Mirror of Justice

More on the legislative-prayer case

Following up on Marc's post, and also on the posts by Eugene Volokh and Paul Horwitz to which he linked, a few quick thoughts:  First, I think it would be a good thing if the possibility Eugene raises - i.e., that the Court might re-examine the so-called "endorsement test" -- came to pass.  I think the criticisms directed at that test in Steven Smith's 1987 article had and have force.  Next, even if the justices leave the "endorsement test" in place, I hope they do not follow the Second Circuit in importing that test into the legislative-prayer context.  Yes, this context is an anomalous one and, yes, Marsh was and is something of an outlier, given that it prioritized history, tradition, and practice over the "wall of separation" idea.  For reasons I mention in this very short piece, I don't think the courts are very good at deploying all-things-considered balancing tests that purport to somehow measure the effects of religious displays and the like on the feelings of hypothetical "reasonable observers" and so they probably shouldn't try.  Better to either (a) rule out legislative prayers as per se unconstitutional "establishments" or (b) police the practice for discrimination in selection and leave the issue of particular prayers' content to politics and (dare we hope?) a spirit of charity.   

Teresa Forcades, the radical Catalan nun on a mission ...

"Sister Teresa Forcades is one of Catalonia's foremost political figures, but uniquely for a faith-led figure in Spain, her ideology is feminist and left-wing. Against a backdrop of continued economic contraction and austerity, she spoke to the Guardian about the need for an alternative to capitalism and criticised the misogyny of the Catholic church."

You can watch the six-minute video about Sister Forcades here.

Certiorari Granted in Legislative Prayer Case

The Supreme Court has granted cert. in Town of Greece v. Galloway, a case out of New York in which the Second Circuit held in an opinion by Judge Guido Calabresi that the town's practice of allowing volunteer private citizens to open town board meetings with a prayer violated the Establishment Clause. The last Supreme Court decision to address this precise issue was Marsh v. Chambers (1983), where the Court in a majority decision by Chief Justice Burger upheld the particular practice at issue in Nebraska. Courts of appeals have taken different approaches to the issue post-Marsh, even within the same circuit (see, e.g., the Fourth Circuit's very different approaches in Joyner v. Forsyth County, Wynne v. Town of Great Falls, and Simpson v. Chesterfield County) so I suppose it was on the Court's radar. But one never knows exactly why the Court decides to take up an issue.

For some discussion of the Second Circuit decision, see this post.

UPDATE: Interesting early posts on the case by Eugene Volokh and Paul Horwitz.

For Pentecost: Ignatius of Laodicea on the Holy Spirit

“Without the Holy Spirit, God is distant, Christ is merely a historical figure, the Gospel is a dead letter, the Church is just an organization, authority is domination, mission is propaganda, liturgy is only nostalgia, and the work of Christians is slave labor. But with the Holy Spirit, Christ is risen and present, the Gospel is a living force, the Church is a communion in the life of the Trinity, authority is a service that sets the people free, mission is Pentecost, the liturgy is memory and anticipation, and the labor of Christians is divinized.”

-- Ignatius of Laodicea, Bishop, 390 CE

HT: Brian Prior, Episcopal Bishop of Minnesota, who read it in his sermon at my parish (St. Stephen the Martyr) today

"Church law follows the theological reality of things."

A blog dedicated to "Catholic legal theory" should be interested in the fact of -- and the theory behind -- the ongoing revision of the law of the Catholic Church.  Several times I've heard a U.S. Cardinal complain tht the current Code (1983) "doesn't allow bishops to govern the Church effectively.  It makes it too difficult to apply appropriate penalties."  The following quote from the linked story hits the nail on the head:  

The current code was drafted in the 1970s, Bishop Arrieta said, "a period that was a bit naive" in regard to the need for a detailed description of offenses, procedures for investigating them and penalties to impose on the guilty. It reflected a feeling that "we are all good," he said, and that "penalties should be applied rarely."

It will be more than a little interesting to see how this revision, begun under Pope Benedict, concludes under the governance of Pope Francis.  Like his immediate predecessor, Pope Francis is profoundly aware that "we are [NOT] all good," as so many of his daily homilies make abundantly clear.  The 1970s weren't a propitious time for revising the Code of Canon Law, nor for much else in the life of the Church.    

Kinsley on Gay Marriage and Tolerance

This wlil show my age ... but Michael Kinsley was (paired with Robert Novak) the best host ever on Crossfire.  Not a high bar, true; but they were quite good.  He tends to be a contrarian liberal: the contrarian (increasingly so) position in this New Republic piece is "[B]eing against marriage equality doesn't make you a monster."  He touches a bit on the religious-liberty situations like the florist.  We've pretty well flogged these issues to death here, including how one can support same-sex marriage and strong religious liberty.  But c'mon ... this is Kinsley saying such things (dang, I showed my age again).

I'll open comments with trepidation, but since we have flogged this in other posts, I'll close the comments if they start veering to something beyond Kinsley's particular points.

Targeting, Unequal Application, and Free Exercise

This may be obvious to readers of this blog, but perhaps it's worth noting anyway in light of the somewhat loose way in which news outlets sometimes speak of "constitutional violations." Several places are reporting that non-profit organizations with religious affiliations are complaining that they were dealt with improperly by the Internal Revenue Service. 

I want first to emphasize that I do not know whether the allegations are true. I strongly suspect that nobody who is likely to comment on my post will know that information. For purposes of this post, I will only assume that they are true, in order to inquire about whether groups with these complaints, under such circumstances (and again, if true), would have a cause of action under the Free Exercise Clause (I am leaving RFRA to the side). 

Most readers are familiar with Employment Division v. Smith, which held that neutral laws of general application do not violate the Free Exercise Clause even if their impact especially burdens a religious person or group. A subsequent case, Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, involved a particular religious group's plans to create a new house of worship where they would engage in ritualistic animal sacrifice. In response to these plans, the City enacted various ordinances prohibiting animal sacrifice, but exempting pest control measures, hunting, kosher slaughtering, and private slaughtering of hogs and cattle. The ordinance outlawing "sacrificing" an animal defined sacrifice as "to unnecessarily kill, torment, torture, or mutilate in a public or private ritual or ceremony not for the primary purpose of food consumption." The Court struck down these ordinances as violations of the Free Exercise Clause.  

How might these cases apply here? Suppose that the government's explanation for delaying and/or denying a particular group's application for tax-exempt status was that the group "is not educational" or "is political" or "does not present all views." As to religion, this sounds like a facially neutral rule under Smith. The government could in theory apply a prima facie rule that says, "No groups will receive tax-exempt status unless they are educational, a-political, and representative of all views" without violating the Free Exercise Clause as interpreted by Smith (of course, it may be violating other provisions of the Constitution, but I am focusing specifically on free exercise).

Things don't end there, though. One might think that the problem is not one of facial neutrality, but instead of discriminatory motivation. The complaint would be that the rule isn't really neutral at all because the motivations of the government were to target particular religious beliefs. But though it is often thought that Lukumi rested on the ground of discriminatory motivation or "targeting," it did not. Only two Justices--Kennedy (writing for the majority) and Stevens (who joined him on this point)--relied on the history of the adoption of the ordinances to reach the conclusion that they were motivated by the City's desire to suppress or stamp out religious groups that it disliked. The real ground of decision did not have to do with discriminatory motivation, but with unequal application of the law. The question here would be--given the admittedly religion-neutral purposes of the law (education, a-political qualities, viewpoint inclusion), is the law being applied in a way which disvalues or is unfair to religious beliefs? A law which is applied selectively against religious groups cannot be "narrowly tailored" to the government's aims, and the failure of that narrow tailoring in turn suggests that the government's interest in the laws is not compelling. Subjective motivations are not relevant in this sort of inquiry; only the record of the law's aims and application is.

One might wonder whether this difference is important. A law that is motivated by the desire to "target" religious groups will generally fail to be narrowly tailored to achieve a compelling state interest. But not always. A law might "target" religious conduct on the ground that the religious conduct presents special dangers. Suppose a religious group has a ritual in which it tests its members with a "leap of faith" off a fourth-floor balcony. After five people have died, the town enacts a law which forbids people from jumping off of buildings. That law might be motivated by the wish to "target" this religious conduct, and the law likely would be valid even if nobody but members of the religious group engaged in the conduct. But a different question arises if the law proscribes certain dangerous conduct that is religiously motivated but continues to allow equally dangerous activity that is not motivated by religious belief (tightrope walking across two skyscrapers, for example). Take away the "dangerous" (to humans, that is) and this is what was happening in Lukumi. The difference does not, at least according to Lukumi, have to do with the subjective motivations of the "targeting" legislators, but with the extent to which unequal application of the law evinces a devaluation of religion.

In like fashion, it seems to me that with respect to the IRS situation, the issue for purposes of a Free Exercise Clause claim would turn not on evidence of the government's subjective intention to "target" particular religious groups, but on the ways in which a putatively neutral law or rule was applied to religious and non-religious applicants for tax-exempt status alike.

Collett on Gosnell

My colleague, Teresa Collett, wrote this powerful op ed for our local paper laying out why Kermit Gosnell could not be prosecuted in the state of Minnesota.

Non sum Oedipus, sed Morus

I am greatly looking forward to participating toward the end of the month in a workshop on the thought of Sir Thomas More, to be held at the University of St. Thomas under the auspices of the excellent Murphy Center.  The workshop's conveners (who include our own Lisa Schiltz) have generously provided us with various material to prepare, which I am now digesting (I don't know as much about this stuff as Moreland, after all).  But I wanted to point readers to a very worthwhile extended review by Louis W. Karlin (another conference convener) of Travis Curtwright's recently published The One Thomas More (2012).  Because I am scheduled to teach Professional Responsibility in spring 2014 and am fixing to reconstitute the course substantially, I found the following in the review especially interesting.  One issue I've always wanted to learn more about--and have thought might be rightly considered in a legal ethics course--is the relationship of equity to law and specifically the question whether equity may be understood as within law or instead as sitting outside it.

A particularly important aspect of Curtright’s study is his focus on More as a lawyer and jurist, demonstrating how More integrated his formative humanistic studies in classical literature with his professional career.  Contemporary legal practitioners and scholars will find much to ponder in Curtright’s extended analysis of the organic connection between rhetoric and jurisprudence in More’s thought, as it is developed in readings of Richard III and Utopia.  More believed that an education in the liberal arts, especially when combined with the study of law, informed and strengthened the practical judgment.

Curtright detects in More’s Utopia the foundations of a unique humanist jurisprudence.  By cultivating one’s practical judgment through careful study of poetry, history and law, a would be lawyer or legislator can discern the highest ideals for human flourishing, while simultaneously recognizing the inherent limitations in human nature that militate against radical reform.  More’s humanist jurisprudence reached its fruition in the expansion of equity jurisdiction that he championed and applied as a judge in the Chancery and Star Chamber courts to ameliorate the unfairness arising from strict application of legal rules under common law.  For More, equity, as the application of practical reason according to conscience, did not give a judge license to ignore the law in favor or his own understanding of justice. Rather, equity provided a moderating, ameliorative function to be exercised to better the law’s intent.

The notion that a young humanist champion of utopian reform gave way to a conservative statesman is to mistake the voice of Utopia’s Raphael Hythloday for the author’s.  As Curtright persuasively argues, the “real” More’s voice heard in The Life of Pico and Utopia is distrustful of “[s]ystematic answers to political problems,” advocating instead “engagement and accommodation applied toward modest goals” (86).  Thus, in his jurisprudence, it is the “rigor of the law, not the law itself, that should be reformed.”  As a judge and statesman, More distrusted radical reform in the manner of “sweeping Utopian legislation because More’s ideas of reform, such as they were, deal with the application of equity through conscience” (99).  This did not reflect “‘an Augustinian belief in the total and helpless depravity of fallen man,’” as Elton thought (7).  Rather, it follows from the same realization that inspired Dr. Johnson’s compassionate conservatism:  “The Cure for the greatest part of human Miseries is not radical, but palliative.”  (The Rambler, No. 32, July 7, 1750.)

“See the Victim”

Since Advent 2011 those of us who celebrate the Church’s divine liturgy in the Roman rite have made use of a new English translation, one that is more faithful to the original Latin text.  For the most part, I have appreciated these changes in that they have helped to restore a greater sense of reverence and dignity to the Mass – a sense that was at times lacking in the celebration of the Novus Ordo with the English translation that appeared shortly after the Council.

There are, however, a few instances in which the more sparse language of the 1970 translation resonates in a way that is lost in the more accurate, though more formal and ornate language of the new translation.

Take for example the epiclesis to Eucharistic Prayer III (A side by side comparison is available here).  At this point in the Mass the Church prays to the Father for unity – that those who share in Christ’s Body and Blood will be filled with the Holy Spirit and “become one body, one spirit in Christ.”  In the subordinate clause that precedes this, the language of the two translations is somewhat different.  Whereas the new translation asks the Father to look “upon the oblation of your Church . . . recognizing the sacrificial victim by whose death you willed to reconcile us to yourself” the 1970 translation simply asks the Father to “see the victim whose death has reconciled us to yourself.”

“See the victim.”

This simple declarative phrase urges God the Father to see our offering – Christ himself.  But it is not simply a prayer to the Father.  It is also an exhortation to the faithful to see Jesus, to see the Crucified One, to see the price of their redemption.

“See the victim.”

Notwithstanding the mainstream media’s calculated lack of interest in the trial of Kermit Gosnell (a lack of interest catalogued in the links contained here), the horrors exposed in the conviction of the Philadelphia abortionist have broken through – in part through the use of social media (see here), in part through the integrity of some journalists who shamed their peers out of a silence that seemed inexplicable apart from ideology (see here, here, and here). Though Kermit Gosnell (don't call him "doctor" – that’s not what you call murderers behind bars) was apparently dumbfounded (here) that he was convicted for simply trying to finish the job of ensuring “fetal demise” (Grand Jury Report p. 4), Gosnell has been found guilty of first-degree murder three times over.

“See the victim.”

Of course for there to be a crime there must be a victim.  Here there were several victims: an adult woman who sadly chose abortion and was given a drug overdose by a quack and his untrained staff, and of course several babies who were delivered only to have their spinal cords “snipped” even as they struggled for life.  They did not suddenly become “babies” in the act of being born, if by “baby” we mean “human being.”  “Baby” is a term we typically (though not uniformly) reserve for human off-spring who can interact with others outside the womb.  Sadly, the first interaction with adults that these children experienced was to die a savage death – to suffer as victims sacrificed on the altar of “choice.”  But their status as human beings long preceded their deaths and their births.  It began when they began, seven or eight or nine months prior.

It is not in the interests of those who profit from child murder to see any child victim where “fetal demise” is secured.  Thus, in an attempt to spin the Gosnell verdict in a kind of legal jujitsu, NARAL’s president Ilyse Hogue issued a statement (here) placing blame for the Gosnell affair on attempts to regulate abortion.  According to Hogue, the lessons to be learned from the Gosnell trial are that the “unrelenting efforts” of “anti-choice” politicians “to deny women access to safe and legal abortion care, will only drive more women to back-alley butchers like Kermit Gosnell.”

The maneuver fails, of course, in that Hogue’s claim is exactly wrong.  Gosnell was allowed to operate with impunity for decades not because of an abundance of regulation but because of the near total absence of any government oversight – an absence that the abortion industry has tenaciously worked to secure.

What is absent from the NARAL statement – shamefully but predictably absent – is any acknowledgement of the victims – of the children murdered by Gosnell.  And the reason for this is obvious – because NARAL and its partners in the crime of in utero child murder (like the National Abortion Federation and Planned Parenthood) have the same blood on their hands.  They may not preserve their victims in jars, like trophies, as Gosnell did, but the same blood of the innocents stains their hands, and their balance sheets, and the whole country, making a mockery of the rule of law.

“See the victim.”

If there is any good that can come from the tragic loss of life brought to light in the Gosnell trial it is this: the humanity of the child-victim of abortion.  This humanity is clear whether the child is delivered through a botched abortion and then killed by “snipping” or murdered while still developing in his or her mother’s womb.

The identity the child in utero or ex utero – his or her empirical status as a human being – does not change with a change in location.  To say otherwise would be to claim that one’s humanity depended upon being born in a free-state or a slave-state, or being transported from one to another and back again (see here).  Location may be a relevant fact under a corrupt and morally indefensible legal regime, but the law should reflect the reality that most people intuit and that science confirms.

The entity developing in the womb is a human being, not a clump of undifferentiated cells – as the hucksters who peddle “choice” would have the public believe (see here).  Rather the developing child – whether in utero or ex utero – is a human being – one of us!

The purveyors of abortion fear that the Gosnell trial will actually urge the public to take notice of this fact.  Those who purport to take Catholic social teaching seriously should work to see that it remains ever present in the public eye – that the first question asked of those do the bloodletting (and are paid for it) should be “Is the being whose ‘demise’ you seek a human being?”

The children whom Gosnell murdered and for which he has been convicted – as well as the thousands of other children who died at his hands and the millions more who have died at the hands of other abortionists ask for only one thing: They ask to be seen for who they are.

“See the victim.”

(here)

Rienzi on Gosnell . . . and the troubling rise in infanticide

"Gosnell's Crimes Not Uncommon" is the title of Prof. Mark Rienzi's piece in USA Today.  Here's a bit:

. . . While murder rates for almost every group in society have plummeted in recent decades, there's one group where murder rates have doubled, according to CDC and National Center for Health Statistics data — babies less than a year old. . . .

. . . Gosnell's actions are readily explainable by a culture that embraces, and in some quarters celebrates, abortion as a constitutional right. Gosnell made his living by performing legal abortions, many of them late in the pregnancy. Is it really all that surprising that he might not have seen a significant moral difference in performing the abortion a few inches inside the birth canal rather than somewhere outside?

The law can be a potent moral teacher, which is a good thing. Laws against slavery and discrimination have helped reduce prejudice. Laws requiring accommodations for people with disabilities have helped them gain visibility and greater acceptance in society. . . .

It would be naive to think that our abortion laws do not carry a similar teaching power. . . . 

Public Discourse

Somehow, five days a week---week in and week out---Public Discourse, the on-line journal of the Witherspoon Institute, manages to post an illuminating and engaging essay on a significant issue in our public life.  Yesterday it was Matthew Franck's powerful reflection on abortionists in contemporary culture as "providers of necessities" (as Lincoln said of slave-sellers) who are at the same time "utterly despised." Today it is a tightly argued piece by Charles Capps on meeting the practical needs of unmarried domestic partners (whether their relationship is platonic or otherwise) without "defining out of existence the only legal category whose purpose is precisely to integrate the kind of act that can result in conception with the kind of environment best suited for a child’s development."   http://www.thepublicdiscourse.com/2013/05/10094/

No, we're not through with Kermit Gosnell

Abortionist Dr. Kermit Gosnell, who was convicted yesterday of first degree murder of three babies, has agreed not to appeal a sentence of life in prison in return for the prosecution's agreement not to seek the death penalty. Having publicly opposed the death penalty for Gosnell, I am entirely content with this way of bringing the appalling episode to a close. Are we through with Gosnell now?  Can we "let him rot in prison," as some have said and "just forget about him"?  Not in my view.

For those of us who seek to be disciples of Jesus, our obligation is clear:  It is to love Kermit Gosnell and pray for him. He will spend the remainder of his life in jail, as he certainly should---his punishment is just. But he remains a human being, made in the image and likeness of God. He is our (very wayward) brother.  We are his fellow sinners. We must never suppose that it is beyond the power of the divine Author of life to move his heart to repentance and conversion.

And let us redouble our efforts on behalf of the victims---mothers and babies alike---of the hundreds and even thousands of abortionists who will continue to ply Dr. Gosnell's grisly trade. Let us pray not only for Gosnell, but for all who deal in death, even as we work tirelessly in the political and cultural spheres to fight the abortion power and care for pregnant women in need and their inestimably precious children.

"The Freedom of the Church (New Revised Standard Version)"

When it rains, it pours (interesting church-state scholarship, that is).  Following up on my post about Paul Horwitz's new paper, here's another great offering on the same general topic, by John Inazu, called "The Freedom of the Church (New Revised Standard Version):

Significant discussion about the “freedom of church” has recently emerged at the intersection of law and religion scholarship and political theology. That discussion gained additional traction with the Supreme Court’s ruling in Hosanna-Tabor v. E.E.O.C., which recognized the First Amendment’s “special solicitude” for religious organizations. But the freedom of the church is at its core a theological concept, and its potential integration into our constitutional discourse requires a process of translation. The efficacy of any background political concept as legal doctrine will ultimately stand or fall on something akin to what Frederick Schauer has called “constitutional salience.” 

The existing debate over the freedom of the church obscures these insights in two ways. First, its back-and-forth nature suggests that translation succeeds or fails on the level of individual arguments. Second, its current focus on a mostly Catholic argument neglects other theological voices. The kind of cultural views that affect constitutional doctrine are less linear and more textured than the existing debates suggest. This paper adds to the discussion a Protestant account of the freedom of the church: the New Revised Standard Version. Part I briefly sketches the process of translation that any theological concept encounters in the path to constitutional doctrine. Part II summarizes the current debate in legal scholarship about the freedom of the church. Part III introduces the New Revised Standard Version through three prominent twentieth-century theologians: Karl Barth, Dietrich Bonhoeffer, and Stanley Hauerwas. Part IV assesses the possibility of translation, and Part V warns of the theological limits to translating certain theological concepts. The New Revised Standard Version reinforces some of the normative claims underlying the Catholic story, but it does so through a Protestant lens that is somewhat more familiar to American political thought. It also differs from the Catholic account in two important ways: (1) by characterizing the church as a witnessing body rather than as a separate sovereign; and (2) by highlighting the church’s freedom in a post-Christian polity.

I'm really honored that a scholar as prolific and interesting as Inazu has taken such care to respond to some of my own efforts -- and to press my arguments and claims, and to make me re-think my own views.

Much to my own (and, I'm sure, my dean's and my editor's!) disappointment, I'm a few years behind on my "Freedom of the Church" book project.  On the bright side, the book will be much better for having the benefit of Inazu's and Horwitz's criticisms and improvements. 

"The Freedom of the Church Without Romance"

Paul Horwitz has posted a must-read paper called "The Freedom of the Church Without Romance."  It's an important piece, by an important scholar, on an important subject.  In it, Paul engages -- carefully, critically, fairly, challengingly -- with some of my own efforts to think through the "institutional" dimension of religious freedom.  Here's Paul's abstract:

This Article is part of a symposium issue titled "Freedom of the Church in the Modern Era." Freedom of the church, roughly, connotes the independent nature or sovereignty of the church. The most dramatic moment in its development was the eleventh century Investiture Controversy, with its confrontation between Pope Gregory VII and Emperor Henry IV at Canossa, but it has a long prior and subsequent history. Recently, with the renewed scholarly interest in the institutional rights of churches and religious organizations and the Supreme Court's decision affirming the "ministerial exception" doctrine in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the idea of "freedom of the church" has taken on new champions--and critics. 

This Article, from an author who has written supportively about freedom of the church and/or religious institutionalism in prior work, takes a deliberately unromantic look at freedom of the church. It evaluates it through two useful disciplinary lenses: history, and the economics of religion. Both historical and economic analysis of the concept of "freedom of the church" suggest the following conclusions: (1) The concept should be treated carefully and with a full awareness of its mixed history, without undue romanticism on the part of its champions, or a confident conclusion on the part of its critics that it is no longer necessary. (2) Whatever the concept of "freedom of the church" means today, the present version is decidedly diminished and chastened, a shadow of the medieval version. Supporters of freedom of the church should welcome that fact. Freedom of the church persists, and may have continuing value, precisely because it has become so domesticated. (3) There are solid historical and economic grounds for some form of freedom of the church or religious institutional autonomy. In particular, religion's status as a credence good, whose value and reliability is certified by religious agents such as ministers, strongly suggests that state interference with religious employment relations can be dangerous to a church's well-being and long-term survival. (4) The history and economics of religion also teach us something about the optimal conditions for freedom of the church--the conditions under which it is likely to do the most good and the least harm. In particular, they suggest that champions of freedom of the church ought to welcome religious pluralism and a strong non-establishment regime. 

The Article closes with some speculation about why there has been a recent revival of interest in freedom of the church, including the possibility that its resurgence, even if it is fully justified, also involves an element of rent-seeking by religious institutions. 

There are two broader underlying suggestions as well. First, there are good reasons to support some version of freedom of the church, but it deserves a more critical and nuanced examination by friends and adversaries alike. Second, legal scholars writing on church-state issues have paid far too little attention to the literature on the economics of religion.

My quick-reaction to the Gosnell verdict

Here's the instapunditry I did for National Review Online yesterday:

It is a good thing that the Philadelphia jury convicted Kermit Gosnell of
murder, because it is in fact clear that he committed murder. For the jury to
have done otherwise, given the graphic, detailed, and not-meaningfully-contested evidence, would have been a gross and depressing injustice. It would have delivered a huge blow to the rule of law in the City of Brotherly Love if the
members of the jury had allowed themselves to be distracted or confused by
Gosnell’s lawyers’ overheated attempts at obfuscation, by baseless charges of
“racism” and “elitism,” or by a distortionary dedication to an extreme version
of the pro-abortion cause.

It will be tempting to “move on.” But the temptation should be
resisted. Gosnell did horrible things to women and still-living babies, and
laughed about it, and it would be comforting to many of us if he were a Hannibal
Lecter–type aberration. And, of course, in many ways, he is. Yet his ability to
reduce unborn and “unwanted” children to objects, whose pain and death were
material for jokes, differs more in degree than in kind from the dignity-denying
premises underlying our abortion laws generally. We should take more time to
think, and worry about, this fact.

Abortion on Trial

Late-term abortionist Kermit Gosnell has been convicted of first degree murder for killing babies after delivering them alive. The trial now moves into the penalty phase, and we wait to hear whether prosecutors will seek the death penalty. But Dr. Gosnell is only the front man; and the real trial has only just begun. The defendant is the abortion license in America. The Gosnell episode highlights the irrationality of the regime of law put into place by the Supreme Court in 1973 and fiercely protected by Planned Parenthood, NARAL, and the polticians they and other "pro-choice" advocacy groups help send to Washington and the state capitols. Something as morally arbitrary as a human being's location---his or her being in or out of the womb---cannot determine whether killing him or her is an unconscionable act of premeditated homicide or the exercise of a fundamental liberty. Yet something like that is the prevailing state of American law under Roe v. Wade and Doe v. Bolton. Its incoherence and indefensibility have been laid bare by the prosecution of Dr. Gosnell. Whatever now happens to him, it will no longer be possible to pretend that abortion and infanticide are radically different acts or practices. If we are to condemn snipping the neck of a child delivered at, say, twenty-four or twenty-six weeks to kill him or her, how can we defend dismembering or poisoning a child in the womb at twenty-six, thirty, or even thirty-four weeks? And even more fundamentally, if we are bearers of inviolable dignity and a basic right to life in virtue of our humanity, and not in virtue of accidental qualities such as age, or size, or stage of development or condition of dependency---if, in other words, we believe in the fundamental equality of human beings---how can a right to abortion (where "abortion" means performing an act whose purpose is to cause fetal death) be defended at all?

"Go home now," Cardinal Roger.

The Los Angeles Times expresses confusion, as we all should, about what the heck is going on in the Archdiocese of Los Angeles.  Three months ago, Archbishop Gomez relieved his predecessor, Roger Cardinal Mahony, of "public duties" in the Archdiocese, including, according to a spokesman for the Archdiocese at the time of Archbishop Gomez's announcement, celebrating the sacrament of confirmation.  At the moment, however, the Cardinal is traveling around the Archdiocese celebrating that sacrament "every week" (his own words) and telling those who question him about it to "go home now" (his words). Meanwhile, Archbishop Gomez refuses to comment.  

Cardinal Mahony's mishandling of his clergy's abuse of children boggles the mind and saddens the heart.  A decade after Cardinal Law was pressured into resigning for his own mishandling of such abuse, Mahony continued the mishandling right up until he submitted his resignation as required at the age of 75, and his successor, who surely knew much or all of what Mahony had done to hide the abuse, distanced himself and the Archdiocese from Mahony only when files Mahony had endlessly litigated to keep secret became public. Two years Archbishop Gomez waited, and when at last he relieved Mahony of his "public duties," he did so only for purposes of a phony publicity stunt, it would now seem.  

Only the Pope can discipline a Cardinal, but Archbishop Gomez has jurisdiciton over the confirmation schedule in his own Archdiocese.  We can hope that Pope Francis will ground Cardinal Mahony and turn off his self-serving blog.  We can also hope that Archbishop Gomez will do right by the faithful of his Archdiocese and *in fact* relieve Cardinal Mahony of his public duties in the Archdiocese.  Members of the hierarchy need to stop scandalizing the faithful.  Enough already.  It is Cardinal Mahony who should "go home now."  If Pope Francis seeks to "rebuild" the Church, Cardinal Mahony's public presence is only impeding that all-important work.  Public penance for the Cardinal would be a help to that work on which turns, after all, the salvation of souls.  Archbishop Gomez's integrity is on the line here as well, and the jury -- including in the form of the LA Times -- is observing the evidence as it pours in.         

The Tragedy of Religious Freedom: Available Now

I'm pleased to announce that my new book, The Tragedy of Religious Freedom, is now available for purchase from Amazon (official publication date is June 1). Here is Harvard University Press's page for it. The book is specifically about the First Amendment religion clauses but it also involves more general questions about the relationship of legal theory and legal practice, and the tasks that legal scholars set for themselves. I hope that it will appeal to folks interested in those rangier questions as well as to readers with particular interests in religious freedom and conflicts among civil rights.

Here are the blurbs on the jacket:

“The Tragedy of Religious Freedom is a first-rate contribution to the law-and-religion conversation. This conversation—how to think about, and how to effectively protect in law, religious freedom in a constitutional democracy—is a lively and timely one, and DeGirolami is an impressive participant.”—Richard W. Garnett, Notre Dame Law School

“A sophisticated and thoughtful book, which offers fresh insights on a central question of religious liberty.”—Philip Hamburger, author of Separation of Church and State

It's a wonderful time of ferment and new thought in law and religion scholarship. I'm delighted (and lucky) to be able to participate in this work. Thanks, also, to my fellow MOJ posters, many of them seasoned authors, for generously indulging frequent posts from the overexcited, less distinguished new guy who never wrote a book before. 

Phenomenology of law

Legal Affinities: Explorations in the Legal Form of Thought is now available for purchase, and it's selling like hotcakes.  Don't miss out!  As previously mentioned, the book's eight chapters are studies of law's phenomenology inspired by the pathbreaking work of University of Michigan law professor Joseph Vining.  The chapters are by Joseph Vining, Jefferson Powell, Rev. John McCausland, James Boyd White, Jack Sammons, Judge Noonan, Steve Smith, and Patrick Brennan.  If you've never read Vining, let me suggest that you do yourself the favor of picking up a copy of his masterpiece From Newton's Sleep, about which Mary Ann Glendon said this:  "This original book by distinguished Michigan legal scholar Joseph Vining finds surprising treasures hidden in lawyers' ways of knowing.... He challenges with equal vigor the widely held notions that law can be reduced to processes and rules, or to power relations, or to meaningless signs and marks."

Same-Sex Marriage in Minnesota

The Minnesota House passed a same-sex marriage bill today, 75-59.  The predictions are that the Senate will pass the bill (assuming the working out of conforming amendments) on Monday.

For the record, here are two letters that our two groups of religious liberty scholars (including Rick and me in the first group, and Michael Perry and me in the second, pro-same-sex-marriage group) sent to Minnesota legislators arguing for stronger religious liberty provisions.  (The archive of various state letters is here.)  I also gave input arguing for strong religious liberty provisions in MN at earlier times including during the drafting.  In some ways the results are reasonably protective of religious liberty -- partly because the bills incorporate Minnesota's reasonably strong existing exemption from sexual-orientation nondiscrimination laws -- but they also leave some important matters unprotected.

Interestingly, there was a proposed amendment to eliminate the term "marriage" from the statutes and replace it with civil unions for all couples (leaving religions or anyone else free, of course, to perform marriages).  That effort was launched by Republicans, but it got a few DFL (Democratic) votes.  It lost, 111-22.

Leadership by Deception—the Path to the New Totalitarianism

 

Recently the state of Rhode Island joined the ranks of those jurisdictions providing for the recognition of same-sex marriage. Within the U.S., Rhode Island makes the tenth state which recognizes the redefinition of marriage. Other jurisdictions, perhaps Delaware, will soon follow in this move that, superficially, is based on the false arguments of justice by ensuring equality for all. I, along with others, have addressed the equality issue in the past from a variety of perspectives. Some of us have incorporated into our arguments the “what” and the “why” of the Church’s teachings on the nature of marriage, while others have chosen a different course. As this weblog is dedicated to the development of Catholic legal theory, we need to be aware that there are standards promulgated by the Church, which include the writings of Blessed John Paul II and the Congregation for the Doctrine of the Faith, instructing Catholics who hold public office on how they are to conduct the efforts made in the execution of their offices which impact public policy and the law. These texts also offer guidance to other people of good will regarding what should be done and what should be avoided in the execution of the responsibilities as public officials and servants of the common good. The Church’s instructions and guidance are not just the doctrine of the Church applicable to Catholics; they also constitute wise counsel for the better governance of societies that are presumably geared to pursuing the common good. This counsel is particularly applicable to democratic institutions of governance, but even democracies, when the compromise their values, becoming thinly disguised totalitarianisms, as Blessed John Paul II noted some years ago. The evidence is building that on a number of fronts our democratic institutions of the West, particularly those of the United States, are being transformed into thinly disguised totalitarian states.

Last week The New York Times [HERE] published an op-ed contribution of Governor Lincoln Chafee of Rhode Island. The opinion piece was entitled “Why I am Signing Marriage Equality into Law” and presented the Governor’s case for the dramatic change in the redefinition of marriage in Little Rhody a jurisdiction of great fondness to me since, amongst other reasons, it was the last jurisdiction in which I practiced law before entering the Society of Jesus. However, this fondness has been challenged by the Governor’s recent advocacy piece heralding Rhode Island’s move to join those other jurisdictions which recognize same-sex marriage. I realize that the Governor and I do not share views on some of the important issues of the day: he is pro-abortion, and I am not; he is in favor of the use of embryonic stem cells, and I am not; and he holds a very different view about church-state relations from mine. And now, he and I see the meaning and nature of marriage from the antipodes. Allow me to elaborate upon the deceptive statements advanced by the Governor which were used to justify his advocacy for same-sex marriage and which will have a widespread impact on movement of this political juggernaut around the country and the world. (Deception had often been a crucial tool for totalitarian systems to convince the public that what the state is doing is both right and smart, but in fact is neither.)

The Governor first of all advances an interesting take on the primacy of equality and “equality’s” justification for same-sex marriage. I have addressed the equality argument on these pages in the past, most recently HERE. While the Governor states that the legislation institutionalizing same-sex marriage “will be gratifying for many reasons,” the first reason he notes is that it will instantiate “full marriage equality.” He does not explain what he means by “equal” and “equality”; neither does he assert that anyone, be he or she heterosexual or homosexual, is treated equally before the law regarding the traditional requirements for marriage, which is not a private matter or contract as the Governor suggests but is, in fact, a public institution which bears on the common good of society. As I have previously argued on many occasions including the Mirror of Justice, regardless of one’s sexual orientation, everyone is treated the same under the marriage laws which define the institution as an exclusive union of one man and one woman—a position with which the Church’s teachings agree and impart. It would have been helpful for the Governor to explain why same-sex couples—or any other group for that matter—are denied “equality” under the traditional definition of marriage, but perhaps he agreed with then Chief Justice Margaret Marshall of the Supreme Judicial Court of Massachusetts who, in November of 2003, realized that the definition of marriage had to be radically altered to satisfy the political juggernaut behind the recognition of same-sex unions; thus, she redefined it on the basis of this “vital social institution” as being based on the “exclusive commitment of two individuals to each other” so that “mutual love and mutual support” can be nurtured and bring “stability to our society.” She further offered a new definition of marriage by “using the rubric of due process” to redefine this important public institution not with reasoned argument but with the pen of a political theorist. But here we need to take account of the fact that her redefinition was based on pretext rather than objective reality that is comprehendible to objective human intelligence. The Governor has made the same mistake as Margaret Marshall, C.J.

Another reason presented by the Governor in defense of his action is that the redefinition of marriage is “the right thing to do.” The basis of the justification for this argument is the coincidence of a hoped-for economic recovery for Rhode Island which has been an “outlier” but must now be an active participant in economic recovery. He argues that Rhode Island is surrounded by states which have incorporated same-sex marriage recognition into their laws. While it is suggested that these jurisdictions (e.g., New York, Massachusetts, and Maine) have made solid economic recoveries, he does not present data supporting the contention. In the words of Cuba Gooding, Jr., in the film “Jerry Maguire,” show me the money! The Governor does not; he merely relies on unsubstantiated theory. Still, he does not want Rhode Island to be left out of the perceived economic recovery he argues will follow when Rhode Island joins the same-sex marriage movement.

A theoretical justification used by the Governor to support his decision to sign the same-sex marriage legislation into law is his reliance on the work of the urban theorist Richard Florida who contends that those urban regions which have high concentrations of technology workers, artists, and persons with same-sex attractions and practices (whom are identified as “high bohemians” and members of the “creative class”) are vital to economic development. I gather if you don’t fall into these categories identified by Professor Florida, you are not vital to economic development and recovery. Moreover, the Governor, by accepting the Florida thesis, ironically introduces a new form of class warfare into the social fabric, and class warfare or class competition is antithetical to Catholic teaching, but I digress. I hasten to point out that Professor Florida’s stance on economic development has been strongly critiqued by other academics known for rigorous standards in social science research. However, these criticisms were not acknowledged by the Governor, again perhaps because these critiques would not support his action in signing the same-sex marriage bill into law.

Perhaps the Governor tacitly recognized the problems with this aspect of the Florida thesis; consequently, he reinvents the argument of support based on the research of “many experts”, including Florida, who contend that there is “a strong correlation between tolerance and prosperity, particularly in high-tech sectors.” The Governor emphasizes the issue of tolerance, but he does not explain what tolerance means. I have explained elsewhere that in today’s political environment tolerance is frequently used as a means of eliminating opposition to the insistence that all comply with the positions asserted by the state whether the need for universal compliance is necessary or not. I contend that this is meaning of “tolerance” is used by public officials who view that moral concerns are not matters of public concern. However, in fact they are and they must be if the authentic common good is of concern. But the Governor dismisses quickly what he considers “convictions of personal morality.” He does not consider the arguments dealing with public morality. Instead, his concern is on “job creation” for Rhode Island and “tolerance” of the Florida thesis is crucial to Rhode Island’s economic recovery in his estimation. He does not pause to suggest that holding onto the wisdom of traditional morality might actually have the means of making Rhode Island an oasis that would attract the “talented” to a state which has not capitulated to the relentless force of the same-sex marriage juggernaut. Strangely the Governor reinforces his advocacy for same-sex marriage by the thin hedonistic argument that the “talented workers who are driving the new economy—young, educated and forward-looking—want to live in a place that reflects their values.” And what are these values? The Governor suggests that they are based “not simply out of a sense of justice, but because diversity makes life more fun.” While fun is important to most people, sound public policy that counters the hedonistic attitudes upon which the Governor relies is critical to good governance. Again, the words of Blessed John Paul II are instructive here: a democracy without values or the proper values is a thinly disguised totalitarianism. Has the Governor decided to join the ranks of the thinly disguised totalitarian systems of the present age? It would seem so.

Why do I suggest this? I turn to his disingenuous conclusion he offers that the current political trend is to accept the “belief in marriage as an institution” which requires “a desire to keep government out of our personal lives.” But marriage is not simply about personal lives and privacy; it is, rather, a critical public institution that necessitates sound public policy which escapes the Governor’s rationalization of what marriage is all about and why traditional marriage is important to the future of the human family. He concludes his rationalization by again relying on the false equality argument which once more escapes definition. He contends that he does not want Rhode Island to cling to “old prohibitions” which he assumes are detrimental not only to economic recovery but also to the flourishing of society. He sees these “old prohibitions” as discriminatory, but he does not examine whether the discrimination against same-sex marriage advocacy is just or unjust. This distinction of “just” versus “unjust” is also relevant to Catholic teaching and the making of sound public policy. For the Governor, marriage depends on the ability to marry the person one loves, but as I have also pointed out, this argument is insufficient. There are sound reasons why authentic equality is not unjustly interfered with when the laws prohibit persons from marrying “the person they love.” These sound reasons included age, degrees of consanguinity, and communicable disease. Strangely, the Governor’s sentiments that the new law will enable people to marry “the person they love” is untrue as the new legislation retains many of the “old prohibitions” that I just mentioned. Yet the Governor remains confident that equality will be served as the legislation will accomplish “the right thing and the smart thing” which “are one and the same.” Unfortunately for him, his action was neither. Objective intelligence comprehending the intelligible reality does not agree with the position and argument advanced by the Governor, but the political juggernaut of which he is a part still plows ahead on its non-deviating course. In the meantime the sound values which the State of Rhode Island adhered to in the past have been sacrificed to the thin values that are aligned with new totalitarian system identified by Blessed John Paul II.

 

RJA sj

Dallas Willard, R.I.P.

Dallas Willard died Wednesday at age 77.  He was a USC philosophy professor and an important evangelical author whose writings on spiritual formation and spiritual disciplines helped greatly increase evangelicals' attention to those features of Christian faith and thought.  Christianity Today has full coverage.  Among his many, many works and activities on spirituality, moral reasoning, and philosophy, Dallas gave counsel to the group of evangelical and Catholic law profs (several from this blog) who are engaged in a project "Evangelicals and Catholics Together on Law."  MOJ-friend Bob Cochran of Pepperdine Law School sends these reflections on Dallas's life and death: 

Dallas was a friend, mentor, and co-author.  He and I will publish an article on "Jesus and the Civil Law" in the forthcoming book, "Law and the Bible:  Justice, Mercy, and Legal Institutions" (InterVarsity Press).  My mind has been very much on Dallas in recent weeks.  His daughter Becky has been sending me (and others) updates. 

I met Dallas about 15 years ago, after having read some of his books.  He was giving a series of lectures at Pepperdine.  We went for a walk between lectures and he gave me some very helpful advice on a book "Christian Perspectives on Legal Thought," that was in the works.  One of the things that Pepperdine made the speakers in this particular series do was to tell their lives' stories.  Some speakers resisted.  Dallas, coming from a Southern Baptist background, was used to giving testimonies.  The most striking detail of his story was the following:  Dallas came from a farming family.  Though he did quite well in high school, and had a special love for philosophy, his father thought that the best way for a person to grow up was to work for a time as a migrant worker.  Dallas traveled throughout the South as a migrant agricultural worker.  At night, he slept in the open air, but would stay up late reading Plato by candle light.   What a picture. 

On several occasions, I described a program to Dallas that we were having at Pepperdine.  He always wanted to come.  He was quite interested in Christian faith being manifested in the law and the life of lawyers.  His reasoning was something like this:  We all have our own kingdoms-the areas of life over which we have influence.  We pray "Thy Kingdom come; thy will be done."  His Kingdom comes, in part, as Christians take their kingdoms and seek to conform them to God's will.  They should ask, what would Jesus do if he were me-a corporate lawyer, a law professor, or a migrant worker?  Dallas was always interested in how we were working these things out at Pepperdine.  I think he always agreed to come to my programs.  My next question was always, "Would you comment on what is said?"  He always said he wanted to come anyway; it was not necessary that he comment, but he would be glad to do anything he could to help.  I always said that having him comment would help.  (Dallas's daughter Becky always got mad at Dallas and me because she was supposed to control his calendar.)  Dallas approached every topic from a fresh angle.  Over the years, he came, listened, and commented on:  Steve Smith's assessment of whether there is a higher law, Ellen Pryor's thoughts on being a Catholic and a lawyer (and whether Luther was more realistic), the relationship between evangelical and Catholic views of law (thereby influencing the soon-to-be-released "ECT on Law"); and what the Bible (Jesus in particular) might say about the civil law. 

I saw Becky in church on Sunday.  They knew the end was near.  Just seeing her and her family moved me to tears, as we sang songs of God's faithfulness.  I once heard Dallas say that Christians should take a somewhat cavalier attitude toward death.  I asked Bill (Dallas's son in law) about that on Sunday.  He said that Dallas's practice was as good as his theory.  I got an email this morning from Becky.  She said:  "His passing was quiet and gentle. We know that he was willing to stay and continue his work, but his longing was to be home with Jesus. In the day before his passing, he shared part of what he was experiencing: The veil was parting and revealing the glorious reality of the great cloud of witnesses."  (She is not given to overstatement.)  If I were a better person, I would be glad that he is now among them.  For now, what I know is that I will miss him and I am thankful that God made such a person.  

"Handwriting slows us down......"

As the academic year winds down, many of us academics and scholars are engaged right now intensively in either grading or writing.  I just finished grading a group of final papers from my Consumer Law students. I was, as usual, pleased by some of the excellent, elegant writing that I saw, but frustrated by some of the writing that showed signs of the cut-and-paste-from-electronic-sources-and-hope-the-structure-will-be-evident approach that seems to characterize a lot of writing these days.  (And not just student writing.  This is a frequent complaint I hear from my husband, a judge who increasingly encounters this in court filings.)

I'm also working intensely on some of my own writing, and I find myself this morning at my computer, surrounded by piles of note cards covered with my handwritten scribbles, organized into piles that correspond to the themes I want to address in my paper.  The process of scribbling out those note cards while I research something is never efficient.  It always takes much more time to get through books when I'm taking these sorts of notes than it would be if I just read the book & tagged important sections with sticky tabs, or even if I typed the 'important quotes' directly onto my computer.  I often think there must be a quicker way to do some of this, but I can't bring myself to work any other way when I'm really trying to think something through. 

This morning, I read a book review in the Chronicle of Higher Education that I think will ease my mind about this process, and explain why I was so happy to drive my 12-year old daughter to Target to buy her some more note cards that she wanted to use for studying. It was a review of a new book by Philip Hensher, The Missing Ink:  The Lost Art of Handwriting.  Robert Bliwise, the reviewer, explains:

Hensher's overarching idea is that we're at a cultural tipping point: This is "a moment when, it seems, handwriting is about to vanish from our lives altogether," he writes. He wonders whether that vanishing act will point to a more profound phenomenon. "Is anything going to be lost apart from the habit of writing with pen on paper? Will some part of our humanity, as we have always understood it, disappear as well?"

I haven't read the book yet, but the review focuses mostly on Hensher's concern that what will disappear is all the signals about the individuality of the hand-writer -- in Catholic terms, perhaps, the aspect of the words that reveals the human person behind the ideas.  I wonder, though, if the transition to an all-mechanical world of writing might also carry some cost in terms of the content of the writing itself.  Bliwise writes:

Hensher says his creative-writing students increasingly resist the idea of the handwritten journal and the practice of taking notes by hand. Handwriting, he suggests, slows us down, and we can't think deeply without slowing down. The very best students are "the ones who take out a piece of paper and a pen" in the classroom—the ones who "write down the things that they think are interesting as you talk, making sense of it as they go."

If all op-ed authors had to hand write their opinions before they could be published, if T.V. and radio pundits had to hand write their thoughts before reading them on air, if all bloggers had to hand write their posts before posting, might that positively influence what is commonly seen as the 'cheapening' of public discourse?  ( ..... I write, on-line, mechanically, without having put pen or pencil to paper myself yet today...)

"Absurd dichotomy"

Among the instructions Pope Francis just offered to the International Union of Superiors General is the following, which seems to speak directly to some of the issues frequently aired here at MOJ about what the Church asks of the faithful in Jesus' name: "It is an absurd dichotomy to think of living with Jesus but without the Church, of following Jesus outside of the Church, of loving Jesus without loving the Church. Feel the responsibility that you have of caring for the formation of your Institutes in sound Church doctrine, in love of the Church, and in an ecclesial spirit.”  Sound doctrine, love of the Church, and ecclesial spirit -- these, the Pope teaches, are the way to live with Jesus.