Our Faith-Based Justices?

My colleague Professor Stone characterizes, in his recent post, the five Justices -- who are Roman Catholics -- who were in the majority in Gonzales v. Carhart as "Faith-Based Justices."  The claim, as I understand it, is that by failing to invalidate the federal partial-birth-abortion ban -- which, in Professor Stone's view, is clearly invalid under the Constitution, correctly understood -- the Justices are best seen as imposing sectarian beliefs on those who do not share those beliefs.  In my view, though -- as I have suggested elsewhere -- this charge misses the mark. 

As Professor Stone observes, the five Justices in the majority concluded (as did Congress) that there are sound moral reasons for prohibiting partial-birth abortions even though, as he states, the law in question "does not prohibit any abortions."  Congress endorsed former Sen. Daniel Patrick Moynihan's view that abortions done via this method are just "too close to infanticide" and that this proximity / resemblance morally justifies a prohibition on the procedure, and the Court declined to hold that this view was inadequate to justify the law.

Now, let's put aside the merits of the "Moynihan view."  Professor Stone's claim is, I think, that to follow Sen. Moynihan in this regard is to "fail[] to respect the fundamental difference between religious belief and morality. To be sure," he says, "this can be an elusive distinction, but in a society that values the separation of church and state, it is fundamental."

The distinction is, indeed, "elusive."  In any event, it is not clear why the claim "human fetuses are moral subjects and this fact constrains what should be done with and to them" is any more "religious", or any less "moral", than the claim "all human beings are moral equals, regardless of race, and should be treated as such in law."  What's more, even if it were true that the former claim is "religious" (certainly, for many, it is religiously motivated or grounded), it does not violate -- indeed, I do not think it even implicates -- the "separation of church and state" that our Constitution is thought to require.

It is interesting, I think, that Professor Stone invokes the example of Justice Brennan.  Although I believe that Roe was wrongly decided, it is impossible not to admire the Justice.  And, to me, it is clear that Justice Brennan's powerful opinions in Furman and Gregg -- with their strong and stirring invocations of "human dignity" as a limit on what governments may do the accused -- reflect views that, for Justice Brennan, were rooted in his religious faith.  Was he, therefore, a "faith-based justice" when he voted to strike down every death-penalty law in the nation?

Comments

[Erasmussimo]

I love a robust debate! And Mr. Garnett brings up some excellent challenges to Mr. Stone's arguments. I think the nub of the problem lies in the relationships between the three poles of religion, ethics, and law. Law is meant to codify the ethical principles under which a society wishes to live; many people rely on their religious beliefs to supply their ethical principles. Therefore, there is some unavoidable connection between religion and the law.

Now, the clumsy mistake so often made at this point is the claim that American law must reflect Christian beliefs -- this is exactly the kind of thing that the Founders wanted to prevent. The idea was to bring ethics into the law while leaving religion at the statehouse door. You don't need to be a Christian to know that murder is bad, and that there should be a law against it. And you don't need to embrace Christian (or Islamic, or Hindu) beliefs in order to build a complete set of laws for the orderly maintenance of society.

I was uncomfortable with Mr. Stone's references to the Catholic beliefs of the majority. While it is certainly a striking coincidence, I don't think we can ascribe any significance to that coincidence itself.

The way to link religion and law is to acknowledge the fact that every judge is human and brings prejudices and personal opinions along. We expect our judges to leave those prejudices and beliefs at the courthouse door, and Mr. Stone is suggesting that the majority in this case did not do so. This is a speculative point -- we don't really know what motivated them. Certainly the murkiness of the logic used in the opinion supports the suspicion that the majority is covering up their true reasoning. But this remains a speculation, and I think it best to leave it, too, at the courthouse door.

[LAK]

-In any event, it is not clear why the claim "human fetuses are moral subjects and this fact constrains what should be done with and to them" is any more "religious", or any less "moral", than the claim "all human beings are moral equals, regardless of race, and should be treated as such in law."-

It is to me. Legal rights are a function of consciousness and capacity. The "individual" whose liberty that we as a country seek to protect constitutionally is defined almost universally by political philosophers as some kind of function of self consciousness, physical autonomy, capacity for independent reason and agency, and sensory autonomy. These are universally observale human traits, and indeed, the less capacity you have the fewer rights you have in our country, for good reason. Children, the mentally impaired have fewer legal rights than those of us will full capcity, or all of those traits that make us uniquely human, as a matter of universally avialable reason.

So to consider a fetus a moral subject in the absence of any of these traits, to consider it worthy of some kind of legal protection that can be at odds with the legal rights and freedoms of an already living human being with full human capability is to necessarily invoke and inject faith and/or notions of the soul into the moral consideration.

Again, Jews don't believe life starts until birth, and they don't even mourn stillborn babies. This fact alone should inform you of what a violation of the separation of church and state this is.

And as to your suggestion that Brennan acts with the same sort of religious faith in the death penalty situation when he invokes "human dignity" is off the mark. HUman diginity is understood and valued independent of faith for similar reason. You are killing an already living "individual" of capacity and worthy of rights. To be sure, we secular humanists who do not rely on blind faith have as much or more of a claim to "human dignity" than religious dogma.

[Leif]

LAK, your constant invocation of what Jews believe regarding the genesis of life says to me that you are attempting to impose Jewish religious sentiment on the nation's moral sensibility, wherever derived.

See how easy that is?

More directly, breech delivering a baby until only the head remains in the birth canal, stabbing in the back of the head with a pair of scissors, using those scissors to tear a gash into the baby's head, and then sucking its head out with a vacuum - yes, that is exactly the sort of "privacy right" encompassed by the Fourth Amendment and the Equal Protection and Due Process Clauses.

If legal rights are a function of consciousness and capacity, I welcome your argument that killing the mentally impaired is not criminal and your explanation as to when infanticide crosses the line into murder.

[Erasmussimo]

Leif, I am struck by the fact that every single advocate of the partial birth abortion ban recites the same description of the procedure, emphasizing the ickiness of the procedure. I think this reveals an important part of the reasoning going on. Indeed, it is clear from the absence of a ban on other late-term abortions that the ickiness factor is not just the major consideration, but in fact the ONLY consideration at work here. That is, the law as it now stands permits a doctor to kill the fetus in utero and then proceed with any other means of removing it. Thus, the issue of the life or death of the fetus is not the deciding factor here. The deciding factor is the ickiness of procedure.

It is only a matter of time before we read a Supreme Court Justice declare, "I can't define ickiness, but I can tell it when I see it."

Why should ickiness be the deciding factor?

[Lackawanna Blues]

I'm all in favor of an all-out ban on D&E, dude. But I'll take a ban on intact D&E first.

I agree with you that there isn't much difference between the abortionist with the scissors stabbing the baby in the skull and the abortionist with the forceps ripping the baby limb from limb while in the womb. Both wrong and horrible. Both worthy of prosecution and prison time.

[LAK]

Lief,

Not so fast. I offer purely secular criteria for determining when and why we decide to confer legal rights to individuals.

I certainly don't offer Judaism's differing view of when life starts as justification for determing whether a fetus has legal right, as you imply. I highlight Judaism's differing view only to demonstarte that not only do secular philosophers who attempt to deal in logic rather than faith dispute that a fetus should be considered an individual worthy of legal rights, so to do other religions. The fact that other religions disagree only further elucidates the church/state separation and establishment clause concerns.

Babies and the mentally impaired have basic self consciounsness and awareness, and actual physical autonomy, including independently functioning organ systems. They perceive themselves as seperate in the object world, and they are in fact seperate from their mother. Their senses work, they experinces themselves as individuals. They have diminished, not absent mental capcity. These are criteria for individuality that philosophers have idnetified which justify why we would treat second trimster fetuses very differently from a retard person or baby.

And that is not to mention the significance of the fact that the second trimester fetus is attached from the inside to an already living, self conscious, fully capable individual woman who has a a right to be the master of her own health and physical autonomy.

[Lackawanna Blues]

Yawn.

[Leif]

Eras,

Because the elected representatives of the people determined that this procedure is so far beyond the pale that it should be outlawed.

[Patterico]

What about the fact that Stone characterizes as "the critical difference" for the Court a factor that the Court explicitly says it did not "place dispositive weight" on?

I.e. he summarizes the case in a way that would get a failing grade if offered by a law student.

[Joan A. Conway]

I know it when I see it!

Something must be said why we find it okay to slaughter and neglect our armed forces, but are so outraged by aborting babies.

Isn't there a correlation there to the detriment of males and to the benefit of females?

I often thought males are disparately treated with a volunteer army or otherwise at 18 years old and a little beyond that.

But females wish to have a lack of control over their bodies without a consequence many a times where there existed no serious occassion for protecting her from having a baby after nine months in the womb.

A seed planted in the womb has potential.

And I have a creative instinct within me that wants to shout out something is coming!

And we know when, where, and how.

But war has a death instinct and I want to shout out something is coming!

And we don't know when, where and how.

[Joe]

I'm not a law professor, but even in a brief reading I found the rationales of:

1. The need to prevent further erosion of the line between abortion and infanticide;

2. To prevent a further coarsening of heart against life; and

3. That Congress has an interest in promoting fetal life and health.

It's fair to disagree with any/all of these, but Prof. Stone et. al should at least address them before taking a shot at Catholics.

In short, this idea of the majority court as moralizing Catholics is truly an argument of weakness. If this is the theme of legal argument for the next decade, I'll take it. By failing to even address the legal arguments in the opinion, it's like calling them liars -- basically, I know they wrote a buncha legal claptrap, but they voted the way they did because they're Catholics.

Weak.

Also doesn't explain Kennedy's stance in Casey.

[Erasmussimo]

I ask Mr. Leif why ickiness should be the standard for deciding law, and he answers,

"Because the elected representatives of the people determined that this procedure is so far beyond the pale that it should be outlawed."

I have two problems with that answer. First, the notion of something being "beyond the pale" is unacceptably vague. We all agree that people should be free to criticize politicians, but if somebody says something that's 'beyond the pale', can that be outlawed? And how do you define a 'beyond the pale' criticism? Must it have at least five distinct obscenities? Can we really say that doing something outside the womb is beyond the pale but doing it inside the womb is not beyond the pale? That, after all, is the upshot of the Supreme Court's decision.

My second criticism is that, while the method is icky to the max, in fundamental terms, it really doesn't matter how the fetus is destroyed. Those who suggest that the fetus suffers from this procedure do not understand much about the nature of pain. The only argument seems to be that it's really icky, to which my response is, "then don't watch".

I can understand why a decent society would put constraints on actions that have no social effects. We make it a crime to torture animals, even though we acknowledge that the animals are not humans and have no rights. We criminalize such activity because it outrages our moral sensibilities. But I am very uncomfortable with this kind of thinking. 'Moral sensibilities' is such a dangerously vague phrase. If we accept this thinking, then why shouldn't we ban the killing of baby harp seals? They're just so cute, the thought of killing them outrages our moral sensibilities. Should we not also banish war? After all, war outrages the moral sensibilities of a great many people.

Of course, we could simply rely on majority votes to discriminate what distinguishes unacceptable outrages from acceptable outrages.

In general, I accept the principle that the majority should be able to legislate the public morality -- that, after all, is the function of legislation. But when that legislation conflicts with other legislation with an even stronger foundation, then I balk. There is an apparent conflict between restrictions on abortion and the legislation embodied in the Constitution. The Supreme Court attempted to resolve that conflict in Roe v. Wade. In Gonzales v Carhart, the court attempted to resolve a tiny subset of the overall issue. But their resolution strikes me as ham-handed. For now, it's the law of the land. But I think that the tensions created by this decision will require further effort before this issue is resolved.

[Lackawanna Blues]

"legislation embodied in the Constitution"

What kind of nonsense is this?

You mean "what Harry Blackmun said was embodied in the Constution and got six of his colleagues to agree was embodied in the Constitution but that lots and lots and lots of people think has not place whatsoever in the Constitution."

Eras you are doing something we call in law school assuming your conclusion. Don't.

[Frederick Hamilton]

Stone's post was hate speech and religously racist. If we were unlucky enough to have a President Stone, what kind of mind would be making executive decisions? Hateful? Racist? Anti-Catholic?

I am not Catholic, but it seems so easy for liberals to be anti-Catholic. In fact it seems a requirement to be a good American liberal. After all, Pope John Paul II and Pope Benedict XVI, were and are not loved by American liberals. They were/are pro-life at all levels: anti death penalty, anti abortion, anti birth control so as to not allow a life to begin, et al. But true to their culture of life beliefs.

Liberal truths allow for "enlightened" thinkers like Stone to engage in anti-Catholic hate speech. Too bad. But free speech is free speech. So he gets to spew his hate. One could argue this is simply another manisfestation of Stone not understanding free speech if it tapped him on the shoulder (re: FAIR v Rumsfeld, 8-0 ).

[Erasmussimo]

Mr. Hamilton, once again your comments are completely at variance with reality. You claim that it constitutes hate speech and was "religiously racist". I went back and re-read Mr. Stone's post. Don't you think you are going way overboard? If not, please identify the text that you find so reprehensible. I suspect that you'll have only some hand-waving vagaries to offer. Please, let's get specific -- post a quotation from Mr. Stone's post and explain why it's so reprehensible.

[Frederick Hamilton]

All five justices in the majority in Gonzales are Catholic. The four justices who are either Protestant or Jewish all voted in accord with settled precedent. It is mortifying to have to point this out. But it is too obvious, and too telling, to ignore.

By making this judgment, these justices have failed to respect the fundamental difference between religious belief and morality.

The five justices in the majority in Gonzales have put at risk the health of women who suffer from heart disease, uterine scarring, bleeding disorders, compromised immune systems, and certain pregnancy-related conditions, such as placenta previa and accreta, as well as those women carrying fetuses with certain abnormalities, such as severe hydocephalus. (the Catholics)

Those three posts of Stone sound pretty hateful of Catholics and religously racist to me.

[Erasmussimo]

Mr. Hamilton, I believe you have the causality backwards. Mr. Stone does not assert that the Justices are Catholic and therefore their opinion is faulty; he argues quite clearly his claim that the opinion is faulty, and then speculates that their Catholic faith influenced their decision. I generally dismiss speculation as to the true reasons behind odd behaviors, but in this case there is some justification in such speculation -- the majority opinion makes no sense. It is therefore reasonable to speculate on some factor that would explain this otherwise inexplicable behavior. Mr. Stone was offering one hypothesis that is plausible, but I found his hypothesis discomfiting. All in all, I would rank Mr. Stone's speculation as akin to farting at the dinner table -- a terribly embarrassing mistake but not something that would lead me to rank him in the same class with the Ku Klux Klan or the Black Panthers.

[isabel pietri]

The legislation, (not only this country's, but the world's) was written long ago and given to a bearded guy named Moses. That was the original legislation. Everything else came after. Later on, all was changed/ altered (even butchered).
Some day we'll have a legislation that will go against the original one. That will be a very DARK, SAD day.

[Erasmussimo]

Ms. Pietri, I believe that the concept of law predates Moses. And the first 3 or 4 commandments (depending upon your counting system) are definitely something we DON'T want in American law.

[Frederick Hamilton]

OK, lets reduce the Supreme Court decision to what it really said: it held that there is no constitutional right to kill a baby by crushing its skull while delivering it. That was their ruling. Some will say the Constitution is silent on killing babies by crushing their skulls before deliviering the infant. It's that fickle penumbra concept again. Only Catholics steeped in mysticism could see the penumbra. Good for them.

[BAC]

Prof. Garnett provides much too tepid a response to Stone's dispicable post.

Then again, maybe we should have a Prof. Stone litmus test for the Supreme Court. The test would be one question: Are you a practicing Catholic? An affirmative answer makes you inelligible for the Supreme Court.

Stone is an anti-religionist who seeks to warp the establishment clause into a modern-day Jim Crow statute to exclude believers from political debate.

[Erasmussimo]

Mr. Hamilton, you equate the logical foundations of Roe v Wade with those for Gonzales v Carhart. I find that equation silly. Yes, there are substantial arguments against Roe v Wade. But while Roe v Wade is debatable, Gonzales v Carhart is just nonsense. The logic used is all over the map. Equating these two opinions for logical content is an act of prejudice, not analysis.

Mr. BAC, your suggested litmus test is belied by the logic of Mr. Stone's case. He did not conclude that Catholics made bad justices. And to call his post despicable is an act of hysteria. Please, calm yourself!

[BAC]

No thanks on the calming myself Eras.

"Dispicable" precisely describes Stone's assertion that some of the most brilliant jurists of our generation are seeking to foist their religion on others.

Also, Roe is nonsense. Even Ruth B. has abandoned its laughable reasoning at this point.

[Frederick Hamilton]

Eras,
Let me get this straight. Roe v Wade was based on logical foundations. Interesting. Most (yes most) constitutional scholars (even liberal ones) think Roe v Wade was a constitutional joke. Very weak legal thinking at best.

As to Gonzales v Carhart, it certainly was serious and not silly to the Supremes who gave it cert. Their decision was serious and not silly in their decision making. It is so close to the actual decision that it will take a few years for legal scholars to arrive at a reasoned analysis.

Legal scholars now know Roe v Wade was a bad example of legal scholarship. We'll just have to wait and see on Gonzales v Carhart.

But at least they determined that crushing a baby's skull before birth was an abhorent and unconstitutional idea.

Yes, you think the 5 justices were prejudiced, I understand that. Most Americans are prejudiced in the same way. I know I am. When it comes to killing babies on their way down the birth canal, that kind of prejudice sits well with all but the most morally challenged. So be it.

Also, all those who call for Stone to appologize to Catholics are correct. There is a new movie in the works: Stone the Barbarian. He probably needs to pump some iron to be comfortable in the Terminators role.

[BAC]

Agree with FH above completely.

I would add that although Carhart makes more sense than Roe, its reasoning is still weak. But this weakness arises from its adherence to Casey as precedent, not from some moral position or intellectual weakness of the Court's majority.

Opinions like Casey and Roe have caused our abortion jurisprudence to turn on issues like whether dismembering a fetus or sucking out its brains poses more risk to a mother. At least Carhart is a step towards some rationality.