Taking Court-Packing Off the Table

9/28/2019—It would be nice to be able to take Court-packing off the table. On Friday, I gave a talk at the Elon Law Review Symposium on Court-packing—“Saving Judicial Independence From Court-Packing’s Nihilism.” I argued that Court-packing—the addition of the number of Justices beyond the nine set in 1869—bespoke a kind of jurisprudential nihilism. Marbury v. Madison pronounced America a government of laws and not of men. But the proponents of Court-packing did not believe that. They need bodies and votes.

And the Republicans are just the same. That is why they are busy packing the courts in their own way. Mitch McConnell says he wants to have a permanent impact. But how can you know how judges will rule in the years to come—unless this is all party and partisan and not reason.

Akhil Amar of Yale Law School delivered the keynote address of the symposium. And he also condemned Court-packing. He added an additional objection to partisan Court-packing—that the other side, the Republicans in this case, would regain power and add even more Justices to the Court. It would spin out of control, he warned.

I was impressed that there was a feeling of agreement in the room. The kind of agreement that goes beyond politics.

I also criticized the AALS for having “Pillars of Democracy” as the theme for the January 2020 annual meeting, while refusing to raise the issue of Court-packing. Presidential candidates discuss it, but not law professors? Are they afraid to confront the progressive wing of the Democratic Party?

Now that I have heard a national figure like Amar weigh in, I believe the academy will not much longer be able to avoid the issue.

But How to Do That?

5/13/2017—In 1996, Roberto Unger set the task for law in the opening paragraph of his book, What Should Legal Analysis Become?: "The conflict over the basic terms of social life, having fled from the ancient arenas of politics and philosophy, lives under disguise and under constraint in the narrower and more arcane debates of the specialized professions. There we must find this conflict, and bring it back, transformed, to the larger life of society."

I believe it is pretty easy to see that Unger’s premises are correct. That is, that this society no longer can conduct debate in a political sense over the basic terms of social life. In that sense, that conflict has fled from politics and philosophy. Unger’s other premise is that the same conflict or conflicts now take place in disciplines like law. We can see that in the immediate challenges to President Trump’s executive orders in court. Law is where the society debates all of the major issues.

My students will attest that I have been obsessed with this quote from Roberto Unger for years. The task of law in America is very particular and is not merely the task of law in general: dispute resolution and the maintenance of social bonds. No, here the task is deeply political and has to do with the reinvigoration of public life.

But how is this to be done? Certainly Unger never succeeded even in part in accomplishing his goal. Politics is even more sick today than in 1996 and law ever more politicized in the worst possible sense.

But in coming into contact with the German philosopher Peter Sloterdijk, I have begun to see how this might be done. Sloterdijk writes in his book, Not Saved, that it is necessary to understand empirical and philosophical anthropology in order to engage the human situation.

Perhaps what is needed in law is just the kind of empirical anthropology that the legal realists were attempting to create. That is, perhaps what law professors should be doing is predominantly descriptive: attempting to set for what we do and how we think and what our commitments are. This would turn law into a science in a good sense. And it would be possible the judge good law thinking from bad law thinking.

As usual, Robert Taylor anticipated me here by asking years ago in what mood must one be to do law? If we take that question very seriously, so that we begin to understand what we are doing when we do law, we might bring something of value to the greater society.

Currently, lawyers lie to the people and falsely claim that law is objective and simple. It is neither, which does not mean that it is subjective or even complex. Doing law is a rich human engagement. There are reasons why judges, law professors, legislators and lawyers in general do and write and say what we do and write and say. It should be possible to specify what those reasons are. That would be the task of law.

My Talk at Nootbaar

3/15/2017--Last Friday, I gave a talk at the Nootbaar Conference as part of a panel that was addressing religious critiques of law. My topic was The Religious Critique of Constitutional Jurisprudence. The talk represented a challenge to the religious community, and to all those committed to forms of moral realism, to confront the nihilism and value relativism of the field of constitutional interpretation. Below is a form of the talk.

What is needed is a Nootbaar-like Institute to study the Future of Secularism. Any reader is welcome to help me create that.
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The Religious Critique of Constitutional Jurisprudence

Nootbaar Conference, 2017
Bruce Ledewitz

What is the religious critique of constitutional jurisprudence? Does it consist of religious criticisms of the content of particular decisions by the US Supreme Court?

Does it consist of religious criticism of the demands of the State on religious believers?

Does it consist of a more general resistance to the growing assumption in the legal academy that religion is irrational and even harmful?

All these positions could be called religious critiques of constitutional jurisprudence. But none of them look at constitutional jurisprudence in its deepest dimension. What does constitutional jurisprudence assume about the nature of reality?

There is an urgency today to look at law in its deepest dimension because of the emergency that has befallen American public life. After a Presidential campaign between two candidates widely regarded as untruthful, rife with false news and political manipulation, the American public distrusts all institutions. There is a feeling, and not just among Trump voters, that we are being lied to.

Technology has played a role in this distrust and we must remember the somber warning of Martin Heidegger that it is unclear whether democracy is at all suited for a technological age.

But what about law? Have we lawyers played a role in this emergency? Marbury v. Madison largely placed the care of constitutional democracy into the keeping of lawyers. How likely is it, then, that we have played no role?

When we look at the depth dimension of constitutional jurisprudence, what do we see? All of the Justices proclaim that they are faithful to the Constitution and, within that restraint, that they promote democracy. Yet, these professed commitments are only partial and to some extent rhetorical. They are not foundational.

The foundation of constitutional jurisprudence today is the view of all of the Justices about values. Values are seen in a relativistic fashion, in which it is not possible to speak of truth or even a hierarchy. Values are subjective and they do not pertain to knowledge. We have surrendered truth. This understanding shapes everything about the field.

This understanding is why, in his dissent in the Casey abortion case in 1992, Justice Antonin Scalia criticized the majority’s acceptance of the fundamental right of abortion on the ground that this represented a value judgment with which many Americans would disagree. And the value judgments of those Americans are just as good as those of the Justices on the Court. Justice Scalia pointed to the politicization of the Supreme Court nomination process as a consequence of the Court’s entering into value judgments. He wrote that when courts do lawyers’ work instead, reading text and discerning our society's traditional understanding of that text--the public pretty much left us alone.

This position, that value judgments can only reflect differing preferences, reflects a legal positivism that proclaims a fundamental distinction between law and morality. But, as is usual with such positivism, it cannot account for why any particular course should be chosen. So, the view that Justices should not make value judgments is itself a value judgment that is not directed by any legal source.

The subjective quality of values supported a position taken ten years later, in 2003, by the Court in Lawrence v. Texas, which struck down punishment of consensual gay sexual relations, that, quoting an earlier dissent by Justice Stevens, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice… . Justice Scalia roundly criticized that holding, and rightly so, for its radical departure from the tradition of a rule of law, which has always been understood as having something to do with morality. But, as a legal positivist, Justice Scalia should have conceded that a moral claim could not serve as a rational basis for a law, since morality is a matter of opinion.

At the same time in 1992 that the conservative bloc was proclaiming the relativism of values in the Casey dissent, the liberal bloc was pronouncing secular morality to be nothing more than a matter of human choice in Lee v Weisman. I called this juxtaposition of opinions in a recent law review article The Five Days in June When Values Died in American Law because all of the Justices joined either the Scalia dissent in Casey or the Justice Anthony Kennedy majority opinion in Lee.

The issue in Lee had to do with the constitutionality of prayers at a high school graduation, actually a middle school graduation, and the defense that since the prayers involved were nondenominational, they did not violate the Establishment Clause. Justice Kennedy rejected this defense and in finding the prayers unconstitutional, he wrote:

"If common ground can be defined which permits once conflicting faiths to express the shared conviction that there is an ethic and a morality which transcend human invention, the sense of community and purpose sought by all decent societies might be advanced. But though the First Amendment does not allow the government to stifle prayers which aspire to these ends, neither does it permit the government to undertake that task for itself."

Lee demonstrates the death of values in American law. If religion involves claims about the independence of morality from the opinions of human beings—an activity the opinion says government may not “undertake”—then secular instruments like law must not involve claims of value objectivity and moral realism. A law like ours, which must be based on secular sources, cannot make the claim that values “transcend[] human invention.” This is the same view of values as that espoused by Justice Scalia in his Casey dissent.

I agree with Justice Kennedy that the commitment that ethics and morality transcend human invention is religious in nature, is the commitment of all religious traditions, indeed of all traditions of moral realism. Thus, the religious critique of constitutional jurisprudence should consist in the rejection of its relativist foundation. Religious law professors, and their fellow travelers in moral realism, should insist that the meaning of the universe is not a reflection of human choice. We should be insisting in our writing and to our students that the universe—reality—is founded on an intelligence and an order that human law must reflect, if law is going to promote human flourishing.

This religious critique would also speak to the emergency that has overtaken American public life—an emergency that roots in the same value skeptical foundation as does constitutional jurisprudence: the unconscious assumption that, with the death of God, there is no underlying order to anything. In a universe of chaos and chance, there is no ground for trust and no room for truth. In such a universe, all institutions will be under suspicion, as indeed they are today. In such a universe, there will be not any shared measures of verification, even for what we might call factual claims. Such a universe cannot sustain democratic constitutionalism.

Why has this not been said, and loudly? The fact that these positions could be taken by Justices on the Supreme Court, without serious objection from the legal academy, when even brief reflection demonstrates their radical and unacceptable nature, shows that law professors have become so much a part of the ideological divisions on the Supreme Court that we have lost our capacity for genuine critique. We are only interested in how cases come out. And we won’t break ranks with our political side. At least teachers in religiously affiliated law schools should not be partisan in this way.

We are in a very bad situation and I am not here to propose some simple solution. But I will close with the following observation. At the January AALS annual meeting, there was a plenary session about the incoming Trump administration. It was all gloom and doom. Well-known liberal dean Erwin Chemerinsky solemnly proclaimed that Donald Trump does not believe in the rule of law and does not believe in truth. I almost grabbed the microphone to respond that Donald Trump should then be teaching in a law school, because we have been teaching value skepticism since the 1950’s. As a discipline, law has to stop doing that and this Conference is the proper place to promote that recognition.

How to be Spiritual but not Religious

4/29/2015—It is hard not to be religious. It is hard to know what to do. This is more a question of ritual and practice than of belief. Consider the book review by Meghan O’Rourke of The Light of the World by Elizabeth Alexander.

The book is a memoir of the sudden death of Alexander’s husband and her response to it. He was relatively young. They were very much in love. It was sad.

That said, my point here is the difficulty. Here is how O’Rourke puts it: “One might argue, of course, that the recent swarm of grief memoirs is just another manifestation of our confessional culture of self-disclosure. I’m biased — I wrote one of these books myself — but I think what we’re seeing here is something deeper and more useful: a desire to understand and give shape to an experience that defines us, an experience that is ethical and social in nature. How we grieve alone tells us something about who we are together. These books teach us that grief is not something merely to endure, medicate away or ‘muscle through,’ but an essential aspect of life — even a kind of privilege. ‘What does it mean to grieve in the absence of religious culture?’ Alexander asks, devastated by her seemingly unbearable loss, searching for meaning where none initially presented itself.”

You never hear about things like this. But this is what a religious tradition really gives: a way of living. Something to do when your spouse dies. In contrast, the secularist does everything herself. And who can bear that?

What is Liberal Thought? How is it not Religious?

5/4/2012—Sarah Morice-Brubaker wrote an important piece today in Religion Dispatches. She was describing the situation of Emily Herx, who was fired as as teacher at a Roman Catholic School in Indiana for trying to conceive using in vitro fertilization. The story of Herx involves a lot of claims and counter-claims, including the charge that the Church in this instance is practicing inconsistency in not applying like standards to male teachers. I’m not familiar enough with the facts to comment on any of that.

But Morice-Brubaker is after bigger game than just commenting on one story. She is making a larger point about religious and liberal thought. She writes,

“The fact is, there is a significant and sustained tradition within Catholic (and not only Catholic) religious thought, which stands in sharp opposition to much liberal political reasoning. Yet it’s that very liberal reasoning which would give religions a designated space where they can be faithful, without imposing such faithfulness on others—provided those groups implicitly agree to the underlying liberal presuppositions.”

To illustrate the point of differing thinking, Morice-Brubaker quotes Pope Leo XIII’s 1888 encyclical, Libertas. “On the Nature of Human Liberty”:

“these followers of liberalism [who] deny the existence of any divine authority to which obedience is due, and proclaim that every man is the law to himself; from which arises that ethical system which they style independent morality, and which, under the guise of liberty, exonerates man from any obedience to the commands of God, and substitutes a boundless license. The end of all this it is not difficult to foresee, especially when society is in question. For, when once man is firmly persuaded that he is subject to no one, it follows that the efficient cause of the unity of civil society is not to be sought in any principle external to man, or superior to him, but simply in the free will of individuals; that the authority in the State comes from the people only; and that, just as every man's individual reason is his only rule of life, so the collective reason of the community should be the supreme guide in the management of all public affairs.”

Morice-Brubaker claims that the difference between some religious thinking about liberty and the thinking of liberalism is the difference between substance—“something ‘ordered’ to something by God"—and process—liberty as “a procedural safeguard against individuals being infringed upon by other individuals.”

But is this so? Pope Leo condemns the idea that “every man is the law to himself.” But the claim of conscience is not that everyone is right about right and wrong but that everyone gets to decide for himself about right and wrong. But that person might be wrong. If the Southerner in 1850 decides for himself that slavery is right and the slave is better off, we simply say he is mistaken. It is not a matter of opinion. Of course the slaveowner has the right to make up his own mind. But he is not in the end a law to himself. There is a higher authority—the authority of actual right and wrong. Pope Leo and I only disagree about the source of that authority, since I don’t believe in God.

There may be some realm in which my actions affect no one else and we therefore decide to allow people to act on their wrong conclusions. But in most situations I do affect others and therefore I cannot claim the right to act as I please.

And the authority of actual right and wrong is important as a political theory as well. Pope Leo also makes the point that if each man is a law to himself, then the will of the majority must also be the only authority in the State. Under that theory, the will of the people could never be wrong.

We see here that the whole tradition of human rights rests on Pope Leo’s foundations and not those expressed by Morice-Brubaker. There is a higher authority and the people can be wrong. Again, the majority may retain the power to act. But that does not make the majority a law to itself. As Robert Bellah has written, references to God in the public square often are used to make this point—that the majority can be wrong.

I am not sure that Morice-Brubaker would disagree with some, or even most, of this. I’m going to send this to her to see.

Are Values Objective?

1/12/2012—The philosopher Hilary Putnam tells an important story in his essay “After Empiricism”, in his book, Realism with a Human Face (Harvard 1990). The essay is a review of sorts of A.J. Ayer’s book, Philosophy of the Twentieth Century.

Putnam begins with the general philosophical context: “If any problem has emerged as the problem for analytic philosophy in the twentieth century, it is the problem of how words ‘hook onto’ the world.” The problem with Ayer’s book is that he has not acknowledged the difficulty—Putnam thinks maybe the impossibility—of solving this problem.

Putnam calls this problem the search for the “true world”—how we can know the furniture of the world apart from our perceptions and projections. This was the project that David Hume began and although the effort has yielded many important insights, Putnam thinks it has failed and needs a rest if not abandonment altogether.

For my purposes, Putnam’s critique is telling. “Much of our discussion—the discussion of whether values are ‘objective’ or ‘subjective,’ for example—is still trapped in the categories fixed by Hume.” Putnam is suggesting that I am not going to get anywhere with that kind of question.

Today, there is more confidence than ever with our ability to get to the world as it is, stemming from science. That is why Sam Harris writes of a science of human flourishing in The Moral Landscape. Indeed it is why some secularists claim to be in touch with the real vis-à-vis religion. They are ready to believe that they believe nothing without evidence, which is no more possible for them than for the empirical philosophers Putnam is describing.

So, since I commit to objective values in Church, State, and the Crisis in American Secularism, what can be said against the relativism of secularism? I think Putnam would suggest I say that values are as objective as anything else we consider objective. And leave it at that.

How Natural Law Becomes the Ally of Relativism

5/12/2010—I have just read an article by George Weigel in the magazine First Things entitled “Truths Still Held” (the magazine cannot be accessed online without a subscription). The article is an examination of John Courtney Murray’s book, We Hold These Truths: Catholic Reflections on the American Proposition. I agree with a great deal that Murray said and much that Weigel writes as well. But Weigel is not really interested in Murray. Instead, he is only interested in a narrow political agenda and is perfectly willing to sacrifice potential consensus around Murray to achieve it. Thus his partisanship creates the perfect climate for the growth of relativism he purports to oppose.

Murray presented the American Proposition as embodying three substantive truths. As Weigel rightly says, Murray believed that “[t]hese are truths built into the world and into us… .”

The first truth is that “we are a nation under judgment”. That meant to Murray that God is sovereign but it also means that we are subject to “the judgment of those moral truths inscribed by nature’s God”. In other words, it is not necessary to believe in God to hold to this truth, only to believe in the power of truth itself.

Weigel rightly says that it is not atheism that conflicts with this truth but, at its root, “postmodernism’s skepticism about the human capacity to know the truth of anything with certainty”. Here, Weigel is in complete agreement with the atheist Austin Dacey in his book The Secular Conscience.

Murray’s second truth is that just governance exists by and with the consent of the governed. But here Weigel’s partisanship rears its head. He says consent is threatened by the “judicial usurpation of politics.” But surely Murray would have agreed with Lysander Spooner that “All governments ... that profess to be founded on the consent of the governed, and yet have authority to violate natural laws, are necessarily frauds. It is not a supposable case, that all or even a very large part, of the governed, can have agreed to them. Justice is evidently the only principle that everybody can be presumed to agree to, in the formation of government.” [The Unconstitutionality of Slavery] Insofar as the courts protect fundamental human rights, they do not usurp the genuine content of politics. Roe v. Wade may not reflect the protection of human rights, but that is then the issue and not an attack on the courts in general. Nor is Weigel’s professed fear of the criminalization of criticism of homosexuality as hate speech anything but his own inflated partisan rhetoric. There is no such threat in America.

The final truth is that the state is distinct from society and limited. But Weigel uses the absurd example of gay marriage as a threat to this proposition, claiming that it “is not within the competence of the state to define marriage.” This is simply tendentious and confuses two different senses of marriage. In terms of Catholic doctrine, the conferring of the rights of marriage by the state (such as covering one’s partner with one’s medical benefits) has nothing to do with genuine marriage. Marriage is an institution that predates the state. That is certainly true. The state cannot alter the definition of marriage from this perspective because the state has no power over marriage in this sense. But the state certainly does have the power and the right to determine the general terms of civil life. Protection of gay partners falls well within that legitimate state authority and if the state mistakenly calls this state of affairs marriage—mistakenly as Weigel sees it—that is no threat to role of limited government.

By insisting that the entire doctrine of natural law necessarily justifies Weigel’s own political positions, Weigel politicizes natural law and ensures that it cannot serve as the consensual basis of American political life. If he really wanted allies he could easily find them.

The Implications of the New Science of Infant Morality

5/9/2010—C.S. Lewis wrote that the fact that “taking your turn” is universal among cultures shows that there is an objective morality in the universe. If we ever encounter alien intelligence, they will know about taking your turn.

Today, scientific evidence is emerging that infants have an innate, though flawed sense of right and wrong—infants reward altruism and punish selfishness, for example, though they greatly favor their own kind. (Paul Bloom, “The Moral Lives of Babies,” The New York Times Magazine, May 9, 2010, 44). This evidence would come as no surprise to C.S. Lewis, who would have said it just shows the kind of things we are and the kind of thing the universe is. In other words, it is evidence of objective morality.

This field or research holds the promise of refuting the claims of subjectivism, relativism and nihilism. Years ago, Arthur Leff, the noted Yale Law Professor, wrote an agonized poem in which the assertion that the Holocaust was wrong was met by the skeptic’s question, “Sez who?” Perhaps one day we will answer simply, “the babies, that’s who.”

Here is the poem, from Arthur Leff, “Unspeakable Ethics, Unnatural Law,” Duke Law Journal 1979 (1979): 1249:

As things now stand, everything is up for grabs.
Nevertheless:
Napalming babies is bad.
Starving the poor is wicked.
Buying and selling each other is depraved.
Those who stood up to and died resisting Hitler, Stalin, Amin, and Pol Pot—and General Custer too—have earned salvation.
Those who acquiesced deserve to be damned.
There is in the world such a thing as evil.
[All together now:] Sez who?
God help us.

Higher Law in the Public Square

4/21/2010—Indiana University Press will be publishing my book, Higher Law in the Public Square: How the Higher Law Tradition Can Resolve the Establishment Clause Crisis and Save Secularism. The book attempts to formulate a new approach to a range of Establishment Clause issues, such as the “under God” phrase in the Pledge of Allegiance, through the lens of objective values that both religious believers and secularists can embrace. No publication date has yet been announced.

Republican Senators Betray Their Atheist Materialism

4/17/2010—According to news reports, Republican Senators repeatedly grilled UC Berkeley law professor Goodwin Liu for not following original intent in interpreting the Constitution. But, aside from the merits of that approach (and the hypocrisy of giving corporations constitutional rights while feigning devotion to original intent), all the talk about finding “new” rights demonstrated the legal positivism of the Senators. For a religious person, or even a secularist devoted to natural law, there are not “new” rights. There are rights. Those rights might be newly recognized, like the right of women to develop as individuals, but they are not new rights. Humans have simply denied existing rights in the past.

The framers of the Constitution remained the natural law thinkers they were when they earlier wrote of unalienable rights with which we are endowed by our Creator. That is why they later added the Ninth Amendment, which they thought would serve as a reminder that there are rights “other[]” than those enumerated in the text. They would not have understood referring to such rights as “new”.

Of course it is no surprise that the Republican Senators do not understand this. As a friend of mine has put it, we are all atheists now, even those of us who go to church, synagogue and mosque. We no longer really understand what a religious universe looks like. The supporters of Professor Liu are just as atheistic as are his opponents.

Nor is this primarily a matter of judicial activism. One might applaud a judge for identifying fundamental human rights and then insist that such right not be judicially enforceable. That seems to me to violate the simple textual meaning of the ninth amendment, however. If the enumerated rights are enforceable in the courts but other rights are not, then those other rights are being denied or disparaged, contrary to the command of the ninth amendment.

Pascal's Wager

12/28/2009—No, I mean Pascal Boyer’s wager, not the other one. Yesterday I read Judith Shulevitz’s review of Nicholas Wade’s new book, The Faith Instinct. (Read review). Wade’s book is one of those tired exercises in evolutionary theory—its subtitle is “How Religion Evolved and Why it Endures”. The problem with this kind of writing is that it is tautological: religion is here, therefore it must convey some evolutionary advantage, so let’s guess what it might be. Since in this kind of scenario no guess can be shown to be wrong, it’s a useless endeavor. According to Shulevitz, Wade’s answer is:
“Rituals take time; sacrifices take money or its equivalent. Individuals willing to lavish time and money on a particular group signal their commitment to it, and a high level of commitment makes each coreligionist less loath to ignore short-term self-interest and to act for the benefit of the whole. What are gods for? They’re the enforcers. Supernatural beings scare away cheaters and freeloaders and cow everyone into loyal, unselfish, dutiful and, when appropriate, warlike behavior.”

OK. Your guess is as good as mine. Of course, if it’s true, it will not work in the future, because we can now see that the enforcers are not really there. Shulevitz points out that Wade treats religion as a minor tool for a nonreligious good, social solidarity, when religion itself is the big issue. Religion must do something in and of itself.

Of more interest is Shulevitz’s description of another position on the role of religion, that of Pascal Boyer, the cognitive anthropologist. Boyer argues that religion “is a byproduct of our overactive brains and their need to attribute meaning and intention to a random world.”

I have yet to read Boyer’s Religion Explained, but I intend to when the University library reopens. On a minor level, I can imagine testing Boyer’s hypothesis: for example, one could show subjects random numbers and ask them if they see a pattern. But on a larger level, how would one show that reality in fact is “random”? Maybe large-brained animals see order and meaning in existence because it is there. Boyer must have an answer for this.

The Moral Irresponsibility of Robert P. George

12/23/2009—Last Sunday’s New York Times magazine carried a story by David D. Kirkpatrick about Princeton professor Robert P. George, who was described in the article as “the reigning brain of the Christian right.” George is a Catholic natural law thinker. He argues that abortion, stem cell research and gay marriage are violations of human reason as well as violations of tradition in general and Catholic Church teaching in particular. It is this emphasis on human reason that marks him as more than just a Catholic thinker.

The moral irresponsibility of George's position is not in his conclusions, which I think are wrong in part, but in his willingness to bunch these three issues as if they share a degree of moral seriousness. George even “drafted a 4,700-word manifesto that promised resistance to the point of civil disobedience against any legislation that might implicate their churches or charities in abortion, embryo-destructive research or same-sex marriage.”

But, from George’s own point of view, any linkage of these three issues is spurious. Abortion and embryo destruction are matters of human life. George is entitled to oppose same sex marriage, of course, but he is not entitled to suggest that recognition of same sex marriage represents a moral wrong equivalent to the taking of human life.

George is aware of this disproportion. That is why he speaks about denying communion to Catholic politicians who vote for choice, but does not say that communion should be denied to those who support gay marriage. He knows the moral stakes are very different.

Why then does he link these three issues? George has become a purely partisan flack. He has ceased to be a serious moral voice. Thus, George argues whatever will strengthen the bond between the Catholic hierarchy and the Republican Party.

I want to be clear that I agree with George in large part about abortion and stem-cell research and disagree with him strongly about gay marriage, which can easily be shown to be consonant not only with reason but with nature. Nevertheless, even if I agreed with him on all three issues, or even if I disagreed with him on all three issues, I would feel that his treatment of these issues as fungible is absurd.