Rick Garnett recently brought to our attention the news about a “victory for religious freedom” in Quebec. Apparently, quite the opposite occurred in Belgium yesterday, June 24, when the members of the Belgian Bishops’ Conference were conducting their monthly meeting at the residence of the Archbishop of Malines-Brussels when government officials and police unexpectedly arrived and ordered a lock-down of the premises with all present being prohibited from leaving. The reason given for the search was that it was a response to reports of sexual abuse within the archdiocese. During the lock-down and search, which lasted for about nine hours, documents and cell phones of those attending the meeting were confiscated by the state officials conducting this raid. In addition, the participants in the Bishops’ Conference Meeting were questioned by the authorities; moreover, after questioning, they were prevented from leaving the premises. The press release of the Holy See issued earlier today is HERE. Also confiscated during the raid were the files of the Belgian church’s committee that investigates sexual abuse claims. It was noted by officials of the Bishops’ Conference that the privacy rights of victims and others have been violated by the raid and the confiscation of these documents. The authorities also broke into the sepulchers of several of the former archbishops while conducting the raid. I am not sure what the deceased cardinals had to say to the investigators. The Belgian Ambassador to the Holy See was summoned to meet with Archbishop Dominique Mamberti, Secretary for Relations with States (i.e., the equivalent of the foreign minister), at the Vatican during which time grave concern about this matter was expressed to the Belgian government’s ambassador.
From the standpoint of Catholic and general legal theory, several points and questions come to mind. The first is why the Belgian authorities who clearly have a duty regarding claims of sexual abuse did not solicit the cooperation of the Belgian church before taking this problematic action? It would seem that in order to justify such tactics that were employed, there would be a need for demonstrating persistent bad faith on the part of the Church authorities in failing to cooperate with the civil authorities. Without this background, it seems that the acts of the Belgian authorities were more representative of a police state than of a democracy. Such actions may have been expected on the European continent sixty to seventy years ago, but today? The assault conducted by the authorities constitutes a threat not only to ordered liberty in general but to religious freedom in particular if the Belgian government cannot explain why such heavy handed tactics had to be relied upon to investigate any kind of credible allegation of wrongdoing.
A second item follows. Over the recent past, there has been a healthy debate within the United States about the role of international and foreign law in American constitutional law. I do not want to address many important questions which that issue raises today in this posting. I mention it because some Americans fervently hold that foreign law should be considered in domestic, i.e., American, legal proceedings. I do think that it is clear that treaty law and customary law that does not conflict with the Constitution or statutes enacted by Congress are part of American law. But again, knowing that sexual abuse issues remain a much discussed matter in American legal circles today, would some individuals be tempted to again raise the matter about whether actions by legal officers or foreign tribunals, such as what has happened in Belgium, also be considered and possibly adopted by the American legal system? Well, I suppose if you are in agreement with certain principles such as was demonstrated in the juvenile capital punishment case Roper v. Simmons, the foreign legal principles become not only palatable but desirable. On the other hand, might we recall the concerns raised by one member of the Supreme Court, Justice Scalia, who dissented from Roper and, in doing so, raised legitimate questions about which foreign legal principles are to be adopted in the United States and which are not when he said, “to invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decision-making, but sophistry.” Here we ought to recall that in Europe, illegally seized evidence does not violate standards of due process of EU law, but it does conflict with our Fourth Amendment protections.
Third, Belgium is a party to the International Covenant on Civil and Political Rights. Article 17(1) of this treaty specifies that “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.” It does not appear that Belgium has not offered an explanation why it has not honored this treaty obligation by conducting the search and seizure of the Archbishop’s residence in the manner that it did yesterday.
I wonder if other members of the Mirror of Justice have thoughts on this matter involving the Church in Belgium?
The end of another school year has arrived—and for most of us in the legal academy probably arrived several weeks ago. For those of us who are parents, the elementary and secondary school year also has come to an end, although summer vacation for our kids is still new and fresh (at least to our kids if not us parents).
In recent weeks and months, members and friends of Mirror of Justice have reminded us of the vital importance of Catholic elementary and secondary education generally, for our children and communities:
In a very important work, “Catholic Schools and Broken Windows,” (SSRN) Margaret Brinig and Nicole Garnett explore the impact that the disappearance of Catholic schools has had on urban neighborhoods.
Patrick Brennan in “Differentiating Church and State (Without Losing the Church)” (SSRN) reminds us that the liberty of the Church has often been closely associated with the availability of Catholic education, citing the closing of thousands of Catholic schools in France as totalitarianism rose in the years before World War II.
With some regularity, the Mirror of Justice has hosted discussions of educational choice and the need for vouchers to allow children from disadvantaged families the option of attending a high quality Catholic school if they so choose.
And, of course, Rick Garnett has been indefatigable in boosting Catholic education. His philosophy, which I share, was most directly presented two-and-a-half years ago in this Mirror of Justice post: “I am a big fan of Catholic schools. Every parish should have one, every Catholic kid should be in one.”
To be sure, in determining the best education for their children, Catholic parents cannot all be expected to reach the same conclusion about whether to enroll children in the local public school or to select a Catholic school. Family resources, number of children, the particular needs of each child, the availability of a quality Catholic school in the parish or nearby, special academic opportunities or other programs in other public or private schools, and other factors and circumstances will lead parents in one or another direction.
In starting a short series of short posts on why Catholics generally should choose Catholic schools for their children, I acknowledge these factors and circumstances. Reasonable Catholics of good will can and will weigh those factors and circumstances differently. Moreover, as a strong believer that parents are entitled to make educational choices and not have those choices dictated, I would not presume to state some kind of “law,” moral or otherwise, on this question.
Instead, I humbly suggest that all things being equal, Catholics should begin with a rebuttable presumption in favor of Catholic schools and should support public policies that strengthen the ability of Catholic parents to choose Catholic schools, just as other parents should be empowered to make the best educational choice for their children.
Over the next few days, I will make that case in five more parts, turning on the comments for others to add thoughts or critique:
(1) Catholic education offers the best venue for children to learn to integrate faith into all aspects of life.
(2) For parents of means to choose Catholic schools for their own children enhances the opportunity for other families of lesser means to do the same.
(3) By choosing Catholic schools, we make a statement for educational choice that amplified by other parents may bring about an educational reform in this society that respects parents choice.
(4) Vital Catholic schools are important to a vital community, having an impact on neighborhoods beyond the parents and children who attend.
(5) Maintaining strong Catholic schools strengthens liberty and the role of the Church in public life.
Although I’ve already turned on the comments, you may wish to wait until each individual point is made in the days to come before adding your thoughts. More tomorrow.
This is, I think, good news: A judge in Quebec has invalidated -- calling it "totalitarian" -- a requirement that Quebec had imposed on Catholic schools that the schools teach a state-crafted-and-controlled "Ethics & Religious Culture" course from a "neutral" perspective:
"The obligation imposed on Loyola to teach ERC subjects from a secular perspective takes on a totalitarian character that is essentially equivalent to the order that the Inquisition gave Galileo to renounce the Copernican cosmology," he wrote in his 63-page decision that is a masterpiece of legal thinking.
This from the Institutional Religious Freedom Alliance:
A recently introduced bill to reauthorize federal drug treatment programs includes language to ban from participation faith-based providers that take account of religion in hiring This is an attack on the SAMHSA Charitable Choice language that President Clinton signed into law in 2000. The bill would also undermine the Religious Freedom Restoration Act (RFRA), also signed into law by President Clinton, in 1993. RFRA is Congress's own measure to ensure that the government respects religion when it acts.
The bill is HR 5466, co-sponsored by Rep. Patrick Kennedy (D-RI) and Rep. Gene Green (D-TX). The bill would reauthorize federal substance abuse treatment funding that is administered by the Substance Abuse and Mental Health Services Administration (SAMHSA).
The bill proposes to add to the Public Health Service Act, Title V, the requirement that every grantee and contractor must agree to "refrain from considering religion or any profession of faith when making any employment decision" about anyone who will be involved in providing the federally funded services. And this ban on religious hiring "applies notwithstanding any other provision of Federal law, including any exemption otherwise applicable" to a religious organization. . . .
I think I need a CTRL-ALT-"hiring for mission by religious institutions is not discrimination of the kind that should be troubling, even when those institutions contract with government to provide social-welfare services" macro.
Here is a worth-reading piece, in Christianity Today, about the (possibly) troubling implications of the Administration's shift from the term "freedom of religion" to "freedom of worship."
. . . The U.S. Commission on International Religious Freedom noted the shift in its 2010 annual report. "This change in phraseology could well be viewed by human rights defenders and officials in other countries as having concrete policy implications," the report said.
Freedom of worship means the right to pray within the confines of a place of worship or to privately believe, said Nina Shea, director of the Center for Religious Freedom and member of the commission. "It excludes the right to raise your children in your faith; the right to have religious literature; the right to meet with co-religionists; the right to raise funds; the right to appoint or elect your religious leaders, and to carry out charitable activities, to evangelize, [and] to have religious education or seminary training." . . .
The softened message is probably meant for the Muslim world, said Carl Esbeck, professor of law at the University of Missouri. Obama, seeking to repair relations fractured by 9/11, is telling Islamic countries that America is not interfering with their internal matters, he said.
As with all diplomatic decisions, the move is a gain and a loss, Esbeck said. Other countries may interpret the change as a sign that America is backing down from championing a robust, expansive view of religious freedom, which if true would be a loss, he said.
But the State Department has traditionally ignored religion's impact on foreign affairs, he said. "The Obama administration seems, at least in part, to get that a large part of successful foreign relations is taking religion into account."
If Obama is telling the State Department to be religiously sensitive, that's a gain, Esbeck said. . . .
I am in lovely (and steamy) Brooklyn for the first (I hope) annual Law and Religion Roundtable, and am enjoying the company, fellowship, and ideas of fellow MOJ-ers Rob, Amy, Michael P., and Patrick, along with many other great scholars in the field. Kid, meet candy store. More (substantive) updates to come . . .
Several news sources are reporting that a Massachusetts school board has adopted a policy allowing students at all grade levels to obtain condoms from the school nurse and all without parental notification. Either someone is having a lot of fun pulling our legs or we are much farther down the rabbit hole than I imagined.
On this day, in 1608, St. Thomas Garnet was martyred at Tyburn. Here's more about him:
Protomartyr of St. Omer and therefore of Stonyhurst College; b. at Southwark, c. 1575; executed at Tyburn, 23 June, 1608. Richard Garnet, Thomas's father, was at Balliol College, Oxford, at the time when greater severity began to be used against Catholics, in 1569, and by his constancy gave great edification to the generation of Oxford men which was to produce Campion, Persons and so many other champions of Catholicism. Thomas attended the Horsham grammar school and was afterwards a page to one of the half-brothers of Philip Howard, Earl of Arundel, who were, however, conformists. At the opening of St. Omer's College in 1592, Thomas was sent there. By 1595 he was considered fit for the new Englishtheologicalseminary at Valladolid, and started in January, with five others, John Copley, William Worthington, John Ivreson, James Thomson, and Henry Mompesson, from Calais. They were lucky in finding, as a travelling companion, a Jesuit Father, William Baldwin, who was going to Spain
in disguise under the alias Ottavio Fuscinelli, but misfortunes soon
began. After severe weather in the Channel, they found themselves obliged to run for shelter to the Downs, where their vessel was searched by some of Queen Elizabeth's ships, and they were discovered hiding in the hold. They were immediately made prisoners and treated very roughly. They were sent round the Nore up to London, and were examined by Charles, second Lord Howard of Effingham, the lord admiral. After this Father Baldwin was sent to Bridewell prison, where he helped the confessor James Atkinson to obtain his crown. Meantime his young companions had been handed over to Whitgift, the Archbishop of Canterbury, who, having found that they encouraged one another, sent them one by one to different Protestantbishops or doctors. Only the youngest, Mompesson, conformed; the rest eventually escaped and returned to their colleges
beyond seas after many adventures. We are not told specifically what
befell young Garnet, but it seems likely that he was the youth confined
to the house of Dr. Richard Edes (Dict. Nat. Biog., XVI, 364). He fell
ill and was sent home under bond to return to custody atOxford by a certain day. But his jailer not appearing in time, the boy escaped, and to avoid trouble had then to keep away even from his own father. At last he reached St-Omer again, and thence went to Valladolid, 7 March, 1596, having started on that journey no less than ten times.
After ordination in 1599, "returning to England I wandered", he says, "from place to place, to reduce souls which went astray and were in error as to the knowledge of the trueCatholicChurch". During the excitement caused by the Gunpowder Plot in 1605 he was arrested near Warwick, going under the name Thomas Rokewood, which he had no doubt assumed from Ambrose Rokewood of Coldham Hall, whose chaplain he then was, and who had unfortunately been implicated in the plot. Father Garnet was now imprisoned first in the Gatehouse, then in the Tower, where he was very severely handled in order to make him give evidence against Henry Garnet, his uncle, superior of the EnglishJesuits, who had lately admitted him into the Society. Though no connection with the conspiracy could be proved, he was kept in the Tower for seven months, at the end of which time he was suddenly put on board ship with forty-six other priests, and a royal proclamation, dated
10 July, 1606, was read to them, threatening death if they returned.
They were then carried across the Channel and set ashore in Flanders.
Father Garnet now went to his old school at St-Omer, thence to Brussels to see the superior of the Jesuits, Father Baldwin, his companion in the adventures of 1595, who sent him to the EnglishJesuitnovitiate, St. John's, Louvain, in which he was the first novice received. In September, 1607, he was sent back to England, but was arrested six weeks later by an apostatepriest called Rouse. This was the timeJames's controversy with Bellarmine about the Oath of Allegiance. Garnet was offered his life if he would take it, but steadfastly refused, and was executed at Tyburn, protesting that he was "the happiestman this day alive". His relics, which were preserved at St-Omer, were lost during the French Revolution.
Today is also, FWIW, the birthday of my son, Thomas Garnett. Pretty cool.
In doing some research on Jean Vanier and the L'Arche communities he founded, I came across this description of different forms of Christian life. It struck me as relevant to the debates we sometimes engage in about how a Catholic law school best demonstrates its true 'Catholicity'. (It's from A Blessed Weakness: The Spirit of Jean Vanier and l'Arche, by Michael Downey (Harper & Row, 1986), at p. 94.
Each Christian and each group of Christian select, sometimes quite unconsciously, certain themes or elements of the gospel as more important than others. As these elements become taken in or embodied by individuals or groups, they give rise to different Christian spiritualities; they shape different forms of Christian life. What Dorothy Day considered vital and essential in the Christian gospel was different from what most Cistercian monks, tucked away in monasteries large and small throughout the world, think is primary in Christian living. We see in the Cistercian tradition a strong attachment to the gospel elements of the hidden life or the heavy emphasis on the biblical theme of seeking God's face. These do not have the same importance in the life and writings of Dorothy Day and the Catholic Workers. Day's own reading of the gospel led her to see the all-important value of love shown in direct active service to the poor (corporal works of mercy) and the importance of community. What results from these two different selections of gospel themes are quite different, though not conflicting, approaches to living the gospel of Jesus Christ. Thought each is very different from the other, both are equally valid and authentic expressions of the message of Jesus Christ.
With Susan Stabile's permission, I cross-post her Creo en Dios! reflection on the memorial of St. Thomas More:
Today the Catholic Church celebrates the memorial of St. Thomas More, who, among other patronages, is the patron saint of lawyers. More was beheaded in 1535 for refusing to sign an oath declaring the king to be the head of the Church in England.
More was a deeply prayerful person and in his writings he encourages others to take time in quiet prayer and meditation. Here is a prayer he wrote while he was imprisoned in the Tower of London. It contains some petitions we might all ask our God to grant to us:
Give me the grace, Good Lord To set the world at naught. To set the mind firmly on You and not to hang upon the words of men’s mouths. To be content to be solitary. Not to long for worldly pleasures. Little by little utterly to cast off the world and rid my mind of all its business. Not to long to hear of earthly things, but that the hearing of worldly fancies may be displeasing to me. Gladly to be thinking of God, piteously to call for His help. To lean into the comfort of God. Busily to labor to love Him. To know my own vileness and wretchedness. To humble myself under the mighty hand of God. To bewail my sins and, for the purging of them, patiently to suffer adversity. Gladly to bear my purgatory here. To be joyful in tribulations. To walk the narrow way that leads to life. To have the last thing in remembrance. To have ever before my eyes my death that is ever at hand. To make death no stranger to me. To foresee and consider the everlasting fire of Hell. To pray for pardon before the judge comes. To have continually in mind the passion that Christ suffered for me. For His benefits unceasingly to give Him thanks. To buy the time again that I have lost. To abstain from vain conversations. To shun foolish mirth and gladness. To cut off unnecessary recreations. Of worldly substance, friends, liberty, life and all, to set the loss at naught, for the winning of Christ. To think my worst enemies my best friends, for the brethren of Joseph could never have done him so much good with their love and favor as they did him with their malice and hatred. These minds are more to be desired of every man than all the treasures of all the princes and kings, Christian and heathen, were it gathered and laid together all in one heap. Amen
