Mirror of Justice

MacIntyre's "The Only Vote Worth Casting" revisited

Back in 2004, Alasdair MacIntyre wrote -- and provoked many by writing -- that "when offered a choice between two politically intolerable alternatives, it is important to choose neither."  I didn't agree with him that the 2004 election presented such a choice, but many have suggested that the 2016 election does.

It's a reminder that Mirror of Justice has been around for a while that we are approaching the fourth presidential election to take place since MOJ started.  The idea behind MOJ (I think!) was not to be a general "commentary on political stuff by some Catholic law professors" site and instead to be a "reflections on legal theory and things legal animated by the Gospel and the Church's social teachings"; still, unsurprisingly, a lot of us have blogged over the years about the task of coming to a decision, meaningfully and faithfully informed and guided by Christianity, about voting, i.e., about how -- this side of Heaven -- to best (albeit imperfectly) advance the common good of our political community.  

A few weeks ago, in an incensed and perhaps ill-advised moment, I broke my longstanding rule against "political" status updates on Facebook and vented my post-Indiana-primary frustration that we had, somehow, settled on two "utterly loathesome, vapid, corrupt, and unworthy" candidates.  Strong language, I admit, but -- I believe -- the adjectives fit.  And, they fit (in different ways, to different degrees, and for different reasons) both of the two presumptive nominees.  So, what to do?

I've said that, at present, I intend to simply write-in Mitch Daniels for President and then vote in other races in a way that I think will, all things considered, make more likely good results and less likely bad results on the issues I care most about.  I should note that I do not agree with those who say that a Catholic is obliged to vote -- I don't think we are (we should engage with and contribute to common good of our political communities, and such engagement probably does generally involve voting -- but it doesn't necessarily).  I'm also aware that there is more than a little preening and virtue-signalling involved in saying that I won't vote for either of these two nominees because (a) who are we kidding, my vote won't make a difference and (b) who are we kidding, it must be that I have some preference between these two nominees.  Perhaps.  

I take it as a given that, if the presumptive nominee of the Democratic Party is elected, then judges will be appointed, and administrative positions will be filled, and executive orders will be issued, and regulations will be imposed, and spending conditions will be attached, and the bully pulpit will be exploited, in ways and with implications that I will very deeply regret and that I think will be bad for religious freedom, the pro-life cause, education reform, pluralism, and other matters.  (I would also deeply regret the election of someone whom I hold, in terms of character, in such low regard.)  I also take it as given that if the presumptive nominee of the Republican Party were elected, while most of the foolish and even wicked policies he has purported to endorse or support would not actually be enacted, his offensive, nasty, bullying, and ignorant behavior and statements -- his coy winking at and pandering to truly disgusting online racism, nativism, and anti-semitism -- would make it impossible to have any respect for the Presidency, would threaten the country's economic and security well-being, and would make even worse the already depressingly bad state of politics and public discourse in the United States.  I suspect he would not, unlike his opponent, be ideologically motivated to fill judgeships and administrative positions in ways that I would regret -- because, after all, it's not clear he's "ideologically" or philosophically motivated to do anything -- but . . . that doesn't feel like enough.  On the other hand, and again, his opponent is also unworthy, corrupt, wrong, etc.  And so it goes.  Maybe, for this year anyway, Prof. MacIntyre is right.

Illinois Law Review Symposium on Substantial Burdens...and a Few Thoughts on the New Accommodation Skepticism

The University of Illinois Law Review has posted a set of essays on the issue of substantial burdens. These essays were meant to coincide with the Supreme Court's Zubik decision, and they did, though the Court did not really oblige in entirely avoiding the substantial burden issue. So much the better. Kudos to Michael Helfand in particular for assembling such a varied little troop. I was pleased to be among them.

My essay, Substantial Burdens Imply Central Beliefs, takes the Brennan-esque view that any society that is amenable to religious accommodation is going to have to involve itself to some extent in evaluating religious claims, brought by religious claimants, that the law imposes upon religious exercise. "Religious" is the key term here. In the end, and once we have taken on the business of "religious" accommodation, there is no avoiding a good bit of church-state entanglement. To render the substantial burden inquiry coherent, we need some concrete, but generous, idea of what religion is. Here the essay briefly considers the systematic nature of religion, and the sense in which courts can only evaluate whether a law imposes a "substantial burden" on religious exercise by recourse to a background of interlocking beliefs and exercise of which the exercise at issue forms one part. Efforts to avoid this type of entanglement, and to segregate civil or secular burdens from religious burdens, are infeasible and, more importantly, miss the very point of religious accommodation--an official acknowledgment of specifically religious reasons (not personal reasons, or financial reasons, or emotional reasons, or some other kind of reasons) for non-compliance with the law. The effort to isolate civil/secular reasons from religious reasons is itself the latest iteration of an old debate in liberal political theory. Here, and with a few examples from the Hobby Lobby case, I argue that it is unsuccessful. It fundamentally misunderstands the religious dimension of the objection. It mistakes a claimant's money for its principles.

This is the first of two projects I've been working on concerning what I am calling the new accommodation skepticism. Over the last few years, religious accommodation has come under fire from those who are largely indifferent, unsympathetic, or hostile to religion--particularly organized religion, and most particularly Christianity. But there is a new, emerging skepticism from other quarters--from those who are sympathetic to religion and may themselves even be religious believers. Such skepticism is not opposition to accommodation full stop. But it does observe some of the ways in which the regime of religious accommodation prevalent since the 1960s has had profound, and profoundly non-neutral, and indeed often profoundly regrettable, effects on the American legal conception of religion, a conception that is achieving ever-greater salience in the so-called "Rise of the Nones" and other contemporary religious phenomena.

The Pope Praises Perinatal Hospice Services

Perinatal hospice care has been getting increasing media attention in recent months (including a Washington Post article last month). These programs provide hospice and palliative care for infants who have been born with severe, life-shortening conditions--major anomalies in the brain, kidneys, or other organs--that mean they will live a few minutes, a few hours, a few days, or in some cases a few weeks. Until recently parents who received such a diagnosis prenatally were commonly advised to terminate the pregnancy so they could "start over" as soon as possible. But in the last 15 years, programs have grown up around the country, and elsewhere in the world, that provide services--mostly social and psychological services for the family, along with palliative care for the child--so that parents who determine to give birth in these circumstances can make the most of the brief time with their child. There are a little more than 200 programs in the U.S., many (but definitely not all) housed in the maternity/neonatal facilities of hospitals. You can find a remarkable video about perinatal hospice services here, and a treasure trove of information and resources at perinatalhospice.org.

This week Pope Francis commended the perinatal hospice at Gemelli Hospital in Rome, one of four such programs in Italy, in a message to a conference on perinatal care held at the hospital. According to Vatican Radio, the Pope, among other things, 

expressed his hope for the continued success of the project “in the service of the person and in the progress of medical science, in constant reference to perennial human and Christian values.” He noted [the staff's] efforts in “seeking to respond in the best possible way to the poverty which is the situation of the child with grave pathologies, with the greatest possible love...."

There has been a bit of controversy, noted in the Post article, over state laws that require  doctors giving a prenatal diagnosis of one of these conditions to inform the parents about perinatal hospice options. Any such controversy should not sweep in, or undercut support for, the perinatal hospice programs themselves. Their work, providing vital services to parents who decide to give birth, should appeal to both pro-life and pro-choice people.

In which I agree with radical feminists...and then blame them

Public Discourse has posted my article, Rendering the Sexed Body Legally Invisible: How Transgender Law Hurts Women. In it, I rely substantially on the courageous work of Rebecca Reilly-Cooper, a political theorist and radical feminist out of the UK. Her website Sex and Gender: A Beginner's Guide is well worth the read, straight through. She also recently gave an hour long presentation on her views in which she argues that the "doctrine of gender identity" is conceptually incoherent. She has a sharp mind, trained as an analytic philosopher, and anyone who is interested in what "gender identity" is ought to take a listen (here's the Q/A). This article too is a very good and fair-minded read detailing the way in which trans' claims tend to suffer from the very gender essentialism radical feminists have been fighting for the last half century.  Radical feminists are ticked--and are releasing a collection of essays, with a foreword by Germaine Greer, very soon.  And here, Harvard law professor Jeannie Suk discusses the impending collision course of the new Obama edict with Title IX more generally. Did anyone take any time to think any of this through? (Alas, another merit of the system in which extensive political discourse beats out rendering executive "decrees".) 

The children involved here deserve the most attention, and many of these feminists are thankfully coming to their defense. The speed at which the medical community and legal establishment seems to be bending over backwards to help children conform their body to their mind rather than their mind to their given body is astonishing. (By conforming one's mind to one's given body I mean only that a boy need not think he must become a girl because he has more characteristically "feminine" personality traits and tastes, and vice versa.)  Reilly-Cooper discusses this at length in her talk. 

In everything I've read so far, I agree with the radical feminists (and thankfully, under Justice Ginsburg's guidance, the Supreme Court's limiting principle in sex discrimination law is the sexed body). The erasure of the female body has enormous consequences, as I discuss in my article today. But here's where these feminists suffer from a rather significant blind spot: abortion. My article's penultimate paragraphs: 

Radical feminists should be commended for resisting the trans movement’s current attempts to erase the female body from our law. But a feminism that embraces abortion as its sine qua non must bear part of the blame. It is one thing to claim that traditional gender norms confined women unfairly to roles and traits that denied them the opportunity to use their talents to contribute to the broader community. Few would now disagree with that basic “gender” critique. It is another thing altogether to assert that the equality of the sexes depends on women having the legal authority to destroy the child’s body growing within their own body.

 

Like the transgender’s attempt to alter his given body to better fit his ailing mind, the abortion activist seeks to distort women’s given bodies to fit into a culture ailing in its hostility to dependent children. For a prior generation of feminists, the biological asymmetry between men and women was a prescription for authentic social change, not a license to distort the wondrous capacity of the female body. Thus, it is no surprise that a society that rejects women’s bodies and the bodies of their vulnerable children would now countenance a distortion in the law so great that it portends the ejection of every body.

"The Bathroom Wars"

That's the title of a characteristically thoughtful post by Perry Dane, who is, as many of us here at MOJ know, a highly respected scholar of law and religion.  The post begins with this:

So, on the one hand, …. I find myself befuddled by the North Carolina “bathroom law” and other extreme responses to transgender rights and the assertion of transgender identity.  I say this as someone who generally appreciates the force of conservative views of sex and sexuality even when I disagree with them.  For example, though I fully support same-sex marriage, I am on record arguing that the debate was more complex than partisans on either side wanted to admit.

But the transgender question is different.

And the post ends with this:

The bathroom fights are unnecessary (though perhaps explainable, like so much else these days, as symbolic skirmishes in our hyper-polarized political war of all against all.)  Traditionalists who write laws that insist, for example, that even bearded transsexual men who happen to have been born as anatomic females should use women’s bathrooms, are just being silly, not to mention oppressive and unjust.  And most of the country is more than happy to respect the individual rights of transgender and other folks.  But the current fight is also both a harbinger of, and a distraction from, a more profound debate down the road.  The deeper challenge lurking here, going well beyond individual rights, is to our collective identity as human beings.

The entire post, here, is well worth considering.

nd, …. I find myself befuddled by the North Carolina “bathroom law” and other extreme responses to transgender rights and the assertion of transgender identity.  I say this as someone who generally appreciates the force of conservative views of sex and sexuality even when I disagree with them.  For example, though I fully support same-sex marriage, I am on record arguing that the debate was more complex than partisans on either side wanted to admit.

But the transgender question is different.

I do understand some basic premises of the “traditionalist” position. 

- See more at: http://www.religiousleftlaw.com/#sthash.9xb8i67L.dpuf

So, on the one hand, …. I find myself befuddled by the North Carolina “bathroom law” and other extreme responses to transgender rights and the assertion of transgender identity.  I say this as someone who generally appreciates the force of conservative views of sex and sexuality even when I disagree with them.  For example, though I fully support same-sex marriage, I am on record arguing that the debate was more complex than partisans on either side wanted to admit.

But the transgender question is different.

I do understand some basic premises of the “traditionalist” position. 

- See more at: http://www.religiousleftlaw.com/#sthash.9xb8i67L.dpuf

So, on the one hand, …. I find myself befuddled by the North Carolina “bathroom law” and other extreme responses to transgender rights and the assertion of transgender identity.  I say this as someone who generally appreciates the force of conservative views of sex and sexuality even when I disagree with them.  For example, though I fully support same-sex marriage, I am on record arguing that the debate was more complex than partisans on either side wanted to admit.

But the transgender question is different.

I do understand some basic premises of the “traditionalist” position. 

- See more at: http://www.religiousleftlaw.com/#sthash.9xb8i67L.dpuf

Rendering the Body Legally Invisible

I've been waist-deep in "gender" for the last couple of weeks, grappling with the legal consequences of the astonishing claim the Department of Justice made earlier this month that "trans women are women" for the purposes of Title VII and Title IX. Public Discourse is publishing what I've written, and I'll post it when it's out. 

For now though, I wanted to excerpt at length here from a very helpful self-published book out of the UK entitled, Flesh Made Word. In it, philosopher Daniel Moody argues that the sexed body has been eclipsed from the law. (He blames abortion, and I think that's right, though I for different reasons than him.)  Near the end of the slim book, he makes his point clearest in his analysis of the prefixes “cis” and “trans”. (“Cis” is used by the trans community to distinguish a “trans woman” from a “cis woman”--like this blogger-- whose gender identity and biological sex align.)

[I]t would seem that Joan [a “cis” woman] is ‘legally female because physically female’ and John [a “trans woman”] is ‘legally female despite physically male’. 

 

But how can this be, given that there is only one legal definition of the word Female. John’s legal status as female has to be the same has Joan’s.

 

In Joan’s case the name Female signifies her sex. But [law] does not have the power to change John’s sex from male to female. Any ‘femaleness’ John possesses he possesses only in his mind. So, given that [law] cannot take John’s state of mind and elevate it to the height of a female-sexed body, the only way to make his legal status as Female equal to Joan’s is to take her body and legally downgrade it to a state of mind. Joan is de-naturalized in law; de-sexed so that her femaleness too is legally understood to be a state of mind. If John’s LEGAL status as FEMALE exists in the form of LEGAL permission, so too does Joan’s. [emphasis in original]

 

If John is LEGALLY FEMALE (gender identity) despite physically male (sex)’ and if the only LEGAL meaning of the word Female is not attached to the definition belonging to a sexed body, then we can take this as proof that Joan has ceased to be ‘legally female (sex) because physically female (sex)’ and, quite bizarrely, is now LEGALLY FEMALE (gender identity) despite physically female (sex)’ FEMALE despite female.

 

Joan’s legal identity changed conceptually but it did so without changing linguistically.

 

Moody concludes that the two legal identities that are now offered to each individual (i.e., cisgender and transgender) are simply the two possibilities that flow out of ejecting the human body from the law. The trans individual is “merely somebody who has chosen to take advantage of the [legal] absence of his body” while the “cis” individual simply has not so chosen. But every person’s identity remains a choice, unbound from any objective standard, untethered from reality itself. Moody: "Understanding cisgender enables us to stop chasing after the innocent man--transgender--and instead turn the spotlight onto the real culprit, namely the ideology named Gender..." 

More at Public Discourse soon... 

Greenawalt, "From the Bottom Up: Selected Essays"

I’m delighted to post this notice for a new book of essays by my old master, Kent Greenawalt: From the Bottom Up: Selected Essays. These previously published and newly collected essays span Kent’s writing life and do an excellent job of conveying his immense and broad erudition. They cover topics including the bases of law (public reasons, natural law, religious reasons, and so on); law and objectivity; and several subject specific inquiries (in criminal law, law and religion, and speech law).

As a compendious but complete introduction to Kent’s thought, you cannot do better. I was honored to provide this book blurb:

A crucial book for understanding the mind of one of the great legal scholars of our time. Kent Greenawalt’s core insight, developed over a scholarly life and across several disciplines, is that the law is best understood inductively–not by drawing hard dividing lines between legal concepts and categories but instead by asking careful questions about how the law works itself out in the real world.

On "settling" for religious exemptions

Michael Brendan Dougherty has an essay posted called "Why the Little Sisters of the Poor Shouldn't Settle for a Stingy Exemption."  The piece echoes some things written by others over the past few years, making the basic point that arguing for exemptions from generally applicable laws can, all things considered, be bad for religious freedom (because, for example, such arguments tend to focus merely on the "sincerity" of the "beliefs" being burdened, rather than on the truth of the matter).   He writes:

It is time for plaintiffs in religious liberty cases and for their advocates in the culture wars to try a different strategy. As the administrative state reaches deeper into our lives, and as it begins to provision positive rights to people through other private actors, the number and diversity of religious liberty cases are only going to grow. Right now, religious people ask for "exemptions" and "accommodations" to pursue their own goals because those goals are "religious." And they are granted narrow avenues to pursue these ends according to their (presumably quixotic) personal beliefs. Instead they should argue that their beliefs deserve the respect of the law because they are true, and that their actions deserve legal protection because they are good. . . .

Fair enough.  Someone should make the argument -- notwithstanding the very small chance of the argument gaining any traction in our present circumstances -- that the Little Sisters (and others) are not only "religious" in believing, but correct in believing, that, say, the contraception-coverage mandate is unjust.  (And, I definitely agree with Dougherty's assessment of Judge Posner's performance at oral argument in Notre Dame's case.)

Still, the givens are the givens, and the Little Sisters (and their lawyers) have to use the arguments and categories that are available, and try to secure from the (overreaching) state the concessions they can get.   

Methodists Withdraw from Religious Pro-Abortion-Rights Group

This is quite a striking vote, cutting against the trend in which mainline Protestant denominations over the years became  increasingly allied, if only in their policy offices, with the broadest versions of the right to abort.

     Evangelicals celebrated the United Methodist Church’s decision yesterday to leave a pro-choice advocacy group it co-founded 43 years before. 

     At its general conference, delegates voted 425-268 to withdraw from the Religious Coalition for Reproductive Choice (RCRC), an interfaith organization whose broad support extends to late-term and sex-selective abortions—a practice that the church’s social principles “unconditionally reject.”

This is one more data point in the emerging pattern that the ideological middle of the country--which Methodists tend to track--will not accept hard-line pro-abortion-rights positions, even as it increasingly accepts the progressive position on the other major culture war issue of gay rights. The two are very different, and their paths in public opinion charts will increasingly diverge.

Dignity: A Journal on Sexual Exploitation and Violence

The concept of human dignity is one that has been central to Catholic thinking for centuries.  This social teaching remains relevant today in our increasingly complex world.   In the context of crime and exploitation,  the American Catholic Bishops wrote the following  in A Catholic Perspective on Crime and Social Justice (2000):

The fundamental starting point for all of Catholic social teaching is the defense of human life and dignity: every human person is created in the image and likeness of God and has an inviolable dignity, value, and worth, regardless of race, gender, class, or other human characteristics.

Indeed, just last month Rick reminded us of a conference at Notre Dame examining the intellectual appeal of human dignity as a concept.

A new online journal exploring these issues as they relate to exploitation and violence has just been founded  by Donna Hughes at The University of Rhode Island, one of the leading world experts in the study of human trafficking . (Full disclosure, I am on the editorial board).  The journal, entitled  Dignity: A Journal on Sexual Exploitation and Violence,  will focus on not only various forms of exploitation and violence, but also how they “harm the dignity and health of individuals, the integrity and security of communities, and the strength and character of nations.”

Here is an excerpt of the full description:

Dignity: A Journal on Sexual Exploitation and Violence is an open access, peer-reviewed, interdisciplinary journal dedicated to publishing original scholarly articles on topics related to sexual exploitation, violence, and slavery. . . . The journal encourages investigations and discussion of challenges to dignity and justice such as corruption, lack of rule of law, harmful cultural practices, and laws and policies that justify and institutionalize inequality, violence and exploitation. The journal is a forum to examine how individuals, civil societies and states have responded to improve human and civil rights. Dignity aims to contribute to evidence-based knowledge and theoretical development of these topics to give people the tools to end sexual exploitation, violence, and slavery.

This journal has the potential to make a very positive contribution to scholarship, crossing not only disciplines, but also other social divisions to focus on the fundamental harm to human dignity so many forms of exploitation cause.  At a time of extreme division on social issues, perhaps this can be a forum for finding common ground and ultimately contributing to a more robust protection of vulnerable people. 

To that end the first call for papers has been issued.