Politics: April 2007 Archives

For my initial thoughts on the recent Supreme Court decision Gonzales v. Carhart, see here. Since that post, I've had a chance to see a lot more of the commentary that's ensued, and I wanted to highlight a couple responses I've seen to the aftermath, first on the claim that this is a religiously-motivated decision and second on the actual constitutional issue at stake. The first point comes from Rick Garnett here, in response to a post by Geoffrey Stone at the Huffington Post. The key quote from Stone is:

What, then, explains this decision? Here is a painfully awkward observation: 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. Ultimately, the five justices in the majority all fell back on a common argument to justify their position. There is, they say, a compelling moral reason for the result in Gonzales. Because the intact D & E seems to resemble infanticide it is "immoral" and may be prohibited even without a clear statutory exception to protect the health of the woman.

By making this judgment, these justices have failed to respect the fundamental difference between religious belief and morality. To be sure, this can be an elusive distinction, but in a society that values the separation of church and state, it is fundamental. The moral status of a fetus is a profoundly difficult and rationally unresolvable question. As the Supreme Court has recognized for more than thirty years, when the fundamental right of a woman "to determine her life's course" is at stake, it is not for the state -- or for the justices of the Supreme Court -- to resolve that question, and it is certainly not appropriate for the state or the justices to resolve it on the basis of one's personal religious faith.

Now consider Garnett's response:

It is true that the majority included “moral concerns” – like the public interest in promoting “respect for life” – among the “legitimate government interests” that could justify the federal ban. It is not clear, though, why we should regard these concerns, or the view that human fetuses are moral subjects whose lives have value, as any more “religious”, and therefore suspect, than our nation’s fundamental commitment to the view that all human beings are moral equals, regardless of race, and should be treated as such in law. For a judge to identify such concerns as a permissible basis for legislating – given the fact that, in the Court’s view, the law did not impose an “undue burden” on the abortion right – is not to attack church-state separation or to substitute revelation for the will of We the People.
As I've argued many times in the past (see especially here), there is no rational basis for the claim that pro-life convictions are mere religious dogma, because such assertions ignore a fairly rich philosophical framework that often lies behind such convictions. But what's particularly silly about Stone's claim is that one of the five justices in the majority in this case voted to uphold the basic right to abortion in 1992 and insists in this opinion that he sees himself still affirming that. If he's spouting forth Catholic doctrine in the guise of a legal opinion, how did he end up affirming what his church denies? Still worse, if Stone is serious about this he should worry about Kennedy's votes on capital punishment cases, since the Roman Catholic Church opposes the death penalty. I haven't heard anyone complaining about the church-state line being transgressed there. Even worse, the mainline Protestant denominations and Reform Judaism congregations of the four minority justices are officially pro-choice, and I don't see anyone complaining about their violations of church and state in voting in a way their religion happens to support.

Is this a flip-flop? Mayor Giuliani once accepted civil unions as good while resisting calling them marriage. Now he's opposing one version of a civil union law because it makes civil unions indistinguishable from marriage and because it recognizes civil unions from other states.

Whatever this is, it doesn't seem to be a flip-flop, because at most it's a change in position once in one direction and not a moving back and forth according to the audience or according to changes in his mood. But I'm not entirely sure his two positions are inconsistent. He seems to think it's too far to make civil unions absolutely equivalent to marriage, but maybe he thought civil unions in previous cases didn't go that far. (He may have been wrong about that factual matter and now realizes he was wrong. Alternatively, maybe this new law he's complaining about is different. I have no idea, but either seems possible to me.)

And if he did change his mind, it might be wrong if he changed from the right position to the wrong position, but our political dialogue seems to have stooped to a new low with this election by insisting that any change of mind ever is automatically immoral. Calling it a flip-flop not only doesn't recognize that a change of mind isn't the same thing as a flip-flop. It treats all changes of mind as bad, when changes of mind in the right direction are generally good and ought to be supported.

I'm not sure why he thinks it's wrong for a state with civil unions to recognize civil unions in other states, though. Isn't that strange?

Update: The Influence Peddler and DaveG at race 4 2008 agree with me that this isn't necessarily a change in view (never mind a flip-flop). I don't agree with DaveG's attempt to make sense of the other state issue, however. Maybe the Influence Peddler is right that he thinks it encourages other states' allowance of gay marriage, but I don't see how merely recognizing gay marriages from other states as if they were civil unions in NH counts as endorsing gay marriages in other states, since it doesn't at all recognize them as marriages. What it does is demote them to civil unions. So I'm left wondering what his problem with that aspect of it really is. Perhaps he does think it will promote gay marriages, but I'm not sure on what grounds. But there's no way it counts as endorsing gay marriage in other states.

I have mixed feelings about N.T. Wright's work in theology and biblical studies. I think he's committed a great deal of excellent thought, and I think much of what he has to say has great apologetical value, particularly in response to radical and even somewhat mainstream Jesus revisionism (although I think there's some unhelpful revisionism in his own work). In theology in particular, I think he's majored on the minors and minored on the majors to a great extent. See my post from a couple days ago for D.A. Carson's in-depth interaction with Wright, which I think is right on. Whatever criticisms anyone might offer against Wright, it's very clear that his scholarly work is well-researched and responsible in most respects, and he deserves great recognition and respect for that.

But I'm disappointed to find that some of his public writing isn't in that same category. Richard Dawkins loses all rationality in his recent book critiquing theism and sounds like the internet atheist with no background in philosophy who confidently asserts philosophical howler after philosophical howler. So too it seems N.T. Wright can weigh in on politics in a way that doesn't speak well for his ability to maintain high standards in disciplines that aren't his specialty. He penned this piece in The Telegraph [hat tip: Mark Goodacre], which includes the following criticism of Tony Blair and George W. Bush:

With the disastrous escapade in Iraq, there was a sense of horror that the two world leaders who were most overtly Christian - Bush and Blair - should be lured into such a disastrous parody or caricature of the Christian imperialist, going around the world beating up Johnny foreigner and the infidel.

It's a shame someone like Wright could stoop to such a sophomoric portrayal of the motivation for invading Iraq. I wouldn't complain if he represented Blair and Bush fairly and then expressed disagreement with their reasoning. I'd disagree, but I wouldn't compare him with the likes of Dawkins.

Bush and Blair have both consistently affirmed Islam as a good religion (which is consistent with believing it to be wrong, as long as they simply mean that Muslims can be good citizens, which is exactly what they mean). Describing it as "a disastrous parody or caricature of the Christian imperialist, going around the world beating up Johnny foreigner and the infidel" is just disingenous and morally below the belt. It's drastically unfair to the reasons they gave to justify the invasion, and thus his own choice of words seems to apply to his own characterization of their actions. His description is indeed a caricature, a pretty childish one.

Even if some of the critics are right in their attribution of motives to these leaders, it still wouldn't be true that they did it simply to beat up on foreigners or to persecute infidels. Even if it's about Western interests in oil, revenge against Saddam Hussein, establishing Western control over the Middle East for self-interested reasons, and so on, that doesn't amount to wanting to beat up on people just because they're foreigners or members of another religion.

This doesn't lower my respect for Wright's academic work, of course, and I happen to know enough people in philosophy who say as ridiculous and petty things as this and yet somehow manage to put forward very intelligent and responsible academic work in their specialty. I do have to say, though, that it disappoints me to see someone with such respect as a teacher in the church making such indefensible and immoral statements about people he seems to view as fellow Christians.

I haven't had anything to say about the Supreme Court's upholding of the federal ban on partial-birth abortion in Gonzales v. Carhart, largely because a lot of what I've wanted to say would have taken a lot more time than I've had. But over the weekend I managed to put together some of my thoughts on the main issue.

It seems to me that the left-leaning are seeing this as a monumental move away from long-standing precedent. 1973's Roe v. Wade got it right in securing a right to abortion, was upheld in large part in 1992's Planned Parenthood v. Casey, and was applied accurately in 2000's Stenberg v. Carhart, when state bans on partial birth abortion were overturned. The right-leaning, on the other hand, are seeing it as a narrow ruling that makes a baby step toward possibly restricting abortion further, but it's just a small step, even if it's in the right direction. When all is said and done, I think both attitudes get something right but also get something important wrong.

It's true that this isn't much compared to what pro-lifers want, which is one psychological explanation for seeing it as a narrow ruling. It also actually is a narrow decision in one sense. The way Justice Kennedy words the opinion, it does not explicitly overturn any previous Supreme Court decision. It does not reconsider the right to abortion. It does not overturn the prior decision on state laws, which it still takes to be unconstitutional because they lack an exception for the life of the mother. It forms a distinction between this law and prior ones. Thus it seems from Justice Kennedy's opinion that nothing in the prior decisions would have had anything to say about had the law existed when those cases were decided.

But that picture isn't entirely true. Casey's famously vague "undue burden" standard has regularly been taken to include a health exception and not just a life exception. That's certainly how Stenberg took it. But then Kennedy hadn't signed on to the majority opinion in the latter case. He voted with the minority (i.e. with Chief Justice Rehnquist and Justices Scalia and Thomas). Jan Crawford Greenburg has a fascinating account of why. Apparently he thought Justice O'Connor had betrayed him by taking Casey in that direction. He didn't think he'd signed on to that when he switched his vote to join her in that case, thus putting her in the majority.

What we see now in this case is what he thought he was agreeing to in Casey. That's why he thinks this is fully in step with the Roe and Casey precedents. But it's not true that it doesn't overturn something in Carhart v. Stenberg. It overturns the requirement for a health exception, and that's quite significant, even if the majority opinion doesn't seem to recognize that it has done that.

If you're a pro-choice Republican running for president, by all means go ahead and try to downplay your pro-choice views in order to emphasize what unites Republicans. Feel free to try to make the case that pro-life Republicans should bracket that issue. You won't convince everyone, but I have no problem if you make the case.

But please don't try to use disingenuous rhetoric masked as an argument when you try to make your case. It's simply deceitful to pretend your opposition to laws against abortion is emphasizing "what we are for" rather than "what we are against" and that others' promotion of the inherent worth of the unborn is "what we are against" rather than "what we are for". Virtually any policy you approve of can be characterized in terms of being for something or against something, and Rudy Giuliani himself regularly characterizes his view on abortion as being against putting people in jail for having abortions, which is a disingenuous mischaracterization of the pro-life view to begin with, but even aside from that it's very much being against something.

Thanks to Nancy French for noticing this.

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