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, February 24, 2011

DOMA and beyond . . .

I cannot quite tell what the implications will be of the Obama administration's decision not to defend the Defense of Marriage Act in court.  My understanding is that the administration didn't simply decide that DOMA is a bad law so it shouldn't be defended; the administration decided that discrimination against gays and lesbians should be subject to a heightened standard of scrutiny (rather than rational basis) under the Constitution, and that the traditional definition of marriage qualifies as such discrimination.  It remains to be seen, though, whether this decision by the administration is primarily one of inaction (not going to defend a discriminatory law) or action (advocating for a heightened standard of scrutiny in challenging discriminatory laws).  If the latter course is the strategy, that has some pretty significant implications far beyond DOMA.  Does anyone have a clearer understanding of (or at least some speculation regarding) the way forward from here?  Has this move increased the likelihood that state laws banning same-sex marriage will be found unconstitutional?

February 24, 2011 in Vischer, Rob | Permalink | Comments (31) | TrackBack (0)

Out of sight, out of mind?


As reported in The New York Times, New York City's public advocate, Bill de Blasio, believes that this ad is "contrary to the values of New Yorkers."  (The abortion rate for African Americans in NYC is 59.8%.) This raises an interesting question in my mind: If de Blasio is correct, then just what exactly are the values of New Yorkers? 

UPDATE: Having spent a few years living in New York City, I have some sense of the billboards that apparently are not "contrary to the values of New Yorkers."  Needless to say, some of the billboards that have not triggered a protest from Mr. de Blasio would raise quite the values-driven ruckus in most communities.  If you don't want to take my word for it, feel free to run a google image search for "Houston Street Calvin Klein billboards."

February 24, 2011 in Vischer, Rob | Permalink | Comments (25) | TrackBack (0)

Wednesday, February 23, 2011

Depravity, again

Hot on the heels of my thoughts on depraved heart murder, the New York Court of Appeals today issued People v. Prindle, in which the defendant was in the process of stealing a snow plow blade (this year, I could certainly sympathize) when police responded to the scene and defendant took off in his van with the police in hot pursuit.  The chase ended between 2 1/2 and 4 miles later, when the defendant crashed into another car, severely injuring the victim, who survived in a comatose state with terrible injuries before dying five days later.

The quirk about the case was that the trial court gave a jury instruction which tracked the law in the now-overruled, supposedly objective and morally shorn People v. Register.  At the time of trial, Register hadn't been explicitly overruled yet, but it was on the way out.  The trial court instructed that a finding of depravity depended on a decision that the defendant's "conduct, when objectively viewed," rose to a level of dangerousness "demonstrat[ing] an attitude of total and utter disregard" for human life.  The defendant didn't object; so that's the standard that the Ct. of Appeals used.

In my previous post, I argued that a legal moralist view of depraved heart is perhaps counter-intuitively more defendant protective than an objectified view that focuses exclusively on risk-taking.  The beauty of Prindle is that it manifests the utter inadequacy of the objective, morally denuded approach to depravity in another way: it is unfair. 

Continue reading

February 23, 2011 in DeGirolami, Marc | Permalink | Comments (0) | TrackBack (0)

A good Catholic cannot support Gov. Walker's plan. Discuss.

From the Compendium of the Social Doctrine of the Church:

The Magisterium recognizes the fundamental role played by labour unions, whose existence is connected with the right to form associations or unions to defend the vital interests of workers employed in the various professions. . . . Such organizations, while pursuing their specific purpose with regard to the common good, are a positive influence for social order and solidarity, and are therefore an indispensable element of social life.

It may very well be the case that public employees' unions have been too late to recognize that fiscal reality requires significant concessions on their part, but can a requirement that those unions give up the bulk of their collective bargaining rights be reconciled with Church teaching?  Or is Church teaching hopelessly outdated on this front?

February 23, 2011 in Vischer, Rob | Permalink | Comments (26) | TrackBack (0)

Why Are We So Anxious?

In 1983, Time Magazine declared that stress was the number one American health problem. Stress contributes to heart disease, strokes, and diabetes and many other maladies.  The nation now spends $300 billion dollars per year because of anxiety, and 18% of Americans suffer from an anxiety disorder. See here. A report last year by the American Psychological Association makes clear that the majority of Americans are stressed and cope with it in counterproductive ways.

Some might think that the economy is the most significant factor in the nation's stress, but a new book by Taylor Clark argues otherwise. According to Clark, our anxiety is caused by our lack of community. Given our mobility and our attachment to technology, our human relationships have become more frail. As Clark observes, when crises comes, we need to turn to close flesh and blood friends, not facebook friends.

Second, Clark argues that the glut of information in the mass media overloads are brains and contributes to a culture of fear - fear that X will cause cancer; fear of crime etc.

Finally, Clark points out that repressing our anxiety (or resorting to alcohol or shopping sprees to cope) only intensifies the problem. Our attitude toward negative emotions is almost precisely designed not to effectively cope with them.

Clark argues (I do not agree) that we live in a society where anxiety is less warranted than before. We certainly can expect on average longer life spans. Yet the USA is the anxiety center of the world. For starters, we might turn off the computer and the television more often and we might stop "Bowling Alone."

February 23, 2011 | Permalink | Comments (0) | TrackBack (0)

You Know You're Doing Something Right When . . .

Frances Kissling admits your side is winning.  See her op ed in the Washington Post here.  For Jill Stanek's comments on Kissling's piece see here.

February 23, 2011 | Permalink | Comments (1) | TrackBack (0)

Tuesday, February 22, 2011

Questioning the constitutionality of the individual mandate

In this new paper, I seek to provide *part* of a Catholic context for countering *some* of the overly simple libertarian opposition to the individual mandate component of the Obama healthcare legislation.  I haven't made up my mind concerning whether or not legislation that depends on the individual mandate for its financial viability was/is *prudent* (I am dubious that more "insurance" is the solution to the current healthcare problem), and I certainly object to many aspects of the current legislation (many of the them earlier addressed by the USCCB).  I do think, though, that some of the arguments offered against the constitutionality of the individual mandate, above all Randy Barnett's (the focus of my paper), deserve resistance on authentically Catholic grounds.


February 22, 2011 in Brennan, Patrick | Permalink | Comments (0) | TrackBack (0)

Kurt Pritzl, O.P., RIP

Father Kurt Pritzl died last evening after a long battle with cancer. His death is a loss to the Church and the pro-life cause. Here is a link to a post on the University Faculty for Life blog; that post contains links to other reflections.  

Richard M.

February 22, 2011 in Myers, Richard | Permalink | TrackBack (0)

Bernard Williams on Professor George's Hypothetical

In thinking about the very good questions that Professor George raises below, I was reminded of some of Bernard Williams's arguments in his critique of utilitarianism (the "against" of his classic work with J.J.C. Smart).  Readers are doubtless familiar with Williams's points, but briefly to refresh the memory, one of Williams's examples deals with Jim, who is given the choice by a strongman of either shooting one person, or else shooting no one, in which case Pedro will kill twenty people. 

Here is Williams:

"[W]hat occurs if Jim refrains from action is not solely twenty Indians dead, but Pedro's killing twenty Indians . . . . On the utilitarian view, the undesirable projects of other people as much determine, in this negative way, one's decisions as the desriable ones do positively: if those people were not there, or had different projects, the causal nexus would be different, and it is the actual state of the causal nexus which determines the decision . . . . The decision so determined is, for utilitarianism, the right decision.  But what if it conflicts with some project of mine?  This, the utilitarian will say, has already been dealt with: the satisfaction to you of fulfilling your project, and any satisfactions to others of your so doing, have already been through the calculating device and have been found inadequate.  Now in the case of many sorts of projects, that is a perfectly reasonable sort of answer.  But in the case of projects of the sort I have called 'commitments,' those with which one is more deeply and extensively involved and identified, this cannot just by itself be an adequate answer, and there may be no adequate answer at all . . . . It is absurd to demand of [the "committed" person], when the sums come in from the utility network which the projects of others have in part determined, that he should just step aside from his own project . . . . It is to make him into a channel between the input of everyone's projects, including his own, and an output of optimific decision; but this is to neglect the extent to which his actions and his decisions have to be seen as the actions and decisions which flow from the projects and attitudes with which he is most closely identified.  It is thus, in the most literal sense, an attack on his integrity." 

February 22, 2011 in DeGirolami, Marc | Permalink | Comments (7) | TrackBack (0)

The left's turn to condemn lying "in a good cause"

Some on the Catholic left have praised those of us who have criticized lying as a tactic to advance the pro-life cause.  They now have an opportunity to earn our reciprocal praise.  Some physicians supporting protesting teachers and other state workers in Madison, Wisconsin are falsely attesting that protestors have legitimate medical excuses for failing to report for work.  This is out and out lying.  It is not transformed into something other than lying by the belief, even if true, that the cause in which the lying is being done is just and good.  I do hope we will hear clear condemnations of these tactics by people, especially Catholics, who support the protestors and their goals. 

February 22, 2011 | Permalink | TrackBack (0)