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, July 22, 2010

Res Omnes



Over the past several days, many things—all things—in the world, in the Church, and within this web log have caught my attention. While I am still trying to take stock of all these things, I found it necessary to reflect on a passage from the works of Henri Cardinal de Lubac, S.J. that I have been reading in the context of the contemporary Church. Although written in 1964 while he was attending the Second Vatican Council, then Fr. de Lubac had this to say:


Today, even some of the faithful, and even some priests (without excluding the religious), are tempted “to open themselves to the world” in such a manner that they free themselves to be invaded by it... As for non-believers, many will not neglect to say: the Church abandons little by little her dogmas. She is vaguely aware that her role is finished; thus she comes to us in order to preserve herself, without daring to yet abandon her religious phraseology.


I, for one, think that de Lubac’s words, although written forty-six years ago, aptly describe some segments of the Church, the world, and humanity today. In short, it seems that even though they may be people of good will, some Christian Catholics succumb to the siren sounds of the world and culture that surround them, thus failing to realize that the body of Christ, the People of God may, as a result, suffer because of their words and deeds. I further think that the condition identified by de Lubac and his discussion of them offer great insight into the problematic issues that confront the Church today. I hope to address the application of de Lubac’s point in subsequent postings in the coming days.


RJA sj


July 22, 2010 | Permalink | TrackBack (0)

Wednesday, July 21, 2010

My Take on the Healthcare/Abortion Issue

I've been sufficiently consumed in associate-dean duties that I haven't blogged for months about anything,  including the debate over the health-care law and abortion.  I have, however, written a memorandum posted on the Democrats for Life of America website, arguing that the pro-life Democrats who voted for the bill acted quite reasonably in doing so.  Here's part of the summary:

This memorandum has three purposes.  First, it provides a brief reminder that PPACA contains many provisions reflecting pro-life values and having pro-life effects.  Second, it assesses the two major criticisms of PPACA concerning abortion raised by the U.S. Conference of Catholic Bishops (USCCB).  Although the USCCB has been the most detailed and thoughtful critic of the statute on abortion-related matters, this memorandum concludes that there are convincing answers to the USCCB’s criticisms and thus it was eminently reasonable for pro-life legislators to support PPACA. 

Finally, the memorandum concludes that it also makes perfect sense for a pro-life legislator to support further efforts to clarify restrictions on abortion funding and protections of religious conscience in the context of a stand-alone bill.  Unlike the context of the PPACA vote, enactment of stand-alone clarifications will not destroy health-reform legislation and its many positive pro-life features and effects.  But support for such further clarification should in no way be seized on as an admission that PPACA’s provisions against abortion funding were inadequate. 

In particular, as the memo indicates, I think that the USCCB's criticism of the community-health-center funding overlooks that the statute's language most sensibly is read to say that the funding is to go through HHS accounts that are already subject to the Hyde Amendment and accompanying regulations (the provision refers to "accounts within HHS" and to "increas[ing] funding"); and the commingling of funds there solidifies the proposition that these funding increases cannot be used by CHCs for abortion.

In the Alvare/Jost debate, Professor Jost cites my memorandum, and my argument is indeed an expansion of a couple of the arguments he's made over the last few months.  He does misidentify me as a Catholic, whereas MOJ readers (at least those who've read for a while) will know that I've been a kind of Protestant observer welcomed at this site (maybe because I'm deeply drawn to Catholic social doctrine, maybe on the thought that I'll see the ecclesial light someday).  Jost and I have corresponded, and I imagine there will be some sort of correction at dotCommonweal.  The misidentification doesn't hurt his legal argument (nor would my being a Catholic bolster mine or his).


July 21, 2010 in Berg, Thomas | Permalink | TrackBack (0)

Alvare and Commonweal

Robby is right that I did not intend to weigh in on the Alvare, Commonweal debate.  I was primarily interested in the question raised in the editors' post and was relying on their characterization of Alvare's argument (which I have not yet read).  I do think, though, that the position (which I'm glad to see Robby agrees with) that the bishops' legal interpretations or empirical policy predictions are not entitled to uncritical deference is not wholly uncontroversial.  In a different NCR article, John Allen reported on the "gap" that has emerged between the USCCB and the Catholic Health Association over health care reform.  The article included this back and forth between Cardinal George and the CHA:

CHA officials also insist that their rift with the bishops was narrow.

"We did not differ on the moral question, or the teaching authority of the bishops," Keehan said.

George, however, isn't so sure.

"This may be a narrow disagreement, but it has exposed a very large principle," he said.

The principle is ecclesiological: Who speaks for the church on matters of faith and morals, including how morality is translated into law?

"If the bishops have a right and a duty to teach that killing the unborn is immoral, they also have to teach that laws which permit and fund abortion are immoral," George said. "It seems that what some people are saying is that the bishops can't, or shouldn't, speak to the moral content of the law, that we should remain on the level of abstract principles."

That's a point, George argued, with implications across the board.

"For example, it affects our discussion of immigration," he said. "Are we supposed to just say that the present situation is morally unjustified, or do we have the right and the duty to make moral judgments about whatever legislation comes down the line?"

The challenge of navigating those two outlooks has already complicated one effort at reconciliation.

George (the Cardinal, not Robby) seems to be suggesting -- though he's far from clear on this point -- that the bishops' authority to teach about faith and morals, if it's to be effective, must also include authority to determine the moral valence of a particular piece of legislation.  Now, his words might be simply mean that the bishops are entitled to weigh in on the question.  If so, they would be consistent with the point of my original post.  But that is not at least how Allen seems to have interpreted Cardinal George's comments, because otherwise the back-and-forth he sets up between CHA and the bishops (indeed, the entire "gap" referenced in the article) collapses.  No one, as far as I know, is saying that the bishops are not entitled to take a position on the consequences of legislation.  CHA (and the sisters) are just saying its ok for Catholics to disagree with the bishops' prediction of those consequences, as long as they don't simultaneously reject the Church's position on the underlying moral principles.  

In the same article, Allen also reports this statement by Bishop Lynch, of St. Petersburg:

"I've been associated in one way or another with the episcopal conference of the United States since 1972," said Bishop Robert Lynch of St. Petersburg, Fla. "I have never before this year heard the theory that we enjoy the same primacy of respect for legislative interpretation as we do for interpretation of the moral law."  Lynch, who sits on the CHA Board of Trustees, spoke in a June 13 interview with NCR on the margins of the Denver conference.

Again, this comment, though a bit opaque, suggests that Bishop Lynch has, for the first time this year, heard people (bishops? someone else?) argue that bishops enjoy some sort of "primacy" with respect to "legislative interpretation."  This is consistent with the more expansive reading of Cardinal George's comments, and inconsistent with the notion that the position I am arguing for remains uncontroversial, at least in some circles.

July 21, 2010 | Permalink | Comments (11) | TrackBack (0)

Tuesday, July 20, 2010

Helen Alvare vs. Commonweal


It's not clear from your recent post whether you yourself read the article by Helen Alvare to which the editors of Commonweal responded.  You quoted the editors' characterization of her argument, not her argument itself.  If you haven't read Professor Alvare's article, I strongly urge you to do so.  I believe you will see that in the passage you quoted, the Commonweal editors mischaracterized Alvare's argument by suggesting that her claim was that to disagree with bishops on policy matters (such as health care legislation) is ipso facto unacceptable.

This suggestion is reinforced by the insinuation that Alvare disagrees with the following claim:  "neither the bishops nor their lay advisers have an exclusive claim to competence when it comes to the technical evaluation of public policy. Nor can the bishops conference, despite its consistent and often heroic efforts on behalf of the unborn, fairly claim ownership of prolife principles."

You yourself say, in speaking of that claim:  "I would have thought this a relatively uncontroversial position among Catholic conservatives."  And you are absolutely right about that.  I agree with that position, and Professor Alvare agrees with it, too.  Commonweal's suggestion that Alvare denies it is way out of line.

In truth, Alvare made a specific claim against the argument and position of Commonweal on abortion and the health care bill.  She claimed that that position (which is a position rejected by the bishops, who believe, rightly in my view, that the bill will result in an expansion of abortion) is arrogant and naive.  She did not make the general claim that to disagree with the bishops on policy matters is ipso facto wrong. To defend themselves from Alvare's criticisms of their position, they suggest that she is making a broad claim to episcopal authority that, to my knowledge, no Catholic conservative (and no Catholic liberal) makes.  Alvare herself certainly does not make it.

And while we are speaking of claims Alvare did not make, she also did not claim that Timothy Jost has less credibility as a pro-lifer because he is not a Catholic, or that it is impossible "for Mennonites — or Mormons or Zoroastrians — to construe a piece of legislation correctly and for Catholic bishops to misconstrue it."  For the Commonweal editors to suggest that Alvare made such claims is outrageous.

Let me add one more fact.  Alvare's criticisms of Commonweal were a response to Commonweal's criticisms of the U.S. Catholic Bishops and the nation's major pro-life groups.  Alvare did not start this.  Nor were her criticisms of Commonweal harsher or even as harsh as Commonweal's criticisms of the bishops and the pro-life groups.  When Commonweal launched its assault on the bishops and groups, it scarcely treated the matter as one on which reasonable people of goodwill could reasonably disagree. Its editorial plainly questioned the motives of people who disagreed with Commonweal's view that the health care legislation was "abortion neutral."  It strikes me as unseemly now for the editors to cry foul when Alvare characterizes their position as arrogant and naive.

I recognize that the point of your post was not to defend Commonweal or criticize Professor Alvare, but to make a general point about the scope of episcopal authority.  For what it's worth, I don't find much to disagree with in your general point.  I've set forth my own views here:  http://www.winst.org/fellows/george/Moral_Witness_of_the_Catholic_Church.pdf.  The point of this post is to defend Professor Alvare against a mischaracterization of her views by the Commonweal editors.  It is not directed against anything you yourself have asserted.

July 20, 2010 | Permalink | TrackBack (0)

James Kugel on "Religion and the Secular State"

Here is an interesting essay by Prof. James Kugel, called "Religion's Place in the Secular State and Armed Conflicts of Today."  Here is the introduction:

The relationship between religion and the state is one of the most hotly contested and interesting challenges facing modern, secular governments. In the recent months alone, it has appeared in Quebec, where a judge decided that a Catholic school cannot teach nationally required subjects from Catholic perspective; in the U.S., whose Supreme Court held that Hastings College Law School may legally exclude a Christian student group; in France, which passed legislation banning the wearing of burqas; and in Italy, which the European Court of Human Rights ruled must remove crucifixes from its public classroom walls.

Religion is also a matter of crucial importance in the current, escalating situation of conflict in the Middle East. How much of the conflict can be traced back to religion? And if culpability is found, is religion itself to blame, or can particular attributes of particular religions be identified as culpable forces?

Professor James Kugel, Director of the Institute for the History of the Jewish Bible, and Professor of Bible at Bar Ilan University in Ramat Gan, Israel, spoke to ilsussidiario.net about the issue of orthodoxy and the state. Formerly Starr Professor of Hebrew Literature and director of the Center for Jewish Studies at Harvard, Professor Kugel has explored the value of orthodoxy in many of his books and journal contributions. He spoke to us from Israel in order to shed light on some of the important questions of religion, war, and state that factor into the debate.

July 20, 2010 | Permalink | Comments (1) | TrackBack (0)

The Scope of the Bishops' Teaching Authority

I noticed this article in NCR and had meant to post something on it.  I continue to think it odd that the Vatican would be upset that the sisters supported health care reform based on their own understanding of what the law would do vis-a-vis abortion rather than deferring to the USCCB's predictions about the likely impact of the legislation.  They did not, after all, question the Church's teaching on abortion.  They simply disagreed with the bishops over what this particular piece of legislation would mean.  And the competence required for interpreting a highly complex piece of legislation hardly seem to be the exclusive province of the bishops or their legal advisors.

Anyway, I wanted to post something about this, but never found the time.  Luckily, the editors at Commonweal beat me to the punch, writing a post that basically makes the same basic point I wanted to make, but more colorfully and in the context of their response to criticism by law prof Helen Alvare of an article in Commonweal by law prof Timothy Jost, the latter of which argued that the law would not provide federal funding of abortion. 

Alvaré thinks our disagreement with the bishops conference shows us to be ”both arrogant and naive,” but as Richard R. Gaillardetz has pointed out, neither the bishops nor their lay advisers have an exclusive claim to competence when it comes to the technical evaluation of public policy. Nor can the bishops conference, despite its consistent and often heroic efforts on behalf of the unborn, fairly claim ownership of prolife principles. Professor Jost does not have less credibility as a prolifer because he is not a Catholic, or because he sometimes disagrees with the bishops conference about other issues. It is unbecoming of Alvaré and the editors of Public Discourse, a nonsectarian outfit, to try to turn this dispute into an ecclesial turf war.  It is possible for Mennonites — or Mormons or Zoroastrians — to construe a piece of legislation correctly and for Catholic bishops to misconstrue it.

(Prof. Jost provides his own response to Alvare here.)  I would have thought this a relatively uncontroversial position among Catholic conservatives.  Indeed, it seems to me the same "prudential judgment" move that economically conservative Catholic commentators frequently make when explaining why they do not feel compelled to defer to the bishops' teachings on economic policy.  Here's Stephen Bainbridge, quoting Charles Rice, on why he was not obligated to support an increase in the minimum wage, even though the bishops supported it:

specific policy statements, such as those found in the Bishops' pastoral letter [Economic Justice for All], are properly viewed as prudential judgments about how Catholic social teaching applies to the question at hand. Faithful Catholics are free to question such judgments, because the "bishops, as bishops, have no greater insight into policy matters than anyone else."

Here's what the bishops say in Economic Justice for All:

As bishops, we do not claim to make these prudential judgments with the same kind of authority that marks our declarations of principle. But, we feel obliged to teach by example how Christians can undertake concrete analysis and make specific judgments on economic issues. The Church's teachings cannot be left at the level of appealing generalities.

My own thought is that the bishops are entitled to some deference on policy questions -- certainly not none, as Bainbridge (quoting Rice) suggested (wrongly in my view) in the context of economics, when he said that the bishops have no greater insight than anyone else on policy matters.  But I hardly think it is somehow inappropriate to carefully consider the alternative interpretations provided by legal experts like Jost and come to the conclusion that the bishops are ultimately mistaken.  Of course, there might be situations where the evidence is so clear that to take the contrary position is a sign of bad faith.  But that is hardly the case here.


July 20, 2010 | Permalink | TrackBack (0)

St. Bernard, pray for us

This post has nothing to do with Catholic Legal Theory (except, I suppose, in the sense that climbing mountains can be seen as a metaphor, maybe, for seeking the truth).  I am going to try to climb the Grand Teton this weekend, and would welcome MOJ-ers prayers!

July 20, 2010 | Permalink | Comments (0) | TrackBack (0)

A Kinship of Faiths

About ten days ago, I had an exchange with Rick (in this post and its comments, stemming from Rick's earlier post here) about the Dalai Lama's views about the relationship among religions.  For those interested in the subject, I highly recommend the Dalai Lama's most recent book, Toward A True Kinship of Faiths, which I just finished reading.  I wrote about it in a Cren en Dios! blog post this morning, which you can find here.

July 20, 2010 in Stabile, Susan | Permalink | Comments (0) | TrackBack (0)

Monday, July 19, 2010

Douthat's Tribalism

I don’t usually read Douthat’s column.  But today’s headline caught my eye.  I figured from the title that he was going to blame liberals for racial hostility on the Right.   That’s not quite what he did.  Nevertheless, I found his column to be perverse, but in a slightly different way than I had expected.  His discussion relies heavily on a study of admissions at elite colleges and universities, which found that poor whites are less likely to be admitted to these institutions than comparably qualified whites with higher incomes:

while most extracurricular activities increase your odds of admission to an elite school, holding a leadership role or winning awards in organizations like high school R.O.T.C., 4-H clubs and Future Farmers of America actually works against your chances. Consciously or unconsciously, the gatekeepers of elite education seem to incline against candidates who seem too stereotypically rural or right-wing or “Red America.”

This provides statistical confirmation for what alumni of highly selective universities already know. The most underrepresented groups on elite campuses often aren’t racial minorities; they’re working-class whites (and white Christians in particular) from conservative states and regions. Inevitably, the same underrepresentation persists in the elite professional ranks these campuses feed into: in law and philanthropy, finance and academia, the media and the arts.

Where to start.  First, let me say straight out that, as a resident of a rural area, I agree that there’s a real problem with how this country addresses (or, more accurately, neglects) problems of rural poverty.  And I agree that that neglect includes elite educational institutions, though I doubt my employer has that problem to the same degree as Douthat’s alma mater.  Of course, the problem goes well beyond college admissions.  But, like David Brooks, Douthat is expert at taking social science and twisting it to suit his preconceived partisan agenda.  So he chooses to focus on those godless liberals running America’s top universities.

We then arrive at his strange parenthetical about elite schools discriminating not only against the urban poor but against “white Christians in particular.”  What’s his evidence that white Christians are uniquely disfavored by elite colleges?  None that he points to in the piece, unless we are to take his claim about what the “alumni of highly selective universities already know” (i.e., Douthat himself) as an authoritative source.  Why does Douthat think that poor, rural white Christians are particularly disfavored, as opposed to rural, white working class people in general?  Which non-Christian white, rural working class people are being welcomed by admissions officers?  While most of the disfavored group (the white, rural poor) are in fact Christian, what’s the evidence that their religion is motivating their exclusion in any way?  Are wealthy Christians suffering the same fate?  It’s interesting that, of his examples of the activities colleges disfavor (4-H, FFA, and ROTC), none of them are, in fact, religious.

Douthat’s lack of evidence that the white Christian poor are uniquely disenfranchised raises the crucial question:  why stretch to Christianize this point?  Why not simply let the data speak for itself and talk about the struggles of the rural poor in America?  Because that would ruin Douthat’s partisan objectives.  If the struggles of the rural poor are a problem of poverty and the shortcomings of our meritocracy in dealing with issues of poverty, particular rural poverty, then the solution is plainly redistributive.  Or, put another way, if the problems of the rural poor are framed in economic terms, rather than religious/cultural ones, then Douthat’s column — and the data it highlights — would raise the question of what either party has been doing for the rural poor.   This would be a particularly interesting question to address in light of recent stories about rural counties tearing up paved roads because they can’t afford to maintain them at precisely the moment the Senate GOP is filibustering federal aid to state and local governments.

But that conversation would be far too messy for Douthat, so, despite the pesky lack of evidence, he has to turn the story from one of class bias into one of religious bias in order to fit it within the tidy red-state, blue-state framework.  Add the label “Christian” to the group being excluded, and, voila!  class struggle becomes culture war.  The enemy is not the elite, which resides in both parties (though we could have a nice discussion about which party’s policies better serve the rural poor).  The enemy is the liberal, urban, secular elite out to keep you from finding Jesus (as a Republican congressional candidate from Missouri put it the other day).  Pay no attention to the GOP agenda of tax cuts and deregulation, which will do nothing for the rural poor, white or black or brown.  This is just pure hackery.  I should have stuck to my normal policy of ignoring Douthat’s columns.

July 19, 2010 | Permalink | Comments (16) | TrackBack (0)

Friday, July 16, 2010

"It's a redefinition of marriage"

Andrew Sullivan used to argue, and some people still do, that recognizing same-sex partnerships as legally valid marriages would not harm the institution of marriage, understood as a monogamous and sexually exclusive relationship, and would, indeed, result in greater monogamy among actively homosexual men.  The argument always struck me as implausible because the abandonment of the conjugal (or "one-flesh union") conception of marriage leaves no ground of principle for supposing that marriages should be monogamous.  I've presented my reasons for believing this in "What's Sex Got to Do With It? Marriage, Morality, and Rationality," in Robert P. George and Jean Bethke Elshtain (eds.), The Meaning of Marriage (Spence, 2006). 

Evidence is now beginning to pour in that a vast number of persons in same-sex sexual partnerships, including those legally recognized as marriages, simply do not view monogamy or sexual exclusivity as part of the meaning of marriage. On January 28th of this year, the New York Times published an article previewing a San Francisco State University study documenting the huge percentage of male couples whose relationships are sexually "open."  The reporter, Scott James, was "nonjudgmental" about this, even observing that "while [it] may sound counterintuitive, some experts say that boundary-challenging gay relationships represent an evolution in marriage---one that might point the way to the survival of the institution."  He quotes "relationships" expert Joe Quirk, who has no problem with sexually open marriages, saying that "[i]f innovation in marriage is going to occur, it will be spearheaded by homosexual marriages."  Here is the link: http://www.nytimes.com/2010/01/29/us/29sfmetro.html  In other words, recognition of same-sex partnerships as legally valid marriages is indeed likely to alter the social understanding and meaning of marriage in general, and reshape its norms.

This week the San Franciso State study was officially released.  Here is the story about it from the San Francisco Chroniclehttp://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/07/15/DD4C1EDP1A.DTL  The story also reports on a study funded by a (non-monogamous) Bay area male couple (Lanz Lowen and Blake Spears).  In the study, "three out of four people described non-monogamy as a positive thing, and said it gave them a sexual outlet without having to lie.  Participants reported it helped relationships survive by providing honest options and minimizing deceit, tension and resentment.  Some 'played' independently, others as a threesome, and about 80 percent agreed to tell all or some details of their encounters, the rest preferring a 'don't ask, don't tell' policy."

According to Spears, "having an open partnership is not incompatible with same-sex marriage."  In words that strike me, for all my moral differences with Mr. Spears, as incontrovertibly true, he said that "it is a redefinition of marriage."  I appreciate his honesty and candor.  The real question is not whether the legal recognition of same-sex partnerships as marriages will alter the meaning of marriage and its norms.  What seemed logically to follow has been borne out empirically.  The real question is whether it is a good thing or a bad thing to redefine marriage in a way that will render the norm of monogamy merely optional---a matter of subjective preference, a "lifestyle choice."  People like Mr. Quirk and Mr. Spears are prepared to argue that it's a good thing.  I think they're wrong---disastrously so.  But even if their answer is wrong, at least it is an answer to the right question.

July 16, 2010 | Permalink | TrackBack (0)