Imagine that you are watching a hearing of the U.S. Senate Judiciary Committee on television. Each member of the Committee is asking questions of, and in some cases interrogating, the president's most recent nominee to the United States Supreme Court. She is an accomplished attorney with not only a law degree from an elite institution but also a doctorate in biochemistry and specialization in private practice on issues over which science and law overlap and intersect. For several years she has served on the federal bench on the D.C. circuit and has done so admirably, showing professional competence and jurisprudential insight that has become the envy of her peers, some of whom disagree with her conservative judicial philosophy. Over the years, she has published well-received articles in numerous law reviews and peer-reviewed science publications dealing with issues as wide ranging as the Daubert standard, the reliability of DNA testing in capital murder cases, and whether the Supreme Court's holdings in its reproductive rights cases provide support for a constitutional right to clone oneself.
1. See Daubert v. Merrell Dow Pharm., 509 U.S. 579, 582–597 (1993).
2. Columnist Charles Krauthammer provides an example for a real live U.S. Senate Judiciary Committee hearing:
[William] Pryor has more recently been attacked from a different quarter. Senate Democrats have blocked his nomination to the 11th U.S. Circuit Court of Appeals on the grounds of his personal beliefs. “His beliefs are so well known, so deeply held,” charged his chief antagonist, Sen. Charles Schumer [D-NY], “that it's very hard to believe-very hard to believe—that they're not going to deeply influence the way he comes about saying, ‘I will follow the law.’”
An amazing litmus test: Deeply held beliefs are a disqualification for high judicial office. Only people of shallow beliefs (like Schumer?) need apply.
Of course, Schumer's real concern is with the content of Pryor's beliefs. Schumer says that he would object to “anybody who had very, very deeply held views.” Anybody? If someone had deeply held views in favor of abortion rights, you can be sure that Schumer would not be blocking his nomination. Pryor is being pilloried because he openly states (1) that Roe v. Wade was a constitutional abomination, and (2) that abortion itself is a moral abomination.
Krauthammer, Charles, A Judge Prejudged, Wash. Post A23 (08 29, 2003) (emphasis added).
3. Precisely what constitutes “public justification” is a matter of considerable dispute. For an overview of the differing point of views, see Eberle, Christopher J., Religious Conviction in Liberal Politics 195–333 (Cambridge U. Press 2002).
4. See e.g. Rawls, John, Political Liberalism (expanded ed., Colum. U. Press 2005); Dworkin, Ronald, Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom (Knopf 1993).
5. See e.g. Sullivan, Kathleen M., Religion and Liberal Democracy, 59 U. Chi. L. Rev. 195, 195–223 (1992); Audi, Robert, The Separation of Church and State and the Obligations of Citizenship, 18 Phil. & Pub. Affairs 259, 259–296 (Summer 1989).
6. For example, Sherry, Suzanna, writes in her review of Mark Tushnet's book, Red, White, and Blue: A Critical Analysis of Constitutional Law (Harv. U. Press 1988):
Tushnet's arguments, moreover, tend to undermine his general criticism of the liberal privileging of rationality. If he wants to convince readers that rationality should be replaced or supplemented by noncognitive capacities, the noncognitive deliberative process should be described in a sympathetic manner. Defining noncognitive appeals by reference to rhetoric or art, for example, is a persuasive illustration that an exclusive focus on rationality is misplaced. Tushnet's own description of the intuitive faculty of practical reason is promising:
[It] is not exercised by deductive reasoning from premises or by clearly articulated analogical reasoning from similar circumstances; it is exercised more directly, by responding to situations without the intervention of those modes of reason we now call logical or analytical.
But such things as divine revelation and biblical literalism are irrational superstitious nonsense; if that is what Tushnet means by noncognitive capacities, then I—and probably many other readers—would encourage the liberal tradition of excluding nonrational modes of discourse.
Sherry, Suzanna, Outlaw Blues, 87 Mich. L. Rev. 1418, 1426–1427 (1989) (citations omitted). See also Sullivan, supra n. 5; Sherry, Suzanna, The Sleep of Reason, 84 Geo. L.J. 453 (02 1996); Gey, Steven G., Why is Religion Special?: Reconsidering the Accommodation of Religion Under the Religion Clauses of the First Amendment, 52 U. Pitt. L. Rev. 75 (1990).
7. On the relationship between faith and understanding, the Catholic Catechism teaches: What moves us to believe is not the fact that revealed truths appear as true and intelligible in the light of our natural reason: we believe “because of the authority of God himself who reveals them, who can neither deceive nor be deceived.” So “that the submission of our faith might nevertheless be in accordance with reason, God willed that external proofs of his Revelation should be joined to the internal helps of the Holy Spirit.” Thus the miracles of Christ and the saints, prophecies, the Church's growth and holiness, and her fruitfulness and stability “are the most certain signs of divine Revelation, adapted to the intelligence of all”; they are “motives of credibility” (motiva credibilitatis), which show that the assent of faith is “by no means a blind impulse of the mind.”
Faith is certain. It is more certain than all human knowledge because it is founded on the very word of God who cannot lie. To be sure, revealed truths can seem obscure to human reason and experience, but “the certainty that the divine light gives is greater than that which the light of natural reason gives.” “Ten thousand difficulties do not make one doubt.”
“Faith seeks understanding”: it is intrinsic to faith that a believer desires to know better the One in whom he has put his faith and to understand better what He has revealed; a more penetrating knowledge will in turn call forth a greater faith, increasingly set afire by love. The grace of faith opens “the eyes of your hearts” to a lively understanding of the contents of Revelation: that is, of the totality of God's plan and the mysteries of faith, of their connection with each other and with Christ, the center of the revealed mystery. “The same Holy Spirit constantly perfects faith by his gifts, so that Revelation may be more and more profoundly understood.” In the words of St. Augustine, “I believe, in order to understand; and I understand, the better to believe.”
Faith and science: “Though faith is above reason, there can never be any real discrepancy between faith and reason. Since the same God who reveals mysteries and infuses faith has bestowed the light of reason on the human mind, God cannot deny himself, nor can truth ever contradict truth.” “Consequently, methodical research in all branches of knowledge, provided it is carried out in a truly scientific manner and does not override moral laws, can never conflict with the faith, because the things of the world and the things of faith derive from the same God. The humble and persevering investigator of the secrets of nature is being led, as it were, by the hand of God in spite of himself, for it is God, the conserver of all things, who made them what they are.” Catechism of the Catholic Church: Revised in Accordance With the Official Latin Text Promulgated by Pope John Paul II, at 42–43 (2d ed., U.S. Cath. Conf. 2000) (citations omitted).
8. Newman, John Henry Cardinal, An Essay on the Development of Christian Doctrine (6th ed., U. Notre Dame Press 1989) (originally published 1878).
9. See Schaefer, Francis, Council of Chalcedon, 3 Cath. Ency. (Robert Appleton Co. 1908) (available at http://www.newadvent.org/cathen/03555a.htm).
10. See e.g. Catechism of the Catholic Church, supra n. 7, at 26-49, 1877-1948, 2104-2109, 2331-2400; Paul, John II, Fides Et Ratio: On the Relationship Between Faith and Reason (St. Paul Books & Media 1998).
11. See e.g. Hardon, John A., The Growth of Catholic Doctrine, 1 Catholic Faith 1, 1–6 (11-Dec. 1995) (available at http://www.therealpresence.org/archives/Church_Dogma/Church_Dogma_039.htm).
12. See Ashley, Benedict & Moraczewski, Albert, Cloning, Aquinas, and the Embryonic Person, 1 Natl. Cath. Bioethics Q. 189 (Summer 2001). Ashley and Moraczewski write:
Aquinas … did not know that the matter out of which the human body is generated is already highly organized at conception and endowed with the efficient and formal causality necessary to organize itself into a system in which, as it matures, the brain becomes the principal adult organ. Hence he was forced to resort to the hypothesis that the male semen remains in the womb, gradually organizing the menstrual blood, first to the level of vegetative life and then to the level of animal life, so as to be capable of the further self-development needed for ensoulment. But he also supposed that this entire process from its initiation was teleologically (final cause) predetermined to produce a human person, not a vegetable, an infra-human animal, or a mere embryonic collection of independent cells. That is why the Catholic Church has always taught that even if it were true that personal ensoulment takes place sometime after conception, nevertheless abortion at any stage is a very grave sin against the dignity of a human person.
Id. at 200.
13. See id.
14. Portions of this section are adapted from my article: Beckwith, Francis J., The Courts, Natural Rights, and Religious Claims as Knowledge, 49 Santa Clara L. Rev. 429 (2009).
15. Hitchcock, James, The Supreme Court and Religion in American Life, Volume II: From “Higher Law” to “Sectarian Scruples” 67–76, 120–132 (Princeton U. Press 2004).
16. Hitchcock presents numerous examples of such presentations. Id. at 128. What follows in the text includes some of the cases presented by Hitchcock. Although numerous other cases could be cited or quoted, space constraints prevent me from doing so.
17. U.S. v. Ballard, 322 U.S. 78 (1944).
18. Id. at 86-87.
19. Serbian E. Orthodox Diocese for U.S. & Can. v. Milivojevich 426 U.S. 696, 714–715 (1976).
20. Id. at 715.
21. “These things shall be a statute and ordinance for you throughout your generations wherever you live. If anyone kills another, the murderer shall be put to death on the evidence of witnesses; but no one shall be put to death on the testimony of a single witness. Moreover you shall accept no ransom for the life of a murderer who is subject to the death penalty; a murderer must be put to death.” Num 35: 29-31 (All Biblical citations are taken from the NRSV.).
22. Sch. Dist. Abington Twp. v. Schempp, 374 U.S. 203 (1963).
23. Id. at 226.
24. Wolman v. Walter, 433 U.S. 229 (1977).
25. Id. at 264 (Stevens, J., concurring), quoting from Tr. of Oral Arg. 7, Scopes v. State, 154 Tenn. 105, 289 S. W. 363 (1927) (on file with Clarence Darrow Papers, Library of Congress) (punctuation corrected).
26. This seems to be what Thomas Jefferson had in mind when he told the Danbury Baptists in his famous letter to them “that the legitimate powers of government reach actions only, and not opinions[·]” Letter from Thomas Jefferson to the Danbury Baptists (Jan. 1, 1802), in 57 The Library of Congress Information Bulletin 6 (June 1998) (available at http://www.loc.gov/loc/lcib/9806/danpre.html).
27. Newdow v. Elk Grove Sch. Dist, 292 F. 3d 597 (2002), rev'd by Elk Grove Sch. Dist. v. Newdow 542 U.S. 1 (2004). It should be noted that the student on whose behalf Mr. Newdow sued the school district, his daughter, could have opted out of the public recitation of the Pledge:
Newdow does not allege that his daughter's teacher or school district requires his daughter to participate in reciting the Pledge. Rather, he claims that his daughter is injured when she is compelled to “watch and listen as her state-employed teacher in her state-run school leads her classmates in a ritual proclaiming that there is a God, and that our's [sic] is ‘one nation under God.’” Newdow, 292 F. 3d 597, at 601.
29. See Piereson, James, Under God: The History of a Phrase, The Weekly Stand. (10 18, 2003) (available at http://www.weeklystandard.com/Content/Public/Articles/000/000/003/264xqezm.asp).
30. Newdow, 292 F. 3d 597, 607-608 (emphasis added).
31. See Beckwith, supra n. 14, at 446-458.
32. “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Declaration of Independence (1776).
33. “[T]he Sacred Rights of mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sun beam, in the whole volume of human nature, by the hand of the divinity itself; and can never be erased or obscured by mortal power.” Hamilton, Alexander, The Farmer Refuted Ch. 3 Doc. 5 (02 23, 1775), http://press-pubs.uchicago.edu/founders/documents/vlch3s5.html (accessed Jan. 6, 2009).
34. Newdow, 292 F. 3d 597, at 610 (quoting H.R. Rep. No. 83-1693, at 1-2 (1954), reprinted in 1954 U.S.C.C.A.N. 2339, 2340).
35. See e.g. Shestack, Jerome J., The Jurisprudence of Human Rights, in 1 Human Rights in Intl. L.: Leg. & Policy Issues 69–113 (Meron, Theodore ed., Clarendon 1984); Pojman, Louis P., A Critique of Contemporary Egalitarianism: A Christian Perspective, 8 Faith & Phil. 481, 481–506 (10 1991); Beckwith, supra n. 12; Swinburne, Richard, What Difference Does God Make to Morality?, in Is Goodness Without God Good Enough?: A Debate on Faith, Secularism, and Ethics 151 (Garcia, Robert K. & King, Nathan L. eds., Rowman & Littlefield 2009); Wolterstorff, Nicholas, Justice: Rights and Wrongs 342–361 (Princeton U. Press 2008); Budziszewski, J., Accept No Imitations: The Rivalry of Naturalism and Natural Law, in Uncommon Dissent: Intellectuals Who Find Darwinism Unconvincing 99 (Dembski, William A. ed., ISI Books 2004); Calhoun, Samuel W., Grounding Normative Assertions: Arthur Leff's Still Irrefutable, but Incomplete, ‘Sez Who?’ Critique, 20 J.L. & Religion 31, 47 (2004–2005); Leff, Arthur A., Unspeakable Ethics, Unnatural Law, 6 Duke L.J. 1229 (1979); Moreland, J.P., Ethics Depend on God, in Moreland, J.P. & Nielsen, Kai, Does God Exist?: The Debate Between Theists & Atheists 111 (Prometheus Books 1993); Copan, Paul, The Moral Argument, in The Rationality of Theism 149 (Copan, Paul & Moser, Paul K. eds., Routledge 2003); Hare, John E., Naturalism and Morality, in Naturalism: A Critical Analysis 189 (Craig, William L. & Moreland, J.P. eds., Routledge 2000).
36. Rawls, John, A Theory of Justice (Harv. U. Press 1971).
37. Wittgenstein, Ludwig, Philosophical Investigations (Anscombe, G.E.M. trans., Basil Blackwell Oxford 1968).
38. Hart, H.L.A., The Concept of Law (Clarendon Press 1961).
39. See Schempp, 374 U.S. 203; Milivojevich, 426 U.S. 696; Ballard, 322 U.S. 78; Wolman, 433 U.S. 229.
40. Newdow, 292 F. 3d at 607-608.
41. Of course, the Establishment Clause was initially applied to only the federal government until the Supreme Court incorporated the First Amendment through the 14th Amendment. See Everson v. Bd. of Educ, 330 U.S. 1 (1947).
42. National Institutes of Health, Stem Cell Information, Stem Cell Basics, Introduction, http://stemcells.mh.gov/infofoasics/basicsl (accessed Feb. 14, 2009).
43. National Institutes of Health, Stem Cell Information, Stem Cell Basics, What are the unique properties of all stem cells?, http://stemcells.nih.gov/info/basics/basics2 (accessed Feb. 14, 2009).
44. National Bioethics Advisory Commission, Ethical Issues in Human Stem Cell Research: Volume I Report and Recommendations of the National Bioethics Advisory Commission i (NBAC 09 1999) [hereinafter NBAC I, Stem Cell].
48. National Institutes of Health, Stem Cell Information, Stem Cell Basics, What are the potential uses of human stem cells and the obstacles that must be overcome before these potential uses will be realized?, http://stemcells.nih.gov/info/basics/basics6 (accessed Feb. 14, 2009).
49. Id. at i, ii (author emphasis added).
50. Kolata, Gina, Scientists Bypass Need for Embryo to Get Stem Cells, NY Times A1 (11 21, 2007); Kolata, Gina, Man Who Helped Start Stem Cell War May End It, NY Times A1 (11 22, 2007).
51. George, Robert P. & Tollefsen, Christopher, Embryo: A Defense of Human Life (Doubleday 2008).
52. See e.g. Paul, John II, Evangelium Vitae: The Gospel of Life: On the Value and Inviolability of Human Life (U.S. Conf. Catholic Bishops 1995); Congregation for the Doctrine of the Faith, Instruction Dignitas Personae on Certain Bioethical Questions (U.S. Conf. Catholic Bishops 2008); Moreland, J.P. & Rae, Scott B., Body & Soul: Human Nature & the Crisis in Ethics (InterVarsity Press 2000).
53. Colb, Sherry F., A Creeping Theocracy: How The U.S. Government Uses Its Power To Enforce Religious Principles, FindLaw's Writ (11 21, 2001), http://writ.news.findlaw.eom/colb/20011121.html.
54. See e.g. Silver, Lee M., Challenging Nature: The Clash of Science and Spirituality at the New Frontiers of Life (HarperCollins 2006); Dawkins, Richard, The God Delusion 294–298 (Bantam Press 2006); Simmons, Paul D., Religious Liberty and Abortion Policy: Casey as “Catch-22,” 42 J. Church & St. 69 (Winter 2000); Mooney, Chris, The Republican War on Science (Basic Books 2005).
55. Obama, Barack, Call to Renewal Keynote Address (06 28, 2006), http://www.barackobama.com/2006/06/28/calMo_renewal_keynote_address.php (accessed Oct. 10, 2008).
57. Christopher Eberle defines justificatory liberalism on the question of religious convictions and coercive laws: “[A] responsible citizen may support a coercive law on the basis of his religious convictions, but not on the basis of his religious convictions alone.” Eberle, supra n. 3, at 48. And this principle is based on this
justificatory liberal's commitment to public justification: the claim that respect for his compatriots forbids a citizen to support a coercive law for which he can't discern a public justification provides a principled basis for the claim that a citizen ought not support a coercive law on the basis of religious conviction alone.
Eberle, supra n. 3, at 48.
And the principle of public justification depends on the principle of respect for person:
Respect for his compatriots as persons obliges a citizen to ensure that his favored coercive laws are justifiable from the points of view of those compatriots. When a citizen deploys his modicum of political clout to authorize the state to coerce his compatriots, as he surely may in a liberal democracy, respect for his compatriots requires that he provide them with reasons they can accept in support of the claim that his favored coercive policies are warranted. Respect for others requires public justification of coercion: that is clarion call of justificatory liberalism.
Eberle, supra n. 3, at 48, 53-54.
There are, of course, many disagreements among justificatory liberals on the meaning of public justification, coercion, respect for persons, etc. Needless to say, an exploration and analysis of these different points of view falls outside the modest goal of this article.
58. I am borrowing the phrase “evidential set” from Eberle, who defines it in this way:
[A] citizen who conscientiously attempts to determine whether a given belief B merits his adherence must rely on a fund of beliefs and experiences he assumes to be true or reliable while evaluating B. Call that fund of beliefs and experiences his evidential set. Whether it's rational for a citizen to assent to B (or accept a given argument for B) depends, in addition to the manner in which he forms his beliefs [i.e., he is willing to subject his views to criticism, go where the evidence and arguments may lead, and is properly disposed to be intellectually virtuous], on the contents of his evidential set.
Eberle, supra n. 3, at 61-62.
59. Goodridge v. Dept. Pub. Health, 798 N.E.2d 941 (Mass. 2003).
60. Gallagher, Maggie, Banned in Boston: The Coming Conflict Between Same-Sex Marriage and Religious Liberty, 11 Wkly. Stand. (05 16, 2006).
61. See e.g. Ellison, Marvin M., Should the Traditional Understanding of Marriage as the One-Flesh Union of a Man and a Woman Be Abandoned?, 1 Philosophica Christi (2005); Long, Ronald E., In Support of Same-Sex Marriage, 7 Philosophica Christi 29 (2005).
62. In a secular world, because an embryo lacks the capacity to think, to experience joy, and to suffer pain or distress, it accordingly lacks legal entitlements that could possibly trump or even equal the interest in saving lives and curing disease through research. A secular perspective, then, would unequivocally approve of stem cell research. Colb, supra n. 53.
63. See e.g. Boonin, David, A Defense of Abortion (Cambridge U. Press 2003).
64. See Aristotle, , De Anima (On the Soul) (Lawson-Tancred, Hugh trans., Penguin Books 1986).
65. See Aquinas, Thomas, On Human Nature (Hibbs, Thomas S. ed., Hackett 1999). For contemporary defenses of Aquinas' point of view, see George & Tollefsen, supra n. 51; Lee, Patrick, Abortion and Unborn Human Life (Cath. U. Am. Press 1996); Beckwith, Francis J., Defending Life: A Moral and Legal Case Against Abortion Choice ch. 4 & 6 (Cambridge U. Press 2007).
66. See George & Tollefsen, Embryo, supra n. 51; Beckwith, Defending Life, supra n. 65, at ch. 4 & 6.
67. Colb, supra n. 53.
68. See George & Tollefsen, Embryo, supra n. 51; Beckwith, Defending Life, supra n. 65, at ch. 4; Lee, Abortion and Unborn Human Life, supra n. 65, at ch. 3; Ashley, Benedict & Moraczewksi, Albert, Is the Biological Subject of Human Rights Present from Conception?, in The Fetal Tissue Issue: Medical and Ethical Aspects 33 (Cataldo, Peter J. & Moraczewksi, Albert S. eds., Pope John Center 1994); Fisher, Antony, ‘When Did I Begin?’ Revisited, 58 Linacre Q. 59 (1991); McLaren, Ann, The Embryo, in Reproduction in Mammals, Book 2: Embryonic and Fetal Development 1 (Austin, C.R. & Short, R.V. eds., 2d ed., Cambridge U. Press 1982).
69. An often cited exception is the phenomenon of monozygotic twinning, which can occur within the first two weeks after conception. But even if every early embryo were to possess an intrinsically-directed potential for twinning—that may be triggered by some external stimulus—it would not follow that the early embryo is not a unified organism. It would only mean that the human being, early in her existence, possesses a current capacity that becomes latent after a certain level of development, just as some latent capacities become current later in the human being's existence (e.g., the ability to philosophize).
70. E-mail from Michael Buratovich, developmental biologist and associate professor of biochemistry, Spring Arbor University, to author (June 12, 2003) (on file with author).
71. See Beckwith, Defending Life, supra n. 65; Beckwith, Francis J., The Explanatory Power of the Substance View of Persons, 10 Christian Bioethics 33 (2004); Lee, Abortion and Unborn Human Life, supra n. 65; Lee, Patrick, The Pro-Life Argument from Substantial Identity: A Defense, 18 Bioethics 249 (2004); Lee, Patrick & George, Robert P., The Wrong of Abortion, in Contemporary Debates in Applied Ethics 13 (Cohen, Andrew I. & Wellman, Christopher Heath eds., 2005); Moreland & Rae, supra n. 52; George & Tollefsen, Embtyo, supra n. 51.
72. Colb, supra n. 53.
73. See e.g. Beckwith, Defending Life, supra n. 65; Beckwith, Francis J., The Explanatory Power of the Substance View of Persons, 10 Christian Bioethics 33 (2004); Lee, Abortion and Unborn Human Life, supra n. 65; Lee, Patrick, The Pro-Life Argument from Substantial Identity: A Defense, 18 Bioethics 249 (2004); Lee, Patrick & George, Robert P., The Wrong of Abortion, in Contemporary Debates in Applied Ethics 13 (Cohen, Andrew I. & Wellman, Christopher Heath eds., 2005); Moreland & Rae, supra n. 52; George & Tollefsen, Embryo, supra n. 51.
74. St. Augustine, Sermo 43, 7, 9, in Catechism of the Catholic Church, supra n. 7, at 158.
75. I Pet 2:11-12.
76. I Pet 2:13-17.
77. A special thank you to Baylor University's Institute for the Studies of Religion, and its director Byron Johnson, for providing me a summer 2008 fellowship so that I may complete and revise this paper. I would like to also thank Michael Beaty, my department chair at Baylor University. Because of Mike's encouragement and advocacy, I was able to take a research leave from Baylor and secure a visiting faculty appointment at the Notre Dame Center for Ethics & Culture at the University of Notre Dame for the 2008-09 school year so that I might work on a larger project of which this paper is a part. Thanks also to the center's director, W. David Solomon, and its associate director, Elizabeth Kirk, for providing a wonderful environment in which to do my work.
* 2008-2009 Mary Ann Remick Senior Visiting Fellow in the Notre Dame Center for Ethics & Culture at the University of Notre Dame, Notre Dame, Indiana; Professor of Philosophy and Church-State Studies, Resident Scholar in the Institute for Studies of Religion, Baylor University, Waco, Texas. Ph.D., M.A. (philosophy), Fordham University; M.J.S. (law), Washington University School of Law, St. Louis.
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