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.

Monday, December 20, 2010

Observation and Update from Israel

I woke up this morning, near Tel Aviv, to a view, looking west, of the Mediterranean Sea, and am now preparing for the first session of my class, "Religious Freedom in the United States of America", at the IDC-Herzliya.  I thought I'd share a particularly insightful observation with MOJ readers:  Law students in Israel wear more black, and hipper sunglasses, than do law students in Indiana.  That is all.

December 20, 2010 in Garnett, Rick | Permalink | Comments (0) | TrackBack (0)

Saturday, December 18, 2010

additional discussion of Pope Benedict's comments on condoms

The Pope's comment on condoms continues to generate discussion. It seems to me that the discussion has moved far beyond the scope of the Pope's initial comments, which didn't seem to justify the use of condoms. The discussion has increasingly focused on the morality of a married couples use of condoms to avoid the transmission of AIDS. Here is a recent story from Sandro Magister on the controversy, which includes a statement by Luke Gormally and a link to an analysis by George Weigel. Here is a good analysis by Janet Smith, which largely critiques the view of Father Martin Rhonheimer. I think Luke Gormally and Janet Smith have the better of the argument, which mainly deals with the scope of intention. As Janet Smith contends, Rhonheimer's view seems too abstract.

UPDATE: Courtesy of John Allen, here is a link to a new CDF statement on the controversy. The statement is designed make clear that the Pope's words in the interview "do not signify a change in Catholic moral teaching or in the pastoral practice of the Church."  And here is Father Rhonheimer's most recent treatment of the issue in which he responds at length to his critics.

Richard M.


December 18, 2010 in Myers, Richard | Permalink | TrackBack (0)

The statute of limitations, abuse cases, and Delaware

According to this news story, the Delaware Supreme Court is considering a case that could "sink" a number of clergy-sexual-abuse cases:

In court briefs and in court, attorneys for the Oblates argued that the Legislature did not have the authority to suspend the civil statute of limitations, which allowed the vast majority of the priest sexual-abuse lawsuits to be filed seeking damages for abuse that took place as long as 40 or 50 years ago.

The law suspended the statute of limitations -- which normally expires two years after the act or acts at issue -- for a two-year window that closed in 2009.

Stay tuned. . .

December 18, 2010 | Permalink | Comments (0) | TrackBack (0)

"Capitalism and the Welfare State"

William Van Ornum, over at America, shares this post, called "Capitalism and the Welfare State", in which he engages this interesting question, which was raised by Jim Manzi at National Review a few days ago:

"How can capitalism and democracy become less inimical--or even partners with--the kind of Catholic social justice pioneered by Leo XII and now extended by B16 in his call for universal health coverage?"

First, hats off to Van Ornum, Manzi, America, and National Review for this cross-political-camps exchange, which seems to me to have potential.  Next, what do people think of Van Ornum's statement that:

Jim Manzi does us all a favor, first by clearly stating the four major activities of a welfare state, then by unbundling the five elements that undergird the working welfare state. He argues that welfare programs provide a safety net; they incorporate varying levels of risk; they may require prudent behavior on the part of beneficiaries; they may redistribute wealth beyond the theoretical dimensions of an Adam Smith capitalism; and they may provide goods and services directly to recipients.

A careful reading of Manzi, I suspect, can help us to a common ground discussion rather than either/or arguments based on dogmatism or restatements of past ideologies. What do you think? Some possible questions for discussion: How much of a safety net should the state provide in pensions? Should state sponsored healthcare cover the smallers things or just emergencies? How do we determine who deserves welfare payments? What consitutes an adequate level of investment in public education?

December 18, 2010 | Permalink | Comments (3) | TrackBack (0)

Friday, December 17, 2010

Using the name "Catholic"

Following up to Richard M's post on the use of the name "Catholic," an element of the Decree on the Laity (N. 24) may well have a significant bearing:

Indeed, the lay apostolate admits of different types of relationships with the hierarchy in accordance with the various forms and objects of this apostolate. For in the Church there are many apostolic undertakings which are established by the free choice of the laity and regulated by their prudent judgment. The mission of the Church can be better accomplished in certain circumstances by undertakings of this kind, and therefore they are frequently praised or recommended by the hierarchy. No project, however, may claim the name "Catholic" unless it has obtained the consent of the lawful Church authority.


RJA sj


December 17, 2010 in Araujo, Robert | Permalink | TrackBack (0)

recent developments in the Phoenix abortion case

We discussed the Phoenix abortion case in some detail back in May 2010. The recent developments are worth noting. Here and here. Bishop Olmsted has threatened to prohibit St. Joseph Hospital from calling itself a "Catholic" hospital after an abortion was performed at the hospital, and after the hospital has apparently refused to acknowledge Bishop Olmsted's teaching authority. The Bishop was apparently not thrilled that the hospital appealed to the moral authority of a theologian at Marquette (M. Therese Lysaught) who disagreed with the Bishop's analysis of the morality of the abortion. This measure (enforcing a type of truth in advertising) was much discussed during the debate over Ex Corde Ecclesiae, but I can't recall a case when this sort of sanction has been used with regard to a Catholic college or university.  

I wonder if this situation is causing any consternation among officials at Catholic colleges and universities. 

UPDATE: On December 21, 2010, Bishop Olmsted concluded that St. Joseph's Hospital cannot be considered a Catholic hospital. Here is the LifeNews.com story, which includes Bishop Olmsted's statement.


Richard M.

December 17, 2010 in Myers, Richard | Permalink | TrackBack (0)

Judicial Bias As Proxy for Substantive Critique

I have been noticing an increasingly common move in journalistic and popular accounts of judicial decision-making.  A politically charged policy issues in a judicial decision either striking it down or upholding it.  Because it is politically charged, the decision garners the attention of the public.  Oftentimes the legal issues are complex, but members of the public, and certainly the media reporting on the decision, feel quite strongly about what the proper outcome ought to be.  When the writer disagrees with the outcome of the case, rather than attempting to engage with the substance of the decision -- or even try to make the issues digestible for the public -- the writer will instead focus on the judge's background -- her "biases."  That is why one always sees prominently in these kinds of accounts the political affiliation of the president who nominated the judge.  It is also why one sees, increasingly, an analysis of any possible personal conflicts -- no matter how remote -- that a judge might have that would tilt his or her mind.  In this way, the outcome can be explained -- understood by the public for what really motivates it.

In this column, Washington Post columnist Ruth Marcus begins by rightly criticizing the increasingly popular notion that a judge cannot be fair merely because he or she has developed the kinds of "political" contacts that got him or her nominated in the first place.  

Because I agree with that view, it was all the more disappointing to see Marcus breezily elide the issue of whether or not Judge Henry Hudson's views on the mandate were legally convincing (something she spends one sentence doing -- "I happen to believe that the individual mandate passes constitutional muster, but I also believe a credible argument can be made the other way") with the question of whether Judge Hudson is a "partisan hack[]" because he retains an ownership interest in a Republican consulting firm [addendum -- a firm which at one time, though not at any time during which Judge Hudson considered the case, provided services to the Virginia AG, who brought the challenge].  Marcus goes on to extend this claim to a judge's decision to address a political group: she says that Justice Scalia's decision to address a Republican group is "a terrible idea" because while addressing "ideological[ly]" oriented groups is ok, this is just one step too far. 

For myself, I don't see how making a speech to a group is analogous to having a financial interest in the outcome (which Judge Hudson did not have here) [addendum -- a conclusion, for me, unaffected by the fact that the AG bringing the case, at some point in time before the judge heard and decided the case, received services from the consulting firm], but let's set that aside.  The larger point is that if it's true that reasonable minds can disagree about the legal merits of the mandate (and I have no opinion about this issue, since I'm not sufficiently familiar with the legal arguments), then it's unfortunate to see Marcus using personal bias as a proxy for substantive criticism.  I've written on this page before about the use of recusal motions as weapons, and I expect the use of such motions to increase, just for this reason: it's so much easier to cast aspersions at a judge's integrity than to engage with complicated legal questions.  It is also a highly effective way of attacking the merits of a decision without actually addressing them.  I should add, should it be necessary, that it's no less objectionable to me when this kind of denigration happens to judges who are ideologically oriented left-ward. 


December 17, 2010 in DeGirolami, Marc | Permalink | Comments (0) | TrackBack (0)

Slippery slopes

Reading the comments to my post on Will Saletan's distinction between SSM and incest made me wonder: are slippery slope arguments more powerful in legal reasoning than in moral reasoning?  Saletan was focused on moral arguments against (adult) incest, and there does not (in my view) seem to be much of an obstacle in making arguments distinguishing adult incest from SSM.  That doesn't mean you will find arguments in favor of SSM persuasive; it just means that there are readily apparent moral analyses of SSM and adult incest that are distinct from each other.  As long as those arguments are available, I don't see much ground for raising slippery slope concerns.  In law, though, there seems to be less and less moral analysis -- or perhaps more accurately, moral analysis has been foreclosed for certain categories of conduct under the Supreme Court's interpretation of the Constitution (Eisenstadt, Roe, Lawrence, et al.).  If law is pulling back from adjudicating contested moral claims regarding sex, the beginning of life, the meaning of marriage, etc. to the extent that these claims are perceived to implicate threaten overarching equality and privacy norms, then it seems that the slippery slope concern is apt.  Even then, though, it might not be a slippery slope per se, but an already flattened slope that is just gradually being articulated as particular disputes are adjudicated in the void that has been created by the law's departure. 

This is a long and rambling way of getting to the question: do slippery slope arguments have much traction in philosophy (or other circles outside constitutional interpretation)?  I'm guessing that this question has been taken up by others in the past, and if so, I'd appreciate being steered toward the appropriate sources.

December 17, 2010 in Vischer, Rob | Permalink | Comments (7) | TrackBack (0)

It Could Have Been Much Worse: The European Court of Human Rights and Irish Law Restricting Abortion

Yesterday the European Court of Human Rights issued its decision in A, B, and C vs. Ireland, a case in which three women challenged the Republic of Ireland’s law restricting abortion.  (See here).  The court ruled in favor of the third woman, C, but against the other two applicants.

The court found that Ireland had failed to provide an adequate procedure for the exercise of her qualified “right” to abortion under Irish law where the pregnancy presents “a real and substantial risk to the life, as distinct from the health, of the mother.”  The court did not rule in favor of the other applicants who sought abortions for purely elective reasons or for reasons more generally related to “health.”  (For the full text of the court’s opinion see the court’s website here and the opinion in PDF form here).

Indeed, the good news, as William Saunders notes (here) is that the court ruled that “there was no right to abortion under the [European Convention on Human Rights] which is binding on 47 nations.”  This, Saunders further notes “shouldn’t be surprising – the convention never mentions the word ‘abortion.’”  Still, Saunders finds the decision troubling “[w]hen one considers that was no imminent or proven . . . risk of death in this case (only a fear by one of the plaintiffs that her pregnancy could trigger a recurrence of a cancer that might prove fatal), [nor] any directive from the Irish government to doctors to begin ‘prescribing abortion’ in such cases.” 

Even more troubling is the fact that six of the seventeen judges on the court would have ruled in favor of all three applicants.  These judges criticized the deference shown to “the profound moral views of the Irish people” as a “real and dangerous new departure in the Court’s case-law.”  Instead these judges would have found a European consensus that would mandate the availability of abortion on demand.

So, for the moment, Ireland’s principled constitutional guarantee of “the right to life of the unborn . . . with due regard to the equal right to life of the mother” remains intact, if not unchallenged.  Still, to paraphrase Harry Blackmun from Webster, “a chill wind blows” from the Continent.

December 17, 2010 | Permalink | Comments (3) | TrackBack (0)

What is Marriage?

Last week Robby George, Sherif Girgis, and Ryan Anderson posted a new paper, "What is Marriage?"  Kenji Yoshino responds here, calling it "the best argument against gay marriage," but ultimately rejecting it.  George et al. have now replied to Yoshino.

December 17, 2010 in Vischer, Rob | Permalink | Comments (40) | TrackBack (0)