Mirror of Justice

These two papers, recently posted on SSRN, look to be interesting

"No Male or Female"

U of Chicago, Public Law Working Paper No. 266

MARY ANNE CASE, University of Chicago Law School
Email: [email protected]

For this, my contribution to the Feminist Legal Theory Projects's Twenty-fifth Anniversary Volume Beyond the Boundaries of the Law, I take the invitation to participants to be to speak very personally about how we came to feminist legal theory and what we made of it. I take my title from the New Testament, because I came to my own radical take on sameness feminism through teenage engagement with the Catholic Church's radical past and repressive future on matters of sex equality and through engagement in college and graduate school with arguments for the equality of the sexes made from the Middle Ages through the French revolution by otherwise conservative women defending their own right to participate in male-dominated enterprises and otherwise radical men willing to call all received ideas into question, even those concerning women's place.

The essay will be in part a reminder that there are far more generations than three who have sought to transcend the boundaries of the law through feminist theory: feminists, male and female, have been making their case for centuries. It will also be in part an elegy for potential alliances lost: though many of the women who in prior centuries sought to bring their sex beyond the boundaries of the law were self-described conservatives on other matters, in my lifetime feminism and conservatism have come to be seen as antithetical, something I dealt with on a daily basis as a faculty member in two of the nation's most conservative law schools, Virginia and Chicago. Also in my lifetime, the Church that brought me to sameness feminism at first repudiated sex equality and then turned to an embrace of difference, as official guardian of doctrinal purity Joseph Ratzinger, now Pope Benedict XVI, in official pronouncements explicitly rejecting the sort of sex and gender theory to which I am committed, came close to suggesting that even souls have a sex.  [Download here.]

"Name Calling: Identifying Stigma and the 'Civil Union'/'Marriage' Distinction" 

Connecticut Law Review, Vol. 41, 2009
Seton Hall Public Law Research Paper No. 1421208

MARC R. POIRIER, Seton Hall University - School of Law
Email: [email protected]

The Connecticut marriage equality case, Kerrigan v. Comm’r of Public Health, 957 A.2d 407 (Conn. 2008), turns on a threshold determination that the state legislature’s distinction between 'civil union' and 'marriage' creates a cognizable injury of constitutional dimension. The court’s short explanation of its conclusion hinges on two social facts. First, 'marriage' names a long-standing, complex, and revered social institution, while 'civil union' is a new name with virtually no history. Second, the 'civil union'/'marriage' distinction is framed against a historical background of stereotyping, discrimination, and prejudice against gays and lesbians. The court’s explanation, while accurate, is all too brief. This Article elaborates some aspects of everyday naming practices involving social identity and kinship, in order to assist us in understanding the injury that comes from mandating two distinct names for the core family relationship. It considers (1) the problem of family identity underlying Juliet’s 'What’s in a name' soliloquy in William Shakespeare’s play Romeo and Juliet; (2) Louis Althusser’s concept of interpellation; (3) the feminist critique of language and names, focusing in particular on the 'Miss'/'Mrs.'/'Ms.' controversy; and (4) the way in which concrete, diffuse, everyday social practices of naming and recognition are multiscalar, and interact with larger legal and social structures around recognition, dominance, and subordination. With these considerations in mind, it is easier to see that the 'civil union'/'marriage' distinction has a cultural meaning that will create a stigmatic injury by reinforcing and activating dormant, dispersed sites of stereotyping and prejudice against gays and lesbians. Moreover, the distinction will reinforce a preexisting sense of second-class status, which is arguably a violation of a broad version of a guarantee of dignity under a principle of equal protection. The 'civil union'/'marriage' distinction thus involves and facilitates name calling and identifying stigma — just as the Connecticut Supreme Court concluded.  [Download here.]

"Affordable Health Choices Act" and the End of Life

It's often been observed that one of the challenges facing our (and other developed countries') health-care systems is the increasing percentage of health-care spending that goes to those who are very near death.  It has also been observed that one of the reasons to be alarmed by the movement -- misleadingly cast in terms of "dignity" -- for doctor-assisted suicide is the likelihood that the legalization of assisting-suicide will be followed by its normalization and, perhaps, its prioritization.  That is, once we say it is alright to help Grandma kill herself, we might well find ourselves saying that she *ought* to let us help her kill herself.

I was thinking about these two observations as I read this piece, from Forbes, about the end-of-life-related provisions that have been (fairly) quietly inserted into the Bill That No One Dares Read In Its Entirety:

In a post entitled "The Democratic Culture of Death is Absolutely Terrifying." one blogger wrote "First they came for our light bulbs, then they came for our SUVs. Now, they are coming for our senior citizens," Other commentators have made a connection between the bill and the Terry Schiavo episode, in which a woman on life support in Florida starved to death after a feeding tube was removed when her husband prevailed in a prolonged legal battle.

In fact, the bill says nothing about death with dignity or any other code words for euthanasia. It also does not make these counseling sessions in any way mandatory--it just says that Medicare will start reimbursing for them.

Still, some activist groups that are not necessarily opposed to ObamaCare are concerned about the end-of-life proposals in the bill. Marilyn Golden, of the Disability Rights Education and Defense Fund in Berkeley, Calif., has been active in opposing physician-assisted suicide at the state level. Many disabled people worry legalizing suicide would lead to euthanasia.

Golden points out that many doctors, when counseling patients, push for do-not-resuscitate orders or have them sign boilerplate documents that can lead to the premature denial of lifesaving medical care. "I don't want to say we're opposed to the language in the bill," she says. "But there are legitimate concerns about how advanced directives are administered."

"There is reason to be concerned," says Diane Coleman, of Not Dead Yet, a group in Rochester, N.Y., that opposes physician-assisted suicide and what it calls medical killing. "The disability community," she says, "often experiences pressure to sign treatment-withholding orders."

"Impasses in today's [Catholic] Church"?

[In his weekly column, Notre Dame theologian Fr. Richard McBrien writes:]

Terrence Tilley is chair of the Department of Theology at Fordham University and immediate past president of the Catholic Theological Society of America.

In his presidential address at the recent Catholic Theological Society of America convention in Halifax, Nova Scotia, Tilley spoke of the negative effects of the "stalemate" or "impasses" that currently afflict the Catholic church (for the full text, "Three Impasses in Christology," see Origins 6/25/09).

The three ecclesial impasses are "a shrinking and in some places demoralized presbyterate that cannot be enlarged significantly under present rules, a laity that loves the church but has stopped listening to the bishops and a hard-working and loyal body of religious women who are disgusted and discouraged by repeated investigations of religious life and attempted reversals of self-governance."

Some of the bishops, Tilley observed, have tried "to work through these difficult impasses," but others prefer to ignore them. Still others make these even worse by following the example of "the vigilantes of the political and religious right by making noisy attacks on Catholic institutions of higher education."

Was Tilley perhaps thinking of the criticisms voiced by many bishops this spring against the University of Notre Dame for inviting President Barack Obama to deliver this year's Commencement address and to receive an honorary degree?

Tilley also expressed concern about the large numbers of Catholics who have simply drifted away from the church, according to last year's survey by the Pew Forum on Religion and Public Life. He speculated that this "may be the response to stalemate in church."

[You can read the rest here.]

Building the City of Mary

I am just back from a Focolare’s northeast summer gathering held at the University of Scranton, “Mariapolis” (city of Mary) where about 400 people of all ages and from an amazing variety of ethnic and social backgrounds, came together for three days to delve into the Focolare’s spirituality of unity and live it together.  (This year translations were in Spanish, Korean and Chinese).  The theme, “love generates wisdom” dug into some of the challenges that people are facing today. 

A workshop on economic life opened a space for discussion about how efforts to love might inform the approaches to the recession, with examples of living through a layoff, and helping small children to participate fully in a family’s efforts to discern wants from needs.  Another on family life explored how to find time to communicate in the midst of a frenetic pace; and how to maintain unity in situations when the couple finds they have different approaches to parenting.  The youth put together for everyone else a workshop on how they try to let love inform their efforts to navigate the media and means of communication (social networking, text messaging, etc.) in order to build solid and respectful relationships. 

The CST insight?  I think it might have something to do with how the communal effort to love and be open to receiving love creates a social space of total inclusion in which people can fully participate, giving the gift of themselves.  Like the man in the scooter-wheelchair who formed a deep bond with a group of kindergartners, who were delighted to take rides on the scooter, and “race” him; and then together they formed an amazing team to help clear the tables in the dining area and put the dishes on the conveyer belt.  Or the profoundly autistic teenager, unable to communicate verbally, who was clearly happy and comfortable dancing with the other young people at the end of the program, and the youth were clearly focused on her and the priority of creating a space to include her just as she was. 

On our way back to the Focolare house in the Bronx, my friends and I stopped at an ATM machine, where there was an older man obviously struggling with finding the right buttons, and taking quite a while.  Realizing that he had forgotten his glasses and needed help, we were able to create enough trust, even at a NYC ATM machine, to give him a hand.  I am normally prone to impatient “sidewalk rage” with anyone slower than the usual NYC pace, but the “Mariapolis” spirit had made a dent on that, enabling us to bring something of the “city of Mary" into the Bronx, too.

A "Rorschach Test on Abortion"?

Check it out, over at dotCommonweal.

Hey, Rick, which brand do you prefer ... if either?

John Harwood, formerly of the WSJ, and now of the NYT, writes about "Competing Brands of Republicanism", here.

Catholic nurse claims she was forced to participate in late-term abortion

More here.  One hopes that the "reasonable" conscience protections that the President has claimed he supports would apply in cases like this.

"Catholic Social Thought and Citizenship"

That's the title of the symposium published in the Summer 2009 issue of Villanova's Journal of Catholic Social Thought (Vol. 6, No. 2).  Many interesting papers--including one by MOJ blogger John Breen and another by former MOJ blogger Greg Kalscheuer, SJ.  Check it out.

According to one of the pieces--by John Keown, Rose Kennedy Professor of Christian Ethics at the Kennedy Institute of Ethics at Georgetown University--"it is far from obvious that [the insurrection of the American colonists against King George] satisfied all (or indeed any) of the [seven] crieria [laid down by the just war tradition for the waging of a just war], convincingly or otherwise" (p. 304).  An interesting and sobering conclusion!

"An Abortion Battle, Fought to the Death" ...

... here.

New Essay by MOJ's Patrick Brennan

The Place of 'Higher Law' in the Quotidian Practice of Law: Herein of Practical Reason, Natural Law, Natural Rights, and Sex Toys

Patrick McKinley Brennan
Villanova University School of Law

Georgetown Journal of Law & Public Policy, Forthcoming
Villanova Law/Public Policy Research Paper No. 2009-17

Abstract:     
The question of the place of higher law in the ordinary practice of law is even now dogged by the brooding omnipresence caricature. This Article seeks to introduce and apply a philosophically defensible account of natural law, the one defended by Thomas Aquinas, to various problematics of contemporary law and jurisprudence. The Article argues that such higher law is not so high as to be relevant only to sexy constitutional questions, as is often supposed, but to everything we do in law. The Article argues that liberals and conservatives alike should acknowledge both the place of natural law in the positive law and the contingent/prudential limits on judges' authority to speak the natural law directly from the bench. Much of the Article is framed as a response to Steven Smith's Law's Quandary (Harvard 2004).

[You can download/print the ssay here.]