Mirror of Justice

A few thoughts on Prof. Kaveny's "Clashes of Conscience"

Thanks to Michael P. for linking to my Notre Dame colleague Cathy Kaveny's timely and thought-provoking Washington Post op-ed.  

I am not entirely sure what I think about Cathy's observation that "you don't win the minds and hearts of ordinary Americans by holding the food, shelter and medical care of needy people hostage to moral principle."  Descriptively, this seems right.  But, I'd want to hold on to a distinction between holding these things "hostage to moral principle" and insisting, even when it's costly, on the need and right to act with integrity.  How that distinction -- assuming there's something to it -- "maps" onto the two debates that Cathy discusses (abortion funding in the healthcare-funding proposals and same-sex-spousal benefits by religious social-welfare organizations that cooperate with government) is a tricky question.

I disagree, I think, with Cathy's suggestion that "in the enforcement of anti-discrimination law in Washington, D.C gay rights activists are in exactly the same position as the bishops are with respect to abortion."  I guess I think the merits do matter, as does the "framing" of the issue.  To say this is not to say that "error has no rights," and Cathy is, obviously, correct to note that history tells "many tales of the majority being mistaken on matters such as slavery, religious liberty, and the rights of aboriginal peoples."  But, it is a deep injustice -- wholly apart from tricky questions about taxpayers' culpability for the wrongs done by their governments -- for a political community to permit, let alone to fund, abortions, because abortion is a grave wrong.  (The problem is not, in other words, that Catholics are being made to pay for a practice they oppose; it is that the political community is funding and facilitating abortions, thereby helping to entrench the unjust exclusion of unborn children from the law's protections.)  On the other hand, it is not a deep injustice for religious institutions to take religious teachings -- including religious teachings on sexual morality -- into account when hiring and firing.  (To be clear:  to say this is not to deny that it would be wrong for the government to take religious teachings on sexual morality into account when hiring and firing.)

Of course, a lot depends on how one "frames" or describes what it is that is being funded:  I think that what the District funds when it cooperates with Catholic Charities (say) in the provision of social-welfare services is, well, "social welfare services", or even "social-welfare services by an organization that serves all comers but hires and fires in accord with its animating principles."  It is, I think, wrong for governments to discriminate, but it is not (I think) wrongful discrimination for a religious institution to hire and fire in accord with religion -- even when that institution is cooperating with the government to provide social-welfare services.  But, a health-funding proposal that says "public funds will be used to pay for abortions" is, it seems to me, harder to re-frame.

In any event, Cathy is entirely right to remind everyone that "[t]here is no easy way to resolve the theoretical tension between respect for moral truth and respect for consciences which disagree with the majority's best assessment of truth."  This -- stated at a general level -- is a vexing question, as anyone who thinks about conscience, religious liberty, and politics knows.

Yet another former student of mine, ...

... this one--Cathy Kaveny--well known to many MOJers, has just published something of interest to MOJers, namely, the following op-ed.  (Cathy was a student in a course I co-taught with Robin Lovin at the University of Chicago Divinity School back in my Chicago days.  Cathy then headed off to Yale, where she received her JD and PhD, and then to a clerkship with John Noonan, who, despite his critique of the magisterial position on contraception, Robby probably wouldn't want to trade.)  Cathy is the John P. Murphy Foundation Professor of Law and Professor of Theology at the University of Notre Dame, where she studies the relationship of law, religion, and morality.

The Washington Post
December 1, 2009

Clashes of conscience

Should American lawmakers refuse to give government funding to those who object to the current moral consensus on controversial issues, or should they be generous in making allowances for conscience?

In recent weeks the U.S. Catholic bishops have been on both sides of this question, as they have dealt with the thorny issues of abortion, on the one hand, and gay rights on the other. Nationally, they don't want health care reform dollars to subsidize abortion, and in the District of Columbia, they don't want to lose public funding for Catholic Charities because they conscientiously object to providing equal benefits to gay couples.

Ironically, abortion and discrimination against gays with respect to employment benefits have roughly the same moral status in American life. Both practices are legal, but widely disapproved. Many people, nationally or locally, don't want tax dollars to go to organizations that practice or promote them. At the same time, significant - although often different - minorities think they have a moral right to seek or provide an abortion, or to treat heterosexual couples more favorably than homosexual couples.

The Catholic bishops have opposed any health reform package which would allow tax dollars to be used to support a policy a health plan that covers abortion. It does not matter how small the government subsidy is compared to the personal contribution, or how low a percent of the premium cost actually goes to abortion coverage. It is not merely the money, it is the principle at stake. In response to the claims of Planned Parenthood and NOW that the conscience of the policyholder ought to be respected, the bishops reply, "we are not prohibiting people from getting abortions entirely with their own money. But we, the majority of Americans, do not want our tax dollars used to support practices or organizations that contravene our basic values." If push comes to shove, some bishops would let health care reform go and leave millions without necessary medical treatment, rather than subsidize abortion, however tenuously.

But in the enforcement of anti-discrimination law in Washington, D.C gay rights activists are in exactly the same position as the bishops are with respect to abortion--and the Catholic bishops are making the pro-choice argument, so to speak. Gay rights activists maintain that no public funds whatsoever ought to go to an organization that practices or promotes discrimination against gay people. In response to the claim of Catholic Charities that the conscience of the service provider ought to be respected, the activists argue, "we are not prohibiting people from establishing programs that discriminate against gay people using only their own money. But we, the majority of citizens in Washington, D.C., do not want our tax dollars used to support practices or organizations that contravene our basic values." If push comes to shove, some gay rights activists would let Catholic Charities go and leave thousands in Washington, D.C. homeless and hungry, rather than subsidize discrimination against same sex couples, however indirectly.

Very different groups in our pluralist democracy try to "enforce morality" -- or at least to encourage it -- by using public funds as an incentive. In this respect, the bishops on abortion are no different from the gay rights activists on employment discrimination. But when they are in the minority, these groups all want space to act according to their consciences without sacrificing participation in public programs. Pro-choice activists don't want some benefit plans to be excluded from all public support because they cover abortion, and bishops don't want Catholic Charities to be excluded from all public support because they practice discrimination against gay couples in granting employment benefits.

There is no easy way to resolve the theoretical tension between respect for moral truth and respect for consciences which disagree with the majority's best assessment of truth. A crude moral relativism that allows everyone to do their thing is no answer. If most abortions are unjust killing, then those who support it are perpetuating a real injustice. If discrimination against same sex couples is irrational, those who promote it are trading in harmful prejudice. But a moral majoritarianism that proclaims error has no rights isn't the solution either. History tells too many tales of the majority being mistaken on matters such as slavery, religious liberty, and the rights of aboriginal peoples. Furthermore no one group of people, religious or secular, has been exempt from making mistakes.

But practically, here and now, all parties have strong reason to work out a compromise that respects the integrity of everyone involved. Such a compromise was worked out in San Francisco with respect to providing employment benefits; the Archdiocese provided benefits to households, including but not limited to same-sex partners.

The Catholic bishops, on the one hand, and pro-choice and gay rights activists, on the other, all need to the win minds and hearts of ordinary Americans before they can accomplish their very different goals of social reform. And you don't win the minds and hearts of ordinary Americans by holding the food, shelter and medical care of needy people hostage to moral principle.

At least not in the holiday season.

Further complications

Yes, Michael, thanks. I thought it was the case that he may have entered the Church. Thus I was all the more intrigued and mystified by his 2005 essay published in the New Humanist. It makes some of the matters we discuss here at the Mirror of Justice all the more interesting. But, we do live in interesting times. As always, thanks, Michael. I appreciate our exchanges.

RJA sj

The world is complicated . . .

When I was in law school, I became friendly with a Unitarian minister--a really impressive guy--who was willing to baptize in the name of the Father, Son, and Holy Spirit, believed in the real presence of Christ in the eucharist, and was firmly pro-life.  I remember thinking at the time that a trade was in order.  In return for my friend, we could offer the Unitarians a couple of priests who believe what Unitarians are supposed to believe (and Catholics are not supposed to believe), plus two future draft choices.

"Third, as his Wake Forest bio states, he has a horse in the race, so to speak."

Yes, well, don't we all, Robert, don't we all.  You may be interested to learn:  Shannon Gilreath is a convert to Roman Catholicism.

The world is complicated, isn't it?

Another interesting article on closer examination

 

 

Thanks to Michael P. for bringing to our attention Shannon Gilreath’s article “Not a Moral Issue: Same-Sex Marriage and Religious Liberty.” Unlike Mr. Gilreath who cannot make the distinction between “religious objections to interracial marriage, as well as religious justification for other forms of inequality, and religious objections to same-sex marriage”, I believe that many can. I would be one. First of all, I think he has offered an interesting but deficient interpretation of the claims made by people, who happen to be religious, against same-sex unions/marriages. Thus, he fails to comprehend their arguments. Second, he leaves a great deal out of the picture. I have attempted to do this when I address the issues that he addresses. Third, as his Wake Forest bio states, he has a horse in the race, so to speak:

 

Shannon Gilreath

Wake Forest Fellow for the Interdisciplinary Study of Law

Shannon Gilreath is nationally recognized as a leading young scholar on issues of equality, sexual minorities, and constitutional interpretation. His book, Sexual Politics: The Gay Person in America Today (2006), was nominated for two prestigious awards: the ALA Stonewall Prize for Non-Fiction and the Lambda Literary Foundation Award. His innovative casebook, Sexual Identity Law in Context: Cases and Materials, published by Thomson-West (2007), is designed to put the law concerning lesbian, gay, bisexual, and transgender people into a social context. An advocate of interdisciplinary study, he teaches courses in Sexuality and Law, Religion and Law, and Gender Studies in the law school, serves as an associated professor at the Wake Forest Divinity School and has taught various courses as part of the Women’s and Gender Studies faculty of the undergraduate college. He is an active speaker for gay rights causes, frequently consults on cases, and has been widely cited in journals and the popular press.

 

Fourth, the matter that he claims not to be a moral issue is in fact a profound moral issue, as it is a pressing legal issue, as it is a crucial social issue, and as it is an important political issue. I look forward to our further MOJ discussion of this topic.

RJA sj

 

Another article (of interest to MOJers) by a former student of mine

Yesterday I linked to an article by a former student (Northwestern Law).  Today I link to an article by another former student (Wake Law), who is now on the faculty at Wake Law:

"Not a Moral Issue: Same-Sex Marriage and Religious Liberty"

SHANNON GILREATH, Wake Forest University - School of Law
Email: gilreasd@law.wfu.edu

Same-Sex Marriage and Religious Liberty: Emerging Conflicts is a new book of essays edited by Douglas Laycock, Anthony R. Picarello, Jr., and Robin Fretwell Wilson. In this Book Review, I focus on the book’s intellectual center of gravity, Professor Wilson’s essay, Matters of Conscience: Lessons for Same-Sex Marriage from the Healthcare Context, and Professor Laycock’s Afterword. The authors purport to offer a solution that will give Gays and Lesbians access to the benefits of marriage while also recognizing religious objectors’ rights to oppose Gay marriage. The authors endorse specific statutory exemptions in emerging marriage equality legislation allowing anyone asserting individual moral opposition to Gay and Lesbian couples to opt out of the facilitation of a same-sex marriage. The authors want such explicit exemptions for everyone from state employees to individuals providing services in the general stream of commerce.

I argue that Professors Wilson and Laycock’s nearly exclusive focus on individual rights analysis in their approach to the same-sex marriage question fails to consider seriously the group-based equality issues at stake. I argue that, contrary to Professors Wilson and Laycock’s assertions, one cannot easily distinguish between religious objections to interracial marriage, as well as religious justification for other forms of inequality, and religious objections to same-sex marriage. I argue that we must analyze the claims of Gays and Lesbians for civil marriage under a substantive equality paradigm, and that the group-based equality interests of Gays and Lesbians should not be subordinated to the individual desires of religious objectors through resort to the descriptive moral counterbalancing inherent in typical, liberal individual rights analysis.

[Downloadable here.]

Reading of interest to MOJers, Part 753

Oxford Journal of Legal Studies, Vol. 29, No. 4 (2009), pp. 729–755

Faith in the Future: Sexuality, Religion and the Public Sphere

CARL F. STYCHIN

Abstract—The clash between religious freedom and equality for lesbians and gay men has become a controversial legal issue in the United Kingdom. Increasingly, claims are made that compliance with anti-discrimination norms impacts upon conscientious, faith-based objectors to same-sex sexual acts. This article explores this issue and draws insights from North American case law, where this question has been considered in the context of competing constitutional rights. It raises farreaching issues concerning the distinction between belief and practice, as well as the role of identity in the public sphere. The author advocates that courts and tribunals should adopt a fact-specific approach which is sensitive to the rights in a particular context, and which focuses upon the values of accommodation, tolerance and mutual respect.

mental reservation

Here is a short piece by moral theologian Mark Latkovic on mental reservation. Here. This is an issue that deserves more attention. The practice of mental reservation is widespread and probably explains why one encounters the manipulative use of language so often. People rely on the idea of mental reservation to mislead, while still thinking of themselves as truth-tellers. As Latkovic explains, it is important that we honor the good of truth.

Richard M. 

Judge Noonan nails it

Here's Judge John Noonan, writing a few months ago in the Canyon Ferry Road Baptist Church case:

An unregulated, unregistered press is important to our democracy. So are unregulated unregistered churches. Churches have played an important — no, an essential — part in the democratic life of the United States. . . . In a secular age, Freedom of Speech is more talismanic than Freedom of Religion. But the latter is the first freedom in our Bill of Rights.

Football and philosophy

From Ivan Maisel's Three Point Stance: 

It’s important that Notre Dame remain relevant in college football, not only for history and tradition, but because Notre Dame still believes that high academic standards and winning can co-exist. Asked Monday if it’s tough to focus on school while thinking about who the next coach might be, Irish defensive end Kapron Lewis-Moore said, “Actually with me the hardest thing is thinking about if I want to write about Aristotle in my philosophy paper.” Beautiful.

Equivocation

Several months ago, America magazine published this review of what looks to be a very interesting play, about the (so-called) Gunpowder Plot, Henry Garnet, S.J., etc.  The play, Equivocation, is currently running at California's Geffen Playhouse.  It will also be put on in Seattle and New York City.  More here.

A response to Patrick Brennan on authority in the Church

[MOJ friend Gerry Whyte--a member of the law faculty, and former dean of the law faculty, at Trinity College Dublin--sent me the following message this morning:]

I would like, from the perspective of an Irish Catholic, to respond to Patrick Brennan's recent posting on MOJ about the Apostolic Visitation to women religious in the US. To put my comments in context, I should point out that, prior to the discovery, beginning in the mid 1990s, of the abuse of children by Irish clergy and religious and the subsequent cover up by our church authorities, I was very proud of what I considered to be the heritage of Irish Catholicism, both here in Ireland and abroad. In particular, I was very happy to serve as a member of the episcopal Commission for Justice and Peace for a number of years during the 1980s, inspired as I am by the Catholic vision of social justice.

Turning to the scandal of child abuse in the Church in Ireland, it seems to me that some of the underlying factors may be, if not unique to Ireland, of more relevance here than elsewhere. This would include a repressed sexuality (arguably the product of the Jansenist strain within Irish Catholicism combined with the pressures of living in a poor, agrarian society), a repressed anger (possibly the legacy of colonisation?) and a hierarchical and judgmental society that placed great store on social status and, conversely, thought little of those who lacked that status.

However in my opinion, a further factor contributed to this sorry situation, a factor of which Catholics outside Ireland should take note, and that is the fact that the clergy and religious in Ireland had great power, in respect of the exercise of which they were completely unaccountable. Many people are familiar with Lord Acton's aphorism that 'power tends to corrupt and absolute power corrupts absolutely.' Fewer know that Acton, an English Catholic,  coined that phrase in the context of the nineteenth century debate on papal infallibility. I mention this not to implicate papal infallibility in the current scandal - the rights and wrongs of papal infallibility are, to quote your President, 'above my pay grade' - but rather to illustrate the fact that Acton, in the nineteenth century, recognised that the Church could be corrupted by the exercise of absolute power. In my opinion, the recent revelations of abuse and cover up by the Catholic Church in Ireland reinforces that point. Reflecting on the Ryan and Murphy reports, one has to conclude, reluctantly on my part, that the wrongdoing here was not simply the actions of a few bad apples but, rather, was systemic. The exercise of untrammelled power corrupted the institution of the Church. So, returning to Patrick Brennan's point about the three forms of leadership within the Church - institutional, charismatic and intellectual - in my opinion, the Irish experience shows that there is something very wrong with the structures of leadership within the Church and that they have a corrosive and corrupting effect on people who are otherwise good and decent. Quite what we need to do now, I am not sure, but it cannot simply be a case of 'business as usual'.

One final (and unrelated) point arising from last week's Murphy report relates to the concept of 'mental reservation'. This was a concept of which I was unaware (though I know I am not alone in this) prior to the publication of the Murphy report and I wonder whether MOJ readers are better informed? The concept justifies what might politely be called 'disingenuousness' and was relied upon by one prominent cleric here to defend his statement that Church funds ARE not used to compensate victims of clerical sex abuse when he knew, and chose not to disclose, that such funds WERE so used in the past.

Aidan O'Neill on the Italian crucifix case

MOJ readers are probably familiar with Aidan O'Neill and his work.  He was kind enough to send me, a few days ago, some thoughts of his regarding the recent decision by the European Court of Human Rights in Lautsi v. Italy.  In that case, the Court ruled that the Italian requirement that crucifixes be hung on the walls of classrooms (quoting O'Neill)"violated the right of parents to educate their children in conformity with their own religious and philosophical convictions, and the right of their children to believe or not to believe."  He writes:

In making these broad claims in the context of this ruling, the European Court would appear to be committing itself to the claim that that not only is a strict reparation of Church and State permitted under the European Convention but it is actually required by it. Such a claim can certainly not be justified by the plain text of the Convention.   It appears to owe more to United States Supreme Court jurisprudence on the separation of Church and State.   But this case law is based on the text of American Constitution’s First Amendment’s requirement that “Congress shall make no law respecting the establishment of religion”.  This clause has resulted in a seemingly endless line of court cases on such issues as: whether nativity scenes, or the text of the Ten Commandments, can lawfully be displayed on State owned property; or whether prayers can be said, or oaths of allegiance recited, in public schools.    .  To apply such an American separationist analysis within a European context simply does not do justice to the wholly different understandings of the proper relationship between religion and the State which have historically existed among the countries of Europe; where, indeed, religious establishment has been the norm.

Thoughts?

Amy Gutmann and the President's Bioethics Commission

Michael P. called our attention, a few days ago, to the President's creation of a new Presidential Commission for the Study of Bioethical Issues, and also to his appointment of Amy Gutmann to serve as Chair of the Commission.  In my own (non-expert) view, Leon Kass and Edmund Pellegrino (both of whom chaired President Bush's Council on Bioethics) provided the previous President, and the country, with valuable service, work, and reflection, and with a welcome moral clarity on heartland human-dignity-and-science questions.  Amy Gutmann is, of course, well known and accomplished, but -- based on my reading of her Democratic Education and Democracy and Disagreement -- I have concerns (though, given all the givens, I realize that President Obama was not likely to appoint to such a position a scholar with whom I agree on these matters) about the likely content and direction of the new Commission's work.  We'll see. . . .

The larger context for the debate about healthcare reform

There *is* a larger context--and Catholics should understand that there is a larger context at least as well as anyone.  What is that larger context?  For a part of the answer--an important part--read Tony Judt's new, fine essay, What Is Living and What Is Dead in Social Democracy, NYRB, 12/17/09, here.

"The Thanatos Syndrome"

Have you read Walker Percy's 1987 novel, "The Thanatos Syndrome"?  You should!  I admit it -- I read a bunch of Percy novels in law school, because I was told by a super-smart Catholic that, well, I should.  I don't think I really appreciated them.  So, I've been re-reading them.  (I didn't appreciate, for one thing, how funny -- while still heavy -- they are.) 

In Thanatos, the protagonist, Dr. Thomas More has an old acquaintance named Fr. Smith who gets in some choice, if hard to hear, observations about modern science.  (Amy Welborn has a short-and-sweet review, here.  See also this, in First Things, from 16 years ago.)  Remember, he warns, "tenderness leads to the gas chamber."

"Conscience Clause" discussion at Notre Dame

More here:

A panel discussion titled “What Would a Good Conscience Clause Look Like? A Catholic University’s Perspective” will be held Dec. 3 (Thursday) at 12:30 p.m. in the Patrick F. McCartan Courtroom of the University of Notre Dame’s Eck Hall of Law.

The discussion will concern how Catholic teaching and tradition, scholarship and legal developments might inform efforts to protect the rights of conscience of health workers, pregnant women, taxpayers and other citizens. . . .

Questions for Krauthammer

Hello All,

Two quick sets of observations here: 

(1)  The first is offered by way of thanks to Robbie George for the thoughtful posts occasioned by his friend Charles Krauthammer's Op Ed on health care reform legislation, recently published in the Washington Post.  In this connection, ... 

(a)  I'd like to add my voice to Robbie's where our "responsibility to consider the arguments for competing alternatives and [to] support the alternative [we] believe best serves the common good, all things considered," is concerned. 

(b)  I'd also like to second his observation that "there are indeed many considerations to be taken into account, including costs, efficiencies, impact on overall quality of care, concern about the scope, size, and intrusiveness of government, the impact of competing alternatives on the autonomy and authority of families and other institutions of civil society, and the priority that must be given to the interests of the poorest and most vulnerable members of the community." 

(c)  And finally, I find myself nodding vigorously in assent to Robbie's observation that "[w]e should not expect Catholics and other men and women of goodwill to arrive at a common view; but this is certainly an issue on which people should make sure their opinions, whatever they turn out to be, are informed opinions, and not merely partisan ones."

(2)  The second set of observations, however, takes the form of concerns that I harbor about Krauthammer's OpEd itself, with which I cannot in good conscience agree unless and until certain vitiating deficiencies in the argument, doubtless attributable to the limitations of the OpEd genre itself, are addressed. 

(a)  Dr. K first objects to the size, sprawl, and patchwork-style inelegance of the House and Senate Bills under debate, expressing a preference for something a bit more like what I would call a "Euclidian" piece of legislation.  (I'm thinking of E's Elements.)  I'd like that too, and am sure most everyone would, all else equal.  But when have we ever seen comprehensive legislation with that degree of organic unity and elegance?  Never.  Legislation in a sprawling democracy has always been, well, sprawling.  It's been likened to sausage-making for over a century, and to damn particular bills on this ground, it seems to me, is always either idle or meant to damn legislating on the subject at issue altogether. 

I would accordingly first ask Dr. K to name some modern pieces of legislation, aimed at subjects of complexity similar to that which afflicts health care finance, that he would view as exemplary by his own criteria.  Then we could perhaps urge Congress to attempt to repeat that (so far as I'm aware, never accomplished) feat. 

I would, second, ask Dr. K why he does not favor, say, simply going the Canadian, British, or even French route, which routes all are comparatively simple, streamlined, inexpensive compared to the American "system," and productive of much better health outcomes overall.  In other words, why not treat health insurance as social insurance on a par with unemployment and elders' income insurance as all other nations with developed economies do?  There is a reason, of course, that we don't, and that very reason is the reason that simple and elegant health care finance legislation of the familiar well regulated "single payer" or "single provider" varieties has not even come before Congress: viz., objections from private parties who benefit at all of our expense from the way things are. 

(b)  Dr. K next accuses Congress three times, in rapid succession, of simply "picking numbers out of a hat" in arriving at assessible penalties, risk-weight assignments, and subsidy amounts.  I would like to know on what basis he makes these damning accusations.  If it is that they are compromises arrived at after reasoned argument, backed up by evidence, offered by disagreeing parties, then I refer him back to point (a) above, for what he is objecting to in that case is that the amounts are arrived at through legislation.  If instead it is that there was really just a hat here, well, please prove it and I'll join in the condemnation. 

(c)  Dr. K then concludes, on the basis of (a) and (b), that "[t]he bill is irredeemable. It should not only be defeated. It should be immolated, its ashes scattered over the Senate swimming pool."  Apart from the carcinogenic effects apt to be wrought by immolation, which would add to our health care cost burdens as well as to the earth's oversupply of carbon emissions, I must object to the suggestion that (a) and (b), even if my reservations just stated are adequately addressed, would suffice to warrant this conclusion -- at least pending a convincingly better and workable alternative's being offered.  And Dr. K thus far offers none.  For ...

(d)  Dr. K next proffers a three-part solution of his own, which so far as I can tell is no solution at all. 

(i)  First Dr. K urges tort reform, because, he alleges, our current system of malpractice litigation is wasteful in two ways -- first, by "simply hemorrhag[ing money] into the legal system to benefit a few jackpot lawsuit winners and an army of extravagantly rich malpractice lawyers such as John Edwards," and second by prompting "millions of unnecessary tests, procedures and referrals undertaken solely to fend off lawsuits."  These are very familiar, and according to the best evidence, simply false, claims.  Ted Eisenberg, a colleague to Steve, Greg, Eduardo and myself, has done countless statistically sophisticated empirical studies of the so-called "malpractice crisis," all of which show the claim -- long a favorite of lawyer-demonizing political opportunists -- to be a canard.  I commend the publications listing on Ted's CV to interested readers.  A nice summary of this long-running debate can also be found here -- http://www.citizen.org/documents/Bush_Disinformation_Campaign.pdf -- though of course some here will think Public Citizen to be sufficiently partisan as to warrant a salt grain's being taken along with the document.  Let me also note that the most widely accepted explanation for excessive testing is not medical malpractice suits, but the "fee for service" incentive structure pursuant to which our medical system currently operates, combined with the fact that when it's you who are the patient, you're a lot less likely to forgo tests for their alleged "cost-ineffectivness" than you are to judge them so when not a patient.  In other words, there are very obvious micro-economic explanations for widespread overtesting, while there is no good empirical evidence to the effect that a "malpractice litigation crisis" has ever caused it.  (Note also that charges of "rationing!" from the right greet every suggestion ever made to cut back on testing.) 

(ii)  Dr. K next proposes "abolish[ing] the prohibition against buying health insurance across state lines," because "[s]ome states have very few health insurers," with the consequence that "[r]ates are high." This is all very well -- indeed, Dr. K could make his own case much more strongly and do so plausibly.  For it is not simply "some" states that have "very few" health insurers.  Rather, by far *most* states have at most *two* dominant insurers, and a nontrivial number of states have only *one.* Partly for this very reason, the Congress is acting to repeal the McCarran Ferguson Act, which is the source of the prohibition to which Dr. K refers.  It would be nice, then, were Dr. K to credit the Congress with having seen this problem and begun acting upon it well before his suggestion to this effect.  One must also add, however, that there are more reasons than McCarran Ferguson behind the immense degree of market concentration we find in health insurance markets, chief among them the scale economies that attend health insurance.  Health insurance, in other words, is afflicted with what economists call "natural monopoly" attributes, rendering it a prime candidate for treatment as a public utility or regulated monopoly.  That's no doubt one of the reasons why health insurance is treated as a form of social insurance in all other advanced economies.  It's also why it is simply false -- false -- for Dr. K to assert that repealing McCarran Ferguson (which private health insurers of course oppose doing) "would obviate the need -- the excuse -- for the public option."  For fuller elaboration of these points, as well as discussion of all current proposals in light of the economic structure of health insurance, please see this piece -- http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1484768 -- that I have coming out in the next issue of the peer-reviewed economic journal Challenge. 

(iii)  Finally, Dr. K suggests that we "tax employer-provided health insurance," which is "an accrued inefficiency of 65 years, an accident of World War II wage controls."  This would of course be a very good idea, both for the reasons Dr. K adduces and for other reasons as well, including the fact that the current system favors large employers over small ones, which operates as a drag on factor mobility and disadvantages the most dynamic sector of the economy -- small business.  (See my article linked to above for more on this too.)  There are two little wrinkles to note here, however:  The first is that, were this do-able, it could simply be added to the present bills under debate, and would accordingly render them all the more readily financed.  There is absolutely nothing about the current legislation that would prevent this proposed legislation.  So Dr. K's proposal here can be viewed as a friendly amendment rather than an "instead of."  The second wrinkle is more problematic.  As Dr. K himself notes, this reform would be the most difficult to enact.  Entrenched interests -- and far from only the unions or the president, as Dr. K puzzlingly limits himself to mentioning (consider all the managment and directors of the large firms, for goodness sake) -- prefer to leave in place the present system under which large firms offer insurance benefits untaxed.  But that is simply another instance of the more general observation I made at the outset:  All "do-able" health care finance reform will be messy, for the simple and familiar reason that there are multiple parties with conflicting interests, upon whom Congress members are dependent for financing the campaigns by which they gain office, whose interests will be implicated by what ever we do.  So I repeat that to call for "burning" legislation that looks like sausage is to call for not legislating at all -- at least until such time as we eliminate the decisive role private financing plays in election campaigns.  What say you all, including Dr. K, to that?

Thanks for listening,

Bob

Authority: The Church, the classroom, and the Camino

Continuing the thread on "Rebellion Against Church Leadership" (here, here, and here) and a post from the Camino (here), I offer some thoughts on the question of" authority," a word that has gotten a bad rap for a generation or two. 

Each of us voluntarily submits to numerous authorities in our lives. 

• When I fly, I voluntarily submit to the authority of the airline, the FAA, and the TSA..  If I am not entitled to check-in in the line for elite travelers, I can be told to go to the back of the regular persons line.  I must submit a proper form of identification to proceed past security, and I can't take my water bottle with me at this point.  Airlines have been known to make unscheduled landings to deplane passengers who rebel against the airline's rules.  In short, the airline proposes rules (doesn't mandate them for anyone), but once you decide to fly, you are bound by the rules, and the authorities have the right and the means to enforce the rules. 

Individuals choose to submit to our authority when they enroll in law school and register for our classes.  In my class, I reserve the right to count tardy students absent, decrease grades for excessive absences, and call on students with the expectation that they will be prepared.  In short, the law school proposes rules (doesn't mandate them for anyone), but once you decide to attend the law school, you are bound by the rules, and the authorities within the law school have the right and the means to enforce the rules. 

On the Camino, I voluntarily submitted myself to the authority of yellow arrows and blue/yellow concha shells for 500 miles, trusting that they would lead me to my destination.  Although I was free to desregard the signs, ignoring them (ignorance?) came at a cost.  Unlike the airline situation or my classroom, there was little in the way of an external authority enforcing the rules.  This really only came about in two instances.  First, the albergues (the pilgrim's hostels) turned away people who had arrived by motorized vehicle, reserving the valuable bed spaces for walker's first,followed by those on bicycle or horseback if there was room.  Second, in Santiago, a pilgrim could apply for a Compostela (a certificate indicating that the person had completed a religious pilgrimage).  Those who were walking for purely non-religious reasons got a piece of paper acknowledging their walk in lieu of a Compostela.  (more on this later)

The Catholic Church, it seems to me, is similar to the Camino in the exercise of its authority.  It provides signs (like the yellow arrows and blue/yellow concha shells) that point those who are following the path to greater love and holiness.  It proposes that if you partake in the Sacraments regularly with an open heart, if you spend time in prayer with an open and broken heart, if you perform works of charity and love with an open heart, if you live a chaste life and follow the commandments (the moral law) with an open heart, you will be on the path to wholeness and happiness in this life and the next. 

• No one (at least in our day) is requred to be on the  path proposed by the Church. 
• Most if not all of us who choose this path, proceed imperfectly, failing in multiple ways more often than we succeed.
• Like the Camino (and unlike flying and law schools), the Church rarely uses external authority to enforce its rules.  In short, unlike the TSA, it isn't normally checking credentials in the communion line. And, unlike my classroom, it isn't calling on its members to answer for themselves.  For the rank and file Catholic, it is only when someone wants something from the Church (the sacrament of marriage, for instance), that the Church checks the credentials of its members. 

Most of the people on the Camino would describe themselves as spiritual and not religious.  Like so many others today, they are leary of commiting themselves to an authority outside of themselves.  Yet, when questioned (by me in casual conversation), they saw some profound power in following this ancient pilgrimage tradition.  They were seeking answers to life's ultimate questions (which is a religious quest) and chose this path because of its tradition.  Upon arriving in Santiago, they received the Compostela from the issuing authority because their's had a religious/spiritual journey. 

I met two people who were refused the Compostela by the issuing authority because, when questioned, they responded that they had walked the Camino solely for non-religious reasons.  Their very different responses highlighted their notions of authority.  One person was completely fine with not receiving the Compostela.  He understood that the issuing authority had a right to set its own rules, and even though it had set a fairly low bar, he couldn't in good conscience meet it.  The other person was irate.  She had walked the 500 miles and was, in her words, entitled to the Compostela.  She wanted to define the rules by which the issuing authority had to live.

How do we respond to the authorities in our lives?  How should we respond?  How is Church authority similar or different to other authorities?  And, when we feel that an authority, especially the Church authority, is abusing its power, how should we respond?  Like Martin Luther or Matthew Fox?  Or, like Dorothy Day, Francis of Asissi, Catherine of Siena, and Teresa of Avila?

 

Free Exercise Exemptions: Required? Permitted?

I notice that a former student of mine (Northwestern Law) has posted what looks to be an interesting piece on SSRN:

"Equality and the Free Exercise of Religion"

Cleveland State Law Review, Vol. 57, p. 493, 2008

BRET BOYCE, University of Detroit Mercy - School of Law

Email: boycebt@udmercy.edu

The most contentious issue in constitutional free exercise doctrine is whether exemptions for religiously motivated conduct are constitutionally required or permitted. For decades, the Supreme Court’s jurisprudence in this area has been in considerable disarray. In recent years the Court has increasingly rejected the notion of constitutionally required religious exemptions, but shown considerable indulgence for legislative exemptions. This Article argues that while the Free Exercise Clause confers the highest protection on religious belief, expression, and association, it requires equal treatment of all in the regulation of conduct, regardless of their religious beliefs or lack thereof.

The common claim that the original understanding of free exercise requires exemptions is unsupportable, and the claim that it permits such exemptions is less than convincing. While some exemptions were enacted in the founding era, their significance and probative value is limited, especially because the First Amendment did not apply to the states. Significantly, many objected to such exemptions as violations of religious equality. Nor is there significant historical support for the widely-accepted claim that the Fourteenth Amendment, under which the Religion Clauses have been applied to the states, was understood to alter their original meaning.

The textual, religious, and theoretical arguments advanced to justify constitutionally compelled exemptions are unpersuasive. Proponents of such exemptions typically argue that they are required unless the government interest at stake is compelling, which would eviscerate the rule of law by making compliance optional in most cases. They also argue that even where not required, such exemptions should be permitted unless they create incentives to practice religion. But this is incoherent - all religious exemptions create such incentives.

Recent congressional statutes such as RFRA and RLUIPA have sought to resuscitate the application of the compelling interest standard to a vast range of federal and state legislation. Recent Supreme Court decisions upholding such measures are deeply troubling. The Court’s decision extending immunity from the drug laws under RFRA on a religiously discriminatory basis embroiled it in policy determinations which it was ill-suited to make. Its decision upholding RLUIPA in the prison context extended special privileges to violent and racist religious organizations that are not enjoyed by their peaceful secular counterparts. These decisions pay scant regard to the constitutional requirement of equal treatment. The free exercise of religion requires equal and impartial treatment of all regardless of their beliefs, not a patchwork of special privileges, favors and exemptions.

Downloadable here.

The debate about how to insure the uninsured

I recently called attention to my friend Charles Krauthammer's scathing criticism of the Democrats' health care proposals, and his alternative ideas for reducing health care costs and inefficiencies and achieving the important moral goal of insuring the uninsured.  Now Dan Pfeiffer has responded to Dr. K on the White House blog.  According to Pfeiffer, "the columnist's article may be cogent and well-written, but it is wholly inaccurate":

http://www.whitehouse.gov/blog/2009/11/27/reality-check-column-ignores-facts

I expect Krauthammer to respond soon to Pfeiffer's response.  This is, I believe, a debate that warrants our close attention.  The fact that the fundamental moral principles proclaimed by the Catholic Church do not by themselves resolve the question of how the health care system should be structured, does not mean that Catholics have no responsibility to consider the arguments for competing alternatives and support the alternative they believe best serves the common good, all things considered.  And there are indeed many considerations to be taken into account, including costs, efficiencies, impact on overall quality of care, concern about the scope, size, and intrusiveness of government, the impact of competing alternatives on the autonomy and authority of families and other institutions of civil society, and the priority that must be given to the interests of the poorest and most vulnerable members of the community.  We should not expect Catholics and other men and women of goodwill to arrive at a common view; but this is certainly an issue on which people should make sure their opinions, whatever they turn out to be, are informed opinions, and not merely partisan ones.  If ever there were an issue on which Republicans and Democrats alike should seriously consider whether this time their own party has gotten it wrong and the other guys actually have the superior argument, this is it.

Don't forget advent!

I confess:  The day after Thanksgiving, I traditionally eat a lot, and go get a Christmas tree with the kids.  MOJ-friend Jody Bottum reminds us, though . . . there's Advent.

the false dilemma of "authority (= the authoritarian) vs. the Holy Spirit"

Discussion of the topic of the Apostlic Visitation of congregations of women religious in the U.S. can tempt one to side for or against based on the indefensible idea that one side (the women religious) stands for charism (= the Holy Spirit) and the other (the Holy See [aka "the Vatican"]) for authority (= authoritarianism or the like).  The false dilemma must be avoided.  Neither side is pure. 

The triangulating insights of Eamon Duffy (in chapter 9, "Who Leads the Church?", of Faith of Our Fathers (2004)) seem helpful here:  "In Pope Innocent [III], Francis, and Dominic, are embodied the three major forms of Christian leadership -- institutional, charismatic, intellectual; or, to put it in other terms, structure, spirit, theology -- the kingly, the priestly and the prophetic dimensions.  The Church needs structure and order if it is to survive; it needs fire, ardour, heart, if it is not to become a prison for the spirit; it needs intellectual rigour and commitment to the truth if it is to have a gospel to preach.  A Church in which one or the other of these elements dominated or was unchallenged by the others would be intolerable -- rule-bound, or in retreat from ordinary life, or with no truth to proclaim.  Innocent III was the unquestioned head of the Church over which he presided, and both Francis and Dominic sought papal approval for their movements.  But the papacy was the means of anchoring those movements within the Church, not their initiator or inspirer: the spiritual and intellectual leadership of the Church in the age of Innocent III lay in Assisi, Tolouse, and in the University of Paris, not in Rome."  

The Holy See has asked women religious, most (though by no means all) of whom are members of congregations that are by any reasonable account members of congregations that are dwindling to the point of disappearing, voluntarily to answer some questions that pertain to the heart of their lives as individual religious, as congregations, and as corporate members of the Church.  Is the refusal to answer the questions a demonstration of charism?  Of vitality?  What does it mean to be "self-defining religious agents?"   See   http://hancaquam.blogspot.com/2009/11/us-religious-women-closing-door-on.html  Why won't the religious reveal the mean age of the members of the their respective congregations?  What is the theology behind this lack of "transparency?"  Surely it concerns the whole Church what the size and longevity of its institutional members are?  Would Francis or Dominic defend the defiant, angry opting out a dialogue that the Holy See has asked (not demanded) to have with members of congregations already recognized by the Holy See?     

 

Change we can believe in? (con't)

Here.