Thursday, March 31, 2005

More prayers

Please pray for the Pope and for peace for him, as he appears to be deteriorating :(

God bless Terri

After two weeks of slowly starving to death -- two weeks after she was said by some to be dead already -- Terri Schiavo has just passed away. Rest in peace.

Ready for his close-up

Jeremy Blachman links to the lyrics of the Harvard Law parody show -- "Finding Nemo Contributorily Negligent" -- he contributed to this year. Though I know these aren't just his, still, like most all of his song parodies (scroll down), they're frequently laugh-out-loud, including one that's an ode to Westlaw to the tune of "Hey Ya." Some samples:

To the tune of "Under the Sea":


To the tune of "Hit Me, Baby, One More Time":



The other news from Jeremy is that thanks to his blogging and an article in the NYT, he's gotten a bona fide book deal. That's great news for him :) Jeremy was the first law school blogger I read because his writing was so consistently good. It's cool to see that talent being rewarded.

Hello, hello

Nice write-up in the Times of U2's opening concert date for their Vertigo tour. Definitely sounds like fun:

U2 is not, to put it mildly, the kind of band that seems sheepish about its own popularity, and so tonight's concert didn't aim to surprise or confuse or tease the audience. This was an intensely satisfying performance by a band that has figured out what it does best and seems content to do it.

Monday, March 28, 2005

The pope and liberal fallacies

The WaPo gives some op-ed space today to a self-professed liberal Catholic who, while she likes the papacy and some of recent teachings from John Paul II (and give her credit for being pro-life), thinks the Church needs to reform on -- wait for it -- women, sex, divorce and homosexuality. It's almost not worth challenging the author, Sidney Callahan, since her objections are so familiar and unfortunately ill-informed, but I think it matters precisely for those reasons. Too many people, Westerners in particular, seem to believe today that the Church only teaches what she does because of the pernicious authoritarian influence of John Paul II, not because any writings and teachings he has made are drawn from and expound on about 2,000 years of Tradition, Scripture and natural law. The Church is not going to undergo radical theological changes as soon as a new pope is elected, not only because the office is larger than a single man, but also because as we believe the deposit of faith is protected by the Holy Spirit against corruption. (Cf. Mt 16:18.) Right then, on to the objections:

Yet many Catholic leaders still seem caught in the bind of underestimating the positive power of sexuality for healing and growth and overestimating the moral and theological significance of gender. In their eyes, women are essentially different in nature from men and thereby ineligible for ordination. Arguments over birth control and homosexual activity turn on questions of how sex relates to love and procreation, the relationship between lovemaking and babymaking.

In this impasse, it would be a great move for the next pope to call for consultations with married and divorced Catholics, women theologians, homosexuals and celibate priests, nuns and monks to try to forge a consensus on these contested issues. If a pope could encourage agreement, many changes could appear, if not in the next decade, then surely sometime in this century.

I'm not sure why the Church needs to think more about sexuality's potential for "healing and growth," unless Ms. Callahan intends those considerations to allow for a more expansive view of the contexts in which sexual intimacy is appropriate. That's what I would tend to suspect, at any rate: if we think sexuality is about "healing and growth," then maybe it would encompass homosexual sexual activity or something. But if that's what she means, it's going to be incompatible with right understandings of the moral and theological significance of gender, as Ms. Callahan intuits. In fact, women are essentially different in nature from men; that's the way God made us. We are equal in dignity in God's sight and so should be treated with equal respect in this world, but that doesn't mean that we aren't different or complementary, or that we don't have unique capacities, strengths, and roles to play. As it relates to ordination, one must consider the nature of the sacraments: they involve visible signs of invisible grace. Priests stand in the role of Christ to his Church, so in the role of bridegroom to bride. They are representative figures of Christ, who chose to be a man, in consecrating the Eucharist, in the laying of hands on others, and in ministry, as they are in the order of Melchizedek -- fatherhood and priesthood are linked throughout Scripture. (And as a last note, the teaching on men's ordination has been formally recognized as an infallible teaching; the Church does not have authority to ordain women where Christ himself did not, even though he always esteemed women greatly and became man by a woman.)

As relates to birth control and homosexuality, arguments turn on more than just "questions of how sex relates to love and procreation." They turn on even more fundamental questions of what the theological meanings of sex are and how they are rightly realized. Sex, in the Catholic understanding derived from Scripture, tradition, and the natural law, consists of two inseparable aspects: the unitive and the procreative. True unity can exist only where two people are able to fully and completely give of themselves, and so such unity can only truly be found in marriage, where there has been a promise of lifelong fidelity. Inasmuch as marriage is a sacrament as well (a visible signifying of invisible grace), the union and love of husband and wife are like that of Christ and the Church. As God ordained and Christ affirmed, we were made male and female for a reason, and in marriage the two can become in a very real sense one flesh; at the same time Christ reiterated this teaching, he also affirmed that divorce is not ordinarily permissible. Thus to engage in sexual union outside of marriage, outside of the solemn vows of lifelong fidelity and love, is to deny an integral aspect of sexuality. But procreation is also integral to sexual union both by the nature of the act and by God's design. Fertility is a blessing from God and openness to life reflects an openness to God's directive to "be fruitful" and to the way we can participate in creation. When contraception is used in marriage, it denies the procreative aspect of sex by artificially closing off the possibility of conception, and it also acts against the unitive aspect because it conveys the message that each spouse is not willing to give of him or herself completely: they will give of themselves only to the extent that they do not share their fertility. (Homosexual sexual acts can never be open to life by their very nature and cannot be unitive in the sense that Scripture teaches.) These two aspects of sexual union counsel quite clearly that sex is rightly reserved only to marriage of a man and a woman, and should not artificially cut off the possibility of conception.

Ms. Callahan's proposed consultations may sound great to her, but sound rather suspect to me: is truth on contested fundamental issues to be determined by committee and consensus, or does it exist independently? It's fine to talk about contested issues, especially with regard to ones that do not have only one answer theologically speaking (though there are good arguments for priestly celibacy, that is practice and not doctrine, for instance). But generally discussion on fundamental issues should be directed to discern what truly accords with the faith, not what will satisfy the most people in a committee. In fact, with regard to contraception, there were lay committees formed after Vatican II for consultation, and on my understanding many members were quite prepared to allow for contraception, but Pope Paul VI correctly recognized its intrinsic wrongness and stood firm, in Humanae Vitae, in teaching what was in accordance with the faith (partly as described above). Ms. Callahan seems more interested in achieving a result in accordance with her own values, not a result in accordance with what is theologically correct. She even admits that "[r]evising the rules on marriage and divorce, contraception and homosexuality would take more theological development and time." Well, it certainly would take "theological development" inasmuch as "development" means "radical, unscriptural revisionism." But no amount of time is going to change what the Bible and tradition counsel.

Ms. Callahan is ultimately concerned with wanting to "ameliorate the church's oppressive, exclusive male club character." If she can't appreciate the rich roles that women have to play, and have always played, in the Church (starting, most obviously, with a woman being the chosen mother of God), then I think unfortunately it is less likely to be the fault of the Church, which respects women as individuals and for the unique gifts we possess by our God-given natures, than of her own inability to see it. But if she looks to Scripture and to history, I think she could come to better understand why one new pope won't be bringing radical change to the Church with regard to her "dream list" of reforms, because enduring truths do not shift with the age.

Saturday, March 26, 2005

The crosses we bear

Yesterday was cold, gray and rainy all day, befitting Good Friday, I thought. During the Liturgy of the Word (full Mass is never said on this day) I listened to the reading from Isaiah and thought about the unlikely nature of the way in which we were supposed to be saved from the consequences of sin: by a King who was utterly nondescript, whose own followers handed him over to the authorities, who was not exalted in this world but who died a criminal's death.

There was in him no stately bearing to make us look at him,
nor appearance that would attract us to him.
He was spurned and avoided by people,
a man of suffering, accustomed to infirmity,
one of those from whom people hide their faces,
spurned, and we held him in no esteem.

Yet it was our infirmities that he bore,
our sufferings that he endured,
while we thought of him as stricken,
as one smitten by God and afflicted.
But he was pierced for our offenses,
crushed for our sins;
upon him was the chastisement that makes us whole,
by his stripes we were healed.
We had all gone astray like sheep,
each following his own way;
but the LORD laid upon him
the guilt of us all . . .

Because of his affliction
he shall see the light in fullness of days;
through his suffering, my servant shall justify many,
and their guilt he shall bear.
Therefore I will give him his portion among the great,
and he shall divide the spoils with the mighty,
because he surrendered himself to death
and was counted among the wicked;
and he shall take away the sins of many,
and win pardon for their offenses.

In light of the truth that Christ died for all of us, and that he experienced human suffering along with us and for us, it seems that for our part we should value the lives we are given and, accordingly, care also for the less fortunate among us. We should love, as he loved us. He died for all of us, so it is not for us to choose which are worthy of life by devaluing, even killing, some. These thoughts kind of jumble together, but this week I've had a lot of occasion to think about what kind of life we value in our culture, and about the ongoing struggle against a utilitarian view of human life. We all have intrinsic worth because we are human, not because another person deems our life convenient or meaningful. Our worth is not diminished if our capacities are diminished -- just because the quality of life of some may not be very high, and may involve very real suffering, still it is not for us to make the decision to end life.

I don't know why people have to suffer, but it seems most of us do in some ways, some more devastating than others. I think about a family friend whose husband went into the hospital last year feeling ill and had passed away within three days, leaving behind his wife and three children, one an infant. I think about people close to me who have suffered terrible psychological trauma, sudden physical impairment, and mental illness, or friends who have lost family in accidents. I think about the family friends who just lost their beautiful baby boy at five months to a fatal genetic illness, and the friends with a little boy with Downs who's come close to death many times because of a weak heart and lives daily with a feeding tube because he can't swallow on his own. Day by day and year by year we've seen Pope John Paul II suffer with Parkinson's, the disease robbing a once-active man of his physical vitality. Anyone can watch a random group of people and notice how many take care with their steps because just walking is a daily challenge.

So people suffer; we're pretty frail creatures, after all. But what do we do about it? We're often desperate to maintain the illusion that we can function independently and we're uncomfortable with the idea of living life without autonomy. It's understandable, it's human -- no one likes to think about becoming disabled or incapacitated by disease, and we like to think we can control our lives. But in suffering, which Jesus himself experienced to a greater degree than any other man, we often come instead to recognize our dependence on God and on others: and the idea that we can make it on our own seems groundless. Amy Welborn writes:

God could have made us angels who do not grow, learn, suffer and die, but He didn't. For some reason, we live on earth, for some reason we have these bodies, and because we have them...they must matter. What we do with them matters. How we live in them, how we accept their limitations...matters.

But of course, we think we would rather be angels. So, we try, we try very hard, with always, invariably, disastrous results (Read Walker Percy for this - Love in the Ruins and the Thanatos Syndrome). It never works. We are always the worse for it - not for trying to work with God in doing His will, and preaching and living the Good News, but in trying to be God and labor under the illusion that the goal of life is to live it without suffering, rather than looking back up at that Cross and seeing the real point: the suffering has meaning, the limits teach us, form us, and our call is to love through it.

Some people seem to want Terri Schiavo to die not because they know for certain that she would have wanted it (an unclear assertion) but because they look at her, profoundly disabled, and see a life not worth living. They'd probably look at the Downs baby I know and wonder why he wasn't just aborted so his parents could save themselves the heartache -- and in fact, so many of those children are aborted because of their parents' fear or much-less-understandable desire for "genetically perfect" children only. They'd look at Alzheimers patients or people with terminal cancer or dementia and wonder why not put them out of their misery by ending their lives -- instead of seeking first to ease pain, coming to see the presence of grace, and seeking always to show love by caring even if it inconveniences or makes others uncomfortable. The worth of individual human beings simply isn't dependent on the ability to reason or to live independently, but rather it comes from God. And if we struggle to find meaning in suffering, still we must remember that no suffering is as great as that endured by Christ, who suffered for all our sakes and bore the heaviest cross of all; and no suffering, anticipated or real, can justify a human decision to end life prematurely, for to do so is to deny the role of God and of love in our lives.

Tuesday, March 22, 2005

Winning the battle . . .

Over the past two days, Chris and I have posted and responded (I also wrote in comments on his first post) about the Terri Schiavo case and the validity of Congressional actions intended both to give Terri a shot at a de novo, fair hearing in federal court and to hopefully save her life. Chris thinks I'm a hypocrite; I, of course, disagree, setting out my responses here. As I wrote in comments:

As to "laying bare my results-oriented approach to these legal questions" -- hardly. I've stated many times before that my primary concern is with adherence to process, not results. If I were to lose in the public square on marriage or abortion, I'd be upset, but I'd accept it as long as I knew I had had a fair opportunity to have my say (by voting on referendums, electing representatives, and so forth). When judges summarily remove those issues -- which are matters of policy -- from the public square by announcing they've been subsumed by constitutional law, when the Constitution has nothing to say on the matter, that violates separation of powers and undermines the legitimacy of our entire rule of law -- because people's confidence in the justice of the system is eroded ("I didn't have a say"). Do I care about the results? Of course. But I care much more about the integrity of the legal process than about the results, because that process has to come first. And in fact, that marks a further point of consistency with my view of the Schiavo legislation -- Terri Schiavo didn't receive due process of law in her case, such that it was apparent injustice was being done; Congress provided for a fairer process by removing the case to federal court. They didn't prescribe any specific result.

Tony Rickey, who amusingly says that Chris and I are like "an old married couple," (ha) thinks I win on the process argument, because Chris is making a "false equivalency" in his charges of hypocrisy. It's the same false equivalency being made across the blogosphere and on the news today in other liberal/conservative debates, but ultimately it looks like Judge Whittemore, in his opinion last night, has given lie to liberal charges and helped prove conservatives' consistency here: Congress didn't make the decision in the Schiavo case, the courts did. And what the district court decided was that, based on its finding that Terri's parents were unlikely to prevail on the merits, Terri can continue to be starved to death.

So, congratulations to me: at least in Tony's estimation, I won the battle to demonstrate consistency in my separation-of-powers views. But the larger fight to save a disabled woman's life -- the "result" I was supposedly willing to sacrifice any legal principles to obtain -- has been lost. And even assuming that's the procedurally correct outcome, it's a terribly sad result.

CORRECTION: Chris emails to say he "never wrote about [me] in regards to congressional actions about jurisdiction." He's right; I apologize. I still believe that the charge that I take a "results-oriented approach to these legal questions" is incorrect, though. Fair process must exist first to have a valid rule of law, and while in many celebrated court actions today I think process is compromised because of judges exercising powers not given them, I don't think Congress exceeded its bounds in exercising its powers in this case. More responses later as called for ... I'll be on the road all day tomorrow.

La noche del lado oscuro

Random note: Last night I watched "Attack of the Clones" with the Spanish dubbing on. I have to say, even though I like all the various accents of English in the regular version (particularly the British English -- yes, I have a minor crush on Ewan McGregor), the love story sounds *way* better in Spanish. Just in case anyone wants to try to improve those scenes (with alternately too-colloquial and too-stilted dialogue) on further viewing.

Another random note in re my minor crush on Ewan McGregor: Why would you hire him to do an American voice in an animated film ("Robots")? He's done American characters and accents in a few other films (like "Big Fish"), but it seems to me that when you hire voice actors you do it because they have distinctive voices in some way. So if you want your main robot character to have a fun Scottish accent, hire McGregor. But if you want a generic American voice (with 1950s gee-whiz qualities and everything), why hire a Scot? Just one of my many quibbles with that movie.

MSM discovers ASCR

That is, "mainstream media discovers adult stem cell research." Well, in a manner of speaking. Sort of. It's still really important that we continue to kill embryos for their cells, of course. But shockingly, there does appear to be something to this *alternative* research. To wit:

CNN reports on a four-year Australian study, just published in a peer-reviewed journal, demonstrating that adult stem cells taken from "the olfactory mucosa" (that is, the nose) can be coaxed into becoming almost any other kind of cell, including heart, kidney, muscle, and even brain cells. Along with being malleable and differentiable (supposedly the best quality of embryonic stem cells), adult stem cells also present less likelihood of tumor formation owing to uncontrollable growth, are less likely to be rejected by a patient (because they can come from a patient's own cells), and can be relatively easily harvested, and without and moral or ethical dilemmas. All of this has been known for some time (contrary to CNN's assertion that "until now it has been thought that adult stem cells could only develop into different cell types of their own tissue"), as ASCR studies and isolated treatments have found scattered but real successes in human patients, but as the research is ongoing it is very promising to see this new study. CNN writes that the Australian study "could potentially end the contentious debate over embryonic research" -- wouldn't that be wonderful? Let's see if CNN can, in the future, report accurately (not just the erroneous standard boilerplate) about ESCR and also give some prominence to successes with ASCR.

Meanwhile, in further promising news, Forbes reports on another just-published study, this one from Norway. It shows that adult stem cells, from bone marrow, can apparently be turned into brain cells with functioning neurons.

"We found that bone marrow stem cells did make neurons in the environment of the regenerating embryonic [chick] spinal cord," said senior researcher Joel C. Glover, of the Institute of Basic Medical Science at the University of Oslo, in Norway. "This happened at a much higher rate than had been observed in any other experimental system," he added.

Research like this could very possibly be used in treatment of Alzheimers or spinal-cord injury patients one day -- again, with no ethical problems associated with embryonic stem cell research. It's very encouraging to hear about.

With $50 and a lot of faith

The Catholic Sentinel profiles one Fr. Taaffe, a 78-year-old priest who's helped over 1000 young women over the past 30 years at his Oregon crisis pregnancy center, St. Brigid House.

St. Brigid opened in 1975 in a rented house in Keizer, where Father Taaffe was pastor of St. Edward Parish. On the opening day, he assured neighbors that the new house would be quiet and peaceful. But the first night a girl went into labor, and emergency vehicles screamed to the site at 3 a.m.

The work has hardly let up since . . . .

The best thing the homes do is offer the girls some unconditional love, says Danna Jones, who works at St. Brigid’s. Each Mother’s Day, Jones and other staff get calls from girls who have moved on in life but will never forget. “I never question whether what I am doing will have an effect,” says Jones.

“This work goes with my beliefs that life is sacred and that all lives should be respected and regarded very highly,” says Susan Roberts, Father Taaffe’s administrative assistant for 17 years. “Most of the girls have not had that and we try to give it to them.”

Father Taaffe says he would be grateful if he had a small part in saving even one child -- but it seems he has done that and much more in his life's ministry, and it's clear that the children, and their mothers, are grateful.

Monday, March 21, 2005

Washington "stars"

A couple of links: Here's an interesting profile of the Secretary of State, and summary of her actions both in the bureaucracy and in her travels over the past two months, in TIME this week.

Also, the New Yorker does an interview with Margaret Talbot on Justice Scalia (she wrote an article about him in the magazine, apparently, but that article's not online). It's not a bad read -- I think she characterizes his philosophy pretty well, and though she's not an uncritical fan, she appreciates a lot of his jurisprudence, and the fact that he is a "charming guy with a wicked sense of humor."

Only 35 songs -- it won't take long

Thus joked Bono about U2's performance at the Rock and Roll Hall of Fame induction ceremony -- highlights aired Saturday night on VH1, which pretty well slighted the other inductees although U2's little concert was admittedly cool. (I don't think the Hall of Fame slighted the other inductees, just VH1.) Watching the performance made me want to grumble again about the fact that their tour date this fall at the MCI Center in D.C. sold out in less than an hour last week. Why not play at RFK (or whatever it's called now -- hey, I still call the San Francisco park Candlestick)? Oh well. I guess my only concert experience of U2 will continue to be their playing at Notre Dame my senior year. Which was one of the best highlights of my whole time there :D

Jon Stewart reported on U2 and other Irish newsmakers in a "Bono Week in Review" segment last Thursday -- he wasn't as funny as he can be, but was still entertaining (and there's no doubt Bono has a monstrous ego).

Miserere nobis

Yesterday was Palm Sunday, marking the beginning of Holy Week for Western Christians. As we enter into a week of contemplation on Christ's suffering and death for our sake, and then his resurrection, I thought this was a nice reflection on Christ's humility and love throughout his life but especially at Easter. One of the single most striking things about his sacrifice for us, which comes through over and over in the gospel narratives of the passion (and which is repeatedly emphasized in Mel Gibson's movie of last year), is that all of it was undertaken voluntarily. As he said upon his arrest at Gethsemane, "Do you think that I cannot appeal to My Father, and He will at once put at My disposal more than twelve legions of angels?" But though he could have avoided all of the terrible, humiliating suffering and death, he accepted it all out of perfect obedience to God and perfect love for humanity -- and all we have to do to receive his gift to us is accept it.

From the courts, to the courts

Good news from Capitol Hill: Congress has passed, and the president signed, a bill giving jurisdiction for a federal district court to hear Terri Schiavo's case de novo. The act (text here) doesn't decide the facts in the Schiavo case -- that is, the legislature isn't usurping judicial authority to hear cases by resolving this case -- but does set federal court jurisdiction parameters, which is well within the recognized constitutional powers of Congress.

The nature of the action Congress took helps address Chris's concern that I am being "inconsistent" in supporting yesterday's action:

The problem could be seen as, to put it in terms IrishLaw and others will understand, "adjudicating from the legislature." Sen. Majority Leader Bill Frist and others are taking on the resolution of an individual case -- the judicial function -- as their own role.

The district court could eventually rule that Terri Schiavo should, in fact, die in accordance with her husband's wishes (that actually presents some irony, in that it will still be a court deciding this case). But first, it will now be able to hear the case's federal law claims anew, with someone who does not have a significant conflict of interest representing Terri, and without being bound to the trial court's original findings of fact (many of which are seriously questionable). There has been a lot of talk about the fact that many courts and many different judges have already ruled on this issue, but given that most appellate courts have restrictive standards of review or discretion to hear appeals at all (and with good reason, of course), no one has been able to effectively challenge the injustice being done -- an innocent, disabled woman who isn't dying being caused to die without independent representation on her behalf -- in this case.

What conservatives -- myself included -- are frequently upset about with regard to "legislating from the bench" is judges going outside of their authority to reasonably interpret the existing law in order to enact their own policy preferences. In the most egregious cases, the Supreme Court has simply removed from the public, on tenuous or flat-out nonexistent constitutional grounds (constructions and expansions from emanations from penumbras), the ability to decide important policy issues like abortion and morals laws. What Congress and the president have done in the Schiavo case does not seem to me to be an analogous encroachment on the judiciary; rather, they (popularly elected representatives) have acted in consideration of public petitioning (which is certainly a valid theory of how representatives should act) and within their designated powers (under Art. III) to set federal lower court jurisdiction. If Congress were to haul civil parties and their attorneys before a subcommittee not for informational hearing but to conduct a trial, or if it were to try to pass legislation directly overruling a judicial decision on the merits (as opposed to changing the laws that a decision may have been based on), then there would be better cause to complain about abrogation of the separation of powers here. And again, as to Professor Spindelman's worries about "what's to stop Congress from issuing subpoenas in every other case" (or passing individual laws), the answer is "the people," subject to constitutional constraints; that's as it should be.

As for wanting to protect the right to life -- which is explicitly protected by the Constitution to the extent that the state may not abrogate it without due process of law, which hasn't been followed here -- well, in that, I think I am quite consistent. There are appropriate circumstances in which to consider whether those being kept alive by extraordinary measures (like a respirator, not a feeding tube) should continue to be kept alive, or whether those with fatal degenerative diseases should be allowed to die (obviously a very difficult moral question, though I'm opposed to euthansia). The Terri Schiavo case isn't about any "right to die," though, since she isn't dying and it's questionable that she would even want to. Her parents care about her and care for her, and she is alive and innocent -- she deserves at least a fair chance to live.

Saturday, March 19, 2005

A very public death

I haven't been blogging about Terri Schiavo in the last few months because there are so many others who are passionately following the case. Now, however, it is even more of a national issue. Yesterday, Terri's feeding tube was removed by court order on a court-imposed deadline, and unless the U.S. Congress can act, she will die of starvation over the course of two weeks. That's right -- she won't die because she can't breathe on her own, or because she has a terminal illness, but because she won't be fed. There are so many issues here -- Fr. Rob Johansen does an excellent job laying them out here -- but some of the most 'interesting' (if one could look at the issue wholly dispassionately) are the separation of powers ones. In 2003, the same county judge, Greer, had set another deadline for Terri and her feeding tube was removed at that time, but the Florida legislature, reacting to public pressure and pleas from Terri's parents, passed emergency legislation that was signed by Jeb Bush to keep Terri alive. The act was later struck on separation-of-powers grounds by Florida courts, again clearing the way for Terri to be effectively killed by her husband (who's been living with another woman for years, has kids by the other woman, and has ordered almost all care and even basic medical tests and therapies be denied to Terri).

As the latest deadline approached, the president made his position known that he believes the presumption should be in favor of life in cases like Terri's. Florida senator Mel Martinez introduced narrow federal legislation to keep Terri alive; the House passed its own version but there wasn't agreement before both houses recessed. As a last-ditch effort, Senator Frist issued a subpoena for Terri for Monday, on the theory that to impede compliance with a congressional subpoena (say, by starving the deponent) is a crime. Judge Greer, who's denied pretty much every motion by Terri's parents lately, dismissed this effort as well. And it's his actions that are the most incredible here:

"I don't think legislative bodies or agencies have business in a court proceeding," Greer told a lawyer representing the House Committee on Government Reform during a hastily called teleconference. "The fact that you -- your committee -- decided to do something today doesn't create an emergency."

It creates an emergency if, in compliance with his order, the witness could be dead shortly. What chutzpah! (That might be a better word than 'activism' here.) I think, in contrast to the judge, that a state court judge, or any judge, seriously oversteps his bounds to disregard the expressed will of Congress not because it passed an unconstitutional law (not in this guy's purview to decide, anyway) but because he doesn't want it interfering with the execution of his decrees. Congress doesn't have to justify its action to Judge Greer, but apparently, in his measured judgment, he has the authority to demand and reject justification. Whence comes that authority? And what's his emergency in needing to adhere to a deadline he set for Terri's death?

Well, several law professors agree with him, anyway: but that's not a big surprise. OSU professor Marc Spindelman is quoted by the Chicago Tribune today on the matter expressing concern that Congress is going too far in trying to save an innocent woman's life:

Marc Spindelman, a visiting professor of law at Georgetown University who specializes in bioethics, said the message sent by the subpoenas is chilling.

"What's next? If Congress doesn't like it, are they going to subpoena individual women to testify before Congress in order to keep them from exercising their rights to an abortion?" he said. "What about individuals who want to terminate a respirator? Is Congress going to bring them in and start asking them questions? Who couldn't be dissuaded from exercising their constitutional rights in certain ways in the face of a federal subpoena? The spectacle of this--it's unbelievable."

It's interesting, first, that the Trib found a bioethics professor to opine not on the ethics of Terri Schiavo's situation, but on the congressional-action aspect. I would have hoped that Professor Spindelman would instead take the opportunity to question the ethics of causing a brain-damaged but not terminally ill woman to die, on the say-so of her husband (who clearly doesn't have her best interests at stake) and her husband's rabid right-to-die attorney (present here in a case where Terri wouldn't die at all as long as she was fed, and where it's highly questionable that she would want to die). Perhaps Prof. Spindelman did say these things and the Trib just didn't quote him on it, but I doubt it. Attorney and commentator Mark Levin, over at NRO, puts his finger on what was probably the reason why as he gives the reasonable answer to Prof. Spindelman:

And what's to stop Congress from calling women who might seek abortions? Well, what's to stop Congress from doing anything stupid or outrageous? We, the people. Even those who oppose abortion would likely react very negatively to such a spectacle. Congress has called witnessed who've had abortions who regret having had the procedure and others who've argued against prohibiting, for instance, partial birth abortion. This has been done without exploitation or abuse. But the question the critics of the House refuse to ask and answer is who or what can check a judiciary that, more and more, is making policy decisions? If not Congress, than no one. And in many cases, I expect that's perfectly fine by them.

Indeed, Prof. Spindelman was one of those commentators who thought not that Lawrence v. Texas was the latest in a line of judicial usurpations of legislative policy-making power, but that it didn't go far enough (being as it was too "uncritical" in its "solicitude for heterosexuality," and not considering the matter of non-consensual gay sex even though that wasn't at issue). In the case of Terri Schiavo, Spindelman's comments seem ironic in light of the fact that he is a self-styled women's rights advocate and once wrote that "states' rights have been a roadblock to federal efforts designed to address age and disability discrimination." He seems to have no solicitude for federal efforts here to address a clear instance where a disabled woman's rights are being violated -- but then again, it appears that he cares more about abortion and euthansia "rights" than the deaths of the innocents that occur in each of those situations.

I'm picking on Professor Spindelman, but of course he's far from the only one who is happy to reject the views (in laws or expressed powers) of the legislative or executive branches of government when the judiciary is delivering desired results to the contrary. I hope Congress is able to stop the court-ordered death of Terri Schiavo; it hasn't given up yet. As Peggy Noonan notes, Republicans in particular may pay a political price if they don't do everything they can, but this case is about much more than politics. It's about the culture of life and the role that the courts keep on playing in promoting an opposite culture of death.

Thursday, March 17, 2005

Some say the devil is dead

Happy St. Patrick's Day! This is a day it is good to be Irish (notwithstanding the laughably pitiful performance of a certain basketball team in this March Madness season). (EDIT: Okay, more tempered view here.) In any event, this day usually makes me want to be back at ND, and since Irish songs are often all about nostalgia anyway, I think that's justified. My junior year on St. Patrick's Day I was doing a spring break trip from my semester in London, so I was with a group of friends in Austria. They weren't really celebrating, but we found a pub anyway in Salzburg and my roommate drank an "Irish flag" -- I still don't know what was in it, but it looked fun (says the girl who rarely drinks :).

Derbyshire posted a letter yesterday from a writer whose daughter's school was apparently to mark "Green Day" at school today. Is that like the nameless holiday of "December 25" that oh-so-interestingly happens to fall on Christmas? It is possible that the school was just suggesting that students wear green, and wasn't trying to stamp out the mention of a saint, but if it is an example of political correctness then I say, give me a break. And lighten up -- I should think it's okay to wear green and mention St. Patrick in a non-establishment kind of way. For those who are interested in the saint himself, though, Steve posts the prayer of St. Patrick over at SA. Cheers, and Go Irish.

Wednesday, March 16, 2005

Light from the darkness

A "miracle baby" who beat the odds just to be born after his mother was severely beaten and rendered comatose is now a normal one-year-old. "God delivered him," said the baby's grandmother, and while the loss of her daughter must hurt every day, the baby -- Emmanuel -- really is a miracle.

A parent's right to know

In an article called "Pitfalls of the law," Miami Herald reporter Mary Ellen Klas writes about Florida's new parental notification amendment for minors. Under the amendment, approved by Florida voters last fall but still to be spelled out in statute by the legislature, pregnant minors trying to obtain an abortion will be required to notify their parents, subject only to a judicial bypass measure that is required in such statutes. The article is strange, though, since Klas appears to think that the law could lead to abusive situations, so she talks about fearful teenagers and talks to the ACLU and Planned Parenthood -- but the two women she interviews for her story both kept their children, and their problems arose more when they told their parents they were pregnant, not that they wanted abortions. The first woman, Kya McElroy, had an abusive mother who beat her when she found out her daughter was having sex, and then got upset and went "ballistic" when, months later, Kya told her she was four months pregnant. But Kya didn't want an abortion; her mother did. Kya was able to move in with an aunt and eventually gave birth to a son she now considers "the light of her life."

The second girl, Sheila Valdomar, actually tried using the morning-after pill at first, which didn't work, and then ended up talking to a crisis pregnancy center. As for many women, the sonogram she got at eight weeks changed her heart and she decided to keep the child at least to give it up for adoption. It was then that she talked to her parents, armed with resources for pregnant women suggested by the center counselor, and ultimately she opted to keep her baby, who's now five months old.

Both of these stories have positive outcomes and are very interesting, but in neither case was the woman faced with a situation of notifying her parents about wanting to obtain an abortion; thus, I wonder what the point is of their inclusion in a story about parental notification for abortion. In any event, I think the law in Florida is a positive thing; even though situations may be difficult, parents have a right to know about something so serious as abortions that their own children are trying to obtain. And perhaps by a law that requires this type of notification only in one circumstance, it might encourage more communication between parents and teens about pregnancy and sex in general.

After abortion, a four-course meal

Here's an extremely disturbing (but aren't they all?) story from an anonymous Canadian university student who had an abortion apparently just last week. The story's header says "she was encouraged to write about her experience as part of the healing process," part of "saying goodbye to baby." (!!) The story is not entirely coherent, and reveals an emotionally confused woman who does not sound at all sure about what she's done.

Once, "contrary to all logic," the student became pregnant (contrary to what logic? doesn't logic say that pregnancy sometimes follows from sex?), she realized that despite being raised pro-choice, she wasn't entirely sure about her decision: "At night, I'd stare at the ceiling and talk to my future kid, apologizing for what I might do." A nurse at an abortion clinic told her that her child was only the size of a pinprick, which at the six weeks' time she aborted was not true; the embryo is an inch or more long at that point, with a beating heart and little eye buds, a spinal cord, bones, a nose and mouth formed, and even brain waves. Still, even the lie did not appear to make this student feel better -- she was "sobbing" throughout the phone call. The abortion clinic nurse was entirely unsympathetic, saying, "If you can't stop crying, call the hospital. They do general anaesthetic." Gee, wow. How about suggesting that the hysterical girl on the phone with you call a crisis pregnancy center or counselor instead -- how about taking the sobbing as an indication that maybe she doesn't really want an abortion? But abortion clinic workers aren't really about "choice," in the end. The student eventually made an appointment at the hospital, noticing all of the women with children and newborns, and then:

Doctors and nurses swarmed around a table in the middle with lights over it.

"No, no, no," I thought, trying to back out of the room.

The nurse had me lie down. One person put a blanket over my legs, someone else wrapped a blood pressure cuff around my arm.

Above my head, someone pulled an oxygen mask on me and the anaesthesiologist tried to stick a needle in my hand. I stared at the ceiling and tried not to think that this was a mistake.

When she woke up, she went out with a friend for a four-course meal. Apparently she feels much better physically, but now, she's having dreams: "I'd be standing in the moonlight in a forest. My child was at my feet. There was no noise, but she was crying. I could move, but chose not to." It's hard not to suspect these will turn into nightmares. Poor woman -- I don't see how writing about this experience will help her "healing process," as I think she is going to need much more help in the future. She knew instinctively that this was wrong, even considering adoption, but no one was there to encourage her to make any other choice than abortion. Lord, have mercy.

Watching the watchers

The Massachusetts Catholic Conference has started a local (Mass.) ad campaign against the proposed embryonic stem cell research and cloning laws in the state. Sunday, the Globe did an 'Ad Watch' segment on it. The questions the Globe asks are "Is it accurate? Is it effective?" But it's worth looking to see whether the Globe's answers are themselves accurate.

Text: "Every human being was once an embryo, just as butterflies were once caterpillars. Cloning human beings is wrong. Some Massachusetts lawmakers are trying to promote somatic cell nuclear transfer, a scientific term for cloning. Say no to embryonic stem-cell research and human cloning. Say yes to good science, health, and life."

Is it accurate? The ad says that a human embryo is an early human life, the way a caterpillar develops into a butterfly. There is no agreement on when the first stages of life become a human being: It is a passionate disagreement that has fueled the abortion debate, and now the debate over human embryonic stem cells. But a human embryo is far more primitive than a caterpillar: It is a nearly formless ball of about 200 cells when scientists destroy it to create embryonic stem cells. And, unlike a caterpillar, it cannot survive on its own. Stem-cell researchers are not creating cloned ''human beings," as the ad suggests, but instead want to clone human cells. The legislation the ad targets would make it a crime to create a child through cloning.

Well, I'm not so sure the writer's assured statement that "there is no agreement" on when life begins is accurate. There is a clear biological moment when "the first stages of life become a human being" -- life begins when sperm joins with egg, creating a unique human genetic code and entity, and starts the cell division process that, unless stopped by intentional abortion or miscarriage (natural death before birth), will continue spontaneously and uninterrupted through till birth and on until natural death. There is no point after conception at which the human embryo/blastocyst/fetus/infant changes in substance, as the unique DNA code is present from the beginning and the self-generation process has begun. Any serious debate in abortion politics is on when it's nevertheless okay to still kill the developing human despite the fact that it is human life -- because even when it's a "formless ball," the cells still constitute the early stages of the human life that it is: and the Catholic ad is accurate that all of us living today started off as embryos. It's true that unlike caterpillars, embryos can't survive on their own; but insofar as the analogy is simply to liken early stages of development to each other, it's not that far off. Besides, how does independent ability to live relate to the humanness of the embryo, as the writer implies?

Next, embryonic stem cell researchers aren't making any real distinction between cloning just "human cells" and not "human beings," since it's my understanding that to obtain the embryonic stem cells, an embryo must be created and destroyed. (Otherwise we could just be working on the stem-cell "lines," like those authorized by President Bush, without needing to create new embryos from which to derive new cells -- but apparently we need lots more actual embryos to get the cells scientists want.) Finally, to the extent that "somatic cell nuclear transfer" is merely a euphemism for cloning, and embryos are human beings, then the Catholic ad is correct to say opposing this bill would be to oppose human cloning. The legislation does prohibit "procreative cloning" and says that "an embryo donated to medicine . . . shall not be transferred to a uterus" -- but reading the definition of "donated to medicine," it's not at all clear that cloned human embryos count as having been donated, since they were created at a later time -- and there's no prohibition in the statute on transferring cloned embryos to uteruses, or gestating them up to some point before birth. That's truly frightening.

Text: "Some say that without embryonic stem cells, we are depriving science of solutions to debilitating diseases. But after two decades of research, embryonic stem cells have not helped a single human being. And they come with a hefty price tag: They are only obtained by destroying a living human embryo. Meanwhile, adult stem cells have helped thousands of people, including patients with Parkinson's disease, spinal cord injury, sickle cell anemia, heart damage, and many other conditions. Science does not have to kill in order to cure."

Is it accurate? Although embryonic stem cells were discovered in mice two decades ago, human embryonic stem cells were not found until 1998, so the field is just beginning. Embryonic stem cells are not used in any medical treatments, and most scientists consider such treatments to be years away. The ad's implication that adult stem cells are being used to treat Parkinson's, spinal cord injury, and heart damage is misleading. In none of those cases are adult stem cells an accepted treatment. Early data from clinical trials suggest that adult stem cells may help treat the heart, but there are no published data from clinical trials establishing that adult stem cells are an effective treatment for Parkinson's and spinal cord injury. Adult stem cell medicine today consists mostly of bone marrow transplants used to cure cancers of the blood and rare genetic disorders.

So the writer does appear to agree, as the ad says, that embryonic stem cells haven't helped a single human being to date. But is it really "misleading" to say that adult stem cells have helped many people? There may not be clinical trials yet, but adult stem cells have been used to help treat many illnesses in clinical applications. Are they widely accepted treatments? Perhaps not yet -- but the ad doesn't make that claim. Even in downplaying adult stem cell treatments, however, the Globe's fact-checker still mentions that bone marrow transplants have helped "cure cancers of the blood and rare genetic disorders." That's no small thing.

Tuesday, March 15, 2005

Snake oil makes a comeback

In the backwoods type conditions that exist in Russia, the AP reports that unscrupulous doctors and clinicians -- even beauty salon cosmeticians! -- are pushing "stem-cell injections" as miracle cures to the desperately ill -- or, then again, just to those who want to look younger. It's against the law for unregulated stem cell treatments to be used on human patients, but that's not stopping dozens of get-rich-quick schemes from popping up and flourishing around Moscow; they promise to treat "everything from wrinkles to Parkinson's disease to impotence." Some "treatments" are particularly gruesome, but still come with their own testimonials:

Cellulite, a clinic in central Moscow, advertises injections of stem cells from aborted fetuses into thighs, buttocks and the stomach to help women get rid of cellulite and look younger. Yelena, a 37-year-old Moscow entrepreneur, says they worked for her.

I'm sure the supply of aborted fetuses is high in Russia -- the country has one of the highest abortion rates in the world -- but somehow I doubt the "stem cells" were legitimately obtained or legitimate.

Boilerplate accuracy watch: The AP's stock description of stem cells and the embryonic controversy runs as follows:

Stem cells are the building blocks of the human body — immature cells that can grow into bone, muscle and other tissues. Those taken from embryos and fetuses are believed to be more versatile than stem cells from adult bone marrow and fat. But embryonic stem cells are controversial because they involve destruction of human embryos.

First and last sentences are true, and it's good to see straightforward acknowledgement of the reason why ESCR is actually contested -- because it necessarily destroys human embryos. But what does the middle sentence mean? "Are believed to be" by who? Why is "versatility" important to the debate? Are other characteristics (like actual effectiveness in some human treatments -- the kinds not administered in beauty salons) worth mentioning? I'd change the stock explanatory phrase to say something like, "Some scientists believe that those taken from embryos are more versatile than stem cells from adult bone marrow and fat, though research indicates that adult stem cells are also quite malleable and easier to control. Embryonic stem cell research is thus far only theoretical in its ability to treat human injuries -- in addition to being controversial because it involves the destruction of human embryos -- while adult stem cells have been used in some successful human therapies." But that might not satisfy the word limit.

Softer when he's not scathing

A nice profile of Justice Scalia in Tuesday's Post. They still think he's campaigning to be the next Chief. I don't know for sure, but I always enjoy reports from his speeches because of his way with words (he always sounds amused at his own reputation: "Though I'm a law-and-order type, I cannot do all of the mean, conservative things I'd like to do to the society."). I must note that he chastises conservatives on use of the phrase "judicial activism": it's "overused." As for yesterday, I guess I'm guilty :) But I don't think I do it all the time! And besides, "overused" doesn't mean it's not true :)

Monday, March 14, 2005

"How we got here" was by judicial activism

Today at lunch I attended a presentation, on SSM and Ohio's marriage amendment, by Carrie Davis from the ACLU of Ohio. I didn't realize the speaker was going to be from the ACLU, but if she hadn't said so, it would have been easy to figure out soon enough: she started the talk with a map colored to show the states that had marriage statutes and amendments, and then pointed out the "happier" states that either allowed SSM (Mass.) or civil unions (Vt.), or that at least hadn't enacted statutes yet.

Most of the talk summarized the history of SSM court rulings and defense of marriage acts, dating back to the 1993 Hawaii Supreme Court ruling that got the whole thing started. It was interesting to get an update on the list of states with amendments (for a fuller list, see here), and also to see which states currently had court challenges pending -- it looks like there are at least ten now (CA, FL, IN, MD, NJ, NM, NY, OR, WA, WV), compared to seven the last time I counted. Davis characterized this side of the list as the "ray of hope" -- though not all pro-SSM people would agree. Chris, for instance, has written a few times that "what we don't need right now are more marriage lawsuits." (More on this below.) The speaker did say that "education" and legislation are also desirable means of achieving SSM, though obviously from the ACLU's perspective (just by their nature of being a legal advocacy group) litigation is the preferred means; and Davis said candidly several times that all of the lawsuits are part of a carefully designed "strategy" to generate favorable precedents in states most likely to grant them, in an effort to legalize SSM across the country.

Davis finished her talk by discussing some of the cases pending in Ohio that are currently testing the application of Ohio's marriage amendment. Since the amendment not only defines marriage but also prohibits the incidents and effects of marriage from being recognized with regard to non-marital relationships, there have been some potentially worrying issues coming up -- for instance, can domestic violence laws, which often deal with cohabitating couples, be enforced if they treat those couples as married? The first ruling on the subject to come from a trial court last week said no -- domestic violence laws are clearly written just to apply to (and protect) whoever's in a household, regardless of marital status. This seems common-sense to me, but to the extent the amendment might say otherwise, I hope it's promptly clarified.

Overall, Davis's talk wasn't too polemical and was fairly informative, so I thought it was interesting. Then, later this afternoon . . .

Why Chris might be right in his above comments that litigation might be less desirable, if the eventual goal is recognition of SSM, was demonstrated again only today -- when a San Francisco County judge struck down California's DOMA as unconstitutional (at least under the California constitution). It can be credibly argued that the latest round of state marriage amendments last November was in direct response to the Massachusetts SJC "legalize SSM now" ruling, plus the extralegal actions of rogue mayors in places such as San Francisco and New Paltz. Therefore, many SSM advocates believe not only that it would be good for the political process to debate the issue in the public square instead of the courts, but also that it might be more prudent to do so -- so that a further backlash is not created. With rulings like Judge Kramer's today, it is easy to understand why that kind of backlash might result.

I'm still reading through the opinion (Chris has a decent summary of part of it here) but the gist of it is that Judge Kramer believes there is no rational basis for marriage being defined as it is. As I recall the rational basis test in constitutional law and equal protection analysis, it's generally so deferential to legislatures that as long as there is any conceivable reason for passing a law, even if it's not the actual one proffered by the state, then the law should stand. Courts have let stand some pretty absurd rules in the past, but marriage? Apparently Judge Kramer can't think of any possible, conceivable reason why just about every civilization in human history to date -- much less every single state of this union where it hasn't been reworked by judicial fiat -- would define marriage as between men and women. Must be arbitrary, must be wholly irrational: must be flatly unconstitutional. I'm not surprised to see Judge Kramer quoted from Lawrence v. Texas -- not the first judge to do so in regards to SSM, despite the Supreme Court's assurances at the time it was handed down that its language could not be used to justify SSM. Of course by that time, there was already little reason left to believe that judicial restraint might be exercised in such matters in the future: it was entirely predictable that it would not be.

So this is one judge in San Francisco; the courts have still to rule in Washington, higher courts in California, and other states. Still, it's illustrative of the judicial activism that is too often present in our courts today.

Saturday, March 12, 2005

First comes baby

The Times does a 'trend' story on the growing fashion of unapologetically pregnant brides:

Only a few years ago, women planning simultaneously for a wedding and a due date would beg designers and bridal stores for dresses that would camouflage their growing bellies and - if they told anyone at all - would insist on silence. These days, however, brides are not only not hiding their pregnancies, but they are showing them off, celebrating the upcoming birth in vows and toasts, wearing gowns that flatter their bump, and, in short, refusing to give up any elements of a traditional wedding just because there is a baby visibly on the way . . . .

"I just decided, what the heck," [one woman] said. "I do things out of order anyway. I thought about an ivory dress and my mom was, no, you're getting white. It's 2005."

Oh, well, if it's 2005. *sigh* Dress makers are busily designing custom gowns to meet demand, and the brides are wearing tennis shoes under the dresses and toasting with apple juice.

Pregnancy, if it has to happen outside of marriage, is a pretty good (and certainly age-old) impetus for marriage, and I do think the profiled women's desire for marriage (for their own sake and their children's) is a good one. It's just the brazenness here that's interesting . . . it seems like there ought to be a little embarrassment, instead of the sin verguenza attitude on display. So put me in line with these groups:

Christian conservative groups that promote abstinence before marriage, like the Family Research Council and the Christian Defense Coalition in Washington, said that they found it positive that these pregnant brides were getting married, yet they objected to the message they may be sending.

Friday, March 11, 2005

Process and the rule of law

Princeton professor Robert P. George's talk about jurisprudence at the Josephinum on Wednesday night was great -- there was a nice turnout of the seminarians (of course), some lawyers (but only three law students that I knew of), and the general public. George spent a lot of his talk reviewing one of the major philosophy of law debates of the twentieth century, that of positivism versus natural law/moralistic views, espoused respectively by people like HLA Hart and Lon Fuller. Fuller's argument was that there is no conceptual separation between law and morality; if a system truly constitutes a rule of law then it will be "moral" in an objectively recognizable sense. Speaking purely from a procedural standpoint, he argued there were at least eight charactistics of a system of law that would make it valid: laws must be prospective, not retrospective; able to be complied with; publically promulgated; coherent; not internally contradictory; generally constant so that they are predictable; of general application; and applicable to enforcers and rulers as much as to citizens. If a system of law lacks any of these procedural characteristics, whether or not a specific law is good or bad, then that system would not be a legitimate legal system; we would all recognize it as containing injustice. Thus a valid system of law has an internal, inherent "morality" in its procedures -- which are necessary, though not sufficient, to establish a "good" rule of law.

George pointed out that law is neither wholly amoral (like a fine-edged knife that could serve equally well a chef or a murderer), on one extreme, nor the whole source of morality, on the other. Like Pope John Paul II, he gives "two cheers" for democracy, not three, since while it is the most just system of government we know of, respecting as it does the equality and dignity of individual citizens, the exercise of democracy can also lead to the abrogation of human equality and dignity (that is, people can vote for stupid or evil policies as well as for good ones). Still, George believes that even if a regime were unjust in the rules it promulgated, if it did adhere to the procedural rule of law such procedure would at least reduce, if not eliminate, that regime's capacity for evil (the necessary-but-not-sufficient claim). Procedural fairness is itself a requirement of substantive justice.

I think most of us agree with that -- otherwise we wouldn't toss out criminal convictions on procedural "technicalities"; we know it matters for a person's constitutional rights that evidence be gathered and presented in certain ways, for instance, and that laws proscribing behavior be fair and fairly passed. I wanted to ask a more concrete question than Professor George's jurisprudential overview had covered, so I asked if he thought that some features of our current regime -- in the judiciary -- are starting to abrogate procedural fairness in our country. When Justice Kennedy expansively redefines "liberty" to mean the right to define your own concepts of existence and turns constitutional law into a guessing game of how many unaccountable judges you can pick off for your arguments on any given day, aren't we losing some elements of procedural fairness -- and thus undermining the American rule of law? (George agreed, and in the process gave the audience a neat professor-type summary of substantive due process.)

That's what so much of the debate over "activist" judges comes down to. I've often said before that on issues like abortion, I would much prefer the Court leave it up to the states than simply remove it from the public debate altogether without any concrete justification in the Constitution for doing so. Penumbras and emanations -- sweet mystery of life? Justice Scalia rightly ridicules these concepts. Who gave the justices the authority to act on such abstract, intangible grounds? Not the people, and they can't do anything about it -- and that helps undermine the entire rule of law. No wonder people keep passing state amendments and DOMA's against SSM -- they have little confidence that it won't be imposed by judicial fiat in a system in which five judges' elite normative preferences can be written into the Constitution.

A large part of my issue with judicial activism is the idea that process matters. I don't want to lose on the merits of the SSM debate in the public square, but I would accept it so long as I felt I had had my fair say in our democratic system. The courts for the most part are designed to be beyond public accountability, however, and when they start making policy judgments the validity of our entire system is undermined. As Justice Scalia noted in Casey, the people shouldn't be lobbying courts for their preferred outcomes of cases (keep abortion legal! outlaw abortion!) because judges aren't supposed to take account of personal preferences (as expressed by the public or themselves) at all, but are only supposed to interpret the laws as written or gauge their constitutionality with narrow reference to what the Constitution actually covers. Lobbying and popular persuasive efforts should properly be directed towards legislatures - the policy-making bodies. We accept the results of such efforts because we have all agreed to accept the process by which such results are derived. But with the courts jumping in to make non-constitutional policy judgments, whole segments of the population are denied their fair chance at the process. The process -- the rule of law, our agreed-upon method of self-governance -- should be protected.

I hadn't really realized before Wednesday that I was taking sides in such an old debate. But it's definitely an active debate today, and has flared up again in light of last week's Roper v. Simmons 5-4 juvenile death penalty decision. If you're a judge, then whether you think the death penalty should be imposed on minors or not shouldn't matter -- it's a policy decision since it's not proscribed by any objective understanding of the "cruel and unusual punishment" clause. Extraconstitutional "evolving standards" and the "international community" shouldn't be unilaterally brought in to decide an issue or justify a judge's policy preference. To that end, see this excellent and thorough (and very long) rant against judicial activism, and in defense of restraint and originalism, from Feddie over at Southern Appeal yesterday. Co-blogger Quin Hillyer sums it up thusly:

But let me boil down their arguments into simple form. Publius: The Constitution's meaning changes with time, and those who determine its new meanings are the Supreme Court Justices. Feddie: If the S. Court justices determine those new meanings, then they and only they -- meaning their will, and only their will -- determine(s) what the ultimate law of the land is. Which means we have an oligarchy. Which is just tyranny by committee. Quin's interpretation: Feddie supports a constitutional republic; Publius supports a thinly disguised tyranny. All lovers of liberty will stand with Feddie. Everybody else, please go kowtow to Vladimir Putin.

It's perhaps overly strong rhetoric, but rings true nonetheless. Process matters in upholding any rule of law that we can recognize as just. To abrogate that process renders a system less just -- and less moral.

Wednesday, March 09, 2005

Legalistic dating

Dating at work is a dicey subject. How do the paramours handle themselves around the office? How do they balance professionalism and emotions? What happens if they break up? And from an employer's perspective, what happens if a break-up leads to ugly behavior and suddenly you, the employer, are slapped with a sexual harassment suit? (Hate it when that happens.) This latter situation is apparently the source of "quite a few" sexual harassment claims in the workplace, according to one San Francisco lawyer, and so to counter the litigation risks, some employers are now trying to avoid liability by designing "love contracts."

So-called love contracts confirm that a relationship is consensual, state the ground rules for office behavior and reiterate sexual harassment policies, said Stephen Tedesco, a partner in the San Francisco office of Littler Mendelson who has completed hundreds of the contracts for his clients over the past few years . . .

"Besides protecting yourself from the legal issues, the employer's main objective is to have a functioning workplace," Boyer [a Miami lawyer] said. "Love spats in the workplace can upset that." She admitted that contracts may seem unromantic, but they're a means of protecting the employer, above all else.

On one hand, these contracts seem silly, since who wants to sign a contract when you're dating? That's what marriage is for :) On the other hand, a liability waiver, like schoolkids have to sign before field trips, does make sense. If employment laws regularly allow employers to be sued for everything taking place in the office, it's understandable that employers would want to do something about it, given that outright prohibitions of relationships aren't surefire ways of avoiding them.

But you also have to wonder about the practicalities. Who wants to announce to their bosses, by showing up at the office for the paperwork, that they're dating? What if it's an affair involving a married superior or subordinate? How do you enforce a policy like that? Weird. (Link via Overlawyered.)

Reason and (not versus) religion

Southern Appeal links to an interview with Princeton legal scholar (and natural law theorist) Robert P. George. To those who disagree with his positions on subjects like SSM and abortion because they are ostensibly only religiously based, he says:

Most of my professional life is spent interacting with secular liberal academics. What I tell them is that they are living off the cultural capital of Judeo-Christian moral understanding and depleting it quickly. Most liberal academics say they favor marriage and just want it to be available to homosexuals and heterosexuals on equal terms. They support 'tolerance,' they say, and oppose 'discrimination,' but they misconceive both toleration and discrimination.

I try to show them the unsavory logical consequences of their willingness to equate sodomy with marital sexual love. To justify same-sex 'marriage' one must abandon the concept of marriage as a one-flesh union of sexually complementary spouses. But if we do that—if we embrace the idea that marriage is fundamentally an emotional union of people who find their relationship enhanced by mutually agreeable sex acts of any type—we eliminate the rational ground for restricting marriage to two people (as opposed to three or five or eight) and for regarding marriage as intrinsically requiring mutual pledges of exclusivity and fidelity. People who accept same-sex "marriage" have no basis of principle (as opposed to mere sentiment or subjective preference) for opposing polygamy, polyamory (group marriage), promiscuity ("open marriages"), and the like. What then is left of marriage? Nothing.

Similarly, most secular liberal academics do not want to join Peter Singer in endorsing infanticide and the mass production of children to be killed in infancy for the purpose of harvesting transplantable organs. I try to show them that by accepting abortion they remove any principled moral basis for objecting to such a nightmarish view. After all, birth is of no moral significance. The child a moment or a month or nine months prior to birth is the same living human being as the child a moment or a month or nine months (or 90 years) after birth. My argument against the rather chaotic collection of moral views held by many secular scholars is not that they violate the tenets of Jewish or Christian faith (though they do); it is that they fail—sometimes spectacularly fail—the test of reason.

A lot of what Professor George says here is similar to what he writes about in his book The Clash of Orthodoxies, which is a very good (if sometimes tough philosophically) read. Tonight, for anyone who's interested, George is going to be speaking at the Josephinum up in Worthington at 7:30, on the topic of "Reason, Freedom, and the Rule of Law." It should be an interesting presentation.

Wars not make one great

Here's a funny parody transcript I just discovered of the hard-hitting O'Reilly interview with a certain diminutive Jedi Master. Hehe.

Bill O'Reilly
Mr. Yoda, as you probably know, we at The Factor have been critical of certain decisions made by the Bush administration, and Rumsfeld in particular, with regard to the planning and execution of the war in Iraq, especially in the early stages of the occupation, but I believe that it is vital that we stay there, at least until their security forces have achieved an acceptable level of self-sufficiency. Now, what say you?

A Jedi uses the force for knowledge and defense, never attack a Jedi does.

Bill O'Reilly
You're spinning, Mr. Yoda, you're spinning.

Whoda thunk it

The U.N. actually came down on the right side of a moral issue, albeit in the form of approving a non-binding resolution, in urging opposition human cloning -- for reproductive or so-called therapeutic reasons. The Reuters article on the subject calls it a victory for Bush, antiabortion groups, and the pope, on the other side of the issue from "many scientists." Well, it's always going to be framed by the MSM as the religionist types against the rational, neutral science types -- but regardless, the vote itself was definitely a positive step. I also like the president's statement: "Human life must not be created for the purpose of destroying it. The United States and the international community have now spoken clearly that human cloning is an affront to human dignity and that we must work together to protect human life."

Tuesday, March 08, 2005

Viva mujeres

It's International Women's Day again, with which holiday I am only familiar thanks to my two friends who served in the Peace Corps in Central Asia. I think I posted this note, from the friend who was in Kazakhstan at the time, last year, but it still makes me smile:

People here are really disappointed when I tell them that we don’t celebrate the holiday in the US. “But it’s international,” they say, and usually they sound so pitiful that I don’t bother to explain that most communist holidays never really caught on in the West.

Hehe. (Another holiday we don't celebrate here in the West, rather understandably, is "Red Army Day," or just "Man's Day." My friend: "Since all men here are required to serve in the military, Red Army Day became a day to celebrate all men, the defenders of the Motherland. I didn’t point out that the chance of me ever serving in the Kazakhstani army (or any army for that matter) are close to negative numbers, or that if the Motherland is in any way threatened I’ll be on a plane to Western Europe faster than you can say, well, anything in Russian (the language has very long words)." :)

Some revolutionary proletariat types who believe they are defending women in today's world, however, sadly are harming women more than they know. Correspondent Linda Flores, of the Revolutionary Worker Online (self-proclaimed heirs to the Marxist-Leninist ideologies that originally inspired International Women's Day), prints an expose this week on the Christian "fascists" who help counsel women about their pregnancies at crisis pregnancy centers, often encouraging them to choose life. Flores sees threats in compassion, elements of conspiracy in grassroots efforts, and lies in every truth. She somehow believes we live in a culture that unceasingly promotes motherhood as the "highest expression of womanhood," instead of one where birth rates are steadily declining and women are often encouraged to choose careers over families, or -- in places like (communist!) China -- forcibly prohibited from having more than one child. Flores believes that often-devastating psychological and physical consequences of abortion are part of a "fictionalized world" created by "Christian fascists," instead of painful realities experienced by millions of women, like those of Silent No More. She thinks that showing conflicted women ultrasound photos of their children in utero is an "ugly" tactic, rather than the "joyful thing" for women who have already decided to keep their children; she can't see that ultrasound often is a profound gift to women who come to realize the value of their unborn children's lives. And Flores thinks it's a scandal that crisis pregnancy centers received $2.8 million in federal funds in 2003, as opposed to, say, the $265 million abortion provider and pro-choice organization extraordinaire Planned Parenthood receives from the government.

Finally, Flores arrives at the most repugnant 'lie' of all:

The CPCs tell these women that this is a baby they will be killing.

Abortion is a very difficult issue emotionally, but in fact of what is being done, the action is clear. It is a baby, Ms. Flores -- it's prenatal human life, it's our children; and women everywhere are only harmed and devalued when we deny this truth. May your eyes be one day opened.

Monday, March 07, 2005

Doing the right thing

Interesting profile in the Post today about a teenage father raising his daughter alone as he tries to finish high school. Unusually for young men who have fathered children out of wedlock, and especially unusually in cases such as this where the father appears to have had no father in his own life, 18-year-old James Hall has taken responsibility for his actions since the little girl's mother abandoned her at six months. His senses of responsibility and love for his daughter, and his complete commitment to her, are definitely admirable. I hope that they're able to make it, and that Hall will someday be able to provide a truly stable home for them. Fathers are absolutely essential to their children -- but moms, of course, matter too.

Sunday, March 06, 2005

Miracle of life

Fascinating documentary tonight from National Geographic on life "In the Womb." The film uses traditional photography and ultrasound, computer imagery, and the new 4-D ultrasound technology to trace the development of life from conception until birth, and except for that messy birth part (right ... I'm fairly well convinced I'll be using drugs when it comes to that point in the future sometime) it's pretty cool stuff. I didn't realize that the spinal column forms within two weeks, that eye buds are visible before the embryo is bigger than a kidney bean, and that the heart cells coalesce and start beating after just three weeks. All major organs are present and developing by three months. The film at one point shows a bit of a pioneering in utero surgery to correct one baby's otherwise likely fatal congenital defect (where the intestines would crowd the lungs because of a hole in the diaphragm, hindering their development). Also, the new 4-D technology -- which can be used starting as early as 6-8 weeks -- has allowed us to see that babies apparently experience REM sleep starting around 33 weeks. One wonders what they could be dreaming about!

Of course, this is America, and so it's impossible to see something like this without viewing at least somewhat in light of abortion politics -- and without wondering what kinds of twists pro-choice reviewers might engage in to talk about it. The New York Times describes the baby followed in this story as "growing in all its Operation Rescue propaganda detail." Funny how that "propaganda" consists of nothing more than biological reality, which bites if one is trying to deny the humanity of the unborn. Nevertheless, reviewer Virginia Heffernan can't breeze past the politics without another couple of swipes at pro-lifers (on which more presently); she then proceeds to the actual merits of the documentary, and the "majesty of science." She appreciates the "stirring set of images" and "revelations" about prenatal life, and generally appears to like the program technically as well, which is fair. Yet witness the odd phrasing she employs here:

It exhibits a minimum of politics, probably because it appears to have been made in England, where the acknowledgement that humans in the womb are complex, dreaming, pain-experiencing, memory-having, walk-practicing, music-enjoying entities does not instantly put you in the same camp as doctor assassins and purveyors of "The Silent Scream."

Is Heffernan also acknowledging that humans in the womb are as complex as she says? Why can't people do so as well in America as in England? I would note that actually, in England such acknowledgements might put you in with a sort of odd, socially unacceptable, and almost inconsequential group, since abortion is a much more settled question there -- the pro-life MP I used to work for was part of an extremely small minority in Westminster, for example. Moving on, another question: does Heffernan really think, as she implies, that all pro-lifers in the United States are aligned with doctor assassins and Operation Rescue? To the extent those people advocate, condone or commit murder, they aren't in my "camp," as a pro-life woman, and if Heffernan wants to acknowledge wonderful realities about unborn human life she needn't worry she'd be in that camp either -- only the camp that sees the inherent value and worth of all human life, including the unborn. (Though I will say, from what I've seen of "The Silent Scream," it only shows through ultrasound pictures an actual abortion, being done on camera, and is more a polemic against murder -- abortion -- than for it. Maybe she just objects to abortion's realities being in the open.) In any event, I assume Heffernan smears pro-lifers so that she may assure her liberal Times audience -- or herself -- that while science may be majestic and unborn babies may be able to dream and remember and sense, don't worry, it won't influence her views on "choice." Well, of course not. Still, I will hope that maybe someday images such as those in the documentary, and those that come from the ultrasound technology, will change her heart and those of other women. Truth is a powerful tool.

Budget cuts targeting children

I'm no great fan of Governor Taft, and stories like this help explain why (I first read the story in the Dispatch this morning, but of course central Ohio's highly prestigious paper won't allow access without paid subscription, hence this article from Cincinnati). Among the programs which are scheduled to be hit by budget cuts this year is the Bureau for Children with Mental Handicaps (BCMH).

[It] might sound like a small budget cut - $1 million out of about $70 million that the Ohio Health Department spends on public health programs.

But that $1 million accounts for about one-sixth of the entire budget for the Ohio Bureau for Children with Medical Handicaps, an agency that serves as an insurer of last resort for families coping with all sorts of rare and severe health conditions. And it turns out to be the only program of 15 funded by the state health department proposed to take such a deep cut.

Most other programs - from AIDS prevention and vaccination programs to tracking cancer and other health statistics - are facing no cuts at all.

This seems terribly unfair to families who, with their chronically disabled children needing so much in terms of medical care for conditions like cystic fibrosis, cerebral palsy, Down syndrome and spina bifida, are already struggling to make ends meet.

One DOH official opines that "we are really trying to preserve our prevention-based activities." Prevention of other illnesses or health issues that lead to increased costs for the state might be a laudable goal for the state. I'm thinking about things like providing education about folic acid to lower-income women who might become pregnant, something one of my college friends is working on out in California. But it sounds like the programs that the Bureau of Health are preserving are things like statistical tracking. That might be useful information, but nowhere near as immediately helpful as giving assistance to these needy families -- for most of whose children's illnesses, it might be noted, "prevention" efforts couldn't have made any difference. If the state has any role at all to play in terms of welfare or assistance to citizens in difficult circumstances, where the private sector won't address needs without prohibitive cost and charities can't meet needs, then surely that role includes assistance to children with special needs and their families.

Ohio should seriously rethink its priorities on the health budget here. A task force could be a good start, but not helpful unless it results in solutions.

Columbus complaint

I've been over to the airport multiple times over the past week in particular, and have to register a complaint that I imagine most Columbus people can identify with: the traffic light at Stelzer and Airport Drive has got to be the longest and most inefficient in the city. On Friday afternoon I counted four minutes between each green light for traffic incoming to the airport, such that it was backed up almost to 670. I understand the cross-traffic at rush hour is heavier, but what idiot programmed the light not to at least allow incoming and outgoing traffic from the airport to move at the same time? It just seems like traffic into the airport should be predictable enough that long backups should never have to occur at nice, wide intersections like this one. *grumble*

Original of the (rock) species

Via Kristine at Daily Contentions: U2, like Notre Dame, often seems to inspire either fanatical devotion or fanatical hatred, but much less often indifference. I love both, of course. ESPN's Bill Simmons fits in the category of someone who loves U2, at least, and writes a cool article here to make the case that -- in terms of longevity, transcendence, and domination -- sports has no U2. A fun read.

Friday, March 04, 2005

Spoiler junkie

Anyone who would like to see a few shots from Sith (including Anakin/Vader taking care of some Neimoidians and Obi-Wan jumping over a roiling lake of lava) can copy this link from the official site and paste it into your Quicktime player (so you can adjust size). I think it's pretty cheesy for Fox to be promoting the film with The O.C., but maybe I'm missing that the target audiences overlap ... or something. In any event, cheers.

Sorry for no posts this week ... I've had company in, so not spending much time online. I'll be back this evening and weekend.

Wednesday, March 02, 2005

What's the matter with Harvard

Sorry, but the eye-rolling quotient of this story is too high to be resisted. Apparently, Harvard has no need to spend time studying great philosophers or pursuing knowledge of hard science or working through theories of economics, and so forth. Nope, it's busy making sure its president doesn't question (even in a hypothetical fashion) PC orthodoxy and that its speakers don't make students "uncomfortable" (heaven forbid) by being overly "heteronormative."

After some students were offended by Jada Pinkett Smith’s comments at Saturday’s Cultural Rhythms show, the Bisexual, Gay, Lesbian, Transgender, and Supporters Alliance (BGLTSA) and the Harvard Foundation for Intercultural and Race Relations have begun working together to increase sensitivity toward issues of sexuality at Harvard.

Students said that some of Pinkett Smith’s remarks concerning appropriate gender roles were specific to heterosexual relationships.

In a press release circulated yesterday by the BGLTSA—and developed in coordination with the Foundation—the BGLTSA called for an apology from the Foundation and encouraged future discussion of the issue . . .

[T]he Foundation has pledged to “take responsibility to inform future speakers that they will be speaking to an audience diverse in race, ethnicity, religion, sexuality, gender and class,” according to the [BGLTSA] release.

Oh, where does one even begin with stories like this. It's hard to start with the actual speech in question, made by Jada Pinkett Smith (Will Smith's wife) at a "Cultural Rhythms" fair last weekend, since it's so irrelevant to the story of student discomfort that it barely warrants description in the article. I think one of the most amusing aspects of the affair, though, is the suggestion that all speakers, who, being invited to speak at Harvard, must naturally all be cultural philistines, have to be specifically informed that their audience will be "diverse" in such ways as race and gender. This is absurd in any case, but even more so given that the one causing so much offense here -- at a "Cultural Rhythms" festival -- was herself a black woman. But, it appears that's not the oppressed minority of the day in the Ivy League. How gauche of Ms. Pinkett Smith -- and the rest of us who hadn't yet gotten the memo that we're not supposed to be, even inadvertently!, overly heteronormative. Good grief.