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I don't know a ton about the US court system, but i know enough to recognize that that article is pretty dumb; I certanly know enough about rhetoric to know that it's inflammatory.

Still, I get and appreciate the rage (just not how it wound up making a bad editorial).

http://www.nytimes.com/2014/01/04/us/women-losing-access-to-abortion-as-opponents-gain-ground-in-state-legislatures.html?nl=todaysheadlines&emc=edit_th_20140104&_r=1

 

The anti-Catholic character of the piece is explicit enough to make one stop and turn.  I thought US News and World Report was sort of stodgy and boring - when I used to read it, its news roundup looked like it was typed on a typewriter, complete with underlines to highlight words and phrases.  

In Googling "Jamie Stiehm" to find out more about the author, I ran across a response that characterizes the piece as the work of a "Know-Nothing".  That's actually pretty apt.

 

I've cut back on The Daily Show (I promise), but was watching the other night when John Stewart went after the Little Sisters of the Poor, plaintiffs in the case for which Justice Sotomayor issued a stay. His spiel was ignorant about the issues involved though more anti-Nun than anti-Catholic, if that is possible.

There is no such thing as a 'Catholic judge. Just as there is no 'Catholic' way to cook a hamburger, I am hard pressed to tell you of a single opinion of mine that would have come out differently if I were not Catholic

 

Antonin Scalia

This doesn't surprise me.  There was a time not so long ago that it was generally politically incorrect to criticize any religion, at least not publicly.  But I fear that these uncertain times are leading many people to scary extremes, and political correctness is flowing out the window.  What other sorts of extremists are emerging?  Well, just this week I have seen someone claim to be a monarchist (yes, monarchist!!) and he claims that the position has more and more support, and, most appalling,  I just read that Hitler's Mein Kampf is now a popular e-book.

How does one counter irrational beliefs held for emotional reasons?

But I must say that athe author makes a valid point about the number of Catholics on the Supreme Court.  I don't object to lots of Catholics.  What I object to is the lack of Protestants.  There should also be a non-believer occasionally, especially since that segment has grown so large.  Their interests need to be represented.

Maybe there are a lot of Catholic lawyers?  The names on the ballots for judicial elections around here certainly suggest that is the case.

There used to be a Catholic way to cook a hamburger:  never on Friday.

Ah, for the good old Catholic daze.

Religionists who make their voices so very public leave themselves open to public criticism.

It comes with freedom of speech ... a 2-way street.

Judging from the comments on the USNews site, the author is in a very small minority. She apparently already had a reputation as an anti-Catholic bigot. And what she describes as a war is really a ceasefire. If this case is decided by the full court, I have a hunch about which side Sotomayor will be on.

A total inflammatory article and is ludicrous because it places Sotomayor in the same place with the other reactionary Catholic justices.

The sad part about contraceptives is that few Catholics, including clergy, are against it. Most obnoxious is that the bishops and other unfeeling Catholics are making this a cause célèbre. This is one of the greatest blunders (HUmanae Vitae) in the history of the Vatican.  Worse, this has caused untold suffering to so many women and families. Especially where Church officials have prevented women throughout the world from access to birth control. A terrible and astronomical injustice. 

As for Scalia's comment that there is no such thing as a Catholic judge, I wonder why there is a blog titled Mirror of Justice, with a line under the title that reads, "A blog dedicated to the development of Catholic legal theory."

The article wasn't very good, but from what little I've read about Chief Justice John Roberts (and his wife, a member of Feminists For Life), I wouldn't be surprised if his decisions about women's reproductive rights were affected by his religious beliefs.

The article is offensive, I think Jim P. is right that "know nothing" pretty well describes it.  The ironic part is that it is far from clear that Justice Sotomayor still self-identifies as Catholic. Not that it should matter.  But judging by excerpts from her book, "My Beloved World", there wasn't a great deal of love lost between her and the Church, due to some pretty negative interactions with her family on the part of their parish priest. So it seems that if she were going to be influenced by religion on this matter, it would have gone the other way.

Ann Olivier's point is a good one.  How did it happen that Jews and Catholics went from (in my memory) having a token representative on the Supreme Court to the point that there are now no representatives of the Protestant Establishment at all on it? 

The column is pretty silly, all told. Its author is under the delusion that the Catholic linkages among the six Justices are stronger than the ideological divisions. Hasn't she studied the vote-breakdowns on the Court or read any of the decisions reached?

I don't disagree with diversity but I, as well as the US Constitution, think that religion needs to be self consciously excluded from consideration. 

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States

Nonetheless, in practice, American citizens do, often, consider these factors at least at a sub-conscious level. It is due to the intuition that religion does have at least some kind of impact. And, it is hard for us to shake that view.

 

 

 

 

 

It's my understanding that in the past Louisiana often had a justice on the U. S. Supreme Court because it was thought to be advantageous to have someone from the Roman law tradition out of which the natural law tradition developed.  The Constitution was written by common law lawyers, but the natural law tradition is also part of it, especially through the influence of the  Enlightenment thinkers (e.g., Jefferson) who emphasized some of the medieval notion of natural rights. 

Maybe it's because of the many important disputes about basic natural rights these days (e.g., civil rights, right to life, marriage rights) that lawyers from natural law traditions (e.g., Catholic law schools?) now have an edge when vacancies are being considered.  

Oops.  Just checked Wikipedia, and it seems that there was traditionally a *Catholic* seat on the Court, not a Louisiana one.  There have been only 13 Catholic justices, with 7 of them on the Court now.  Hmm. The mystery remains.

Ann and Fr. Komonchak:

 

over the years the the current break-down of the court has been interpreted by many observers as a sign that the Protestant establishment is... gone, together with the demographic collapse of the old mainstream Protestant denominations. What is left is a completely different form of Protestantism (evangelical, fundamentalist or Mormon) which either is culturally marginalized or lacks the intellectual firepower to produce an "establishment" (e.g. supreme court justices) and thus tends to rely on conservative Catholics (what the last few Republican presidents have done).

To avoid misunderstandings, when I said in my previous comments that people have interpreted the lack of evangelical or fundamentalist supreme court justices in terms of a supposed "lack of intellectuall firepower"  that obviously does not refer to individual intelligence, but to the fact that the "new" mainstream Protestants are under-represented in academia etc. This was an aspect discussed in Ross Douthat recent book on American religion .

Ann--Natural law claims about our constitutional tradition are a pet irritant of mine.  Please take this as a bit of background just because we're on the subject.  It's not that claims about the natural law in the American tradition are totally wrong.  But they're much more complicated than we generally like to admit.  (Murray was especially guilty of overlooking the complications.)  

In Madison's Notes on the Constitutional Convention, James Wilson is recorded to have said that,

Laws may be unjust, may be unwise, may be dangerous, may be destructive, and yet not be so unconstitutional as to justify the judge in refusing to give them effect (Madison 337).

George Mason took up the same theme to say that judges

could declare an unconstitutional law void. But with regard to every law, however unjust, oppressive, or  pernicious they would be under necessity as judges to give it a free course (Madison 341). 

This is a quite modern notion of law at home in the Enlightenment, and one spoken about freely in the Convention debates.  Only a little later, AssociateJustice James Iredell of the United States Supreme Court wrote in Calder v. Bull  (1798) that

the ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed upon the subject; and all that the Court could properly say, in such an event, would be, that the Legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice.

These are three prominent and seemingly, at the time, uncontroversial claims that the natural law had no purchase on the laws of the United States contemporary to the writing of the Constitution.  There are more.  Of course, there also were those who appealed to the law of nature.  But we Catholics need to be far more careful about our claims regarding the natural law and the Constitution.

 

Certainly, both Catholics and Jews are disproportionately represented on the Court.  For that matter, natives of the Dominican Republic seem to be disproportionately represented on the rosters of major league baseball teams.  Not sure what it all means.

 

I am uneasy with appeal to the natural law tradition as being a framework upon which to construct a decision around the "justice" of a particular law or practice. In fact, I recall that Chief Justice Roberts, did not appeal to natural law when asked to about his legal standpoint. He relied instead on stare decisis. His polar star, in other words, when asked about overturning decisions like Roe v Wade was stare decisis or precedent.

I would prefer appeal to world wide consensus on issues as reflected in UN charters, documents, and international law than to natural law.

Of course, that begs the question of where this consensus emerges from and I do not discount a natural law as a broad philosophical idea but, even here, there is always various interpretations of natural law.  Many currents of religion, politics, culture, science, philosophy, impact on our interpretation of natural law assuming such a thing actually even exists. And even if it does, it, like everything else requires an interpreter. And the interpreter (e.g  human beings) are situated in history. Nietzsche once quipped that there are no facts, only interpretations and in this he was largely correct.

A number of us have more or less dismissed the Stiehm piece as a hate piece.  But consider what I take to be the core of her displeasure, which could have been written up in a column without wrapping it in anti-Catholic vitriol.  She writes, "Sotomayor's stay is tantamount to selling out the sisterhood.".  

I think Katherine Nielsen does a good job above of debunking the notion that Sotomayor is shoving Catholic morality down the country's throat.  But it seems that what Stiehm objects to is not that Sotomayor allegedly shoved personal morality down our throats; it's that she allegedly shoved the wrong personal morality down our throats.  In other words, it is not the merits of the law (or, as Justice Scalia might put it, the merits of the hamburger) that determines how a judge should rule; it is that the correct set of moral principles, and not the erroneous set of principles, be enforced from the bench.

A conservative would say that the Founding Fathers set up an institution to ensure that our laws reflect our moral principles, and that instituion is not the Court but Congress.  I suppose that is part of what Justice Scalia's Hamburger Principle is meant to convey.

 

It's not that the court is full of Jews and Catholics, it's that it's full of Reptoids.

She just put a stay of the implemenatation. Which can make sense if the whole court is going to vote on it.  Clearly they have an interest in reveiwing it. So it makes sense. People may be reading too much into it. 

Once upon a time people were proudly insistent that their resume include "White Ango Saxon Protestant. Religion was de rigeur on many resumes. So one would see often. Relgion: Presbyterian. or Episcopalians. Most firms, especially on Wall St, looke for those who were "Good Type" meaning wasps. This is why many Jews would change their names to Brown or Green in contrast to the very recognizable ones . Many Catholics did the same. Martino became Martin etc. 

Just makes one feel sorry for all those WASPS. 

 

It's not surprising, but I am surprised to see such a passive response to this by dotcommonweal editors. I'd hope that no matter who wrote this bilge, or whether they wrote it from left or right, the editors would want to denounce this sort of outright bigotry. 

The author doesn't know much about the law either. Justice Sotomayor is the SC justice assigned to the 10th Federal Circuit, which includes Colorado, the state from which the challenged ruling originated. It is not unusual for the assigned circuit justice to refrain from ruling on an emergency application within a particular judicial appellate circuit and to instead pass the matter on to the entire SC for review. I think it's a real stretch for the author to think that Justice Sotomayor has somehow tipped her hand as to how she will eventually vote when the entire SC takes up the emergency application. In fact, she ordered that the government respond to the emergency application within two days after a major holiday. She could have easily ordered a longer response time if she were trying to stall a decision. I'm betting there were some disgruntled DOJ personnel who were not happy that they had to spend Christmas and its immediate aftermath in the office drafting their brief for filing with the SC.    

Sorry...It was New Year's those likely disgruntled DOJ employees had to work through.... ;)

The sad part about artifical contraception is that women want it.That women are willng to alter their otherwise healthy bodies by upsetting the natual balance of hormones,which is not a minor change,like changeing ones hair color,when natural birth control exists,is the great blunder.The pill  can be harmful and is implicated as the cause of some  cancers and life threatening  bood clots .Fo married couples to be using condoms to prevent conception is also spiteing oneself needlesly.Determining for oneselves the amount of chidren and their spacing makes sense to a point. The God  made life force is so powerful that for all our advances in science , there is still no sure proof safe,satisfying and effective method of birth cntrol."life will have it's answer only too soon again"]]Women are harming themseves by artificialy attempting to thwart this mirale of life that is given us.God made us[if healthy] so that we can live in harmony with our natural bodies and plan  our future to a deree.Being open to  life when all our ducks are not in order[un wanted prenancies] is part of  a faith centered life.Situations of  extreme  poverty,wars ,etc. are legitimate reasons to not want to bring  children into ones environment,They are a call to consience about these evils. Throwing condoms [ though necessay for std's prevention]and  giving dangerous hormones or coaxing  people to get sterilized is a callous way of deaing with suffering.Unfotunatel many women have drank this artifical birth control kool-aid.Good that so far there is still push back from pockets of catholic women  in the church.

Most Catholic women, like most women in general, do use birth control.  Like any medication, it has side effects for some people, but it t  has benefits as well (protecting against ovarian cancer ...  http://www.cancer.org/cancer/news/birth-control-pill-use-cuts-ovarian-ca...).  It saves lives   ... "Unsafe abortions rise as contraceptive funding is cut"  ...  http://www.newscientist.com/article/dn21372-unsafe-abortions-rise-as-con...

 

@rose-ellen, my husband and I used NFP during our fertile years, in part for the reasons your cite. I prefer to use holistic approaches to health where possible.  However, it doesn't work for everyone. The essential element, without which it absolutely will not be successful, is that both spouse have to be on board with it. This presupposes equality in the relationship, and that both are willing to put the other first. Many women are either not able to make the method work for them, or do not have husbands willing to make the necessary sacrifices.

 

"It's not that claims about the natural law in the American tradition are totally wrong.  But they're much more complicated than we generally like to admit. It's not that claims about the natural law in the American tradition are totally wrong.  But they're much more complicated than we generally like to admit."

Steven --

Indeed, it is complex.  I'd be the last to deny it, mainly because there were many different traditions of natural law which had appeared by the  1700s.  But it's a fact that the concept of a "right", for instance, came out of the West, specifically the Roman Stoic tradition, and that it was developed further in the Christian middle ages.  It is a notion so fundamental that the American founders saw fit to almost immediately make an addendum now called "the Bill of Rights" -- not the Bill of Customs nor the Bill of Legislative Fiats nor the Bill of Imperial Will, but the Bill of Rights.

The whole vocabulary of common law is full of latin words and phrases that maintain the influence of the ancient theory on the judges of the common law courts.  The old theory is one of the main reasons that the U. S. invented that sort of Constitution and not China or Aztec Mexico.  Ideas come from somewhere, and the best ones last.  No, the influence wasn't through the Churches, but through the common law judges and the Enlightenment thinkers who were influenced by the past too.

I just wish Locke (who influenced Jefferson so much) had given more attention to the notion of obligation.  By not giving equal weight to that correlative the founders prepared the ground for the rampant individualism of the U. S. today -- so many rights, so few obligations. 

George D. --

 

About stare decisis -- Just where did those decisions that must stand come from?  Why from the judges in the common law courts who had to decide particular cases.  But where did their principles come from?  Certainly not from a written constitution -- England has never had one.  So what did they appeal to and why?  Don't tell me to prior decisions -- that gets us into an infinite regress.  There had to be something that the original judges who made the original decision based their judgments on.  (And those original judges include the Germanic founders of the original Germanic law.)

 

Let me suggest that when those original elders/wise men/judges were asked to make a moral decision for a community that the judges looked to the common experience of the tribe to see just what was usually involved in such cases.  What did they find?  Rational animals who could be held responsible for there acts because they knew their own and other people's capabilities and needs, and the judges saw that all the members of the tribe were equally members, so that judgments had to be applicable equally to each and all.  And that's the sort of comparing of experiences that reveal what is natural to human beings.  It reveals what our common needs and capabilities are, as distinguished from, say, snakes or birds or even dogs.  

 

By "natural" I mean that there are necessarilly parts of us that make us to be the sort of things that we are.  So we say that we are *by nature* necessarily organic, sensient, rational  beings with the need for food, education, sex, family, tribe, that these needs are met by equal treatment and cooperation among the members of the tribe. And that's the sort of thing philosophers mean when they talke about "natural law" -- what is required to meet those needs and capabilities.  No, natural law (a metaphor) isn't written down and promulgated by an authority.  We know it through experiencing other people, other tribes, other communities.  By means of common human experience we come to see what is what is necessary *to be and become fully human*.  And that is to flourish.  See Aristotle and Aquinas.  Again, Alasdair MacIntyre's "After Virtue" is a great introduction to the subject.    

 

 

Rose-Ellen, when my husband and I married, we decided that we'd have only as many children as we could afford to support, and if the Church wanted us to have more, the Church would have to help support them.  We used various kinds of contraception and our consciences were and are clear.

Katherine - fwiw, we do, too, and at least in part for the same reason.

Jim, when I got married the (generally conservative) priest asked us whether "we were open to the idea of having children", to which we answered, "yes, of course, obviously not right now since we are still students, but some day later. Of course we want children", and that was it. It didn't seem like a big deal, in fact it was quite natural. Nothing else was mentioned by the priest in that regard. For many years I was not even aware of the ban on artificial contraception. The exact means of contraception were worked out between our doctor and our couple and evolved over the years, but it never crossed my mind that my pastor might have something relevant to say about it. 

Ann--and to bring your analysis back to where this all started (if I may so presume), the bishops' arguments about religious liberty ironically, comically, suffer that Lockean defect. They argue for an expansive right to religious freedom whose boundaries they get to define, balanced by no obligation at all. (See also, Pacem in Terris, No.30.) This is all quite modern and individualistic, alien to Catholicism. The ironies abound.

Ann I get the whole natural law premise but the way it is appealed to, particularly in Catholic social thought and teaching is problematic. The ban on contraception and homosexuality, for example, are largely predicated on an appeal to natural law. I read HV carefully and prayerfully and came to the conclusion that, yes there were some very good and valid points that I could wholeheartedly agree with. However, the concrete applicability of that particular teaching, in my particular situation, at a particular time was not sensible, safe, or, practical.

My appeal was to experience of others, medical professionals who deemed that another pregnancy for spouse would be very high risk for her health. I had to consider economics. I could not stay off work if wife was I bed restor hospitalized, etc., etc.

My point is that as a broad framework for what is required for human beings to flourish, natural law some usefulness but in terms of practicality and judgement, we require more evidence.

And I would be suspicious of a judge who relied on it.

take the Little Sisters case. How would natural law address the issue of the role of government to be coercive, requiring someone's signature to opt out of something? Aren't we born free? What is government and how does natural law inform it? In the 1700's the Europeans and indigenous people has very different ideas about what was "natural".

Some very interesting comments, and I haven’t even posted yet!

Here’s the part I don’t get:

The left is not shy about preaching the Catholic tradition of helping the poor, even to the point of sacrificing what’s rightfully “ours,” in terms of the pocketbook. So they fully buy in to the whole concept of suffering, of doing without, for the sake of others.  Thank God for that.  It may be the main reason God makes liberals.  Yet, when it comes to that other section of the pocketbook (where more personal things are kept) and where the Church also calls for sacrifice, the left is the first to say, “Hey, what the hell do you people know about something like that, and who gave you the right to tell me…blah, blah, blah”

What gives?

Angela:  if your consience is clear then that settles that for you.That does not obviate the church's taking  a moral stand that differs from yours.The church[as a deliberate body here] has theological issues to contend with when arriving at  a moral position; that you don't HAVE  to contend with.or that you may  conscientiously refute.

"My point is that as a broad framework for what is required for human beings to flourish, natural law some usefulness but in terms of practicality and judgement, we require more evidence."

George D. --

I couldn't agree with you more strongly.  I constantly defend the *basic* principles of natural law:  that it is our nature (what we are including our needs and capabilities) which justifies a theory of rights and duties.  But also, at least as Aquinas propounds it, "natural law theory" is clear only in its basicl principles.  The secondary, more specific ones start to get muddy.  Aquinas himself held explicitly that the secondary principles are not as sure, and the further away we get from the basics ones -- that is, the closer we get to specific and individual cases -- the more unsure are our conclusions.  

This is why the virtue of prudence plays such a big part in Aquinas' ethical theory.  (As I see it, prudence is a sort of deus ex machina for solving moral problems.)  Actually, at this point in history I don't think that we need any more evidence about contraception being OK.  World population won't permit the sort of profligate family planning that the official Church requires.  

As I see it, the absolute ban on contraception is simply very bad reasoning from limited premises, and I don't care if we did get it from Thomas.  He's one of the great ethicians, but he's not infallible either.  The greatest irony of all this is that VII pretty much shelved the great  Aquinas, but now they're left with JP II's untried "ethics of the body" or whatever it is they call it.

 

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About the Author

Rev. Joseph A. Komonchak, professor emeritus of the School of Theology and Religious Studies at the Catholic University of America, is a retired priest of the Archdiocese of New York.