SCOTUSBlog is reporting that the Supreme Court has "denied review of all seven of the petitions arising from challenges to state bans on same-sex marriage." This is a surprise. It is also irresponsible. To allow the redefinition of marriage for such a large segment of the American population on the basis of emanations from Windsor is not right. It's true there is no circuit split yet, but there seems little question that the Fourth, Seventh, and Tenth Circuits have "decided an important question of federal law that has not been, but should be, settled by [the Supreme] Court."
Monday, October 6, 2014
Same-sex marriage petitions denied ... wow
The Study of International Law
Over the last two days, various editions of The New York Times have published an article by Christopher F. Schuetze entitled “A Bigger World of International Law.” This intriguing article discusses the growing interest in the study of international law across the globe; however, it mentions the prevailing role and influence of certain universities—especially Oxford, Cambridge, and east coast universities in the United States—in this critical educational enterprise. While Mr. Schuetze notes that the field of public international law “is gradually spreading globally,” a small number of universities in Europe and the US “hold a disproportionate sway when it comes to training the international-law elite.” In my own post-JD legal education, I pursued graduate legal studies at Oxford under the late Sir Ian Brownlie, then the Chichele Professor of Public International Law. He was a great legal theorist and superb teacher, but he was also an accomplished legal practitioner who thoroughly comprehended the inextricable nexus of legal concepts and their application to the people’s of the world in the context of the rule of law.
To this day I am grateful for the experience of learning under Sir Ian for I saw under his tutelage that it is not simply where public international law is taught that makes it a worthy pursuit but, more importantly, what is taught given the vital subject matter. This is the challenge to all those who are involved in the teaching and learning of public international law today; in particular, it is a challenge to those who teach law in the Catholic academy as my friends and colleagues who teach in institutions that rely on the moniker “Catholic” possess a substantial opportunity to mold what is taught about public international law.
In the early twentieth century the Canadian-born American practitioner and legal academic James Brown Scott recognized the significant contributions to public international law made by the sixteenth century Dominican Francis de Vitoria and Jesuit Francis Suàrez. It was not so much the “where” but the “what” that was important to Scott. In addition to circulating his own commentaries on these early fathers of public international law, Scott was instrumental in having their works published by the joint effort of Oxford University Press and the Carnegie Endowment for International Peace in the Classics of International Law series.
Due to the influences of Brownlie and Scott, I saw a need some years ago to bring students to an awareness of the de Vitoria- Suàrez contributions not only to public international law but to the idea of natural human rights. In order to take action on this need, I taught at several different institutions a course I dubbed as “Natural Law and Natural Rights.” It was ambitious in the sense that it required a good deal of reading each week; however, in studying with Sir Ian, I realized that reading a sizable corpus of primary sources every week was and remains essential to the task. As my course evolved, I came to the further realization of the bond between the work of the early Catholic pioneers of public international law and the evolution of American republican democracy. Should anyone be interested in seeing how my syllabus and reading list matured, I would be pleased to share these texts with anyone who may inquire. And who may be interested? Surely those of the Mirror of Justice community who support the view that there is such a thing as Catholic legal theory that is relevant to teaching law and to contributing to the rule of law. While most institutions that are considered part of the Catholic academy may not be viewed as members of “the international law elite,” to borrow from Mr. Schuetze’s phrase, international law is taught in these schools, and they are in an excellent position to provide those interested in this important subject matter with something of far greater substance than the name of the institution, i.e., the “what” is to be taught, which has a critical bearing on the progress of public international law and the durability of the rule of law.
RJA sj
Sunday, October 5, 2014
Watching the spectacle, replete with incense ... and soaring choir music
There were six Justices in attendance at today's Red Mass in D.C. It's safe to say that they were not all there for all the same reasons. But if the news hook just is that six Justices were there, then it becomes journalistically expedient to attribute at least one common function or reason for their presence as a group. According to Tony Mauro in National Law Journal, "Chief Justice John Roberts Jr. and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, Stephen Breyer and Elena Kagan were in the front pews of the Cathedral of St. Matthew the Apostle to watch the spectacle, replete with incense, bishops and priests in scarlet vestments and soaring choir music." I'm glad they were all there, though the spectacle, incense, and music were not for them.
The article reports that the homily (or "sermon") would not have been offensive to Justice Ginsburg. Perhaps the readings did not lend themselves to an "outrageously anti-abortion" message. In light of some of Justice Ginsburg's recent interviews, I wonder if there are any "anti-abortion" messages that are not "outrageously" so.
Friday, October 3, 2014
Delahunty, "The Real Catholic Debate"
Here is a very interesting post about an interesting report on what sounds like an interesting event! As between the "accommodationists" (Neuhaus, Murray, etc.) and the "radicals" (my colleague Patrick Deneen, Brad Gregory, etc.), I think I say, "well, some of both." Is it alright to think that We Hold These Truths and After Virtue are both very important to the project of thinking about where we are and how we got here? (Or . . . is it just that "I contain multitudes"?). I think Prof. Delahunty is right about, inter alia, this:
The accommodationists can point to a period like the 1940s and 1950s to show that American society can be, not just tolerant, but even receptive, to Catholicism. They would probably distinguish between two kinds of American liberalism – the classical liberalism of the Founders, and the liberalism of the present. The former regarded government as, essentially, a scaffolding or a set of neutral procedures, allowing citizens to pursue their private projects peaceably within an agreed-upon framework. The latter kind of liberalism posits that the State exists to pursue certain substantive goods. Both forms of liberalism rest on a conception of the sovereignty of the individual, but the latter form assumes that the State must play a more active role in bringing about the conditions in which individual choice can flourish. Since that form of liberalism regards the family and the Church as inimical to the sovereignty of the individual, it is inimical to Catholicism. But the earlier, historic kind of liberalism is not hostile to such institutions, and indeed draws sustenance from them. (This, of course, was Tocqueville’s argument.) Thus, for the accommodationists, the task ahead for American Catholics seems to be to restore the pristine form of liberalism to American politics. . . .
. . . The radicals will have to explain more clearly how the liberalism of the present is continuous with, indeed grows out of, the classical liberalism of the early Republic. They will have to demonstrate the historical and conceptual linkages between the Calvinist and consumerist conceptions of human nature, and how the one eventually developed into the other. . . .
"The Meditations of Europe's Last Brewmaster Nun"
Interesting story, ending with this thought:
“You can serve God everywhere, no matter what profession or job you have,” [Sister Doris] says. “As Saint Benedict wrote, ‘in all things God may be glorified,’ and that is also true of beer.”
Celebrating Down Syndrome Awareness Month
A couple of weeks ago, out of the blue, I received an e-mail from a stranger about a book chapter I wrote over ten years ago about my prenatal diagnosis of my son’s Down Syndrome. Over the following days, I got a steady trickle of e-mails about the same piece, from people all over the world. I eventually traced it back to an edited version of the chapter printed on a website in Australia associated with the Sydney Daily Herald. They reprinted my piece in the wake of the furor over the Australian couple who hired a surrogate mother from Thailand to gestate twins for them, and refused to take the twin who was born with Down Syndrome (a beautiful boy named Gammy).
Most of the emails I got were from other mothers who had children with Down Syndrome, and most of the time we exchanged some variation of the sentiment: "Aren't we the lucky ones?" One of the moms followed up her initial e-mail with another that said, "My daughter with Down syndrome just got nominated for homecoming court!!! The world is definitely changing for the better.”
I certainly share her view that, with respect to day to day treatment of people with disabilities, the world (or at least the U.S.) is a better place now than it used to be. My work over this past year on this Disability Justice website confirmed that. The “Basic Legal Rights” section of the website tells the story of the evolution of our fundamental civil rights laws to recognize the right of people with developmental disabilities to live with dignity in our communities rather than in segregated institutions, to be free from unnecessary restraints, to be educated in our public schools, to work, and not to be subject to involuntary sterilization or servitude.
But it can be discouraging to continue to see, even today, examples of how those basic rights continue to be ignored for the most vulnerable among us. The website was funded from a cy pres fund established in connection with a settlement reached by the Minnesota Department of Human Services of a lawsuit brought in 2009 (!!) on behalf of three men in a state-run residential facility for people with developmental disabilities. The plaintiffs claimed that “as a means of behavior modification, coercion, discipline, convenience and retaliation, . . . staff restrained plaintiffs using law enforcement-type metal handcuffs and leg hobbles for conduct as benign as spitting, laughing or hand-washing.” The judge in this case has had to appoint a Court Monitor to oversee implementation of the Settlement Agreement, and has now twice extended court’s jurisdiction over the case, in the face of the State’s continued failure to live up to its agreement. In his most recent order extending jurisdiction for another two years, just this September, U.S. District Court Judge Donovan Frank wrote: “Multiple admonitions to the DHS have been insufficient to secure effective action by the DHS to close the significant gaps between its stated intentions and actions. Continued implementation delays can no longer be tolerated. More importantly, the dignity, quality of life, and best interests of every Class Member and similarly situated individuals with disabilities hinge on fulfillment of the promises made by Defendants at the fairness hearing in this matter.”
The entire Disability Justice website is peppered with links to recent news reports of the continued disregard for the dignity and legal rights of people with disabilities. The story of the group of men with cognitive disabilities locked up nights in a vermin-infested building, released in the day to eviscerate turkeys for $65 a month reads like something from a Victorian horror novel, rather than a New York Times report about a situation uncovered in 2009 in rural Iowa. Equally heart-breaking are some of the other stories linked in the pages outlining the continued abuse and exploitation of people with cognitive disabilities, in the links at the bottom of this page.
October is Down Syndrome Awareness Month. Let’s hope it brings more stories of beautiful children with Down Syndrome being nominated to homecoming courts, and fewer stories of beautiful children with Down Syndrome being rejected by their parents.
First they came…; oh, but they are already here…
Thanks to our friend and colleague Robert George for his post yesterday on the evolving difficulties facing Gordon College as it strives to live by Christian moral principles in a hostile climate. As a son of the greater Boston area who has returned home, I have been following closely the pressure that public and private institutions have been putting on Gordon College to disavow Christian morality and embrace whatever are the acceptable standards of the present age—as whimsical as they are. Professor George’s post about the travails of Gordon College also asks what we Catholics are prepared to do to assist fellow Christians in the face of peril. After all, as Martin Niemöller argued in his lectures about the threats posed to Jews, Socialists, Unionists, and anyone else who posed counterpoints to National Socialism, those seeking the capitulation of Gordon College may similarly seek the capitulation of other Christian institutions, including the Church herself, to do the bidding of the secular but untethered culture as Professor George notes.
However, Catholic institutions are already targeted by the sirens of the present age as was noted by Professor John Breen in his recent post about the California institutions that use the moniker “Jesuit” in the context of the HHS mandate and other state-controlled requirements for health insurance. Further evidence of the contra-Catholic campaign is found in the local Boston press. Back on September 1 of this year, James Carroll, a frequent opinion contributor to the Boston Globe, published an op-ed piece entitled “Abolish Vatican Statehood.” In his opinion, Mr. Carroll vigorously argues a position regarding the Wesolowski case on which I commented in late August [HERE] for “denying” the Vatican statehood. I will be amongst the first to concede that Mr. Carroll and many others hold the views he expressed, but these views are both misinformed and in error. [In the way of offering some background on why I take this position, readers may wish to consult my essay on “The International Personality and Sovereignty of the Holy See” Download 50CathULRev291 International Personality and Sovereignty of the Holy See].
Today, the Boston Globe by way of its lead editorial, “Vatican Trial for Abuse Suspect Undercuts Zero-Tolerance Goal” contends that “the church [sic] still seems stuck in the habit of protecting clergy members from secular criminal justice systems”. If anyone is stuck anywhere, it just might be the Globe by its failure to acknowledge the number of Catholic clergy who have faced criminal prosecution in civil tribunals in recent years. The Globe editorial implies that the “Vatican trial” of Josef Wesolowski furthers the alleged injustice, i.e., protecting clergy from the rule of law, due process, and justice. Is there a sound basis for the Globe’s allegations and arguments? My answer is “no.” The contentions presented by Globe in support of its questionable position are erroneous. Nonetheless, they offer evidence that pressure is on the Catholic Church to amend her ways that suit the culture of the present age that is often reflected in the opinions heralded by the Globe. Let me briefly explain why this is the case.
First of all, there is an implicit notion in the Globe editorial that only “secular” criminal justice systems are legitimate. Why should this be true if some other juridical systems that are not “secular” are capable of applying impartially respected legal principles in the context of due process that furthers the application of justice? The Holy See has been, is, and will be a sovereign power and member of the law of nations—just like the United States—which owes obligations to fellow sovereigns and natural persons but also owes obligations to the rule of law including its own.
The Globe editorial, nevertheless, appears ever so confident in making a shaky claim that, “the Vatican’s decision to handle Wesolowski in its own justice system is hardly a guarantee that justice will be done.” This is an extraordinary claim; moreover, there is nothing offered by the Globe other than its insinuation that the Holy See will not be true to the rule of law, due process, and the obtaining of justice for all involved. The Globe simply asserts that only “secular criminal justice systems” are the only competent judicial bodies because only they can send the message of “zero tolerance for perpetrators of abuse.” It strikes me that what the Holy See has done so far regarding Mr. Wesolowski sends a message in stark contrast to that offered by the Globe.
By making its claims about the juridical mechanisms of the Holy See, the Globe fails to take account of the fact that sending states, in this case the Holy See, have the first crack at their diplomats who have allegedly committed criminal acts in the receiving states consistent with the law of nations. If there is any doubt about this, we might refresh our recollections of the matter involving American Raymond Davis who allegedly killed two Pakistani nationals in Pakistan in early 2011. The United States insisted that he was an American diplomat (in the words of President Obama, “our diplomat”; moreover, Secretary of State Kerry sought the release of Mr. Davis with the promise that the U.S. Department of Justice would “investigate” the matter) although there is evidence suggesting that he was at the time a CIA operative (see more HERE). Throughout the Davis controversy, the United States maintained that Mr. Davis, like Mr. Wesolowski, enjoyed diplomatic immunity under the terms of the Vienna Convention on Diplomatic Relations. Other Americans on diplomatic mission for the United States have been protected by the Vienna Convention on Diplomatic Relations, e.g., the 1998 case involving Mr. Douglas Kent who allegedly hit a young Russian with his car; Mr. Kent was protected from Russian prosecution by his diplomatic immunity (the case also involved other questions about whether Mr. Kent was acting within the scope of his official duties and therefore immune from civil suit).
From these illustrative cases involving American diplomats or those argued to be American diplomats, it would seem that the United States has used diplomatic immunity to protect its citizen-employees. The Globe does concede that the Holy See stripped Mr. Wesolowski of his diplomatic immunity which makes him liable to due process. In addition, it is clear the United States has relied on its courts or other judicial organs when foreign sovereigns have protested the use of diplomatic immunity used to protect Americans from the criminal processes of the receiving state. On this point, it is relevant to recall the evolving concept of “complementarity” in international law which recognizes that the state principally involved in serious international criminal matters has the initial right and obligation to apply its law to its citizens who have been alleged to have committed an offense in the territory of the receiving sovereign.
This is precisely what the Holy See has done regarding Mr. Wesolowski. Furthermore, there is no indication that the Holy See has refused to turn Mr. Wesolowski over to the authorities of the Dominican Republic and Poland once the Holy See’s prosecution has been completed.
So, to suggest as the Globe editorial does that justice can only be done in a “secular criminal justice system” ignores the rule of law itself which the Holy See seems presently to be following. In addition, the Globe presumes without any further justification that the judicial bodies of the Vatican cannot “guarantee that justice will be done.” This is not a rational argument based on objective intelligence comprehending the intelligible reality of the situation which has emerged so far in the Wesolowski case. Rather, it seems to be a means of pressuring the Holy See to do things the ways which further the interests of the Boston Globe but sacrifice Christian morality and general justice.
If this is the case, then the “new orthodoxy” to which Professor George refers is already on the steps of the Church and the message of no dissent from this orthodoxy, notwithstanding what the law of nations and the rule of law otherwise suggest, is loud and clear. To argue, as the Globe does, that the only “legitimate” organs are secular ones that are “outside the Vatican” furthers the transparency of my point.
RJA sj
Thursday, October 2, 2014
Learning from Screwtape
Prior to stepping down from the Murray Chair at Loyola University Chicago, I had a plan to develop the nexus between virtues and the law particularly in working on future installments of the lecture series that accompanied the Chair. I think our friend and colleague Kevin Walsh picked up on this some time back. Another dimension of my plan was the desire to continue examining this theme in the Murray Lectures for another twenty years or so—after all, longevity runs in my family’s genes. The latter part of the plan was defeated when I had to prematurely step down from the Murray Chair last December. This does not affect the first part of the plan and the hope that others may recognize some merit in the objective that I had identified. I think this objective is has an important role to exercise in the development of Catholic legal theory.
Reinforcing my view about the objective just mentioned was something I recently came across in my bedtime reading. One of my reading projects of late is C. S. Lewis’s The Screwtape Letters, first published in 1942 mid-way through the Second World War. In one of his letters to Nephew Wormwood, Screwtape counsels his young relative about this mission of evil in the world (something that was on Lewis’s mind and probably on many other people’s minds during the War). Screwtape emphasizes that their “real business” for the father of the underworld is twofold: to undermine faith and to prevent the formation of virtues.
The community of judges, lawyers, law students, law professors, and others who read the Mirror of Justice and who acknowledge merit in this website’s vocation might see how Screwtape’s own objective is one of the very things for which the Mirror of Justice offers a critical antidote especially when the link of Christian faith and the cultivation of virtues are things which the present age often ignore.
RJA sj
What the Future Holds
If anyone had any doubt that the current fight for religious liberty over the HHS mandate is a fight to the death – that it poses an existential threat to Catholic universities and indeed every Catholic apostolate as such – then he or she need look no farther than the State of California where word comes that Loyola Marymount University has caved in to the demands of Governor Jerry Brown’s California Department of Managed Health Care to provide insurance coverage for elective abortions to its employees.
A story in the student newspaper, the Los Angeles Loyolan, reports: “The news was confirmed in an email sent to faculty and staff yesterday, Vice President for Human Resources Rebecca Chandler confirmed that LMU's insurance providers will now cover all procedures deemed medically necessary, including electives abortions” (here).
As others have pointed out, abortion has had a corrupting influence on our law and politics and even our language. The report from Loyola Marymount provides yet another example: what is admittedly an “elective” abortion is now deemed medically “necessary.”
Briefly put, the background behind Loyola Marymount University’s recent decision is as follows. In 2013, both Santa Clara University and Loyola Marymount decided to drop [sic] elective abortion from their insurance coverage for employees (here). (To ask why they had provided this coverage in the first place is to peer under the dark rock that is religious identity at most Catholic universities today). Loyola’s decision was not a joyful embrace of its Catholic identity. The University’s president, David Burcham (a layman and a non-Catholic) vowed that the “pall of orthodoxy” would not “shackle” Loyola in its efforts to move forward as an institution of higher learning (here).
After Loyola initially decided to drop the coverage, it then decided to make such coverage available to employees, at their own expense, through a plan administered by a third-party. This “compromise” was offered in response to complaints from a number of faculty members protesting the absence of abortion coverage (here and here).
In response to this move, the California Department of Managed Health Care chose to conduct “an in-depth analysis of the issues surrounding coverage for abortion services under California law” (here). In August the agency decided that all insurance coverage must include abortion services. According to the department’s director, Michelle Rouillard, “All health plans must treat maternity services and legal abortion neutrally” (here).
Although Loyola has given in to the State’s demands, the California Catholic Conference has challenged the action, filing a complaint with the Office of Civil Rights of the Department of Health and Human Services (here).
It takes very little imagination to think that in the very near future an unelected federal administrative agency, aided by a politicized though ostensibly neutral panel of experts like the Institute of Medicine, could determine that abortion is a “necessary” aspect of “health care” and require all employers – regardless of their objections based on religious conscience – to provide coverage for both surgical and chemical abortions. Indeed, as Justice Alito noted in Hobby Lobby (slip op. at 45-46) the logic of HHS’s reading of RFRA in that case would allow the federal government to do precisely that. Should there have been any doubt that the totalitarian instinct is alive and well in American society, the actions taken by the California Department of Managed Health Care and Governor Jerry Brown show that there are people in this country who have the political will to impose such a burden on religious objectors without apology.
Some Catholics who disagree with Humanae Vitae might have been willing to look the other way when it came to the HHS mandate. It was only contraception, right? (or so the media said). They may have even been supporters of the mandate, seeing it as a way of getting the Church to “get with the times” – to modernize and become “relevant” again.
Even those who harbored such a mistaken view should now see plainly where all of this is headed: State enforced “modernization” leads to abortion. It leads to the Church paying for the use of a curette and a vacuum aspirator to snuff out the life of a developing human being. It leads to the death of religious liberty.
What is most disappointing in all this is how Loyola Marymount University – a Jesuit university that seeks to advance “the service of faith and the promotion of justice,” a school whose “Catholic identity and religious heritage” purportedly “distinguish [it] from other universities” (see LMU Mission Statement here) – would so easily capitulate.
Next month, Jesuit universities across the country will celebrate Ignatian Heritage Month (here), and part of these festivities will include a commemoration of the Six Jesuit Martyrs and their Companions in El Salvador who were brutally murdered on November 16, 1989 (here and here).
Certainly some will argue that Loyola Marymount’s decision to capitulate to the State was a prudential judgment made after much deliberation. Really? Wasn’t Judas similarly prudent? Didn’t he exercise the same kind of deliberative judgment?
Prudence, the master virtue, often demands the exercise of courage. Does Loyola Marymount’s decision embody the courage of the Jesuits of El Salvador or the heroic sacrifices of their brothers over the centuries? Does it proclaim the Gospel with a prophetic voice? Or is it a betrayal of Ignatian Heritage – of all that St. Ignatius held dear – and a cause of scandal?
These are, I would suggest, questions that Archbishop Josè Gomez should ask and seek to answer in determining whether Loyola Marymount should still be allowed to promote itself as a “Catholic” institution. These are questions that members of the Society of Jesus should ask themselves in reflecting on what is being done in their name. Are they furthering the “throw away culture” that their brother, Pope Francis, has said (here), “calls for the elimination of human beings” who “bear the face of the Lord”?
First they came for the Evangelicals . . . at Gordon
http://www.bizjournals.com/boston/news/2014/09/25/accreditation-board-gives-gordon-college-a-year-to.html?s=print
Alright, faithful Catholic friends. What should we be doing to defend the right of Gordon College, an Evangelical Christian college in Massachusetts, to uphold Biblical morality in its employment and student life policies? If the powers that be---in this case an accreditation board---can force Gordon College into line with the dogmas of expressive individualism and sexual liberationist ideology, no college (or law school) whose moral and religious commitments place it in dissent from the new orthodoxy will be safe.
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