Last month, the Fifth Circuit decide a potentially important case, Reliable Consultants, Inc. v. Earle. The opinion is here. The case involves "the constitutionality of a Texas statute making it a crime to promote or sell sexual devices." The Fifth Circuit, by a 2-1 vote, found the statute unconstitutional. The decision creates a conflict with at least the 11th Circuit, which rejected constitutional challenges to similar Alabama law.
The basic issue in these cases is how to read Lawrence v. Texas. Since 2003, most courts have read Lawrence narrowly. Most courts have been unwilling to extend the Court's ruling to other contexts. Put another way, the dire predictions in Justice Scalia's dissent (that Lawrence puts an end to all morals legislation) have not yet come to pass.
The 5th Circuit's recent ruling takes up Lawrence's invitation. The court extends substantive due process to conduct that doesn't even involve a relationship, a fact mentioned repeatedly in Lawrence. The 5th Circuit also rejects public morality as a sufficient basis for the Texas law.
These cases raise profound issues about the nature of freedom, the state's interest in public morality, and the role of the judiciary, among others.
Richard M.
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.
Thursday, January 24, 2008
Here are a couple of quick comments on John Hardt's fine article in America (Church Teaching and My Father's Choice). I thought the article was well done. I have some reservations though. I don't think Hardt's approach is at all consistent with the CDF's statement on this issue. I think Hardt's view is similar to the view expressed in the Commonweal editorial we discussed back in December. Here is a link to my brief post on that editorial. In my view, there are a couple of points where Hardt's position diverges from the CDF statement. First, Hardt takes the view that the pvs condition itself is "a fatal pathology." The real "problem" is that these patients won't die soon enough. Second, he seems to subscribe to a dualistic understanding of the person. I think this is reflected in his (dismissive?) reference to "baseline biological existence." Third, I think Hardt makes the common mistake of regarding the life of the patient as "excessively burdensome" rather than focusing on whether the treatment is excessively burdensome. Fourth, despite Hardt's focus on pvs and his statement that the pvs diagnosis "affects only a miniscule number of patients," I think it is quite clear that his discussion (which turns on the subjective evaluation of the patients's condition) is not limited to pvs patients. His analysis is not incorrect because of that but we ought to acknowledge that his principle is not confined to a narrow situation.
I'll refer again to Mark Latkovic's clear analysis of the moral issues, and to my (less clear) treatment of these issues in connection with the Terri Schiavo case.
Richard M.
I agree completely with Eduardo's recent post. I may not have made that clear when I briefly described Bob Fastiggi's article on this issue. Fastiggi's article is a critique of Justice Scalia's approach to this issue. Fastiggi takes the view (and I agree with this) that the teachings on the death penalty in EV and the revised Catechism are (although not definitively proclaimed) deserving the treatment set forth in Lumen Gentium 25--the religious submission of intellect and will. This requires more than respectful consideration. Charlie Rice, who wrote the entry on the death penalty for the Encyclopedia of Catholic Social Thought I recently co-edited, is here a better model than Justice Scalia. After EV and the revised Catechism were issued, Charlie changed his view on this topic.
Richard M.
Wednesday, January 23, 2008
I am by no means an expert on this issue. There is a very good article on this question by my friend Bob Fastiggi entitled "Capital Punishment, the Magisterium, and Religious Assent." The article was published at 12 Josephinum Journal of Theology 192-213 (Summer/Fall 2005). In this article, he explains the three levels of Church teaching (as set forth in the Profession of Faith). First, are solemn, infallible teachings (e.g., divinity of Christ). Second, are issues definitively proposed by the Church regarding teaching on faith and morals (e.g., illicitness of euthanasia, the reservation of priestly ordination to men). Issues in these first two categories are binding on Catholics. Third, are teachings of the Magisterium that have not been definitively proclaimed. Fastiggi places the teachings of JP II and the Catechism on the death penalty in this third category. These teachings are owed the religious submission of intellect and will (as set forth in Lumen Gentium 25).
Richard M.
