Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Saturday, December 10, 2005

Should the Statute of Limitations on Sexual Abuse of Minors Be Suspended?

This is the big question in Philly right now after the Philadelphia Grand Jury Report produced no indictments. The criminal statute of limitations cannot be suspended; the retroactive effect would be unconstitutional. But the civil statute can, as it was in California in 2003. Here is a recent Philadelphia Inquirer story describing the possibility  of a suspension here in PA:http://www.philly.com/mld/inquirer/13320393.htm

I will be discussing this issue on NPR's Talk of the Nation this Monday, Dec.12 around 3pm. I'll try to blog my views on this question afterwards.

This issue has been attracting a lot of attention in the popular press. A recent editorial by the Inquirer columnist, Tom Feerick, a very angry critic of the Archdiocese, offers the intriguing idea that the concern over size of potential liabilities be addressed by not permitting punitive damages in the suits brought during the suspension period. Would that help -- ie, reduce the size of potential settlements? Could the legislature attach such a condition? Thoughts welcome. Here's the editorial: http://www.philly.com/mld/philly/news/columnists/tom_ferrick/13345073.htm

-- Mark

Friday, December 9, 2005

Closed for Christmas (part II)

On MoJ we've often discussed the tendency of American society to elevate the nuclear family over broader conceptions of community.  I don't mean to belabor the story of megachurches closing for Christmas Sunday, but I can't resist after reading the New York Times coverage.  First, the granddaddy of all evangelical megachurches, Willow Creek outside Chicago, seems to be reveling in its ability to think outside the box:

Staff members at Willow Creek said they had had few complaints from members about the church closing on Christmas. Said the Rev. Mark Ashton, whose title is pastor of spiritual discovery: "We've always been a church that's been on the edge of innovation. We've been willing to try and experiment, so this is another one of those innovations." 

Second, even the churches who have simply cut back on the number of services offered on Christmas are offering some perplexing explanations:

"We're encouraging our members to do a family worship," Bishop Long said. "They could wake up and read Scripture and pray and sometimes sing a song, and go over the true meaning of what Christmas is, before opening up their gifts. It keeps them together and not running off to get dressed up to go off to church."

His church offers streaming video of the Sunday service, and Bishop Long said he expected a spike in viewers this Christmas. "They have an option if they want to join their family around the computer and worship with us," he said.

So the church is just a convenient collection of worshipping family units?  If the technology allows it, there's no reason why one worshipping family needs to go to the hassle of assembling with other worshipping families.  I guess someone should tell the Christians in China that their lives would be a lot easier if they started being more "innovative."

Rob

Thursday, December 8, 2005

The New Underground Railroad

New York magazine has the story of a loose network of women in New York who house out-of-state women who have come for late-term abortions (HT: Open Book).  The story is really disturbing, and reflects a pro-choice mentality that not only should abortion be legal, but entirely disconnected from any moral calculus, much less condemnation.  Those who house the women admit to struggling with the obvious question, "Why didn't you have an abortion earlier?," but can't look for an answer because, in the words of one host:

“I had to tell myself, ‘Every abortion is the choice of the woman having the abortion. This is about somebody else’s body. It’s not President Bush’s body, but it’s not mine, either,’ ” she says. “Being pro-choice is a morality that takes you morally out of the picture.”

Rob

Conscience/Dissent, III

            In response to Richard, I concede that Veritas Splendor, for example, takes the objective conscience position, but I wonder what significance should be attached to the widespread willingness of faithful Catholics to reject some moral teachings of the Church. As Eduardo observes, this is most conspicuously true of birth control (not only in the U.S. and Europe, but also in Latin America from my reading (I would guess that support for the Church’s position in Africa is also weak though I have not seen any data on this). Even if the teaching of the magisterium is thought to be settled (instead of mixed, as I, rightly or wrongly, believe it is) on the issue of conscience, it seems clear that there is not acceptance of the claim of objective conscience by the faithful.

 Of course, whatever the degree of authoritativeness of the objective conscience view, it does not purport to be an infallible teaching of the Church, and the issue before us is the degree to which one is required to assent to such teachings. There is a pastoral issue here that I think is of great importance. Father Sullivan, Magisterium: Teaching Authority in the Catholic Church 171-72, makes this point extremely well in my opinion:

 “I am convinced that it is important for Catholics to be aware of the difference between infallible and non-infallible teaching by the magisterium, and of the corresponding difference between the kinds of assent that each of them calls for. Ignorance of these differences can have several unhappy consequences. One is that Catholics who have actually fulfilled their obligation to practice docility regarding such teaching, and have been really unable to give their interior assent to it, may still feel themselves guilty of disobedience to the pope because they do not follow his teaching on a particular point. Another is that Catholics who do accept such teaching may judge all others who do not, to be disobedient or disloyal, and may be scandalized to know that even priests or theologians have reservations about certain points of ordinary papal teaching.

    “The tendency to obscure the difference between the infallible and the non-infallible exercise of magisterium, by treating papal encyclicals as though they were practically infallible, has, I believe, been largely responsible for the fact that many people, when they learn that encyclicals are not infallible after all, jump to the conclusion that one need pay no attention to them. If people have been led to think of the infallibility of the pope as the basic motive for giving their assent to his teaching, it is not surprising that when this motive is no longer available, their assent will fail as well.”
        As to some of the points made about dissent, I agree with Michael that the question of whether to publicly dissent is different from the question whether to privately disagree. In my view, it may be morally wrong, morally permissible, or morally obligatory to dissent. It depends on the situation. I also agree with Patrick and Father Araujo that it is logically possible to have a tradition which corrects error without dissent. I just do not think human institutions successfully work that way. We have a whole free speech tradition that speaks to the contrary. I do not understand Patrick and Father Araujo to be recommending the absence of dissent in political democracies. (If they are I hope they will come lecture to my class of first amendment students, who, at least, seem to start out as knee jerk cheerleaders for the first amendment on any and all issues). My guess, however, is that Patrick and Father Araujo are recommending limiting dissent on many, but by no means all subjects, within the Church, because of the role of the Holy Spirit guiding Church leaders, and they believe it works well. Our difference may be an assessment of Church history in terms of what accounts for the errors and corruption that have been a part of its past. I believe it more likely and more attractive to consider that the work of the Holy Spirit best thrives in a community of discourse in which subjective consciences are not stifled, in which dissent is encouraged, in which difference is respected, and the search for truth is an ongoing collaborative effort that takes full account of the collective experience and wisdom of the People of God.

 

Dawkins on Design

Beliefnet has a fascinating interview with Richard Dawkins.  An excerpt:

You criticize intelligent design, saying that "the theistic answer"--pointing to God as designer--"is deeply unsatisfying"--presumably you mean on a logical, scientific level.

Yes, because it doesn’t explain where the designer comes from. If they’re going to emphasize the statistical improbability of biological organs—"these are so complicated, how could they have evolved?"--well, if they’re so complicated, how could they possibly have been designed? Because the designer would have to be even more complicated.

Now I'm sure I lack half the brain power of Richard Dawkins, but this seems to be a distinctly unsatisfactory answer.  Of course the designer would have to be more complicated.  And of course we cannot explain where the designer comes from.  The notion of God, it seems to me, flows from our conviction that there must be an entity that stands over everything, above, beyond, and prior to it all.  Nature is not nearly as satisfying as the ultimate source of everything because nature cannot not stand above and beyond itself; if the first appearance of the natural universe has a cause (and how could it not?), it makes much more sense (to me) to identify it as a supernatural designing force beyond comprehension than as a random natural occurrence beyond comprehension.

Another excerpt:

Obviously, a lot of people find the theistic answer satisfying on another level. What do you see as the problem with that level?

What other level?

At whatever level where people say the idea of God is very satisfying.

Well, of course it is. Wouldn’t it be lovely to believe in an imaginary friend who listens to your thoughts, listens to your prayers, comforts you, consoles you, gives you life after death, can give you advice? Of course it’s satisfying, if you can believe it. But who wants to believe a lie? . . . .

How would you feel if your daughter became religious in the future?

Well, that would be her decision and obviously she’s her own person, she’s free to do whatever she likes. I think she’s much too intelligent to do that, but that’s her decision.

This exchange gives some grounding to Gregg Easterbrook's charge that:

Dawkins complains . . . that so many people believe things about science that are off the wall--for example, that early humans co-existed with dinosaurs--because their science educations are poor. He’ll get no argument from me on that. But I suspect one reason so many Americans have a poor understanding of evolutionary theory is that overbearing figures such as Dawkins talk down to them and act contemptuous of their religious beliefs. So people respond--perhaps quite rationally--by screening out the views of scientists whose motives they distrust. In this regard, it is telling that polls show Americans overwhelmingly accept many findings of modern research, such as the theories of relativity and of cosmic expansion. The scientists who favor these ideas generally aren’t in the habit of mocking peoples’ faiths, and so they are believed by the general public. If Dawkins’s professional goal is “public understanding of science,” he is a flop, seemingly trying his best to make worse what he is supposed to fix.

Rob

Preservation v. church construction

From the Washington Post (a few weeks ago):

"The Montgomery County Council sided with environmentalists instead of church leaders yesterday, voting unanimously to place development limits on federally tax-exempt institutions in the county's 93,000-acre agricultural reserve.

Council members closed a loophole in a 25-year-old policy that had exempted institutions including churches, private schools and day-care centers from a ban on public water and sewer service within the nationally known reserve in northwestern Montgomery."

Put aside (for now) the merits of so-called "smart growth" development restrictions, and also the question whether, under any relevant religious-freedom laws, churches are entitled to exemptions from bans like this.  Here's my question / concern:  Religious freedom requires (doesn't it?) the realistic (i.e., financially realistic) ability to construct and maintain churches and other places of worship.  So, should we worry that, at some point (I do not think we are there yet), a combination of smart-growth restrictions, zoning regulations, historic-preservation rules, sprawl, and NIMBYism will undermine religious freedom by making it increasingly difficult to construct and maintain such places?

"Commercialize Christmas, or Else!"

"Religious conservatives have a cause this holiday season:  the commercialization of Christmas.  They're for it."  So claims Adam Cohen in this recent New York Times opinion piece.  Commenting on the various boycotts of some retail outlets that shy away from using the word "Christmas," Cohen continues:

Christmas's self-proclaimed defenders are rewriting the holiday's history. They claim that the "traditional" American Christmas is under attack by what John Gibson, another Fox anchor, calls "professional atheists" and "Christian haters." But America has a complicated history with Christmas, going back to the Puritans, who despised it. What the boycotters are doing is not defending America's Christmas traditions, but creating a new version of the holiday that fits a political agenda. . . .

This year's Christmas "defenders" are not just tolerating commercialization - they're insisting on it. They are also rewriting Christmas history on another key point: non-Christians' objection to having the holiday forced on them. . . .

The Christmas that Mr. O'Reilly and his allies are promoting - one closely aligned with retailers, with a smack-down attitude toward nonobservers - fits with their campaign to make America more like a theocracy, with Christian displays on public property and Christian prayer in public schools.

It does not, however, appear to be catching on with the public. That may be because most Americans do not recognize this commercialized, mean-spirited Christmas as their own. . . .

Now, there is no denying that Cohen makes some good points.  That said, I cannot help thinking that his "theocracy" charge is at least as "mean-spirited" as Fox News's campaign to resist "Happy Holidays."  Some "War on Christmas" partisans overstate the matter, but still . . . it is certainly my impression that some of the scrubbing away of the word "Christmas" has a "politically correct" (not a respectfully pluralist or anti-commercialism) tone to it, or owes too much to a misunderstanding of church-state separation.  And, at least in some cases, it strikes me that the anti-"Christmas" crowd is at least as caught up in mean-spirited culture-warrior-ing as the "boycott 'Happy Holidays'" gang.

The "Progressive" Klan

Jesse Walker has an interesting article, "Hooded Progressivism:  The Secret History of the Ku Klux Klan," in Reason magazine.  It brings up a lot of things that Philip Hamburger explored in more detail in his recent (excellent) book, "Separation of Church and State."  Here's a snippet:

The progressives and the Klan shared an interest in mandating public education and eliminating urban political machines. The civic-activist historians tell us that the rank-and-file Klansman's interest in such reforms was frequently a sincere response to corruption and inadequate schooling, though it's clear that their urban proposals owed at least something to their fear of immigrants, and that their education proposals were transparantly anti-Catholic. If the Klan's motives were not purely nativist, then neither were the progressives' purely benign: Just as the Klansmen sometimes shared the progressives' hopes, the latter sometimes shared the Klansmen's fears.

More on the Wal-Mart Debate

"Wal-Mart Is Good for the Poor," Dan Drezner suggests, commenting on a new paper, "Wal-Mart:  A Progressive Success Story," by a former Kerry advisorOur own Professor Bainbridge replies, here.  Matt Yglesias also chimes in, making explicit what I tend to think is the concern that drives many of Wal-Mart's critics, i.e., that by standing up to labor unions, Wal-Mart poses a political threat to liberal democrats:

[I]f you believe that progressive politics needs unions, then you need to believe that there needs to be organizing of big box retail. Again, my wonky self would really prefer this not to involve picking on some one company, complaining a lot about it, making documentaries and so forth. Fundamentally what's needed is first a policy shift in terms of labor law and its enforcement, and then people to do organizing work. But be that as it may, this is the issue that's behind the campaign against Wal-Mart and that's the thing that needs to be talked about.

(Yglesias does not get into another factor that is, I think, at work:  Wal-Mart tends to take -- I assume for financial, and not philosophical, reasons -- the "conservative" side on "culture wars" matters). 

On the other hand, Amy Welborn asks:

For the life of me I cannot understand the reflexive response of some conservatives to defend every single aspect of the Wal-Mart experience. Lower prices on goods=a good thing, yes.  Employment=good thing, yes.

But there is a price for everything, and the price of a Wal-Mart culture is great, not just on local businesses, but on product manufacture and marketing, period. The control that Wal-Mart exerts in this area is great and has a wide impact, and, among other things, may lower the price on many goods, but because what Wal-Mart offers is wide but not deep, it impacts what manufacturers determine what is worth their time to produce and market.

[W]hy are conservative Wal-Mart defenders so reluctant to acknowledge any problems with the company and the system? I thought conservatism was all about realism, against mindless sunny prognostications. Right?

Wednesday, December 7, 2005

Closed for Christmas

On the topic of allowing the surrounding culture to define what it means to be the body of Christ, here is reason #312 why I do not attend a "seeker-sensitive" megachurch.

Rob