Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, February 1, 2006

Priest/Penitent Privilege

By Robert John Araujo, SJ

I am once again grateful to Rick, this time for his posting on the New Hampshire legislative development concerning penetration of the seal of the confessional. After reading Rick’s posting and other materials associated with this development, I discovered that the current bill before the State legislature is very limited in its scope and undermines only one privilege. While the legislators are at it, why not expand the coverage and add the doctor-patient privilege, the spousal privilege, the lawyer-client privilege? They, too, can insulate many items from public scrutiny including child abuse. So why just this privilege involving the seal of the confessional? I can imagine many scenarios in which doctors and lawyers would have information concerning these tragic kinds of cases but their privilege is not before the legislature. Consequently, it strikes me that there could be a due process issue involved. While we are at it, equal protection, at least among privilege claimants, seems to be at stake as well. And by the way, is it relevant that the legislative proposal was initially suggested by a member of a group whose motto is: “Keep the faith. Change the Church.tm” I question the soundness of dealing with Church matters through civil legislation. Once again, there are serious concerns about the First Amendment that come into play.

I would like to pose a question for consideration by anyone interested in this legislative development: should they not consider the possibility that a priest might actually try to do the right thing by helping justice in these cases and still respect the seal of the confessional? As a practical matter, I wonder how many child molesters will be going to confession to seek absolution. But I’ll let that one between the priest and the penitent. The priest might just encourage and exhort reconciliation with God and with the neighbor who has been wronged, but we’ll never know what takes place in the exercise of this sacrament nor should we. I also wonder about where the legislators would come down if they were asked to expand the list of sins/crimes and members of other professions who might have information about them? For example, let’s consider the lawyer whose client has discussed matters involving the same matter. We could also consider the physician whose patient has done the same.

I think Representative Bettencourt’s parish priest is on to something. Justice is at stake, and so is integrity, and the two are related. And for those of us who are genuinely concerned about the devastating cancer of child abuse (which is probably most of us), let’s not forget that there are a lot of good people who have the legal protection of different evidentiary privileges who are still trying to combat this curse while at the same time respecting their solemn oaths not to divulge information that should not be divulged because it was received in confidence. While having a superficial appeal, this legislative proposal, I think, would create more problems and solve few, if any. But in the meantime, an important evidentiary privilege risks being compromised.   RJA sj

Happy Second Anniversary to Us!

By Rick Garnett

February 3, 2006 will mark the second anniversary of MOJ. I suppose surviving that long, and being as active as we are, are themselves indicia of success. But there are objective criteria: we have had 363,189 hits since that day, and we average (as of today, Feb 1) 494 hits a day. That number has crept up steadily since we began. Those numbers are not huge from the standpoint of the mega-blogs, but we are certainly not everyone's cup of tea, and we stick pretty close to our focus. We also mostly avoid the snarkiness that tends to generate attention in the Hobbesian world of the blogosphere. I would like to ask my co-blogistas to comment on whether we have made progress toward our goal of developing a Catholic legal theory, as I defined it in my original post on Feb 3, 2004, or by any definition, or whether we have made progress in any other way. I will say that this is one of the few places where Catholics of very different stripes can address each other civilly and, I hope, learn from each other. And I believe that MOJ has helped build a sense of community among Catholic faculty adrift in the legal academy, something essential to creating a new sense of identity and confidence in Catholic legal education, and supporting those in secular schools. Many thanks to all of our blogistas, past and present, and particularly our comoderator, Rick Garnett, for his leadership. So -- colleagues and readers -- let us know how we are doing and where we need to go next!

--Mark

Tuesday, January 31, 2006

2006 Catholic blog awards

By Rick Garnett

Shamelessness time:  Why not surf over to the 2006 Catholic Blog Awards and nominate "Mirror of Justice" for, say, "Best Blog by a Group"?

Contraception and Population

By Eduardo Penalver

I was reading Grisez's "Way of the Lord Jesus" today in preparation for Thursday evening's Natural Law Colloquium at Fordham.  (Here's my shameless plug:  Jean Porter is going to come to discuss her work as it relates to the controversy over gay marriage; Charles Reid will be coming from St. Thomas Law School to respond; I'll also be responding.  It starts at 6pm in Fordham Law School's amphitheater.).  Anyway, I was reading Grisez, and he makes the point that encouraging contraception for the purpose of avoiding overpopulation is not permissible.  My question is this (I know this sounds sarcastic, but I ask it in all sincerity and am interested in being pointed towards the appropriate resources):  Is there any community (of substantial size -- something like a country or tribe -- Ave Maria township does not count :-) ) that has achieved population stability in the absence of either high mortality or the widespread use of contraception?  In other words, is anyone aware of any data that any community has ever achieved population stability through the collective exercise of sexual self-control? 

Ninth Circuit strikes down PBA ban

By Rick Garnett

The United States Court of Appeals has affirmed a lower court's invalidation of the federal ban on partial-birth abortions.  (Thanks to Howard Bashman).  It appears, by the way, that today's decision is the first post-Ayotte consideration of such a ban.  It will be interesting to see how the new Supreme Court -- with Justice Alito replacing Justice O'Connor -- responds to the Ninth Circuit's ruling, and applies both Ayotte and Stenberg.

UPDATE (from Bashman):

BREAKING NEWS -- U.S. Court of Appeals for the Second Circuit affirms district court decision holding Partial-Birth Abortion Ban Act of 2003 unconstitutional but requests additional briefing on the question of remedy: Today's ruling by a three-judge Second Circuit panel, in which each judge on the panel has issued a separate opinion, can be accessed here.

Senior Circuit Judge John O. Newman delivered the opinion of the court. Chief Judge John M. Walker, Jr. issued a concurring opinion expressing dissatisfaction with the U.S. Supreme Court's current abortion jurisprudence. Chief Judge Walker's concurrence states, "I write separately, however, to express certain concerns with the Supreme Court's abortion jurisprudence generally and with Stenberg in particular."

Circuit Judge Chester J. Straub dissented from today's ruling and would have held constitutional the ban on so-called "partial birth" abortion. In the dissenting opinion, he writes, "I find the current expansion of the right to terminate a pregnancy to cover a child in the process of being born morally, ethically, and legally unacceptable." For those who care about such things, Judge Straub was nominated to the Second Circuit by President William J. Clinton.

Child abuse and the confessional

By Rick Garnett

The Concord Monitor reports:

For the second time in three years, lawmakers have proposed a bill that would require religious leaders to report suspected cases of child abuse, even if they learn about that abuse in the privacy of a religious confession.

The Diocese of Manchester opposes the bill, saying it would interfere with religious freedom without making children safer.

The Child Protection Act, enacted in 1979, requires any person in the state who suspects abuse or neglect to report those suspicions to law enforcement. That law specifically includes religious officials. But another state law exempts clergy from having to testify in court about anything said in confession or in a similar spiritual-advice setting.

That ambiguity led Rep. Mary Stuart Gile, a Concord Democrat, to introduce a clarifying bill three years ago. Lawmakers killed that bill in 2004. . . .

Northfield Police Chief Scott Hilliard, representing the New Hampshire Association of Chiefs of Police, also spoke, identifying himself as a practicing Catholic and eucharistic minister - and a former child-abuse investigator. "(We) feel it's important that there be no exemptions from the mandatory reporting statute," he said, supporting the bill. . . .

Getting Catholic priests to comply could be a major issue, said Rep. D.J. Bettencourt, the chairman of the subcommittee, whether or not the bill would be challenged legally. Bettencourt, a Catholic, said he consulted his own priest about the bill. His priest would rather go to prison than divulge something learned in confession, he said.

Stay tuned.

Children, Media and Sex

By Rob Vischer

Perhaps some common ground in the culture war divide is discernible given that even The New York Times expresses concern with the impact that our sex-saturated media culture has on children and the general failure to invest any resources in studying that impact.  The Times article goes so far as to assert that the rate of teenagers' sexual activity (notably not just teen pregnancy) is "staggering."  One of the only surveys on the question of media impact found that:

[W]atching TV with sexual content artificially aged the children: those who watched more than average behaved sexually as though they were 9 to 17 months older and watched only average amounts. Twelve-year-olds who watched the most behaved sexually like 14- and 15-year-olds who watched the least.

Much (but certainly not all) of the blame lies with parents, given that two-thirds of children 8 to 18 have televisions in their bedrooms.

Rob

Monday, January 30, 2006

more on "the hollowing out of Roe v. Wade"

By Richard Myers

Rick mentioned Dawn Johnsen's Slate essay entitled "The Outer Shell: The hollowing out of Roe v. Wade." This line of argument, that the right to abortion has already been gutted, is increasingly common. Chris Whitman published an article in the Michigan Law Review several years ago to the same effect. I wrote a short comment on Whitman's piece for a University Faculty for Life conference and my paper is available here.

This argument has several distinctive features. One is to, I think willfully, ignore just how extreme US law is abortion. For example, Whitman and Johnsen ignore the Stenberg decision and the still very large number of legal abortions in the US. Second, while expressing concern for the weak and vulnerable, this argument ignores the mounting evidence that abortion harms women. I cite to some of the literature on this latter point in my paper and there has been additional evidence published on this point in just the last several months.

Richard      

The Death Penalty and Constitutional Structure

By Rick Garnett

This looks interesting (thanks to Larry Solum):

Broughton on Capital Punishment
J. Richard Broughton (United States Department of Justice - Capital Case Unit) has posted The Second Death of Capital Punishment on SSRN. Here is the abstract:

    This paper seeks to reexamine, and to reformulate, the terms of our national capital punishment dialogue by approaching death penalty jurisprudence as a problem of constitutional structure and form. As a factor contributing to the incremental demise of capital punishment in the United States, omnipotent and omniscient judicial regulation of capital sentencing has significant consequences for the political institutions responsible for controlling the people in our constitutional design. Examining the Supreme Court's recent categorical exemption cases, this paper confronts the raw moral judgments and political preferences that define the Court's immodest understanding of its own authority under the Eighth Amendment. It also examines recent capital habeas cases to demonstrate that the Court may be softening the rigorous standards for habeas relief especially for capital cases. Ultimately, these actions have weakened the death penalty and, more importantly, our political institutions. By serving as a forum for determining which criminal punishments are morally right and desirable, and by compromising the integrity of legal structures that safeguard vital state criminal law interests, the Court diminshes the essential distance that the Constitution places between the government and the governed, and between the institutions that govern. It also undermines the authority of the political branches as the primary institutional mediums for filtering out public passions and building coalitions for responsible democratic action to control the people. The paper therefore urges a greater awareness of, and endorses a constitutional law that safeguards, formal institutional arrangements.

Benedict XVI, Deus Caritas Est, and the Role of the Church in Public Life: A Continuity With, Not a Departure From, the Witness of John Paul II

By Greg Sisk

At the beginning of any papacy, people carefully look for signs of continuity with, or variation from, the vision or style of the previous Pope. Thus, observers understandably have been combing through the first encyclical issued by Pope Benedict XVI, Deus Caritas Est, in an attempt to decipher the themes of the new papacy and identify possible points of departure from the actions and messages of John Paul II. When the new pope so often has been caricatured as authoritarian and rigidly doctrinal, statements by him that reflect nuance regarding the role of the Catholic Church in public life and an emphasis of the removal of the Church from ordinary politics take on heightened importance.

In terms of the Church’s relationship with the temporal civil order, which of course is also a matter of primary concern for the Mirror of Justice and its participants, Benedict XVI had this to say:

“The Church's social teaching argues on the basis of reason and natural law, namely, on the basis of what is in accord with the nature of every human being. It recognizes that it is not the Church's responsibility to make this teaching prevail in political life. Rather, the Church wishes to help form consciences in political life and to stimulate greater insight into the authentic requirements of justice as well as greater readiness to act accordingly, even when this might involve conflict with situations of personal interest. Building a just social and civil order, wherein each person receives what is his or her due, is an essential task which every generation must take up anew. As a political task, this cannot be the Church's immediate responsibility. Yet, since it is also a most important human responsibility, the Church is duty-bound to offer, through the purification of reason and through ethical formation, her own specific contribution towards understanding the requirements of justice and achieving them politically.

The Church cannot and must not take upon herself the political battle to bring about the most just society possible. She cannot and must not replace the State. Yet at the same time she cannot and must not remain on the sidelines in the fight for justice. She has to play her part through rational argument and she has to reawaken the spiritual energy without which justice, which always demands sacrifice, cannot prevail and prosper. A just society must be the achievement of politics, not of the Church. Yet the promotion of justice through efforts to bring about openness of mind and will to the demands of the common good is something which concerns the Church deeply.” (Deus Caritas Est, para. 28a)

In emphasizing the proper role of the Church in the awakening and formation of conscience, while insisting that the Church must not enter into the “political battle” that remains instead the separate vocation of the laity, Pope Benedict XVI’s words have been portrayed by some as a departure from the public witness of his predecessor. After all, John Paul II addressed civil authorities regularly with boldness and spoke with prophetic directness on issues of human rights, pointedly including the sanctity of human life from conception to natural death.

I submit that these observers both have misread Benedict XVI as foreshadowing something of a withdrawal by the Church on direct engagement with civil regimes on basic matters of human rights (including sanctity of life issues) and have misunderstood the non-political nature of John Paul II in his forthrightly religious witness in the public square. In other words, I see Benedict XVI's first encyclical as steadily in continuity with John Paul II in the understanding of the appropriate role of the Catholic Church when it encounters the temporal civil order. John Paul II confronted tyranny in many areas of the world and the self-centered idolatries in our corner of the globe by speaking the truth plainly and by encouraging an evangelical spirit that would transform societies by first bringing spiritual renewal to the people. But John Paul II eschewed direct political involvement by the Church or its clery, particularly that of a partisan nature.

The priority of evangelical renewal in John Paul II’s messages was often overlooked, given the uncompromising power of his words regarding the sanctity of human life and the greater specificity of his teachings on the fundamental duty of civil society to protect human life and dignity (e.g., Evangelium Vitae). However, one should not extrapolate a general political agenda, much less a call for direct Church involvement in political campaigns or ideological platforms, from the Church’s teachings condemning such inherent evils as genocide, slavery, and abortion. As did John Paul II, Benedict XVI as the occasion arises undoubtedly will regularly reaffirm the dedication of the Church to the fundamental principles of human dignity in any civil society, beginning with the right to life and including the freedom of religion, to educate children, and to receive the basic necessities of life. As Benedict XVI now counsels, the Church’s primary salvific role and its necessary separation from political life was underscored as well by John Paul II.

In reading Benedict XVI’s encyclical, Deus Caritas Est, as it touched briefly on the role of the Church in public life, I was reminded of John Paul II’s strikingly parallel words at a similarly early point in his papacy. In his very first pastoral journey in January, 1979, the new pontiff visited the Conference of Latin American Bishops (Consejo Episcopal Latinoamericano) in Puebla, Mexico. Far fom praising the increasingly partisan and radical political activism of some bishops and clergy in Latin America, who were loosely gathered under the banner of “Liberation Theology,” the Holy Father wholly rejected the reconception of Jesus as a political, even violent, revolutionary, rather than the divine Son of God with a “redemptive mission.” In his Puebla address, John Paul II emphasized that the Church’s prophetic voice on behalf of the poor and oppressed must be grounded in the Good News of Christ Jesus. By restoring the Church’s spiritual mission, he said, “we are capable of serving human beings and our peoples, of penetrating their culture with the Gospel, of transforming hearts, and of humanizing systems and structures.” The truly revolutionary role of the Church is evangelism, changing the culture by changing the hearts of men and women through a transformative encounter with the Living God through His Son, Jesus. “[E]vangelizing is the essential mission, the specific vocation, the innermost identity of the Church.”

As John Paul II later explained in his Encyclical, Sollicitudo Rei Socialis, to achieve an authentic advancement of human dignity, bishops and priests must focus upon their pastoral vocation of teaching and service, that is, sharing the saving message of Christ, reminding the faithful of the social doctrine of the Church, and exercising Christian charity to feed the hungry, house the homeless, and minister to the sick. “For the Church does not propose economic and political systems or programs, nor does she show preference for one or the other, provided that human dignity is properly respected and promoted, and provided she herself is allowed the room she needs to exercise her ministry in the world.” (Sollicitudo Rei Socialis, paras. 41-42)

For those of us who live, work, and have our being in systems of law and politics, we need to be reminded that while we should always be guided by the Church’s teachings, especially those concerning the dignity of all persons, we may never insist that the Church endorse any particular political agenda. And we must never delude ourselves into believing that what we may accomplish by way of legal reform or political success can ever substitute for the way of salvation offered through Jesus Christ. During his one-month papacy, Pope John Paul I insisted that “it is a mistake to state that political, economic, and social liberation coincide with salvation in Jesus Christ; that the regnum Dei is identified with the regnum hominis.” (John Paul I, Catechetical Lesson on the Theological Virtue of Hope, (Sept. 20, 1978) From John Paul I, through John Paul II, and on to Benedict XVI, the Gospel message for the temporal world and more importantly for the transcendent future remains the same.

Greg Sisk

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