeing to it depends upon the enactment of just laws and their effective enforcement by enforcement authorities.

I have not said a word so far about the critical empirical claim made by “root cause” strategists:  better social services (healthcare and the like) will reduce the incidence of abortion.  For what it is worth, I think the evidence for that empirical claim is dubious.  I think that what I have said so far establishes that the “root cause” campaign is morally dubious, and unworthy of Catholic’s support for that reason.

October 28, 2008 in Garnett, Rick | Permalink | TrackBack (0)

Can a faithful Catholic oppose progressive taxation?

There's been a lot of blogging on MoJ about abortion during this campaign season (for good reason), but tax policy has not gotten a lot of attention.  Obviously, faithful Catholics can disagree about what sort of tax policy best promotes the common good.  However, some of John McCain's and Sarah Palin's recent statements about taxes seem to be in a bit of tension with Catholic teaching.  Both have categorically condemned Obama for wanting to "redistribute wealth" or for wanting to "redistribute your hard-earned money."  I don't have any reason to think that McCain actually believes what he's saying.  He's smart enough to know that our current tax system involves a significant amount of redistribution, and I don't see how any of his proposed policies will change its fundamental nature.  (E.g., isn't his proposed mortgage rescue plan a radical redistribution of wealth?)  But his rhetoric is not harmless.  His crowds are booing the very suggestion that a just society will rely, at least in part, on progressive taxation in order to help provide for the less fortunate.  To be sure, it would be perfectly reasonable -- and consistent with Catholic social teaching -- for McCain to challenge the wisdom of Obama's proposed tax increases.  Recently, though, he also seems to be challenging a key premise of Church teaching on economic justice.

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

Monday, October 27, 2008

Working together against FOCA (at least after next Tuesday)

Let’s not become so distracted by the presidential politics that divide us that we forget what urgently unites us. I confess that this has been a failing on my part for some weeks. The Catholic bishops have had an “action alert” posted on their website for over a month, but I paid no attention to it because it had no direct connection to the elections: http://www.usccb.org/prolife/issues/FOCA/index.shtml

The particular matter on which our help is asked is opposition to the Freedom of Choice Act (FOCA). This federal bill would, of course, deeply entrench Roe v. Wade’s right to abortion throughout pregnancy.  But it would do much more. FOCA would also forbid any federal or state governmental entity from “interfering with” or “discriminating” against that right “in the regulation or provision of benefits, facilities, services, or information.” Thus FOCA could eliminate such “interferences” as parental involvement laws, informed consent laws, and health provider conscientious objector laws -- as well as create a virtual entitlement to abortion by requiring that all programs that benefit motherhood not “discriminate” against abortion (all of which would greatly increase the number of abortions).

Massive opposition to FOCA is something upon which all Catholics and many others must be able to come together, at least after next Tuesday’s election, especially if Senator Obama wins.  (Sen. Obama has told Planned Parenthood that FOCA will be his top priority if elected, but FOCA is sure to be pushed by the new Democratic Congress even of McCain  wins. He'll need votes to sustain his veto.) Pro-Obama Professors Cafardi, Caveny, and Kmiec would be looking forward to an Obama administration, of course, but as pro-life citizens they would not welcome FOCA. If their voices join those of the Georges (the cardinal and the professor) in opposition to FOCA, it can perhaps be defeated (as an earlier, less radical version of FOCA was defeated at the beginning of Bill Clinton’s first term). Indeed, as friends and supporters of any Obama administration, Nick, Cathy, and Doug might have especial weight given to their views. So let’s start looking beyond the election, beyond our present divisions, and all begin actively to oppose FOCA as soon as possible.

The USCCB website suggests asking Members of Congress who presently co-sponsor FOCA to remove their names. Here is a list of those names: http://nchla.org/datasource/idocuments/9FOCA%20HsSnSpon15a%2008.pdf. The website also urges personal meetings and letters to all senators and representatives, offers sample ads, and the like. For additional information (include the statutory text and a legal analysis by the bishops’ counsel), fliers, and posters, click on Oppose the “Freedom of Choice” Act  (FOCA)    

October 27, 2008 | Permalink | TrackBack (0)

Catholic Schools and the Disadvantaged

When Catholics urge vouchers for school choice and argue that Catholics schools perform better than the public schools that often fail poor children, the responsive retort frequently has been that Catholic schools are able to skim off the cream of the crop and avoid the difficulties with disadvantaged students. John Breen notes that such arguments have no purchase on Catholic schools in disadvantaged parts of Chicago, where they still out-perform the public schools.

When I hear the argument that Catholic schools supposedly avoid responsibility for the most challenging of students, I always am reminded of John Cardinal O’Connor's response in New York City. In an article ten years ago, Sol Stern well-summarized the Cardinal O'Connor challenge:

Cardinal John J. O’Connor has repeatedly made New York City an extraordinary offer: send me the lowest-performing 5 percent of children presently in the public schools, and I will put them in Catholic schools-where they will succeed. Last August the Cardinal sweetened the offer. He invited city officials to come study the Catholic school system, “to make available to public schools whatever of worth in our Catholic schools is constitutionally usable. The doors are open. Our books are open. Our hearts are open. No charge.”

The city’s response: almost total silence.

Greg Sisk

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

Education Spending and the Failure of Educational Progress

To consider along with the posts yesterday and today, which pick up on my earlier posts about the fundamental importance of education to social justice, the online article by Steven Malanga, provocatively titled, “We Don’t Need Another War on Poverty,” is chock-full of valuable statistics. Herewith an excerpt from his discussion on education funding:

Though Obama has supported some education reforms, such as charter schools, his plan for fixing urban schools by showering more federal money on them is another attempt to revive tin-cup largesse. In his signature education speech, Obama described visiting a high school outside Chicago that “couldn’t afford to keep teachers for a full day, so school let out at 1:30 every afternoon,” adding that “stories like this can be found across America.” Later, he said: “We cannot ask our teachers to perform the impossible, to teach poorly prepared children with inadequate resources.”

In fact, the U.S. has made vast investments in its public schools. According to a study by Manhattan Institute scholar Jay Greene, per-student spending on K–12 public education in the U.S. rocketed from $2,345 in the mid-1950s to $8,745 in 2002 (both figures in 2002 dollars). Per-pupil spending in many cities is lavish. In New York, huge funding increases dating to the late 1990s have pushed per-pupil spending to $19,000; across the river in Newark, state and federal aid has boosted per-pupil expenditures to above $20,000; and Washington, D.C., now spends more than $22,000 a year per student. Yet these urban school systems have shown little or no improvement. “Schools are not inadequately funded—they would not perform substantially better if they had more money,” Greene observes. An Organisation for Economic Co-operation and Development study found that most European countries spend between 55 percent and 70 percent of what the U.S. does per student, yet produce better educational outcomes. If some urban school systems are failing children, money has nothing to do with it.

Greg Sisk

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

On second thought, let me make it easy for you ...

Here's the piece by Father Thomas Reese, SJ, referenced in Fr. McBrien's piece in the immediately, preceding post:

Abortion:  Rhetoric or Results?

Abortion has been one of the most divisive and polarizing issues in American politics for the past 35 years. Despite the extensive public debate, people's views are not changing. Opinions on abortion have remained relatively stable since 1995 according to a recent report from the Pew Forum on Religion and Public Life.

Support for keeping abortion legal in all or most cases has fluctuated between 49% and 61% while support for making abortion illegal in all or most cases has fluctuated between 36% and 48%. Currently the numbers are 54% for keeping it legal; 41% for making it illegal. Neither side is convincing the other.

Opponents of abortion argue that morality is not based on public opinion. That is true, but law is often based on public opinion. Certainly laws cannot be enforced without the support of public opinion. The inability of the United States successfully to enforce laws against illegal immigration, drugs, prostitution and gambling shows how difficult it is to enforce laws that significant numbers of citizens, even a significant minority, do not support.

In many countries where abortion is illegal, the laws are simply ignored. For example, in Argentina abortion is against the law but state hospitals perform abortions and the state pays for them. They have a much more flexible attitude toward law than Americans do. We believe laws should be enforced.

For years, Republicans have been courting the pro-life public by arguing that the Supreme Court is only one vote away from overturning Roe v. Wade. Vote for a Republican president, they say, and he will appoint pro-life justices. In fact, Republican presidents have appointed a majority of the justices since 1973 and the decision is still in place. The reluctance of justices to reverse earlier decisions (stare decisis) makes the hurdle very high even for a conservative justice. 

Let me be clear. I think Roe v. Wade was a bad decision. It was bad law. It was a classic case of judicial activism. At the same time, to think that reversing Roe v. Wade will solve the abortion problem is naive. It will simply return the issue to the states and most states will keep abortion legal. And in states where abortion is made illegal, those seeking abortions will simply drive to another state.

A recent study by Catholics United found that in only 16 states does over 45% of the population self-identify as pro-life. A total ban on abortions in all 16 states would only affect 10% of the abortions in the country. This number does not take into consideration the women who will go to other states for their abortions.

Nor does a constitutional amendment outlawing abortion have a chance of passing Congress let alone getting approved by the states. Any activity that is engaged in by over 1 million people a year is not going to be outlawed, especially if 54% of the country does not think it should be outlawed.

Those wanting to do something about abortion must face the political reality that abortion is not going to be made illegal in the United States. Granted that fact, then the political question has to change from "Who will make abortion illegal?" to "Who will enact programs that will reduce the number of abortions?"

Democrats can argue that their programs will in fact reduce the number of abortions. This year, for the first time, Democrats placed in their party platform language calling for programs that will reduce the number of abortions.

Congressional Democrats have supported the Reducing the Need for Abortion and Supporting Parents Act (HR 1074, known as the DeLauro-Ryan bill) and the Prevention First Act bill (HR 819).

Congressional Democrats have also worked on making other alternatives more attractive with the Adoption Promotion Act of 2003 (Public Law No: 108-145), which was championed by Senator Hillary Clinton.

Democrats for Life have made an important contribution with their Pregnant Women Support Act that aims to reduce the abortion rate in America by 95 percent in 10 years by enacting the social and economic supports that actually do something to help women avoid going through this ordeal. The U.S. Catholic Bishops Conference supports this bill.

Do these programs actually help reduce the number of abortions?

During the Reagan Administration, the number of abortions rose significantly and peaked during the George H. W. Bush Administration. In contrast, during the Clinton Administration the number of abortions fell significantly (to 1.3 million a year from 1.6 million a year during the Bush administration), and were performed at a significantly earlier stage in pregnancy. During the current Bush Administration, these declines have slowed almost to a standstill. In fact, rates of abortions among teenagers and poor people appear to have increased. For abortion statistics click here

A landmark 2007 study by Catholics United shows that lower unemployment, higher rates of health insurance coverage, and greater availability of Head Start centers are more effective at lowering abortion rates than lower availability of abortion providers. The study, which looks at county-level data in Kansas from 2000 to 2004, suggests that abortion reduction is best achieved by addressing the root causes of abortion than restricting access to abortion services. Access the full report here.

In another study released in August 2008, Catholics in Alliance for the Common Good examined the long- and short-term effects of public policy on the abortion rate over a twenty-year period. The findings reveal that social and economic supports for women and families dramatically reduce the number of abortions. The study of all U.S. states from 1982-2000 finds that benefits for pregnant women and mothers, employment, economic assistance to low-income families, quality child care for working mothers and removal of state caps on the number of children eligible for economic assistance in low-income families have reduced abortions. Access the full report here.

Another study by Rutgers University found that the number of abortions among New Jersey women on welfare went up when the Republican State Legislature told mothers on welfare that they would not get additional funds if they had another child. See James Kelly, "Sociology and Public Theology: A Case Study of Pro-Choice/ Prolife Common Ground," Sociology of Religion, Vol. 60, No. 2 (Summer, 1999), pp. 99-124

About three-quarters of women having abortions say that they cannot afford to have a child. If "It's the economy stupid," then any pro-life strategy that is worth is salt must be willing to spend money to help women choose life. A Catholic Democrat like Joseph Biden can say that he will do everything possible to reduce the number of abortions short of putting women and doctors in jail. Republicans can only say that they will do anything possible to reduce the number of abortions short of voting for programs that cost money. The U.S. Catholic Bishops Conference is one of the few groups that are willing to say it wants the government to do both.

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

Catholics, Abortion, the Bishops, and the Presidential Election

I hope that all MOJ readers will consider carefully what Father Richard McBrien, the Crowley-O'Brien Professor of Theology at the University of Notre Dame, and the author of the HarperCollins Encyclopedia of Catholicism (here), has to say in the following piece, dated October 27, 2008.  Notice, too, in Fr. McBrien's article, the link to the piece by Father Thomas Reese, SJ, former editor of America.

<p><p><p><p><p>Catholic voters and the presidential election</p></p></p></p></p>

Catholic voters and the presidential election

Unlike another column that appears in many diocesan papers across North America, this column has never endorsed or opposed a candidate for public office. It will not break that tradition this year, nor any other year in the future.

On the run-up to the 1988 presidential election, the Administrative Board of the bishops’ conference added the words “or opposing” after the word “endorsing.” That addition has remained in the bishops’ quadrennial statements ever since -- most recently in their statement of last November when they put the matter clearly and succinctly: “...we bishops do not intend to tell Catholics for whom or against whom to vote” (n. 7, my italics).

Moreover, as important as the abortion issue clearly is, the bishops have also insisted since 1984 that Catholic voters and the bishops themselves should “examine the positions of the candidates on the full range of issues as well as their integrity, philosophy and performance.”

Put negatively, Catholic voters and their bishops are not to pursue a one-issue course in the political realm. No single issue, including abortion, “trumps” all others, rendering all other issues morally and politically inconsequential.

As last November’s statement by the bishops expressed it: “The consistent ethic of life provides a moral framework for principled Catholic engagement in political life and, rightly understood, neither treats all issues as morally equivalent nor reduces Catholic teaching to one or two issues. … Catholic voters should use the framework of Catholic teaching to examine candidates’ positions on issues affecting human life and dignity as well as issues of justice and peace ...” (nn. 40, 41).

Those Catholics for whom abortion is in effect the only issue determining their vote in a presidential election may need a dose of realism. Even the overturning of the 1973 Roe v. Wade decision by an even more conservative U. S. Supreme Court is not going to put an end to abortions in the United States. It would simply return the matter to the states, and most of the states would continue to legalize abortion.

The only way that abortions are going to be reduced, as Jesuit Fr. Thomas Reese insisted recently on his blog for The Washington Post ( Abortion: Rhetoric or Results), is by dealing directly with the causes that lead women to have abortions.

The question then is not which candidate and which party will make abortion illegal, but which candidate and which party are more likely to reduce the number of abortions.

It is a matter of fact, not opinion, that abortions increased under President Ronald Reagan and peaked during both Bush Administrations. “In contrast,” Fr. Reese points out, “during the Clinton Administration the number of abortions fell significantly,” because legislation, which Republicans have generally opposed, dealt with abortion’s underlying causes.

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

Recommended Reading

This looks to be a paper (by an important family law scholar) that will be of interest to many MOJ readers.  Click on the title to download/print.

"Family Life, the Politics of the Family, and Social Transformation" Free Download

The Good Society, Vol. 17, No. 1, p. 68, 2008
Boston Univ. School of Law Working Paper No. 08-28

LINDA C. MCCLAIN, Boston University - School of Law
Email:

Why do families matter? Is it simply because of their role in social reproduction, or does this ignore the personal goods, the benefits and burdens, of intimate life? Does an emphasis on the formative role of families risk treating them merely as serving the state and divert attention from the rights of persons to form families and the rights - and needs - of children to nurturing relationships? What kind of social and economic transformation would be necessary to implement a normative vision of family that supports families, is egalitarian, and respects diversity? What is the best way to rectify women's continuing disproportionate responsibility for house work and care work - enlisting the state or pressuring men? Is an egalitarian vision of family life, in which promoting sex equality within marriage a proper governmental task, consonant with basic liberal principles, or is it a transformative project that ignores human nature and basic sex difference, corrupts family life, and infringes on women's - and men's - religious freedom? This essay responds to those questions, raised by several political scientists and political theorists in a symposium about my book, The Place of Families: Fostering Capacity, Equality, and Responsibility (Harvard, 2006).

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

A Question about Breen's Conversation with Obama

We've discussed in the past many Catholic schools' selectivity when it comes to accepting students with disabilities.  I don't know the exact statistics, but I have to assume the ability to exclude kids with special needs (an option not available to public schools) is one of the reasons that, as John wrote in his recent post , "many private schools spend far less on their students than do public schools with much better results."  It's clearly more expensive to educate kids with special needs -- that's typically the reason many Catholic schools give for not accepting them -- and they tend not to deliver the same sorts of measurable "results" as "typical" kids.  Are the parochial schools in inner city Chicago more welcoming of kids with disabilities, too?  I hope so!

October 27, 2008 in Schiltz, Elizabeth | Permalink | TrackBack (0)