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.

Thursday, December 31, 2009


I understand why Robert George and Michael Scaperlanda were upset by Michael Perry’s Christmas Eve post. But once Michael P gave an explanation as to his meaning, it is not clear to me why one of Michael’s central points was not addressed. In response to Robert, Michael P said: “My point was and is that the “Yuk”—my shorthand for an emotional disposition of disgust—is what animates, in many, the search for and construction of a rational vindication of the disposition.  The “Yuk”—the disgust—is not the argument but an important factor animating the search for and construction of the argument.  Now, I know that this is not true for everyone who is in the grip of the conviction that homosexual sexual conduct is necessarily immoral, but it is certainly true for many.  See Martha Nussbaum, Sexual Orientation and Constitutional Law:  From Disgust to Humanity (Oxford Univ. Press, 2010); Martha Nussbaum, Hiding from Humanity:  Disgust, Shame, and the Law (Princeton Univ. Press, 2006). “

In looking through the posts I see regrettable personal attacks on Michael P’s capacity for toleration and integrity, on Cathy Kaveny’s comparative analytical rigor, logical precision, and depth of insight, and a dismissal of Martha Nussbaum as if her arguments are not to be taken seriously. But I do not see a substantive response to Michael’s point.

Clearly the traditional Catholic position opposes homosexual conduct with the same brush that opposes unmarried heterosexual sex. Disgust does not seem relevant here. Nonetheless, many (Catholics or not) seem particularly agitated by homosexual conduct. Why? The disgust explanation is somewhat complicated. My recollection of the evidence is that men generally are attracted to lesbian pornography and repulsed by same sex male pornography. I have not read Nussbaum's work on this. I do not know if she addresses this. The suggestion that disgust plays no role in the conservative attitudes of many toward same sex relations is difficult to credit in my view. But lesbian sex seems to me to complicate the picture. And, by the way, I do not know what the evidence is with respect to women and pornography in terms of gay and lesbian sex (though there is probably evidence on this in the Meese Report).

Understand, I think most heterosexual liberals who favor gay marriage are nonetheless disgusted by some forms of homosexual conduct. The existence of disgust does not show that one’s position on homosexuality is defective whether it be liberal or conservative – unless disgust is the exclusive basis for opposition. I have no clue how many persons fall into that category. I suspect that disgust plays a strong motivational role with respect to many who are particularly agitated by the issue.


December 31, 2009 | Permalink | TrackBack (0)

Law and Anthropology

As we ring out the old year (and decade) and ring in the new, I went back and looked at our very early blogs from nearly six years ago.  This one, from Rick, still expresses what for me is a core aspect of our project.

One of our shared goals for this blog is to ... "discover[] how our Catholic perspective can inform our understanding of the law." One line of inquiry that, in my view, is particularly promising -- and one that I know several of my colleagues have written and thought about -- involves working through the implications for legal questions of a Catholic "moral anthropology." By "moral anthropology," I mean an account of what it is about the human person that does the work in moral arguments about what we ought or ought not to do and about how we ought or ought not to be treated; I mean, in Pope John Paul II's words, the “moral truth about the human person."

The Psalmist asked, "Lord, what is man . . . that thou makest account of him?” (Ps. 143:3). This is not only a prayer, but a starting point for jurisprudential reflection. All moral problems are anthropological problems, because moral arguments are built, for the most part, on anthropological presuppositions. That is, as Professor Elshtain has put it, our attempts at moral judgment tend to reflect our “foundational assumptions about what it means to be human." Jean Bethke Elshtain, The Dignity of the Human Person and the Idea of Human Rights: Four Inquiries, 14 JOURNAL OF LAW AND RELIGION 53, 53 (1999-2000). As my colleague John Coughlin has written, the "anthropological question" is both "perennial" and profound: "What does it mean to be a human being?” Rev. John J. Coughlin, Law and Theology: Reflections on What it Means to Be Human, 74 ST. JOHN’S LAW REVIEW 609, 609 (2000).

Happy New Year!

December 31, 2009 in Scaperlanda, Mike | Permalink | TrackBack (0)

Wednesday, December 30, 2009

Nussbaum, religious liberty, libertas ecclesiae, and such

Martha Nussbaum delivered the keynote address at the third annual John F. Scarpa Conference on Law, Politics, and Culture, held at Villanova Law in February, 2009.  It was a great occasion.

On the occason, other contributors included, as readers of this blog will remember, Kent Greenawalt, John McGreevy, Rick Hills, Jesse Choper, Geoff Stone, and (our very own) Rick Garnett, not to mention (the estimable) Richard Schenk OP. 

Now, Prof. Nussbaum's reply, along with most of the other conference papers, can be found on the Villanova Law Review.  Start at 54 Villanova Law Review  677.  

December 30, 2009 | Permalink | TrackBack (0)

Reflecting on Church, State, Politics, Trends, and Values at St. John Lateran

Today was the last of our ten days in Rome with our extended Sisk and Gilchrist families, which we concluded with a visit to the Basilica of St. John Lateran. We thereby completed our pilgrimage to all four of the major basilicas in Rome (the others being St. Peter's, St. Mary Major, and St. Paul Outside the Walls). I am grateful for being able to spend this time in Rome, attending the Christmas Eve Mass in St. Peter's with thousands of the faithful from all over the world, visiting the four major basilicas, and seeing again many of the other churches and holy places in Rome that I have cherished (such as Santa Maria Trastevere and Santa Maria Sopra Minerva).

And I have been reminded at nearly every holy place that the Catholic Church has always struggled with its proper place in worldly society while also seeking to transcend time and place and point the faithful to the higher things.  Although I am very tired as we pack late in the evening for an early morning departure, and so I apologize if this post is poorly worded, I thought I would share these thoughts while they were fresh in my mind.

In each of the past twenty centuries, the Church has had the mission of being fully engaged with the particular society of a time and place by being a locus of coherent and integrated values, while always holding fast to the Deposit of Faith and passing on that tradition and revealed teaching through the Apostolic Succession. As sons and daughters of the Church, we on the Mirror of Justice also are confronted with the difficult task of upholding the continuing relevance of Catholic teaching for the peculiar problems arising in this particular time and place, while needing to remain sufficiently independent from political, cultural, and academic movements to be led by our faith rather than by our preferences or aspirations. Along with St. Paul, we seek “unity in faith and knowledge of the Son of God,” and want to avoid being “tossed one way and another, and carried hither and thither by every new gust of teaching (Eph 4:11-15).”

Of course, the Church has not always succeeded in every era in rising above temporal trends and temptations. From the Bronze Doors taken from the Roman Senate (Curia) in the Imperial Forum to symbolize the Church's political reign over Rome to the large statute of Constantine in the portico, the Basilica of St. John Lateran amply illustrates that the Church at times has been too willing to seek to exercise direct political power.  We should learn from the Church's failures as well as its successes.

We have the opportunity on this jewel of a web site to find a way toward a uniquely Catholic common-ground in which we resist accommodation to academic or political trends of every nature and ideology and seek instead to find and apply those more transcendent values that have carried the Church through twenty centuries.  Without becoming isolated from our communities and while being open to new insights into human nature and experience, we also need to remember – as one finds in the most moving and powerful of the icons and imagery and stories found in the holy places of Rome – that the Church typically is at its most effective as a counter-cultural witness for values.

As I sat today meditating in the Basilica of St. John Lateran, I found my eyes constantly returning to the statue of the basilica's namesake.  As rendered in the statute, St. John the Evangelist holds his quill with a waiting hand away from the book as he looks above and listens for the voice of God.  While I do not expect that any of our writing, either in academic venues or on the Mirror of Justice, will reflect the immediate revelation experienced by St. John, we too must remind ourselves to pause regularly and listen for the voice of God. We should never presume that what we say proceeds from the mouth of God, but neither should we ever write on matters of values and faith without opening our ears to that quiet and powerful voice.

Greg Sisk


 Statue of St. John at Basilica of St. John Lateran (photo by Marie-Lan Nguyen) 

December 30, 2009 in Sisk, Greg | Permalink | TrackBack (0)

My New Years Wish

All I want for New Years is for the endless Michael P., Robert George (and with yet a new intervention from Michael S.) thread to end. I know that it is too much to ask that we would have a comments section where this to and fro might have properly belonged.

December 30, 2009 | Permalink | TrackBack (0)

Dear Michael P.

I thought that you and Robby had arrived at common ground, agreed to move on, and leave readers to decide for themselves whether either or both of you had engaged in caricature or personal insult.  But, now you continue with "as I explained, that 'equivalent to racists' construal of my post was a misconstrual.  I can't tell  ... whether Robby still adheres to that 'equivalent to racists' misconstrual of my Christmas Eve post."

I can't speak for Robby, but speaking for myself, I take you at your word that you did not mean to equate those who embrace traditional sexual ethics with racists.  But, that doesn't get you off the hook since you are responsible for the words you use. 

In your Christmas Eve post you said:  "Black bonding sexually with white?  Yuk!  Female bonding sexually with female?  Or male with male?  Yuk squared!" in the context of your psychosexual analysis of those with "profound aversion" to "unfamiliar modes of human sexuality."  How else can this language be construed except as implying that those who embrace traditional sexual ethics are "equivalent to racists"?  At the very least, a reasonable reader could construe your words this way. 

Since you didn't mean for your words to be construed this way, could you do us the favor of publicly expressing regret over your poor word choice? 

December 30, 2009 in Scaperlanda, Mike | Permalink | TrackBack (0)

This may be of interest to some MOJ readers

[An interlocutor who has been reading the to-and-from between Robby and me sent this my way:]

I’ve seen this past week’s exchanges on MoJ between you and R. George.  You might be interested in http://www.thinkingfaith.org/articles/FILM_20091127_1.htm - a film review on the British Jesuits web-site – which bears on some of the themes you raise.

December 30, 2009 | Permalink | TrackBack (0)

Changing the subject?

The issue, which Robby's post immediately below obscures, is whether my Christmas Eve post did what Robby earlier accused it of doing, namely, suggested that there is an equivalence--a moral equivalence--between racists and those who believe that same-sex sexual conduct is always and everywhere necessarily and gravely immoral.  As I explained, that "equivalent to racists" construal of my post was a misconstrual.  I can't tell from Robby's post below, or from his posted response to Cathy Kaveny, whether Robby still adheres to that "equivalent to racists" misconstrual of my Christmas Eve post.

Robby, with your permission, I'd like to put this blurb on the back of my next book:  "Michael Perry is, at least sometimes, insincere, a hypocrite, keeps up pretences, and smears those who disagree with him.  These are among his tactics in the games he plays.  So if you're thinking of reading this book, be on guard!"  --Robert George, McCormick Professor of Jurisprudence, Princeton University 

December 30, 2009 | Permalink | TrackBack (0)

Common ground

Michael P. and I have finally found common ground:  the record beginning with his Christmas Eve post is there in black and white for everyone to see and it speaks for itself.  Readers who wonder whether I was right to call Michael out for caricaturing the views of those who disagree with him about sexual morality and for resorting to ridicule rather than engaging their arguments, can easily judge for themselves.  I'm happy to move on.

December 30, 2009 | Permalink | TrackBack (0)

Response to Professor Kaveny

I owe Professor Kaveny a response.  Here it is.

Dear Cathy:

I appreciate the mostly friendly tone of your most recent comment.  I did not appreciate your earlier comment claiming that my critique of Michael P.'s Christmas Eve post was filled with insults.  It was not.  Although I took no pleasure in doing so, I felt it necessary to call Michael out for grossly caricaturing the views of people who did not share his opinions about sexual morality and ridiculing them rather than engaging their arguments.  Comparing people who dissent from liberal beliefs about sexual morality to racists who believe what they believe because they are saddled with a psychological aversion to things that are unfamiliar was a smear, and I said so. If what I said is true, you were way off base in describing it as an insult.  Was it true?  Have another look at Michael's Christmas Eve post.  Do you find nothing in the mode of caricature and ridicule there?  ("Black bonding sexually with white!  Yuk!")  Frankly, I don't see how you can miss it.

I also appreciate your saying that you've written to the New York Times about the name-callling ("Rambo Catholics,"  "ecclesiastical bullies") that I called attention to when Michael brought your name into the discussion.  You say that you provided context.  I want to make sure that MoJ readers know exactly what the context was.  Your colleague Mark Roche wrote a column for the New York Times in the run up to the 2004 presidential election claiming that voting for John Kerry was the right thing for Catholics and other pro-lifers to do, despite what he admitted was Kerry's very broad and deeply regrettable support for abortion.  Professor Roche is an excellent scholar and a fine man. (He was extremely kind and gracious toward me personally when Notre Dame was recruiting me to be Dean of its law school.)  His op ed piece was, however, poorly reasoned in my opinion, and Gerry Bradley and I, in a response published on NRO, pointed out its flaws.  You objected to comparing voting for pro-abortion politicians with voting for pro-slavery politicians.  Now it is right here that context matters.  Who introduced the analogy of abortion with slavery?  Professor Bradley and I would have been within our rights to do so, but we weren't the ones who did.  It was Professor Roche himself who introduced it.  It was he who said, in his op ed, that history will judge support for abortion "in much the same way that we view earlier generations' support for torture and slavery."  With Professor Roche's point in mind, Professor Bradley and I rehearsed in detail John Kerry's truly appalling record of support for abortion and its public funding.  We then asked:  "By what logic, then, does the author of the New York Times essay conclude that Catholics should vote for the United States Senate's most faithful supporter of what he says ought to be regarded, and some day will be regarded, as an injustice on a par with the evils of torture and slavery?"  Our answer was, by logic that is shoddy.  To defend this claim, we then addressed Professor Roche's argument point by point.  We did not call him names; we did not caricature his views; we did not resort to ridiculing him.  We engaged his argument and gave reasons for judging it to be very faulty indeed.  Readers needn't take what I'm saying on faith.  Here is Professor Roche's op ed: http://www.nytimes.com/2004/10/11/opinion/11roche.html?_r=1.  Here is our critique of his logic: http://www.nationalreview.com/comment/george_bradley200410120849.asp.

In my opinion, the key thing when it comes to drawing analogies between legally sanctioned grave injustices such as slavery and abortion is to provide arguments in support of the analogy.  Where I have drawn such analogies, I have tried to do that.  See for example my "Law, Democracy, and Moral Disagreement," Harvard Law Review, 110 (1997), pp. 1388-1406.  It is important not to use the analogies as excuses for resorting to name-calling and ridicule.  It is also important to note the limits of such analogies, since there are significant differences, as well as similarities, between injustices such as slavery and abortion. 

You've suggested that I read Russ Hittinger's book A Critique of the New Natural Law Theory.  In fact, I've done that.  In a post that crossed with yours I mentioned my critique of Russ's critique in chapter two of my book In Defense of Natural Law.  I also mentioned my respect for Russ as a scholar with whom I have had very productive exchanges---exchanges which became the foundation of a deep and abiding friendship.  I share your great respect for Alasdair MacIntyre (whom I consider to be one of the great philosophers of our time, and on whose work I have myself relied) and John Noonan, though I disagree with MacIntyre on some points and with Noonan on some deeper ones.  I join you in encouraging MoJ readers to read their works together with the works of Germain Grisez and John Finnis.  And I reiterate my invitation to you to debate the validity of Finnis's critique of Noonan on Aquinas's understanding of sexual morality.  I think that would be illuminating.

Your accusation (is it unfair to call it that?) that I or Finnis and Grisez pretend that "assertions" made in a "baritone voice" are arguments is one of those ex cathedra pronouncements that I would invite you to take responsibility for by providing evidence.  You hint that the evidence is the claim that basic human goods are self-evident.  But that won't do.  In the technical sense in which the most fundamental principles of practical reasoning (which are not, as you know, themselves moral norms) are self-evident (i.e., per se nota and indemonstrabilia, as Aquinas said), there is no implication that these principles cannot be (or should not be, or need not be) defended by arguments.  I go into quite a bit of detail about the nature and role of such arguments in chapters 2 and 3 of In Defense of Natural Law.

I will read your article "Toward a Thomistic Perspective on Abortion and the Law in Contemporary America."  I had not seen it.  Thanks for providing the link.  From other writings, I gather you think that President Obama's support for legal abortion and its public funding reflects the view of someone who, despite his own belief in the sanctity of human life in all stages and conditions, thinks that in a pluralistic democratic nation like ours, broadly legal, publicly funded abortion is the best we can do and we should therefore discourage abortion (since it is the taking of a human life) by means short of prohibiting it and take steps to reduce the number of abortions by enacting better economic and social welfare policies.  Have I got you right on that?  (I'm happy to be corrected.  I'd very much prefer not to be right.)  If I do have you right, I do not think your view squares with Obama's public record or the statements he has made over his years as an Illinois state senator, United States senator, and President.  Perhaps this is another point we could usefully debate on MoJ or in another forum.  Here is a link to an essay of mine (written before the presidential election) entitled "Obama's Abortion Extremism":  http://www.thepublicdiscourse.com/2008/10/133.
After the election, I had an exchange with Doug Kmiec about the President's record and views on abortion and embryo-destructive research at the National Press Club.  Here is a link to my remarks:  http://www.thepublicdiscourse.com/2009/05/214.  (The title given to them, which refers to Obama's "apologists," was not selected or approved by me. The word does not appear anywhere in my remarks. Those remarks treat Professor Kmiec with respect while challenging his views about the common ground available for pro-lifers to work with the President.)

You say I'm quite a Republican.  Well, the Republican Party certainly has its faults.  You know, I used to be quite a Democrat.  I worked for Governor Casey.  I helped with the speech he was denied an opportunity to deliver at his party's national convention.  I saw the buttons worn by delegates in good standing---lots of them---depicting Governor Casey dressed as the Pope and bearing vile anti-Catholic sentiments. I didn't feel very welcome in the Democratic Party.  Nor did Governor Casey.  He wanted his Party back.  I had the honor to be co-director of the issues committee for his presidential campaign before poor health brought it to a halt.  I think Bart Stupak is terrific. I've praised Kristen Day's efforts at "Democrats for Life."  I wish that both parties stood firmly against the killing of the unborn in abortion and embryo-destructive research.  I'd love to be able to be a Democrat again.  I hope we can count on you to work hard to shift the Party from its staunch support for abortion and embryo-destructive research so that millions of people who once regarded the Democratic Party as the protector of the "little guy," could return to the fold or at least think well of it again.

Happy New Year to you.

December 30, 2009 | Permalink | TrackBack (0)