I begin this posting by thanking Richard M. for his bringing to our attention the First Circuit’s decision in the Parker/Wirthlin cases. I previously commented on the district court’s decision in the matter almost a year ago [HERE]. Like Richard, I hold the view that the First Circuit’s decision is wrong and that the Mozert case upon which the First Circuit heavily relied is also deeply flawed.
I understand that courts must address the issues that are raised by parties, and they should not sua sponte raise issues that the parties themselves have not raised. Having said this, it appears that the plaintiffs in these cases have raised the issue of parental rights regarding the education of children. In this context, the Mozert case may have some bearing. But curiously, other applicable law—international law to which the United States is a party—has been ignored. I suggest that this law clearly applicable to the United States offers a sound basis for substantiating the claims of the parents (“the right to direct the moral upbringing of their children”) in the cases just decided by the First Circuit. But that court stated that the federal claims fail. This conclusion contravenes applicable federal law based on United States obligations to international law to which the Federal sovereign is a party.
As I noted in my posting last year to which the hyperlink has been inserted above, a major international legal provision that applies to the First Circuit case is Article 18.4 of the International Covenant on Civil and Political Rights which states in pertinent part: “The States Parties to the present Covenant undertake to have respect for the liberty of parents… to ensure the religious and moral education of their children in conformity with their own convictions.” This treaty obligation has a foundation in Article 26.3 of the Universal Declaration of Human Rights which was a direct response to the efforts of the National Socialists in Germany to influence children against parents’ objections by the state’s monopolistic control of education. As one can imagine, the state control of education by the National Socialists posed not only problems but harsh consequences to parents who objected to what the state taught and what it forbade to be taught.
The Supreme Court of the United States has reminded us in cases such as Roper v. Simmons (the juvenile death penalty case) about the role of international law in constitutional adjudication. While I have critiqued certain applications of this concept because I believe American courts have sometimes misunderstood what is constitutive of international law, the fundamental precept of the Supreme Court is generally a sound one. Its soundness is reinforced when the United States is, in fact, a party to a treaty that applies to the issue before the court as is this case in the Parker/Wirthlin litigation.
But since Mirror of Justice is a web log dedicated to the development of Catholic Legal Theory, to that I must now turn. In 1983 the Holy See promulgated the Charter on the Rights of the Family. It is an impressive document that reflects important principles of law and ordered liberty geared to the common good of humanity found in domestic and international law and the teachings of the Church. Of course, it is first and last a document that also reflects sound principles based on right reason and faith. Article 5 of the Charter on the Rights of the Family is most pertinent to the matters I’m addressing today. It states in its entirety:
Since they have conferred life on their children, parents have the original, primary and inalienable right to educate them; hence they must be acknowledged as the first and foremost educators of their children.
a) Parents have the right to educate their children in conformity with their moral and religious convictions, taking into account the cultural traditions of the family which favor the good and the dignity of the child; they should also receive from society the necessary aid and assistance to perform their educational role properly.
b) Parents have the right to freely choose schools or other means necessary to educate their children in keeping with their convictions. Public authorities must ensure that public subsidies are so allocated that parents are truly free to exercise this right without incurring unjust burdens. Parents should not have to sustain, directly or indirectly, extra charges which would deny or unjustly limit the exercise of this freedom.
c) Parents have the right to ensure that their children are not compelled to attend classes which are not in agreement with their own moral and religious convictions. In particular, sex education is a basic right of the parents and must always be carried out under their close supervision, whether at home or in educational centers chosen and controlled by them.
d) The rights of parents are violated when a compulsory system of education is imposed by the State from which all religious formation is excluded.
e) The primary right of parents to educate their children must be upheld in all forms of collaboration between parents, teachers and school authorities, and particularly in forms of participation designed to give citizens a voice in the functioning of schools and in the formulation and implementation of educational policies.
f) The family has the right to expect that the means of social communication will be positive instruments for the building up of society, and will reinforce the fundamental values of the family. At the same time the family has the right to be adequately protected, especially with regard to its youngest members, from the negative effects and misuse of the mass media.
I suppose the Parker and Wirthlin families have several legal options open to them at this stage. The first is to seek redress through the political process to which the First Circuit mentioned in its decision. Knowing that the political process that would be involved is that of the Commonwealth of Massachusetts and its political subdivisions, this suggestion made by the First Circuit would be no easy task. The second involves further appeal (reconsideration by the First Circuit of the current case or review by the Supreme Court). The third would entail pursuing the matter and its appropriate legal issues before state courts as was also suggested by the First Circuit. Regardless of the avenues, judicial or political, that might be pursued, there is help from two sources: applicable international law and the Charter on the Rights of the Family. RJA sj
Sunday, February 3, 2008
On January 31, 2008, the First Circuit decided Parker v. Hurley. Here is a link to the opinion. The court rejected a variety of constitutional claims by parents who complained that their very young children (kindergarten-2d grade) were exposed to books that portrayed same-sex marriage in a favorable light. The parents asked for notice and an opportunity to opt-out. The opinion (which is lengthy) viewed this as basically a re-run of the Mozert case. The court's main reason for rejecting the claims was that the plaintiffs hadn't pleaded a "constitutionally significant burden." Mere exposure to offensive ideas does not state a claim.
This ruling is nothing new but it still seems to me quite wrong. The idea that there is no burden seems hard to believe. The court seems to admit that the school's choice of books has deeply offended the plaintiffs' sincerely held religious beliefs. The court means that this isn't a cognizable "burden." But the court can only reach this conclusion by understating the impact that the plaintiffs assert (the case was decided on the pleadings and so the court had to accept the plaintiffs' allegations). That deficiency also seemed true in the Mozert case where the court had to redescribe the plainitffs' claim. The courts just don't seem to believe it when parents say that their religion prohibits exposing their children to certain books.
The problem here is that parents do not have sufficient control over the education of their children. It doesn't seem adequate to say that "exposure to the materials in dispute here will not automatically and irreversibly prevent the parents from raising" their children.
This ruling is another instance where the constitutional doctrine departs from Catholic social teaching. That teaching emphasizes parental control over education and also the need for parents to have sufficient resources (vouchers?) to choose the type of education they desire.
Richard M.
In response to Michael's question, a reader sent me this:
The heart-breaking matter of child abuse has hit the Church in Ireland.
Over the last few days, Cardinal Connell, the retired Archbishop, has gone to the High Court to seek a judicial review of documents which were given to a state inquiry into the problems in the archdiocese of Dublin. I thought you might be interested in some of the coverage. Headlines for the Irish news over the next few weeks are at www.rte.ie www.unison.ie and www.ireland.com
. . . The case will begin in the High Court next week. It may end up in the Supreme Court. The media, which is virulently anti-Catholic, have seized on this matter with great glee (at least so it seems to me). Benedict Groeschel reckoned (around 1989) that the Irish media had a greater antipathy to religion than the Soviet media. It's got a lot worse since then. It is near a sine qua non for lots of journalists - you do despise Catholicism, don't you? But of course . . . .
I do not know enough about the media in Ireland to have a sense of whether journalists are as anti-Catholic as my correspondent suggests. But, if so . . . how sad.
Gerry Whyte, are you out there?
This from dotCommonweal: "The former archbishop of Dublin, Cardinal Desmond Connell, is suing to
prevent the current archbishop, Diarmuid Martin, from releasing
archdiocesan documents related to clergy sexual abuse." Click here to read the post.
Saturday, February 2, 2008
Continuing with the theme of assessing compassionate conservatism -- which, to my knowledge, not one Republican candidate since the long-departed Sam Brownback has given a serious mention (Huckabee offers only occasional stabs, not any coherent policy).... Here's Michael Gerson's perspective on Bush's commitment to the idea (the faith-based initiative, AIDS/malaria funding, etc.), and why the idea hasn't stuck.
Bush has received little attention or thanks for his compassionate reforms. This is less a reflection on him than on the political challenge of compassionate conservatism. The conservative movement gives the president no credit because it views all these priorities -- foreign assistance, a federal role in education, the expansion of an entitlement -- as heresies, worthy of the stake. Liberals and Democrats offer no praise because a desire to help dying Africans, minority students and low-income seniors does not fit the image of Bush's cruelty that they wish to cultivate.
Compassionate conservatism is thus a cause without a constituency -- except for the large-hearted man I first met in 1999 and who, on Monday night, proposed to double global AIDS spending once again.
I agree that Bush deserves credit. But I think it's also undeniable that his focus on compassionate conservatism got crowded out not only by opposition in both parties, but by his focus on fighting terrorism and going to war in Iraq.
Commenters are remarking now on John McCain's lack of interest in any more than a few domestic issues -- and empowering the poor doesn't seem to be one of them. Although maybe global assistance to the needy would trigger McCain's "national greatness" sympathies? A running mate like Brownback could articulate the theme in the campaign, although it seems to require someone as hard-nosed as Dick Cheney to make the vice president's office work as a policy engine.
Tom
. . . particularly if the allegations that the most recent Iraqi suicide bombers were two women with Down Syndrome turn out to be true....
Pope Is Praying for Mentally Handicapped
VATICAN CITY, FEB. 1, 2008 (Zenit.org).- Benedict's general prayer intention for February will focus on the well-being of the mentally handicapped.
The Apostleship of Prayer announced the general intention chosen by the Pope: "That the mentally handicapped may not be marginalized, but respected and lovingly helped to live in a way worthy of their physical and social condition."
Friday, February 1, 2008
Inside the Vatican magazine has named Catholic convert philosopher Frank Beckwith as #1 among its 10 top folks of 2007. It's not often that a lover of wisdom gets ranked by anyone as the year's top homo sapiens.
Frank most recently had a pro-life book published by Cambridge University Press, entitled Defending Life, but there's lots more to his work and story. Go to www.insidethevatican.com and scroll down to "Francis Beckwith"; you'll love it. By the way, Frank has studied law at Washington University in St. Louis, just in case somebody thinks a mere philosopher doesn't merit MofJ mention. (Just kidding.)
