... on "[t]he sweeping, indiscriminate and abrupt character of President Trump’s recent Executive Order ...", here.
... on "[t]he sweeping, indiscriminate and abrupt character of President Trump’s recent Executive Order ...", here.
That's the title of a paper that Charles Reid, Professor of Law at the University of St. Thomas, has just posted to SSRN. Given the subject matter of the paper, some information about Professor Reid's academic background is relevant. Professor Reid attended the Catholic University of America, where he earned J.D. and J.C.L. (license in canon law) degrees. Reid later attended Cornell University, where he earned a Ph.D. in the history of medieval law under the supervision of Brian Tierney. His thesis at Cornell was on the Christian, medieval origins of the western concept of individual rights. Over the last ten years, he has published a number of articles on the history of western rights thought, and is currently completing work on a book manuscript addressing this question. In 1991, Reid was appointed research associate in law and history at the Emory University School of Law, where he has worked closely with Harold Berman on the history of western law.
Reid's article on same-sex unions and the Catholic Church is downloadable for free here. This is the abstract:
This Article makes the case for reforming the Catholic Church’s law and teaching on the topic of same-sex unions. It is divided into two large parts. Part I surveys the present state of the Church’s rules governing same-sex relations. It is further subdivided into three subsections: the first examining the formation and reinforcement of the anti-sodomy norm in the nineteenth and twentieth centuries; the second reviewing the jurisprudence of the Roman Rota (one of the Vatican’s two supreme appellate tribunals) on homosexuality; the third glancing briefly at more affirming recent statements of Pope Francis and leading Cardinals and bishops. The second part then states the case for reform. It begins by recapitulating the natural-law case against same-sex unions, especially as articulated by Pope John Paul II; it then focuses on personalist philosophy to build a case grounded in human dignity and human rights; it looks to see how arguments grounded on dignity, respect, and human rights were used in legislative and constitutional reform in the United States and in three Catholic countries; and it returns again to natural law. Building on the premise that natural law requires an understanding of nature, the Article reviews the state of the science on same-sex attraction. It closes with a reflection on the many ways the Church has dynamically reinterpreted its normative structure and proposes that reform of the law on same-sex unions would be in keeping with other large historical shifts in the Church’s law and doctrine.
That's the title of a discerning essay, on our present political situation, over at Commonweal (here). The subtitle of the essay: "The Decline of the Common Good, the Rise of Trump". An excerpt:
Neither party, then, offers a compelling vision of human well-being. The Republicans stand up for the unborn and families, but they refuse to address the economic and social roots of abortion and the precariousness material conditions that threaten so many families. The Democrats support basic economic fairness and stand against racism, but they are most animated by the right of each individual to choose their own conception of the good. They are more interested in tolerance and diversity than in true solidarity. Neither party espouses a conception of freedom oriented toward the common good. Libertarians dismiss the very idea of a common good, seeing only a collection of individual people with individual interests. Latter-day progressives start from a slightly different point of view but reach a very similar conclusion; they argue that a commitment to pluralism precludes any notion of a common good. Missing from both views is the deep sense that “we are all really responsible for all.”
In his post yesterday, Steve Shiffrin addressed the question "Is Religion Special?" I address the question (and related issues) in this piece, which will appear next year as a chapter in a multi-authored collection to be published by Oxford University Press: "On the Constitutionality and Political Morality of Granting Conscience-Protecting Exemptions Only to Religious Believers".
"Deeds, not things, made Father Berrigan one of the best-known Roman Catholic priests of the 20th century: His physical possessions barely filled the modest room in the Jesuit infirmary at Fordham University in the Bronx where he spent his final years. He departed indifferently penniless from a world that often seems to keep score in gilded ink."
"Father Berrigan drew inspiration from Dorothy Day, who helped found the Catholic Worker Movement in 1933 to bring fresh, radical life to the church’s teachings on social justice. Among other things, Catholic Worker communities across the country feed, clothe and shelter those in need."
How I long for supernatural powers!
said the novice mournfully to the holy one.
I see a dead child
and I long to say, Arise!
I see a sick man
I long to say, Be healed!
I see a bent old woman
I long to say, Walk straight!
Alas, I feel like a dead stick in paradise.
Master, can you confer on me
The old man shook his head fretfully
How long have I been with you
and you know nothing?
How long have you known me
and learned nothing?
Listen; I have walked the earth for 80 years
I have never raised a dead child
I have never healed a sick man
I have never straightened an old woman's spine
men grow sick
the aged fall
under a stigma of frost
And what is that to you or me
but the turn of the wheel
but the way of the world
but the gateway to paradise?
Then you would play God
would spin the thread of life and measure the thread
5 years, 50 years, 80 years
and cut the thread?
I have wandered the earth for 80 years
I confess to you,
sprout without root
root without flower
I know nothing of supernatural powers
I have yet to perfect my natural powers!
to see and not be seduced
to hear and not be deafened
to taste and not be eaten
to touch and not be bought
would you walk on water
would you master the air
would you swallow fire?
Go talk with the dolphins
they will teach you glibly
how to grow gills
Go listen to eagles
they will hatch you, nest you
eaglet and airman
Go join the circus
those tricksters will train you
in deception for dimes-
Bird man, bag man, poor fish
spouting fire, moon crawling
at sea forever-
Do you seek miracles?
draw water, hew wood
Listen; blessed is the one
who walks the earth 5 year, 50 years, 80 years
and deceives no one
and curses no one
and kills no one
On such a one
the angels whisper in wonder,
behold the irresistible power
of natural powers-
of height, of joy, of soul, of non belittling!
You dry stick-
in the crude soil of this world
spring, root, leaf, flower!
around and around
an inch, a mile, the world's green extent,-
a liberated zone
The five constitutional controversies addressed by Justice Nemo in a paper just posted to SSRN (here) concern matters of interest to some RLL readers, including capital punishment, same-sex marriage, physician-assisted suicide, and abortion. Here's the abstract:
In this paper, I address five controversies — controversies concerning constitutional rights — that have arisen under the constitutional law of the United States: the controversies concerning, respectively, capital punishment, race-based affirmative action, same-sex marriage, physician-assisted suicide, and abortion. My discussion of each controversy takes the form of an opinion drafted by an imaginary justice of the Supreme Court of the United States, Justice Nemo. The five opinions by Justice Nemo serve to illustrate the implications, for the five controversies, of the theory of judicial review elaborated and defended in a paper I posted to SSRN last month: Michael J. Perry, "A Theory of Judicial Review" (2016), http://ssrn.com/abstract=2624978.
That is, Justice Nemo’s five opinions serve that illustrative function if they are truly faithful to that theory of judicial review, to which Justice Nemo professes to be committed. Are they? Justice Nemo is not always explicit in her opinions about her judicial philosophy; she nonetheless wants to draft opinions that align with her philosophy. A question to ask, then, about each of her five opinions: Has Justice Nemo succeeded in drafting an opinion faithful to the theory of judicial review to which she professes to be committed?
This paper is drawn from my new book, which will be published early next year by Cambridge University Press: A Global Political Morality: Human Rights, Democracy, and Constitutionalism.
Cathleen Kaveny, the Darald and Juliet Libby Professor at Boston College--holding appointments both in the School of Law and in the Department of Theology--has just posted to SSRN an excellent paper: Law, Religion, and Conscience in a Pluralistic Society: The Case of the Little Sisters of the Poor. You can download the paper here.
That's the title of an article in the "On Religion" column that appears every Saturday in the New York Times. The article, by Samuel G. Freedman, will be of great interest to RLL readers. Here.
In Obergefell v. Hodges, decided on June 26, 2015, the Supreme Court of the United States ruled that excluding same-sex couples from civil marriage is unconstitutional. Sometimes the appropriate response to a judicial decision is: “Right ruling, but wrong — or, at least, problematic — reasoning.” Is that the appropriate response — or an appropriate response — to the Court’s decision in Obergefell?
This brief paper (here) is an imagined opinion — an opinion by an imaginary justice of the Supreme Court, Justice Nemo — concurring in the Court’s judgment in Obergefell. In the opinion, Justice Nemo articulates a basis for the Court’s judgment that she believes to be preferable, on a number of grounds, to the somewhat diffuse mix of rationales on which the majority relies. Justice Nemo begins her opinion by explaining why one of the rationales included in the mix on which the majority relies — an “equal protection” rationale — is, in her view, a problematic basis for the Court’s judgment.
In her opinion, Justice Nemo relies on an insight of the celebrated Jesuit theologian John Courtney Murray, who is no doubt familiar to the five Catholic justices of the Supreme Court.
That's the title of a new article by Lisa Fullam, D.V.M., Th.D., who teaches moral theology at the Jesuit School of Theology at Berkeley. Fullam's research interests include virtue ethics, medical and sexual ethics, the intersection of ethics and spirituality, and Ignatian spirituality.
Here's the abstract of Fullam's article:
Many Catholic contributions to the debate over civil same-sex marriage are too broad or too narrow. Too broad: civil same-sex marriage is sometimes described as parallel to same-sex marriage in the Church. Too narrow: some Catholic contributions to the discussion have centered on reproductive capacity, ignoring Catholicism’s rich tradition which values marriage beyond procreation. Here, I consider Catholic moral tradition on civil law: civil law is approached in light of the common good, expressed in contemporary societies in terms of equal civil rights. Second, I examine magisterial contributions to the public debate, which are framed in terms of a reading of natural law based in the Scriptural interpretation of Pope John Paul II. Such religious arguments may serve as normative for marriage within the Church, but do not reflect Catholic norms for civil law. Finally, I offer reasons Catholics might advocate civil same-sex marriage.
Paul J. Griffiths is the Warren Chair of Catholic Theology at Duke University. He has a wonderful review, here, of Richard Rodriguez's new book, Darling: A Spiritual Autobiography. An excerpt from Griffith's review:
Among the impurities the Church might want to cleanse herself of is people like Rodriguez, he thinks, because he prefers to share his love and his bed and his life with a man rather than a woman. He takes the Church to be wrong doctrinally about homosexual acts, and often wrong, too, in what it teaches about women. He would like the Church to take instruction on these matters, as Jesus also did, from Mary, another darling in these pages. And he thinks that if it did, the Church’s self-shrouding fear might grow less and its loving embrace of pain might show itself more clearly.
I don’t agree with every position taken in Darling, or with every argument offered. On Islam, I suspect that what’s needed at the moment isn’t emphasis on the similarities among the three so-called Abrahamic religions as desert faiths, real though these are, but rather on difference and complementarity. The recent work of Rémi Brague on this, especially On the God of the Christians (and on one or two others), is especially instructive. On homosexuality and homosexual acts, by contrast, I think Rodriguez much closer to being right than not. Insofar as such acts are motivated by and evoke love, they are good and to be loved; insofar as they do not, not. In this, they are no different from heterosexual acts.
There are other interesting differences between the two kinds of act. But if you think, as Rodriguez seems to, and I do, and all Catholics should, that we live in a devastated world in which no sexual acts are undamaged, free from the taint of sin and death and the concomitant need for lament, then the fact that homosexual acts have their own characteristic disorder is no ground for blindness to the goods they enshrine. Gay men should, of course, darling one another; those of us whose darlings are of the opposite sex should be glad that they do, and glad of instruction in love by the ways in which they do. Love is hard enough to come by in a devastated world without encouraging blindness to its presence.
Again, the entire review is here.
I just posted a paper to SSRN that will be of interest, I think, to some RLL readers. The paper is available here. The abstract:
In this paper, I discuss the criminalization of abortion both as a human rights issue and, especially, as a constitutional issue.
Governments are free, insofar as internationally recognized human rights are concerned, not to ban abortion. The serious question, which I address in this paper, is whether governments are also free, insofar as international human rights are concerned, to ban abortion. In particular: Is it a violation of a woman’s human rights for a country to ban abortion? One of the world’s most important human rights NGOs—Human Rights Watch—has answered in the affirmative.
Whatever the answer to the preceding question, a different question remains, and it is one of the most perennially contested questions in American constitutional studies: Were the Abortion Cases correctly decided?
Of all the constitutional rulings by the Supreme Court since the end of the Second World War, none have been more persistently controversial than the Court’s rulings, in 1973, in the Abortion Cases: Roe v. Wade and Doe v. Bolton. In Roe, the Court invalidated a Texas law that banned all abortions except those necessary to save the life of the mother. The Georgia law at issue in Doe was more permissive; it exempted abortions necessary “because (1) a continuation of the pregnancy would endanger the life of the pregnant woman or would seriously and permanently injure her health; or (2) the fetus would very likely be born with a grave, permanent, and irremediable mental or physical defect; or (3) the pregnancy resulted from forcible or statutory rape.” Nonetheless, the Court invalidated the Georgia law. In 1992, four Supreme Court justices voted to overrule the Abortion Cases; a bare majority of the Court—five justices—refused to go along. In 2014, over forty years after the Court’s rulings in the Abortion Cases, four justices, given the opportunity, would almost certainly vote to overrule the Abortion Cases: Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito.
The conclusion I reach in this paper—that the Supreme Court’s ruling against the Texas law, but not its ruling against the Georgia law, was warranted—is, of course, controversial: Many insist that both rulings were warranted; many others, that neither ruling was warranted. Although controversial, the position at which I have arrived brings me into alignment—for me, comfortable alignment—with the position espoused by Justice Ruth Bader Ginsburg in 1985, when she was a judge of the United States Court of Appeals for the District of Columbia Circuit: In the Abortion Cases, then-Judge Ginsburg wrote, the Supreme Court should not have “gone beyond a ruling on the extreme [Texas] statute before the Court. . . . Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.”
This paper is one of a several connected papers that I have posted to SSRN in the last nine months, discussing “human rights in the constitutional law of the United States”—discussing, in particular, the implications of one or more constitutionally entrenched human rights for the divisive controversies over capital punishment, same-sex marriage, and, in this paper, abortion. A list of the papers is available here.
As RLL readers know, the magisterium of the Roman Catholic Church is morally opposed both to capital punishment and to granting access to civil marriage to same-sex couples. I have recently argued, in my new book and elsewhere, that the two practices—capital punishment and excluding same-sex couples from civil marriage—violate the constitutional law of the United States (here, here, and here). Of course, any argument about the constitutionality of capital punishment or of excluding same-sex couples from civil marriage (or of any other law or public policy) necessarily relies on a particular understanding of how the judiciary should go about determining (1) whether a right claimed to be a constitutional right has constitutional status and, if so, (2) whether the challenged government action violates the right. What understanding do my arguments rely on—my arguments about capital punishment and same-sex marriage? I address that question in a new paper—a “working paper”—that I have just posted to SSRN. Some RLL readers may be interested. The abstract of and a link to the paper are available here.
The brief is available here.
Amici on the brief--some of whom post here at RLL--are Frederick Mark Gedicks (Brigham Young University Law School), Vincent Blasi (Columbia Law School); Caitlin Borgmann (CUNY School of Law), Caroline Mala Corbin (University of Miami School of Law), Sarah Barringer Gordon (University of Pennsylvania Law School & Dept. of History), Steven K. Green (Willamette University College of Law), Leslie C. Griffin (William S. Boyd School of Law, University of Nevada, Las Vegas), B. Jessie Hill (Case Western Reserve University School of Law), Andrew M. Koppelman (Northwestern University Law School & Dept. of Political Science), Martha C. Nussbaum (The University of Chicago Law School & Dept. of Philosophy); Eduardo Peñalver (The University of Chicago Law School); Michael J. Perry (Emory University School of Law); Frank S. Ravitch (Michigan State University College of Law), Zoë Robinson (DePaul University College of Law), Lawrence Sager (University of Texas at Austin School of Law), Richard Schragger (University of Virginia School of Law), Micah Schwartzman (University of Virginia School of Law), Elizabeth Sepper (Washington University School of Law), Steven H. Shiffrin (Cornell University Law School), Nelson Tebbe (Brooklyn Law School) & Laura Underkuffler (Cornell University Law School).
This brief argues that permissive religious accommodations violate the Establishment Clause and conflict with Free Exercise Clause and Title VII accommodation decisions when they impose significant costs of practicing the accommodated religion on those who do not believe or participate in it. For-profit employer exemptions from the Affordable Care Act contraception mandate under the Religious Freedom Restoration Act would constitute congressional and federal judicial action that violates the Establishment Clause, by shifting significant costs of observing religious beliefs against contraception from the employers who hold them to employees who don't. The brief concludes that keeping federal government action within the structural limits set by the Establishment Clause is a compelling interest that justifies denial of for-profit employer exemptions from the mandate under RFRA.
That's the title of an op-ed by BYU law professor Frederick Mark Gedicks. You can read Professor Gedicks' s op-ed, which appears in the Washington Post, here.
That's the title of a lecture I delivered--the David C. Baum Memorial Lecture--at the University of Illinois on November 6, 2013. Some RLL readers may be interested in the lecture, which is downloadable here.
That's the title of a paper I just posted to SSRN, here. This is the abstract:
I explain in this paper why we are warranted in concluding that capital punishment—punishing a criminal by killing him—is both “cruel” and “unusual” within the meaning of the Eighth Amendment’s ban on “cruel and unusual punishments” and therefore violates the constitutional law of the United States. In setting the stage for that explanation, I discuss the internationally recognized human right not to be subjected to any punishment (or other treatment) that is “cruel, inhuman or degrading”. When I turn to the question of the original understanding of the Cruel and Unusual Punishments Clause of the Eighth Amendment, I discuss the important work of John Stinneford, explaining why I concur in Stinneford’s conclusion about the original understanding of “cruel” but dissent from his conclusion about the original understanding of “unusual”.
That's the title of a very interesting, thoughtful, and provocative piece recently posted to SSRN by BYU law prof Fred Gedicks and co-author Rebecca Van Tassel. Downloadable here. The abstract:
surrounding use of the Religious Freedom Restoration Act to exempt
employers from the Affordable Care Act’s “contraception mandate” is
moving steadily towards eventual resolution in the U.S. Supreme Court.
Both opponents and supporters of the mandate, however, have overlooked
the Establishment Clause limits on RFRA exemptions,
The fiery religious-liberty rhetoric surrounding the mandate has obscured that RFRA is a “permissive” rather than “mandatory” accommodation of religion — that is, a voluntary government concession to religious belief and practice that is not required by the Free Exercise Clause. Permissive accommodations must satisfy Establishment Clause constraints, notably the requirement that accommodation not impose material burdens on third parties who do not believe or participate in the accommodated practice.
While there is little doubt that RFRA facially complies with the Establishment Clause, there is also little doubt that it violates the Clause’s limits on permissive accommodation as applied to the mandate. RFRA exemptions from the mandate would deny the employees of an exempted employer their ACA entitlement to contraceptives without cost-sharing, forcing employees to purchase with their own money contraceptives and related services that would otherwise be available to them at no cost beyond their healthcare insurance premium.
Neither courts nor commentators seem aware that RFRA exemptions from the mandate violate settled permissive accommodation doctrine, by shifting material costs of accommodating anti-contraception beliefs from the employers who hold them to employees who do not. One federal appellate court has already mistakenly dismissed this cost-shifting as irrelevant to the permissibility of RFRA exemptions from the mandate.
The impermissibility of cost-shifting under the Establishment Clause is a threshold doctrine whose application is logically prior to all of the RFRA issues on which the courts are now focused: If RFRA exemptions from the mandate violate the Establishment Clause, then that is the end of RFRA exemptions, regardless of whether for-profit corporations are persons exercising religion, the mandate is a substantial burden on employers’ anti-contraception beliefs, or the mandate is not the least restrictive means of protecting a compelling government interest.
As many RLL readers know, the position of Christians on torture--the position, that is, of those self-identified Christians who have declared a position on torture--has been quite mixed. It is not the case that religious believers are generally unconditionally opposed to interrogational torture. Evangelical Christian scholar David Gushee has lamented “the formation of a sizable and apparently permanent American Christian constituency for torture.” David P. Gushee, “The Contemporary U.S. Torture Debate in Christian Historical Perspective,” 39 Journal of Religious Ethics 589, 595-96 (2011). On the implications of Christian teaching for torture, see, in addition to the article by Gushee, Jeremy Waldron, “What Can Christian Teaching Add to the Debate about Torture?,” 63 Theology Today 330 (2006); Jean Porter, “Torture and Christian Conscience: A Response to Jeremy Waldron,” 61 Scottish Journal of Theology 340 (2008).
I have just posted to SSRN a paper that may be of interest to some RLL readers: "Interrogational Torture as a Human Rights Issue: A Brief Further Reflection on the Morality of Human Rights". The paper is available for download here. This is the abstract of the paper:
The morality of human rights consists not only of various rights recognized by the great majority of the countries of the world as human rights, but also of a fundamental imperative that directs “all human beings” to “act towards one another in a spirit of brotherhood.” The imperative — articulated in the very first article of the foundational human rights document of our time, the Universal Declaration of Human Rights (UDHR) — is fundamental in the sense that it serves, in the morality of human rights, as the normative ground of human rights. I have explained all this at length in an earlier paper, “The Morality of Human Rights” (2013), which I have posted to SSRN: http://ssrn.com/abstract=2274381.
In the earlier paper, I addressed (inter alia) this question: Why should one take seriously the normative ground of human rights; that is, what reason or reasons does one have, if any, to live one’s life in accord with the imperative to “act towards all human beings in a spirit of brotherhood”? In this brief paper — which serves as a kind of addendum to the earlier paper — I address a version of a related, followup question: Should we want governments always to “act towards all human beings in a spirit of brotherhood”, no matter what the consequences? Specifically, I address this question: Should we want governments never to subject a human being to torture, no matter what the likely consequences of not subjecting him (or her) to torture?
In the earlier paper, I explained that as the concept “human right” is understood both in the UDHR and in all the various international human rights treaties that have followed in the UDHR’s wake, a right is a human right if the rationale for establishing and protecting the right — for example, as a treaty-based right — is, in part, that conduct that violates the right violates the imperative to “act towards all human beings in a spirit of brotherhood”. Each of the human rights articulated in the UDHR and/or in one or more international human rights treaties is a specification of what, in conjunction with other considerations, the imperative is thought to forbid or to require. The right at issue in this paper — the right not to be tortured — is a specification of what governments must refrain from doing lest they violate the “in a spirit of brotherhood” imperative — lest they, in short, treat a human being inhumanely. Torturing a human being is an instance — indeed, a paradigmatic instance — of treating a human being inhumanely. The question-in-chief in this paper: Should we want governments never to subject a human being to torture, no matter what the likely consequences of not subjecting him (or her) to torture?
The conclusion I reach: Even if we assume that in some imaginable and
sufficiently extreme circumstances it would be morally permissible — even,
perhaps, morally obligatory — for government officials to subject a human being
to interrogational torture, there are nonetheless conclusive reasons for
lawmakers and treaty-drafters to make bans on torture exceptionless. It is
optimal, all things considered, that laws and treaties do just what both the
International Covenant on Civil and Political Rights and the Convention
against Torture do: make the right against torture, even interrogational
torture, nonderogable. There are conclusive reasons, that is, for laws and
treaties to require that governments never violate the normative ground of
human rights — that governments never violate the "in a spirit of
brotherhood" imperative, that they never treat any human being inhumanely
— even if we assume that it is not the case, as a moral matter, that
governments should never violate the normative ground of human rights.
Some RLL readers may be interested in this paper, which I just posted to SSRN (here). The abstract:
paper I posted to SSRN last month — “The Morality of Human Rights” (June
2013) — I explained that as the
concept “human right” is understood both in the Universal Declaration of
Human Rights and in all the various international human rights treaties
that have followed in the Universal Declaration’s wake, a right is a
human right if the rationale for establishing and protecting the right —
for example, as a treaty-based right — is, in part, that conduct that
violates the right violates the imperative, articulated in Article 1 of
the Universal Declaration, to “act towards all human beings in a spirit
of brotherhood”. Each of the human rights articulated in the Universal
Declaration and/or in one or more international human rights treaties —
for example, the right, articulated in Article 5 of the Universal
Declaration and elsewhere, not to be subjected to “cruel, inhuman or
degrading treatment or punishment”—is a specification of what, in
conjunction with other considerations, the imperative — which functions
in the morality of human rights as the normative ground of human rights —
is thought to forbid (or to require).
A particular specification is controversial if and to the extent the supporting claim — a claim to the effect that the “act towards all human beings in a spirit of brotherhood” imperative forbids (or requires) X — is controversial. My aim in this essay is to elaborate and defend a particular specification: the right, internationally recognized as a human right, to freedom of conscience — to freedom, that is, to live one’s life in accord with the deliverances of one’s conscience.
A more focused name for the right is the right to religious and moral freedom. Jocelyn Maclure and Charles Taylor begin their book Secularism and Freedom of Conscience (2011) by stating that “[o]ne of the most important challenges facing contemporary societies is how to manage moral and religious diversity.” One indispensable strategy for managing religious and moral diversity is, as I explain in this essay, the right to religious and moral freedom — to freedom to live one’s life in accord with one’s religious and/or moral convictions and commitments.
In the final part of the essay, I explain why we are warranted in concluding that the internationally recognized human right to freedom of conscience — to religious and moral freedom — is part of, is entrenched in, the constitutional law of the United States.
Some RLL readers may be interested in a paper I just posted to SSRN (here): "The Morality of Human Rights". This is the abstract:
the period since the end of the Second World War, there has emerged what never
before existed: a truly global morality. That morality — which I call “the
morality of human rights” — consists not only of various rights recognized by
the great majority of the countries of the world as human rights, but also of a
fundamental imperative that directs “all human beings” to “act towards one
another in a spirit of brotherhood.” The imperative — articulated in the very
first article of the foundational human rights document of our time, the
Universal Declaration of Human Rights — is fundamental in the sense that it
serves, in the morality of human rights, as the normative ground of human
I begin, in the first section of this essay, by explaining what the term “human right” means in the context of the internationalization of human rights. I also explain both the sense in which some human rights are, in some legal systems, “legal” rights and the sense in which all human rights are “moral” rights.
Then, in the longer second section, I turn to the inquiry that is my principal concern in this essay: Why should one take seriously the imperative that serves, in the morality of human rights, as the normative ground of human rights? That is, what reason or reasons does one have, if any, to live one’s life in accord with the imperative to “act towards all human beings in a spirit of brotherhood”?
This essay, the final draft of which will be published in a symposium issue of the San Diego Law Review, was my contribution to the conference on “The Status of International Law and International Human Rights” that was held at the University of San Diego School of Law on May 3-4, 2013, under the auspices of the School’s Institute of Law and Philosophy. Some of the material in this essay is drawn from my new book, Human Rights in the Constitutional Law of the United States (2013). Most of the material here that is not drawn from my book was first presented in a lecture I was honored to deliver at Santa Clara University in March 2013, under the auspices of the Bannon Institute of the Ignatian Center for Jesuit Education.
“When I think about the Church’s social teaching, I love to recall some words that Albert Camus ... addressed to a group of Dominicans who invited him to come and speak to them at the end of the Second World War. Camus said he would discuss the problem of evil in life, as he understood it as an agnostic. He closed his talk, as I recall the story, with this thought: ‘It may not be possible for us to create a world in which no innocent children suffer, but it is possible to create a world in which fewer innocent children suffer. If we try to do that, if we look to the Christians and do not find help, where else will we go?’” --Bryan Hehir, "Wanted: A New Global Order," The Tablet, Dec. 1, 2001, at 1700, 1702.
Northwestern law prof Andy Koppelman reviews, in the new issue of Commonweal, the book What Is Marriage? Man and Woman: A Defense, by Sherif Girgis, Ryan Anderson, and Robert P. George. The book is the basis of an amicus curiae brief that Robert George et al. have submitted to SCOTUS in the two "gay marriage" cases being argued before SCOTUS this week. Andy's review ends with this:
"That claim’s most fundamental difficulty is the short distance from premise to conclusion. The union of the married heterosexual couple is uniquely good because...well, because the union of the married heterosexual couple is uniquely good. This raw intuition comes decorated with a complex theoretical apparatus, but that apparatus does no work. It’s like one of those old trick math problems, which at first glance seems to require complex computations:
7 + 8,398.14 × B ÷ √55 - 8,398.14 × √55 ÷ B = ?
Look again, and it’s clear that all the complexity cancels itself out, and that you end up right back where you began.
The publication of What Is Marriage? is a public service. It advances understanding of a perspective that many (though fewer and fewer) Americans share, but it is unlikely to persuade anyone who doesn’t already agree with its claims. It is a lucid window into a disappearing worldview."The entire review is here.
Thomas Berg (University of St. Thomas School of Law), Douglas Laycock (University of Virginia School of Law), and Marc Stern (American Jewish Committee), on behalf of the American Jewish Committee, have submitted an amicus brief to SCOTUS in Hollingsworth v. Perry (the Prop 9 case) and USA v. Windsor (the DOMA case). The brief makes a strong plea for protecting religious liberty in the context of the legalization of same-sex marriage. The brief also argues:
"In Perry, wholly excluding same-sex couples from civil marriage deprives them of a fundamental right. And as implausible as it is to explain civil marriage in terms of protecting children, it is even more implausible to use children to explain the difference between civil marriage and a civil union that would — if it were sufficiently well understood to be enforceable as a practical matter — confer all the same rights as civil marriage. If the Court prefers to proceed cautiously, deciding one case at a time, it should affirm the judgment in Perry on the narrow ground stated by the Court of Appeals. The Court should not reverse on the merits. To do so would be wrong, for the reasons we have stated; it would also be unstable. In the area of same-sex relationships, where public understanding of the underlying facts is rapidly changing, the Court cannot reach a stable constitutional resolution by broadly rejecting constitutional claims. The last time it attempted to do so, in Bowers v. Hardwick, 478 U.S. 186 (1986), it overruled the decision just seventeen years later, and parts of the Bowers opinions are now a permanent embarrassment in the United States Reports. The Court should not repeat its Bowers mistake in these cases."
The brief is available here: Download Marriage Cases AJC Brief Final.
On Feb. 1, 2013, the Department of Health and Human Services (HHS) proposed new rules that would exempt certain religious organizations, including houses of worship, schools and hospitals, from a new mandate to offer free contraception services to women employees. The new regulations would instead require the nonprofits’ health-insurance providers to offer and pay for contraceptive services. The new proposal is the latest step in a controversy that first arose in 2010, with the enactment of the Patient Protection and Affordable Care Act. The contraception mandate has been the subject of much debate and the object of many lawsuits (read more about public opinion on the birth control insurance mandate). To help explain what today’s announcement might mean for the debate, the Pew Forum asked Professors Ira C. Lupu and Robert Tuttle of The George Washington University Law School to discuss the new rules and the possible outcome of the legal challenges to them.
[Here is the interview.]
[from the NYT, 1/29/13]
David Blankenhorn, a traditional-marriage advocate and star witness in the Proposition 8 trial in California in 2010, shocked his allies with an Op-Ed article in The New York Times last June announcing that he was quitting the fight against same-sex marriage. “Instead of fighting gay marriage,” Mr. Blankenhorn wrote, “I’d like to help build new coalitions bringing together gays who want to strengthen marriage with straight people who want to do the same.”
On Thursday, Mr. Blankenhorn’s research group, the Institute for American Values in New York, plans to issue “A Call for a New Conversation on Marriage,” a tract renouncing the culture war that he was once part of, in favor of an unorthodox pro-marriage agenda. The proposed conversation will try to bring together gay men and lesbians who want to strengthen marriage with heterosexuals who want to do the same.
The document is signed by 74 well-known activists, writers and scholars, on the left and the right, including the conservative John Podhoretz, editor of Commentary magazine; John Corvino, a gay philosopher; Robert N. Bellah, a sociologist; Caitlin Flanagan, a feminism skeptic; and Glenn C. Loury, an economist — once conservative, now less so.
[The rest of the article is here.]
by Sister Helen Prejean
Can it possibly be happening? After years of relentless dialogue on the death penalty among Catholics in the United States, are we at last beginning to see signs that Catholics are becoming a significant moral force in efforts to abolish state-sanctioned death? Yes! I see it and rejoice.
For the last 34 years I have been engaged in this dialogue—ever since I walked out of Louisiana’s killing chamber in the early morning hours of April 5, 1984, after seeing a man strapped down and killed in front of my eyes.
Now, at last, there are signs of hope. As support for the death penalty has steadily declined in the United States in recent years, Catholic support has dropped even more significantly. According to the Pew Research Center, 78 percent of Americans—and a higher proportion of Catholics, 80 percent—supported the death penalty in 1996. By 2011, however, those numbers had fallen to 62 percent and 59 percent, respectively. Now Catholics support the death penalty at a lower rate than the general population.
[Read the rest here.]
by Charles Reid, University of St. Thomas School of Law
"Parasites," we are told, "parasites" have consumed their hostess -- to be exact, Hostess Brands, the company that chose bankruptcy last Friday over dealing with its union. And who are these dangerous parasites? The workers who labored hard and long, in the face of steadily declining wages and benefits. See Robert Tracinski, "The Parasite That Kills Its Hostess," Real Clear Markets, November 19, 2012.
Tracinski is merely parroting the company line in his blame-the-victim column. He has allies, of course, in the right-wing commentariat. Take Rush Limbaugh. He may be a tired-out brand name that has long outlived its shelf life, but he was on the air Friday seeing a dark conspiracy in all of this: "The Democrats are taking the long view here, they're playing the long game. The long game is wiping out the Republican Party, not saving 18,000 measly jobs."
Haven't we had enough of the class hatred? Isn't it time to stop with the takers versus the makers? This right-wing fantasy tale of rapacious unions swamping an honest, struggling corporation is as tiresome as it is untrue.
Let's consider some history.
[The rest of this informative post is here.]
Before the presidential election, I posted links to University of St. Thomas law professor Charles Reid's statement of reasons for supporting President Obama in the election, despite Professor Reid's pro-life position on abortion. Some RLL readers may be interested in Reid's post-election reflection (here), which is focused on philosopher John Dewey. A brief excerpt:
"Properly qualified, we might do well to reflect on Dewey this November. He is the philosopher of the common good. One hopes that the racist dog-whistles and the naked appeals to class hatred (the 'takers' vs. the 'makers') that marked our ugly campaign season can be replaced with the understanding that we are 'in some metaphorical sense all brothers, [that] we are ... all in the same boat, traversing the same ocean.' (John Dewey, 'A Common Faith,' reprinted in John Dewey, 'The Later Works,' vol. IX, p. 56).
It was John Dewey's optimism that drove the 'can-do period of America's greatest public works, the 1950s and 1960s. It was his faith in democratic government and an engaged citizenry that breathed life into the great programs for social improvement represented by the New Deal and the Great Society. Following an election that feels much like a bitterly fought, hard-won vindication of those earlier transformative contests of 1932 and 1964, we might do well to reacquaint ourselves with this great American mind."
The "just war theory" has influenced the ethical positions on violent conflict of both church and state for centuries. But consensus on that theory has begun to erode.
Why the traditional version of the just war theory must be rejected.
Both candidates in next week’s US presidential elections say it is imperative to stop Iran developing a nuclear weapon; Israel insists that the time for diplomacy is running out. But would either country be morally justified in launching a pre-emptive strike? Two theologians assess the evidence Free
Life matters. From conception to natural death, it matters. This is a principle Catholics must carry with them into the voting booth.
But it is not a simple binary equation. It is not an either/or proposition. In the end, determining which candidate better serves the interests of life is a prudential judgment. A simple promise to overturn Roe v. Wade does not automatically make one the pro-life candidate.
In my estimation, Barack Obama is the more seriously pro-life candidate in this year's presidential contest. Voters should not forget his early connections to the Catholic Church. He attended St. Francis of Assisi Catholic School in Jakarta for three years. His mother, Ann Dunham, assisted Fr. A.M. Kaderman, S.J., in managing an English-language training school during this time. When Barack Obama worked as a community organizer in the middle 1980s, he did so out of the rectory of Holy Rosary Catholic Church on the South Side of Chicago, where he helped to coordinate the efforts of eight Catholic parishes and numerous other religious organizations to improve the lives of unemployed steel workers and others whom the financialized economy was leaving in the dust. He still considers the late Joseph Cardinal Bernardin of Chicago an inspiration. (On this background, see the wonderful new book by the Catholic legal scholars Douglas Kmiec and Ed Gaffney, and the Harvard Medical School Professor of Pediatrics, Dr. Patrick Whelan, "America Undecided: Catholic, Independent, and Social Justice Perspectives on Election 2012.")
Kmiec, Gaffney and Whelan stress that there is no more powerful abortifacient in this country than poverty. It may be difficult for the comfortable, upper-middle class conservative Catholics who support Mitt Romney for "pro-life" reasons to associate with this reality. But imagine for a moment a young woman, 18 or 20, 25 or even 30 years old. She comes from a broken, impoverished family and has little real economic future. She's gone through a bad relationship or two, and faces a soul-crushing existence being nickel-and-dimed through a series of dead-end jobs in America's service economy. She is poor, desperate, alone and maybe even threatened by her boyfriend. The jobs are so haphazard, the poverty so shattering, that family formation is impossible. A powerful description of the plight of women who lead these lives of invisible suffering can be found in Barbara Ehrenreich's "Nickel-and-Dimed: On (Not) Getting By in America" (2001). Conditions have only grown more acute in the decade since Ehrenreich wrote her book.
In fear, in humiliation, in aching isolation, she seeks an abortion. This bleak portrait depicts the tragic dimensions of the abortion crisis in America. It is a crisis born not of the selfish pursuit of the glittering baubles of American materialism, but of the panic-stricken sense of having nowhere to turn. And it is fed at the top by politicians who prize Randian individualism and the unfettered quest for riches above every human value.
The Netherlands and Germany have abortion rates less than one-third of the United States. Why? Because those nations address the cause of abortion at its root -- poverty. They provide pre-natal and post-natal care, and a social system that genuinely assists the new mother who chooses life.
President Obama's Affordable Care Act represents a small, measured step in the direction of maternal assistance for women in crisis. It does not go nearly far enough, in my judgment, but in our present political environment it is probably the best that can be achieved. It is grounded on the basic premise of Catholic social thought, reiterated time and again by the popes, from Leo XIII to Benedict XVI, that health care is a fundamental right. It is the indispensable starting point of a seamless ethic of life.
The Affordable Care Act legislatively recognizes this fundamental moral right. Among its provisions, the ACA creates a Pregnancy Assistance Fund. Specifically on the issue of crisis pregnancy, this fund assists in several ways. It can cover the salary of counselors who point young women in the direction of social services. It supports parenting classes and aids with day-care costs at colleges and universities. It teaches and supports and, in sum, helps equip panicked, pregnant young women to become responsible, future-directed young mothers.
The Affordable Care Act helps save unborn lives in other ways as well. It increases tax credits for adoptions, making this loving alternative more affordable and more readily available. It recognizes that Medicaid currently pays for one-third of all live births in America and promises to maintain adequate funding for this vital service. Abortion is a serious wrong, but it is better, as the proverbial saying goes, to light a candle than to curse the darkness.
And what do the Republicans, that ostensible pro-life party, offer in return? They deny that health care is a basic right, describing it instead as a matter of "personal responsibility," thereby repudiating a foundational principle of Catholic social thought. They promise the repeal of the Affordable Care Act, including presumably the Pregnancy Assistance Fund and the adoption credits. They solemnly pledge to slash budgetary allocations to Medicaid, thus fueling the ever-deepening desperation of the pregnant poor. And in life's final years, the Republicans will voucherize Medicare, putting at risk the health and well-being of millions of senior citizens.
Well, one might retort, perhaps the Republicans will at last reverse Roe v. Wade. The reversal of Roe v. Wade has been a part of every Republican platform since 1980. Hasn't happened yet. Catholics who cling to this thin reed should prepare for disappointment. The Supreme Court will perpetually be one vote short of reversal.
A recent poll shows that Catholics prefer candidates who give attention to the poor than abortion (see Chicago Tribune, "Catholics Want More Focus on Poverty Than Abortion, Survey Finds," October 24, 2012). In reality, it is not one or the other. Fight poverty, and you fight abortion. So, I am voting for life -- Obama-Biden 2012.
[Charles J. Reid, Jr., has degrees in canon law and civil law from the Catholic University of America; and a Ph.D. in medieval history from Cornell University. He was raised in a union household in Milwaukee, Wisconsin and graduated from the University of Milwaukee with degrees in classical languages and history.]
17 August 2012
A group of prominent Catholics have given their public support to gay marriage in England and Wales.
In a letter to The Times, on Monday, 27 people - the majority theologians and clergy - said it is "perfectly proper for Catholics using their fully informed consciences" to support the Government's plan to introduce same-sex civil marriage, despite the opposition of the Catholic Bishops' Conference of England and Wales.
They explained: "Not all Catholics share their hierarchy's stated views against proposals to extend civil marriage to same- sex couples."
The group includes theologians Fr James Alison, Tina Beattie, Mary Grey, Fr Kevin Kelly and Gerard Loughlin.
The Catholic group's letter quotes the late Cardinal Basil Hume who wrote in 1997 that "love between two persons, whether of the same sex, or of a different sex is to be treasured and respected", and that these relationships "be afforded social recognition according to social justice principles."
[This letter--written by Professor John Shea of Boston College, who is an Augustinian priest, is publicly available elsewhere on the web. I thought that some MOJ readers would be interested.]
The Beginning of Lent, 2012
Dear Archbishop O’Brien,
I am writing to you and to all the ordinaries of the dioceses in the United States to ask you and your fellow bishops in your role as teachers to provide a clear and credible theological explanation of why women are not being ordained to the priesthood in the Catholic Church.
I write not to challenge the teaching of the church as set forth in the 1994 Apostolic Letter of Pope John Paul II, Ordinatio Sacerdotalis , concerning priestly ordination. My concern is the theological explanation of this teaching. Theology I take to be essentially what Anselm said it is, “faith seeking understanding.”
I teach in the School of Theology and Ministry at Boston College. As you might expect, in the school we have a number of students—women and men—who are preparing for ministry of one kind or another. As serious students of theology and ministry, the issue of women’s ordination is extremely important for many of them—how this issue is now understood and has been in the past, what the requirements for ordination are, and especially what a clear and adequate theological explanation of this teaching might be. For some of our students, this issue is the most important one they wrestle with. For some of them, what resolution they come to determines whether or not they stay in the Catholic Church.
Yet, in the Catholic Church there is a rule of silence. We are told that women’s ordination cannot be discussed. The issue that cries for theological explanation is not to be discussed in schools that have theological explanation as one of their prime reasons for being. In other settings, however, rather abstruse arguments are put forward, usually around “bride ofChrist” symbolism or with a suggestion such as ordination is “God’s gift to men.” Several years ago, as you know, Pope Benedict XVI declared that the ordination of women was a “grave crime” akin to pedophilia. My sense is that these comments are found to be more puzzling, or bizarre, or embarrassing than seriously theological. They beg the issue, raising more questions than they answer.
We may fairly wonder whether the majority opinion in the mandate case will be a counterexample to Richard Posner’s (approving) observation that "American judges distinguish between how they might vote on a statute if they were legislators and whether the statute is unconstitutional; they might think it a bad statute yet uphold its constitutionality." Richard A. Posner, "Enlightened Despot," New Republic, Apr. 23, 2007, at 53, 55. We may fairly wonder too whether the majority opinion will display ignorance of something James Bradley Thayer wrote over a hundred years ago, namely, that the Supreme Court should
disregard the [challenged] Act when those who have the right to make laws have not merely made a mistake, but have made a very clear one--so clear that it is not open to rational question. That is the standard of duty to which the courts bring legislative Acts; that is the test which they apply--not merely their own judgment as to constitutionality, but their conclusion as to what judgment is permissible to another department which the constitution has charged with the duty of making it. This rule recognizes that, having regard to the great, complex, ever unfolding exigencies of government, much which will seem unconstitutional to one man, or body of men, may reasonably not seem so to another; that the constitution often admits of different interpretations; that there is often a range of choice and judgment; that in such cases the constitution does not impose upon the legislature any one specific opinion, but leaves open this range of choice; and that whatever choice is rational is constitutional.
Thayer, "The Origin and Scope of the American Doctrine of Constitutional Law," 7 Harvard Law Review 129, 144 (1893).
"Web Exclusive Content" from Commonweal:
by E. J. Dionne Jr.
The nation's Roman Catholic bishops will make an important decision this week: Do they want to defend the church's legitimate interest in religious autonomy, or do they want to wage an election-year war against President Barack Obama? And do the most conservative bishops want to junk the Roman Catholic Church as we have known it, with its deep commitment to both life and social justice, and turn it into the Tea Party at prayer?
[That's the title of the "feature article" in this week's edition of The Tablet: The International Catholic Newsweekly (published in London). The article is multiauthored, consisting of three short contributions by "three of Britain's leading Catholics". You can read the contributions below the page break.]
Cardinal Keith O’Brien’s strident intervention this week in the debate over gay marriage brought centre stage the Catholic Church’s absolute opposition to any possible change to the law. Three of Britain’s leading Catholics here debate the increasingly fraught issue