RJN 1.27.06 America,…

America , the official Jesuit weekly, had not editorially commented on the recent instruction from Rome when I wrote “Gays and the Priesthood,” which appears in the current issue of F IRST T HINGS . America ‘s editorial response was a very delicate matter, and I am told it involved widespread consultation among Jesuit leaders, which is perfectly understandable.

It will be recalled that the instruction reaffirmed the Church’s teaching that homosexual acts are intrinsically immoral and the desire to commit homosexual acts is morally disordered. It went on to say that the Church “cannot admit to the seminary to holy orders those who practice homosexuality, present deep-seated homosexual tendencies, or support the so-called gay culture.”

The editorial response in America pointedly does not affirm the Church’s teaching on homosexuality. It does emphasize the number of “excellent priests” who are “gay,” and caution against animosity toward them and other gays. Then there is this:

There is a valid concern that the priesthood should not become exclusively or even predominantly the domain of gay men. In the same way that one would not want to see all or most priests coming from a particular ethnic group, or from a particular region of a country, one hopes that the priesthood reflects the great diversity of Catholics.

So the response of the official magazine of the Society of Jesus in the U.S. would seem to be that homosexuality is no more morally problematic than one’s ethnic identity or geographical origins, and that there should be room in the priesthood also for men who are not gay. Rome says gay men should not be admitted to the priesthood. The Society of Jesus, insofar as it is represented by America , responds that men who are not gay should not be excluded from the priesthood. There would appear to be a problem here.

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Hadley Arkes writes :

During the trial of Adolf Eichmann in Jerusalem, Eichmann’s attorney, Robert Servatius insisted that the client had not really borne responsibility for "killings by gas, and similar medical matters." Judge Halevi thought there must have been a slip of the tongue in referring to killing by gas as a "medical matter." But there was no slip of the tongue: Servatius replied that "it was indeed a medical matter, since it was prepared by physicians; it was a matter of killing, and killing, too, is a medical matter."

It fell to Justice Scalia, in Gonzales v. Oregon , to make again the kind of argument, in rejoinder, that Servatius’s obtuseness invited. In this case, the State of Oregon made provisions for the involvement of physicians in assisted suicide. John Ashcroft, as Attorney General, invoked his responsibility under the federal Controlled Substances Act to find that the use of drugs in suicide was not a legitimate medical purpose. Justice Kennedy wrote for a majority of the Court in overturning that reading of the federal statute, and upholding the authority of Oregon to take a more accommodating position on the role of physicians in suicide.

Kennedy also questioned the propriety of having decisions on the use of drugs made by the Attorney General, rather than those officials in the government who deal with the regulation of medicine. But as Scalia pointed out, a decision about the rightness or wrongness of suicide was not a "medical" question. Nor was it a question to which "science" becomes a source of answers. Whether people have lives worth living, or whether they are taking even their own lives for reasons that are justified or unjustified, are distinctly moral questions. The principles that provide the ground of judgment form a discipline that has not been, these days, a discipline in which scientists have been tutored.

Scalia has made clear his own judgment that the States have a wide latitude in accommodating suicide or in forbidding it. But the problem here is taken into another register as soon as we have found compelling reasons for regarding the regulation of drugs as a scheme that must have a national, or federal, sweep. Once we have made that judgment, the question of regulating drugs simply cannot be detached from the question of what is a legitimate or illegitimate use of drugs. And that in turn cannot be separated from the question of the rightful and wrongful ends of medicine.

In this respect, Scalia followed the brief for the government as he leaned on the traditional understanding that has enveloped the practice of medicine since the time of the Hippocratic oath. As the government had pointed out in its brief, medicine involves the task of healing or treating the sick¯according to Webster, it is the "science and art of dealing with the prevention, cure, or alleviation of disease." And as Scalia observed, "virtually every medical authority from Hippocrates to the current American Medical Association (AMA) confirms that assisting suicide has seldom or never been viewed as a form of ‘prevention, cure, or alleviation of disease,’ and (even more so) that assisting suicide is not a ‘legitimate’ branch of that ‘science and art.’"

Justice Kennedy, ever adaptive, showed an obtuseness to the problem at every level. He remarked that nothing in the federal statute gave the Attorney General an "authority to define diversion [of drugs] based on his view of legitimate medical practice." In the first place, it was not simply "his view," any more than it was a view legislated by Congress. It was an understanding that has ever attached to medicine, at least in settings with the recognition that medicine, or any other activity, must always imply questions about its rightful or wrongful ends. Even if Congress had not made explicit this ancient understanding of the ends of medicine, there was no way for an officer of the law to evade that kind of question.

The philosopher Wittgenstein once had an example of people leaving a child in the hands of a babysitter with the instruction, "teach that child a game." When the parents returned, the sitter had taught the child how to shoot craps. The sitter might have been invited to show the child a movie, and he might have decided to play for the child an X-rated, adult movie. The sitter could not have been instructed in advance of all the things he should not do. We rely on people understanding, even in the most prosaic matters, that there are certain things they should not do. We expect them, in virtually every activity, to be attentive to the chain of rightful and wrongful ends in which their acts may form a part.

With that sense of things, the laws did not confer upon the Attorney General a responsibility that ran beyond the responsibility that a babysitter, a bus driver, or a plumber would have. Anyone given responsibility, in the federal scheme for the regulation of drugs, could not avoid the question of the legitimate or illegitimate use of drugs; and on that question, the Attorney General did not fall back on his own personal views. The tradition of laws had already incorporated a moral understanding long settled.

Our libertarian friends have shown an indecorous enthusiasm for this decision on the case from Oregon. It is not, in many cases, because they welcome the involvement of doctors in suicide, but because of their attachment to federalism. I share the attachment to federalism, but we run the risk there of replicating Justice Kennedy’s mistake on the large question. When we talk about the regulation of commerce or anything else, we may easily overlook the fact that the regulation of commerce cannot be detached from a sense of what is rightful or wrongful commerce.

As Scalia has recognized, the regulation of commerce encompassed, quite early, the regulation of lottery tickets, and in later years, the barring of prostitution, as the Congress has been drawn in persistently to mark off the boundaries of rightful and wrongful commerce. We’ll save for another day the tangled question of federalism; I’d simply post a caution that the libertarians are headed on a path of incoherence if they think that federalism offers a way of putting aside the moral questions that vex our politics.

Still, what has not been fully appreciated by the votaries of federalism is the way in which this decision by the Court cannot be cabined in Oregon. The scheme offered to us in the name of federalism asks us to incorporate the view that assisted suicide is just another, tenable view about the proper ends of doctors and medicine. Justice Kennedy plants the premise when he remarks that the Attorney General had sought to bar a policy in Oregon merely "because it may be inconsistent with one reasonable understanding of medical practice."

The aversion to self-killing or self-murder, the enduring concern about doctors using their powers to end life¯all of that is simply diminished now as "one reasonable understanding of medical practice," no more right or wrong than anything else. To incorporate that understanding at the top of the State, in the national government, is to do nothing less than to erode the conviction that has firmed up the laws for the protection of life at the center and the periphery in this country. If the assistance of suicide is regarded as just another "reasonable understanding of medical practice," why should that view of things not begin to seep into parts of the federal establishment? Why should it not come to affect the understandings that prevail in military hospitals or in divisions of the National Institutes of Health?

To recall an older example, we might have lived for a while with a federalism that allowed slavery in some of the States. But the question posed by Lincoln is just what would happen to our understanding, as a people, as we had come to incorporate a certain indifference on this point¯if we came to think that there was nothing exactly wrong in principle with some men ruling others, as property, without their consent. I am not putting assisted suicide on the same plane as slavery; I am simply trying to remind us of the way in which we may talk ourselves out of moral understandings central to the laws as we talk ourselves into the view that one version of the uses of medicine is quite as reasonable as another. In this way, moral understandings, once firmly settled, become unsettled. And we should not deceive ourselves about the reach of that small change the Court brought forth last week.

(Click here to email the author about this item. Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College, and a member of the editorial board of F IRST T HINGS .)

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In addition to which :

The question of what it means to be an evangelical takes some surprising turns in “Evangelicals and Others” by Timothy George. Along with much else in the February issue is Avery Cardinal Dulles on what Pope Benedict favors and disfavors in the documents of Vatican II, Richard John Neuhaus on the troubling reactions to the instruction on gays and the priesthood, and a critical appreciation of Stanley Hauerwas by Stephen Webb. To become a subscriber to F IRST T HINGS , click here .