As we gratefully reflect today on the service of military veterans, I thought it would be worth remembering the magnificent prayer in which President Franklin Roosevelt led the nation by radio on June 6, 1944 as the Normandy Invasion began:
Almighty God:
Our sons, pride of our Nation, this day have set upon a mighty endeavor, a struggle to preserve our Republic, our religion, and our civilization, and to set free a suffering humanity. Lead them straight and true; give strength to their arms, stoutness to their hearts, steadfastness in their faith.
They will need Thy blessings. Their road will be long and hard. For the enemy is strong. He may hurl back our forces. Success may not come with rushing speed, but we shall return again and again; and we know that by Thy grace, and by the righteousness of our cause, our sons will triumph.
They will be sore tried, by night and by day, without rest-until the victory is won. The darkness will be rent by noise and flame. Men's souls will be shaken with the violences of war.
For these men are lately drawn from the ways of peace. They fight not for the lust of conquest. They fight to end conquest. They fight to liberate. They fight to let justice arise, and tolerance and good will among all Thy people. They yearn but for the end of battle, for their return to the haven of home.
Some will never return. Embrace these, Father, and receive them, Thy heroic servants, into Thy kingdom.
And for us at home -- fathers, mothers, children, wives, sisters, and brothers of brave men overseas -- whose thoughts and prayers are ever with them--help us, Almighty God, to rededicate ourselves in renewed faith in Thee in this hour of great sacrifice.
Many people have urged that I call the Nation into a single day of special prayer. But because the road is long and the desire is great, I ask that our people devote themselves in a continuance of prayer. As we rise to each new day, and again when each day is spent, let words of prayer be on our lips, invoking Thy help to our efforts.
Give us strength, too -- strength in our daily tasks, to redouble the contributions we make in the physical and the material support of our armed forces.
And let our hearts be stout, to wait out the long travail, to bear sorrows that may come, to impart our courage unto our sons wheresoever they may be.
And, O Lord, give us Faith. Give us Faith in Thee; Faith in our sons; Faith in each other; Faith in our united crusade. Let not the keenness of our spirit ever be dulled. Let not the impacts of temporary events, of temporal matters of but fleeting moment let not these deter us in our unconquerable purpose.
With Thy blessing, we shall prevail over the unholy forces of our enemy. Help us to conquer the apostles of greed and racial arrogancies. Lead us to the saving of our country, and with our sister Nations into a world unity that will spell a sure peace a peace invulnerable to the schemings of unworthy men. And a peace that will let all of men live in freedom, reaping the just rewards of their honest toil.
Thy will be done, Almighty God.
Amen.
Thursday, November 10, 2011
Will Baude has a wonderful new piece on what should replace DOMA (as it seems to be expiring) for purposes of deciding which state law ought to control the issue of the validity of a same-sex marriage. I haven't had a chance to read through all of Will's piece (and it is not in my area -- but Will writes so accessibly that I can pretend that I really understand it as he does), but one of the (many) things that makes it interesting is that Will notes that this issue is just one example of a larger set of issues dealing with "interstitial law":
First, I demonstrate that the second-order conflicts problem for federal question cases should generally be resolved through a federal common law of conflicts. It cannot be resolved by treating federal question cases like diversity cases [Will rejects applying Klaxon to this category of disputes] . . . . Second, I demonstrate that institutional role matters. Congress solves conflicts problems differently than courts do, because it is free to implement a broad range of policy goals through conflicts doctrine, while courts have a more limited role of filling in the gaps between Congress’s choices. Both of these principles apply to all instances of what is here called “interstitial law”—a form of federal law that relies upon state law.
That's how Distinctly Catholic's Michael Sean Winters scores the recent un-doing of the not-quite-as recent efforts to rein in public-employee unions in Ohio. I'd rather agree with Winters, as when he's writing good stuff about the Freedom of the Church, but I'm afraid I cannot here.
I'm pretty sure I'm as big a fan of Leo XIII as there could be, and also that I've read his social-question writings (including Rerum novarum) at least as closely as most, but I'm afraid the better way to score the unfortunate outcome in Ohio is "Big Labor Money, most from out of Ohio -- 1, Our Children, Fiscal Sanity, and Doom Avoidance 0."
To be clear: mine is not an "anti-union" or anti-labor point, nor am I calling into question the idea that the public employment should be regulated so as to make sure public employees are treated fairly, in safe environments. Of course private-sector workers have a moral right (and should have a legal right) to unionize, and of course labor unions played an important role in securing various important employment-related regulations and reforms (as well as various in-hindsigh unsustainable practices that are sorely hurting many American companies and driving industry elsewhere). Still, the notion that the current pensions / benefits / dues-extraction / bargaining / tenure / security regime enjoyed by public-employee unions in places like Ohio is one that is required by (or, indeed, even consonant with), Leo XIII and the Church's social-doctrine is, I think, wrong and bad for our political community and our children.
UPDATE: Michael responds to me, here. Two quick points: First, Michael writes: "Unions serve as a check on the monied interest, whose power is, in a free society, always going to be dominant. I also see unions as a key part of the social fabric, embodying the kind of intermediate social organizations called for by the Catholic social principle of subsidiarity." I agree that labor unions (that is, associations of workers) can serve as checks "on the monied interest." (Whether they always do is an interesting question.) And, I have never questioned the role of unions in the social fabric or the relevance of the principle of subsidiarity. But, again, I think this statement does not sufficiently take account of the very different dynamic at play in the relationship between public employees, the government, and taxpayers. I think it is essential, if we want to implement faithfully the Church's social doctrine, that we take account of this dynamic.
Second, Michael says "given the choice between raising taxes on rich folk and cutting benefits for teachers and firefighters and policement and sanitation workers, I will vote for raising taxes on the rich every day of the week." But, with all due respect, this is not the choice I'm addressing, or the one that, really, we face. In order to avoid very serious fiscal problems in the not-very-distant future, cutting the (in many cases) excessive and inflated and unsustainable benefits of public employees will be necessary, in part because "raising taxes on rich folk" would not and could not supply enough revenue (putting aside questions about who "the rich" are and what their fair-share of taxes should be) to sustain our current practices and meet our current entitlement-spending obligations.
The Becket Fund is on the case, and has the news:
Today, the Becket Fund for Religious Liberty filed a lawsuit against the federal government on behalf of Belmont Abbey College over the “Affordable Care Act” (aka “Obamacare”), that forces the College to violate its deeply-held religious beliefs or pay a severe fine. The heart of the lawsuit involves the recently issued Health and Human Services’ mandate that requires thousands of religious organizations to provide, against their conscience, contraceptives they consider to be abortifacients—namely Plan B and Ella—and sterilization.
Although the government has already provided thousands of waivers for a variety of special interest groups including McDonald’s and teachers’ unions, often for reasons of commercial convenience, it refused to accommodate religious organizations. Instead, the government permitted a religious exemption so narrowly defined that it prompted the United States Conference of Catholic Bishops to note that even Jesus’ ministry would not qualify.
“A monk at Belmont Abbey may preach on Sunday that pre-marital sex, contraception, and abortions are immoral, but on Monday, the government would force the same monk to pay for students to receive the very drugs and procedures he denounces,” said Hannah Smith, Senior Legal Counsel at the Becket Fund for Religious Liberty. “This is much worse than an un-funded mandate; it is a monk-funded mandate.” . . .
A "monk-funded mandate." As Instapundit likes to say . . . "heh."
UPDATE: CUA's Mark Rienzi comments on the case, here.
Here is an excellent op-ed by Harrisburg, PA's Bishop Joseph McFadden:
Social justice flows from human dignity. To establish justice, our society must provide the conditions that allow people to obtain what is their due, including an education that prepares them to be productive citizens. Education is a basic human right. Our secular system of laws supports this principle, as every Pennsylvania child is guaranteed an education.
For parents, providing an education for their children is a moral obligation. When we look across the education landscape in Pennsylvania, however, we see that some parents, especially low-income families, have no choice but to send their children to a school that is not helping them reach their potential. This is why the bishops of Pennsylvania see school choice as a defining social justice issue for our time. . . .
Yesterday I had the privilege to speak to state legislators in Michigan, where an anti-Sharia bill has been introduced. Perhaps learning a lesson from the Oklahoma debacle -- a case in which the statute is explicitly discriminatory -- the Michigan bill is more stealthy, providing that a court or administrative agency "shall not enforce a foreign law if doing so would violate a right guaranteed by the constitution of this state or the United States." "Foreign law" is defined as "any law, legal code, or system of a jurisdiction" outside the United States. The bill has more than forty co-sponsors, but the primary proponent makes clear that it aims at Muslim litigants who "do not want to be under our law."
At first glance, I don't think this law would change anything. If the bill aims to ensure that American courts don’t enforce a foreign court’s order if the foreign procedures are not fundamentally fair or otherwise violate basic due process, I’m not sure why we need such a provision. American courts are already focused on that. And I’m not sure how concerns about Sharia law contribute to our understanding of this issue. If a contract is entered under duress or through coercion, or if a foreign court order is entered without a party having the chance to contest it, our courts won’t enforce the contract or the order, regardless of the source of the substantive norms embodied in the contract or order. The unenforceability has nothing to do with Sharia.
If the bill aims at preventing private parties from waiving constitutional rights when the source of the agreement's norms are found in a jurisdiction outside the United States, that sweeps very broadly, and is not just limited to contracts founded in Sharia. I don't know how it threatens the rule of law to permit religious believers to order their lives consistently with the tenets of their faith traditions. When bankruptcy courts apply canon law in determining property rights for a diocese, or when courts enforce arbitration agreements based on biblical principles pursuant to widely invoked rules of "Christian conciliation," or when couples invoke their faith as the basis for the terms of their prenuptial agreements, that raises very few eyebrows. In the dozens of states where anti-Sharia legislation is being proposed, we're erecting a double standard. No one is asking for a court to adopt the sort of penal code that is found in some Islamic countries; they are asking for space to live out their faith commitments. In most cases, these disputes crop up because Sharia provides the terms for the contract that comprises the litigants' marriage (in Islam, the contract does not precede a marriage; the contract is the marriage). The disputed terms usually pertain to the distribution of property upon marriage and in the event of divorce or the husband's death. Whether or not such contracts are enforceable should turn on whether they go beyond what would be tolerable in any other marital contract.
If we keep insisting that Sharia is the enemy of our legal system, Christians are treading on very thin ice. Americans are free to enter into contracts that reflect their own commitments to a host of causes, whether it's PETA, or the PTA, or NARAL. Religious believers should not be precluded from doing the same. I hope Catholics continue to speak out against clearly unjust laws like Oklahoma's, as well as the more subtle but wholly unnecessary versions cropping up around the country. Even if these versions don't actually change the way courts operate, their passage still sends a very troubling message to our Muslim friends and neighbors.
Wednesday, November 9, 2011
Professor Melissa Murray (Berkeley) has published Marriage as Punishment in the forthcoming pages of the Columbia Law Review, a paper which aims to show a number of things. First, it describes how marriage was used historically not only as a kind of escape valve for the crime of seduction but also as a "punishment" for that crime. Second, it takes very seriously the metaphor of "the old ball and chain" to show how "marriage figured prominently in the operation of the criminal justice system." Third, it wishes to resuscitate what it claims to be an older view of marriage as something more than the "unvarnished good" which, it again claims, it is described as today by those seeking same-sex marriage rights. Fourth, it injects a caution about the way in which same-sex marriage proponents make their claims about the good of marriage. Marriage is a discipline, the author claims -- a discipline at times enforced by the state -- and as such it is in many ways inimical to achieving full "liberty and autonomy for sex, whether in marriage or not." (107) What we really need if we are after "greater sexual liberty" is to be skeptical of the "disciplinary force" of marriage (no less than of criminal sanction) -- in order to create "a place for sex and sexuality beyond the disciplinary domains of the state." (107-108) I wish Philip Rieff were still with us to offer his thoughts.
I think Robby is correct that views on cohabitation may break down along some of the same demographic lines as views on SSM. I should have been more precise, though, in explaining what I mean by noting the "fear-based terms" that I've observed in some (though by no means all) of my conversations about SSM with the 50+ crowd. Often the fear is focused not so much on SSM, but on gays and lesbians themselves. This distinguishes it from views on cohabitation, I think. I don't know anyone who fears the people who engage in the act of extramarital cohabitation, though I know plenty of folks (count me as one) who fear the consequences of widespread normalization of extramarital cohabitation. I do know folks -- and most of them are over 50 -- who fear the harmful effects that gays and lesbians themselves might have on their children or grandchildren, quite apart from SSM. That fear underlies part of the opposition to SSM. For younger generations, they are less likely to associate SSM with "homosexuals" as an ominous category, and more likely to associate SSM with specific friends that they have who happen to be homosexual. They are not afraid of their friends, and thus that component of the fear-based opposition evaporates. I think that's different than the dynamic with cohabitation.
There are rational arguments against SSM that have nothing to do with fear of gays and lesbians, and Robby, Maggie Gallagher, and others are making them. The primary challenge for SSM opponents, as I see it, is to separate one's opposition to SSM from one's views on gays and lesbians. For many voters, my guess is that, as the latter improves, the former tends to weaken.
