Religious Views vs. Secular Views

Fri Oct 7 09:08:48 PDT 2005

One further point on this secular/religious/legal personhood question.

There are two ways to overrule Roe, one going much further than the other.

One way, is to say that SDP, whatever it might extend to, does not include a liberty to violently take the life of a living human being in the womb. This approach does not require the Court to hold that the fetus is a person under the 14th. All the Court need do is deny that an abortion liberty exists, and this would send the issue back to state legislatures and Congress to decide whether to prohibit abortion. Most social conservatives (including, perhaps, Miers) would take this approach to reversing Roe.

The second approach is to say that not only is there no SDP liberty to abort, but what is more the fetus is a  constitutional "person" whose equal right to life is explicitly protecetd by the 14th Amendment. This would be a way to constitutionalize the right to life and require states to protect the unborn from violent death in abortion clinics. I would go this way, myself, and I would get there through a secular process of giving the status of legal personhood an inclusive interpretation. 

Cheers, Rick Duncan

PS I am done here for the day. The Red Sox play for their lives in a few hours, and they need the total focus and support of all of Red Sox Nation!

Lawrence Solum <lsolum at gmail.com> wrote:
Rick writes:

"You can not at the same time believe that a fetus is not a human
person as a matter of secular reasoning and is a human person as a
matter of religious reasoning. A serious person who believes the
latter will never believe the former. Thus, such a person could
truthfully testify that she would not bring her religious beliefs into
the courtroom, even if she were already convinced that the abortion
liberty is not a constitutional right, because, even from her secular
perspective, there is no right to take innocent human life. The same
would be true of every other issue that is likely to come before the
Court. Her secular views can do the heavy lifting without any
assistance from her religious views."

Again, this seems quite wrong. I can easily imagine believing that a
fetus is a human person for religious reasons. For example, upon
giving due weight to the moral authority of the Church in a religion
like Roman Catholicism, but also concluding that a fetus is not a
constitutional person for the purposes of the 14th amendment. I think
that is actually an easy case. The case of "moral personhood" vel non
in the light of nonreligious reasons alone is slightly more difficult,
but if religious authorities is to have any "authority" at all on
moral questions that authority MUST BE CAPABLE of making a difference.

I don't question Rick's assertion that it could not make a difference
for him, but I do not understand how he can confidently state that IT
COULD NOT MAKE A DIFFERENCE for Miers.

Larry

On 10/7/05, Rick Duncan wrote:
> I agree completely with Mark Scarberry.
>
> Here is the context of McConnell's statements: Mark Tushnet had raised a
> hypothetical concerning a religious person who said he was persuaded by 
the
> secular arguments against issue X, but had decided to support issue X
> because X is in accordance with God's teachings and will. Mike then
> responded that he could not imagine a serious person acting like this,
> because there are not religious truths and secular truths, but only 
truths.
>
> I probably should have provided the full context earlier. I think it 
relates
> to the question of the Miers' nomination, because I can not imagine her
> thinking that the secular arguments for, say, abortion as a fundamental
> liberty are convincing, while at the same time believing as a conservative
> Christian that abortion is the sinful taking of a human being.
>
> You can not at the same time believe that a fetus is not a human person 
as a
> matter of secular reasoning and is a human person as a matter of religious
> reasoning. A serious person who believes the latter will never believe the
> former. Thus, such a person could truthfully testify that she would not
> bring her religious beliefs into the courtroom, even if she were already
> convinced that the abortion liberty is not a constitutional right, 
because,
> even from her secular perspective, there is no right to take innocent 
human
> life. The same would be true of every other issue that is likely to come
> before the Court. Her secular views can do the heavy lifting without any
> assistance from her religious views.
>
> This is one reason why committed church membership is a reasonable (but 
not
> perfect)predictor of secular ideology. Unitarians are very likely to favor
> gay rights and abortion rights, and theologically conservative Christians
> are very likely to oppose gay rights and support the right to life. In 
both
> cases, their religious views and their secular views are in balance.
>
> Which is the chicken and which is the egg?
>
> Rick Duncan
>
> "Scarberry, Mark" wrote:
> With reference to raft trips through the Grand Canyon (and begging the
> moderator's indulgence for one off-topic response):
>
> The fact that two groups of persons interpret evidence differently and 
reach
> different conclusions does not show that there are two truths. At least 
one
> of the groups is in error. The notion that there are two levels of truth 
--
> a religious level and a secular level -- is, I think, a notion that many
> Christian philosophers (and others) have opposed over the centuries and up
> to the present. If I'm not mistaken, such a notion was brought forward in
> Europe in the High Renaissance to explain how the church's teachings could
> be reconciled with Aristotle. Aquinas rejected the notion and instead
> incorporated Aristotle's insights into Christian thinking as part of one
> truth. I think John Paul II, not a philosophic slouch, agre! ed with
> Aquinas.
>
> On the contemporary Protestant side, I think Alvin Plantinga also would
> agree that there is only one truth. (Though I don't remember him making 
that
> specific point, I think it is implicit in his 3 volume set on 
epistemology.)
>
> Scientific truth and religious truth are not hermetically sealed (not 
even,
> for Johnny Carson fans, in a mayonnaise jar on Funk & Wagnall's porch).
> Scientific evidence suggests very strongly (to say the least) that the 
Earth
> is much more than 10,000 years old; that may influence a Christian's or
> Jew's interpretation of the first few chapters of Genesis, making a
> nonliteral interpretation seem more reasonable than it otherwise would 
seem.
> I cannot believe, as a matter of supposed religious truth, that the Earth 
is
> 10,000 or so years old, and also believe, as a matter of scientific truth,
> that the Earth is several billion years old. There is one truth as to the
> age of the Earth.
>
> Mark S. Scarberry
> Pepperdine University School of Law
>
>
> -----Original Message-----
> From: dr dow - univ. [mailto:ddow at uh.edu]
> Sent: Thursday, October 06, 2005 11:52 AM
> To: CONLAWPROF at lists.ucla.edu
> Subject: Re: Religious Views vs. Secular Views
>
> not only is mcconnell wrong, as larry says, what he says is ganz
> false. anyone who thinks that "truth is truth," that there are not
> religious truths and secular truths but only Truth itself, has missed at
> least a century's worth of intellectual history, and probably closer to
> three centuries' worth. you can get a cliffs notes version of how wrong he
> is by reading today's nytimes story on the two groups of grand canyon
> rafters. the story can be found at the following link:
>
> 
http://www.nytimes.com/2005/10/06/science/sciencespecial2/06canyon.html?hp&e
> x=1128657600&en=8fc8f41ec2ec6c4e&ei=5094&partner=homepage
>
> i think it is obvious that if, instead of two group! s of rafters, we had
> two
> groups of judges, there would be little doubt that they would decide many
> cases differently based precisely on their differing conceptions of truth.
> _______________________________________________
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>
> Rick Duncan
> Welpton Professor of Law
> University of Nebraska College of Law
> Lincoln, NE 68583-0902
>
> "When the Round Table is broken every man must follow either Galahad or
> Mordred: middle things are gone." C.S.Lewis, Grand Miracle
>
> "I will not be pushed, filed, stamped, i! ndexed, briefed, debriefed, or
> numbered." --The Prisoner
>
>
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> _______________________________________________
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>

--
Lawrence Solum
John E. Cribbet Professor of Law
University of Illinois College of Law
504 East Pennsylvania Avenue
Champaign, IL 61820-6909
217.244.3960
lsolum at gmail.com
http://lsolum.blogspot.com

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Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902

"When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle

"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered."  --The Prisoner

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 Click here to donate to the Hurricane Katrina relief effort. 
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