As I read the newspaper this morning in its description of recent findings of the Supreme Court, I was reminded that the most difficult of cases is not when there is one clear answer. In fact, cases like that don’t rise to such a level of adjudication. No: the most difficult of cases is when there are, rather, two clear rights in conflict with one another.
This is true of legal principles as well as religious and ethical principles.
Let’s consider two issues that have been on the front burner for some time now, both related to universities.
In this morning’s paper was the case of the University of Notre Dame and its desire not to provide contraception through its health coverage, in keeping with its Catholic faith. The Obama administration tried to force the university to provide coverage for birth control to all women subscribed to its health plan. An uproar ensued, charging that the law was a violation of the university’s free expression of religion. The administration found a compromise but, unfortunately, the conflict still is not entirely resolved and currently there are anti-campus administration protests at Notre Dame.
Here, we have a case of right vs. right. Yes, religious institutions need to be free to follow the moral dictates of their tradition as long as there is not an overriding state interest. And, yes, women deserve to have their reproductive needs covered by insurance policies in the same way as all other health issues, without their employer’s interference. Yes, students and employees of the university are free to go elsewhere. But if the school denied someone a job or academic placement due to reproductive issues, they would be sued for discrimination.
It is not enough for those who support a woman’s right to control her own body and to have equal access to appropriate health care to blithely dismiss Notre Dame’s moral commitment as patriarchal or archaic. As the Church understands it, contraception is the destruction of human life, i.e., murder; for the Church, there is no moral distinction between potential life and life independent of the womb. And if it is murder they have no choice but to oppose it. And, equally, it is not enough for those who share the Church’s position to blithely dismiss advocates for a woman’s right, etc, as murderers who are inconsiderate of the value of human life and dignity. Women ought to be recognized as independent moral agents, fully capable of following their own moral dictates – religious or other – and not to face discrimination over issues that are particular to women.
Likewise with affirmative action. If admission to universities is to be merit-based, then acknowledgment of race, religion, gender, sexual preference, etc, are all peripheral. Only the student’s academic achievement and intellectual potential should be. On the other hand, in cases where we know that there has been an historical record of discrimination against, say, blacks, there can be a place for “reparative justice,” one that gives extra weight to the application of a black student. So, too, in situations in which there is the potential for current discrimination, let’s say against someone who is openly transgender. To wit: many universities now aspire to the laudable goal of creating a diverse student community. However, this solution has brought about two undesirable outcomes: first, a white student who is academically suited might be overlooked in favor of a minority student who isn’t, and a minority student who is not qualified might be admitted but then might suffer from his/her lack of preparedness.
Where does this leave one?
I don’t know. Perhaps with the suggestion that if solutions to such issues of “right vs right” are going to be found, a starting point will need to be the recognition of the moral perspective of one’s interlocutor. Recognition does not mean agreement. It is simply the acknowledgement of the dearly held moral position of the other as being, in fact, a moral one, held with the best of intentions, i.e., a desire to live a moral life and to make the world a decent and humane place.
Perhaps, too, legislative attempts to bridge the gap will not be as successful as grass-roots initiatives brought about when different-minded people can sit together, articulate their moral positions, listen to the other’s with respect and then creatively address the problem in a way that comes as close to facilitating both moral positions as possible. I recognize that this sounds naive, but I also believe that people’s ability to tolerate differences of opinions – even actions which conflict with their own morality – rises when they are content that their position has been heard and respected and that the decision-making process has been a fair one.
Our tradition recognizes the insolubility of many conflicts and the necessity of living in a world in which ambiguity reigns. The Talmud preserves opposing arguments in its pages, both the argument that became Jewish law and the one that didn’t. A page of Mikraot G’dolot – the volumes used for traditional Torah study – preserves different, and often competing, interpretations of the Torah next to one another. And a traditional Jewish saying has it that all of these conflicts will be resolved when the prophet, Elijah, comes to answer them in preface to the coming of the Messiah.
Can we live with that indeterminacy? I hope so. It’s a challenge, but a challenge that brings with it the recognition of the decency and integrity of those with whom we disagree.