Monday, June 24, 2013
Congrats to Bill Galston
William Galston is a really thoughtful, amiable, and independent-thinking guy, and so I think it's great news that he has received the 2013 American Religious Freedom Award from the Ethics and Public Policy Center. Congratulations!
Religious freedom is not a 'second-class right'
Speaking of Mary Ann Glendon . . . here is her recent Washington Post op-ed, "Religious freedom is not a 'second-class right'". A bit:
Instead of fostering discord in the body politic or attempting to make everyone think in lockstep, our policy makers would do well to be more respectful of the American tradition of pluralism. At the most fundamental level, those wielding governmental power must recognize that disagreement is not discrimination. Disagreement is an essential part of any democratic system. Conflicting ideas and diverging worldviews are signs of a healthy society.
Prof. Mary Ann Glendon and the Structure of Religious Freedom
As I mentioned in an earlier post, I was recently blessed with the chance to participate in a conference celebrating the work of Prof. Mary Ann Glendon. The event brought together a diverse range of fascinating scholars, and was sponsored by the Notre Dame Program on Church, State, and Society.
The participants were asked to contribute, for discussion purposes, a very short reflection-paper on an aspect, theme, or dimension of Glendon's work. My own effort is available here: Download Glendon paper. Here's the first paragraph:
In 1991, Mary Ann Glendon and Raul Yanes published in the Michigan Law
Review an article called “Structural Free Exercise.”[1] This article – which I read as a law student in the early 1990s and to which I have returned many times – was and still is among the most insightful explorations and explanations of the freedom of religion that is protected by the First Amendment to the Constitution of the United States. The problem Glendon and
Yanes identified -- namely, that an excessively expansive (and ahistorical)
understanding of the “establishment” of religion and an unduly narrow
understanding of religious “exercise” combine to compress and constrict the
“freedom of religion” – was and still is real and pressing. And their response – that is, the claim that a “holistic, structural approach to the text is necessary [for] a workable,
coherent, church-state jurisprudence for our pluralistic, liberal, democratic
society”[2] – was and still is compelling. I have, in my own work, attempted to develop and elaborate upon it.[3] And, at least in some respects, it appears
that the Supreme Court of the United States might be coming around, too.[4]
[1] Mary Ann Glendon &
Raul F. Yanes, Structural Free Exercise, 90
Mich. L. Rev. 477 (1991).
[2] Id. at 478.
[3][3]
See, e.g., Richard W. Garnett,
“Religious Liberty, Church Autonomy, and the Structure of Freedom,” in J.
Witte, Jr. & F. Alexander, eds., Christianity and Human Rights: An Introduction 226 (2010).
[4] Hosanna-Tabor Evangelical
Lutheran Church and School v. Equal Employment Opportunity Commission, 565 U.S.
___ (2012).
Back from Rome . . . and Happy St. Thomas Garnet day
I am just back from Rome and Florence, after (among other things) a great conference of comparative-law, constitutional law, and church-state scholars who gathered to discuss and celebrate the work of Mary Ann Glendon, a pilgrimage to the tomb and remains of the Apostle Peter, and an audience (with 100,000 or so close friends) with Papa Francesco. I'll have more thoughts on the Glendon conference in another post.
For now, I just want to wish everyone (one day late) a happy "St. Thomas Garnet" day (which also happens to be the birthday of my son Tommy Garnett). St. Thomas Garnet (S.J.) was, as it happens, the son of a lawyer named Richard Garnet, and the nephew of Henry Garnet, the head of the Jesuits in late-16th century England and -- like Sts. John Fisher and Thomas More, whose feast we celebrated this weekend and continue to reflect upon during the "Fortnight for Freedom" -- a martyr.
Sunday, June 23, 2013
Homily for the First Sunday of the Fortnight of Freedom
12th Sunday—C
Zechariah 12:10-11, 13:1
Galatians 3:26-29
Luke 9:18-24
The question of human identity is as old as human history. The fundamental question is: who am I; or, what am I? I began thinking about this essential matter almost half a century ago. During my college years, my sophomore English professor mandated that she would make gentlemen out of my fellow classmates and I; her method was to have us select an American poet and commit to memory ten poems of that poet. We would then recite from memory five of the poems before our classmates—all who were anxious as I. I chose Emily Dickinson—after all, her poems are rather short. But one of the poems I chose and recited was: “I’m nobody…” In this poem, Dickinson—and for that matter, anyone else—declares something about her (or his) identity and therefore addresses the interlinked questions of: who and what am I?
Today, all of our readings tackle the issue of identity: the prophet Zechariah addresses the identity of the Messiah who will be persecuted before God’s people are saved from their sin and uncleanliness—for us Catholics this is clearly our Lord, Jesus Christ. [As an aside, the reference to the mourning of Hadadrimmon is unclear—there is some thought that H was a god of antiquity, and something terrible happened at the Plain of Meggido, but no one is sure what happened.] In his letter to the Galatian church, Saint Paul reminds the faithful—including us—that our identity as Christians and as disciples of the Lord materializes at our baptism when we put on Christ. In Saint Luke’s Gospel, the question of identity is raised by Christ Himself when He asks the disciples: “Who do the crowds say that I am?” Peter offers the correct answer here and elsewhere in the synoptic Gospels (both Mark and Matthew). Well, the question of identity is settled then—or is it?
For you see the question of identity as a disciple of Christ surfaces time and again. Yesterday on June 22, we commemorate every year on the 22nd of June two great saints—Thomas More and John Cardinal Fisher. In doing so, we must necessarily reflect on their identity. Like other martyrs, a fundamental question is this: what made them “tick”; what made them open to the ultimate sacrifice of giving their lives for that in which they believed? More was Lord Chancellor of England; he had been a successful and rather wealthy Oxford-educated lawyer; and he was a confidant—perhaps even friend—of King Henry VIII. John Fisher was a Cambridge man who was ordained into the priesthood in his early adulthood. He returned to his beloved university and assisted (with the generous help of his friend, Lady Margaret Beaufort, the paternal grandmother of King Henry) in the founding of several of the Cambridge colleges and university professorships. Eventually, he became the chancellor of Cambridge University. Fisher also became the bishop of Rochester at an early age, and he was bishop of that diocese for over thirty years. He must have anticipated what Pope Francis has been saying of late about bishops being wedded to their dioceses without having ambitions to go to a larger, more prosperous one, because Fisher never succumbed to leave his poor diocese for another or others! I hasten to add that the diocese of Rochester in his time was very poor in comparison with the dioceses over which Cardinal Wolsey administered.
Both Fisher and More were very clear on who they were. Indeed, they were prominent members of English society in the early sixteenth century; they were highly educated and displayed their intelligence without pride for they were humble before God and man. But there is abundant evidence that at the heart of their respective identities was their unshakeable fidelity to the Church. They were patriots first and last and devoted to their king; but, their commitment to God and His holy Church took precedence. They labored hard to be both good subjects of the king AND faithful sons of the Church.
However, the king tested time after time their fidelity to the Church, and it was their fidelity that cost them their lives by depriving them of their heads when Henry (with the help of Parliament, Thomas Cramner, and Thomas Cromwell) decided that he would rid himself of his wife of over twenty years, Queen Catherine, and establish himself as the “supreme” head of the church in England. Sorry Saint Peter and your successors: move over—I’ve now decided who is in charge of God’s work! Both Fisher and More knew that Henry’s actions were wrong. The monarch’s self-authored divorce from Catherine violated the law of God and the Church and his self-proclamation of Supreme Head of the Church in England, moreover, contravened the Magna Carta. But both defiances did not stop an intelligent man who was driven by worldly ways to transform himself into a despot. More and Fisher knew that at the heart of the Magna Carta was the several-times stated principle of the freedom of the Church. This is essentially a vital element of the First Amendment of the United States Constitution. This was and is a freedom not simply to be free from the civil authority; it was and is also the freedom to do what is essential to the Church’s mission in society without interference or pressure from the state. The Church’s freedom was also the freedom of More and Fisher. They understood well our Lord’s exhortation in Luke’s Gospel: in order to save one’s eternal life, it may be necessary to sacrifice some of one’s life in the City of Man. This is the nobility of self-denial; it is the affirmative response of what Pope Francis urges us in not being “self-referential”; it is the duty of one who desires to follow Christ by taking up one’s cross each day in order to be faithful in following the Lord who showed us the true path by His own sacrifice.
And this is where we come into to chronicle of identity—as disciples and as a free people who believe in God and His Church. On this past Thursday, the U.S. bishops announced the beginning of the second annual Fortnight of Freedom. It will conclude on Independence Day. Freedom and its inseparable companion, responsibility to be virtuous citizens of the City of God and the City of Man, are at the core of our individual and corporate identities of American citizens and as members of the Catholic Church. Our heritage is founded on the duty of citizens and their freedom to be true to our identity. We are not the servants or subjects of the realm, as were More and Fisher. Rather, we are participants in a realm who are served by a state whose sole ambition is and must be to attend and protect its people; not to be served by them against their will. The state is not the common good; rather it exists to serve and safeguard the common good—a vital element of our faith. Like More and Fisher, we are disciples of the Lord Jesus Christ and members of His holy Church. The freedom from state interference and for following Christ is the same freedom possessed and exercised by the same saints whom we commemorated yesterday.
But this freedom is sometimes eclipsed by the ambition of those who do not share our identity or who have abandoned this essential element of their identity. So what can we do as Americans and as Catholics who cherish our freedom as Americans and simultaneously practice it as Catholics—as I have briefly explained freedom?
Perhaps like More and Fisher, who understood what Saint Paul said so many years ago to Timothy: we know in whom we have believed! May this declaration be a part of our identity and our heritage as a free and sovereign people. May it also be a part of our prayer not only for today but for all the days of our lives! For prayer is the distinguishing mark of the good citizen who is also the faithful disciple. This is who we are as individuals and as members of the Church, the People of God. We have put on Christ; may no one remove Him regardless of their intention otherwise.
Amen.
Saturday, June 22, 2013
Faith Healing and Criminally Negligent Homicide
In previous posts, I offered some arguments against the propriety of a charge of reckless murder (or depraved heart/indifference murder) in cases where parents who believe in faith healing fail to get medical assistance to prevent the death of their child. There may be some circumstances where such a charge is warranted, but if one stipulates that the parents truly believed in the power of faith healing and also truly believed that interfering with that power would damage the child's chances of recovery, then I have a difficult time seeing how reckless murder--at least of the sort that is codified in New York and Pennsylvania--is the right charge. If you haven't seen it, you should also have a read of Peter Berger's latest column in which he discusses the issue of faith healing, law, and the power of courts to define reality. Professor Berger's reflections, as one might expect, are less legal and more sociological. As always, they are fascinating.
In another faith healing case decided last Monday by the Oregon Court of Appeals (Oregon's intermediate appellate court), State v. Beagley, the court upheld a conviction of criminally negligent homicide for two parents who had failed to provide medical care to their 16 year old child. The child, who was afflicted with a congenital abnormality causing progressive deterioration of the kidney, died after a three month period in which he became increasingly weak. The parents' defense was that they (and their child) believed that faith healing--"prayer, the laying on of hands, and anointment with oil"--would cure the child. The opinion raises very interesting and difficult issues. It's worth a read.
One of the defendants' arguments on appeal was that a conviction for criminally negligent homicide under these circumstances violated their federal and state constitutional and/or state statutory religious liberty. That argument was rightly rejected. But it helps to highlight and, I think, clarify a confusion that sometimes crops up in cases like this. To say that a defendant does not have the requisite mens rea for murder is not the same thing as saying that he is "exempted" from a homicide charge on account of his religious beliefs. The first statement is attempting to pin down his precise mens rea within the framework of homicide under Oregon law; the second statement is saying that irrespective of his mens rea, a constitutional (or statutory) deus ex machina swoops down to lift him out of the state's criminal justice framework altogether.
Oregon defines criminal negligence in a fairly typical way: failure to be aware of a substantial and unjustifiable risk that (in this case) the result will occur, where the risk is of such a nature and degree that failure to be aware of it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation. And Oregon recognizes that omissions can serve as the actus reus where the defendant had a duty to act (as parents do, for example). Oregon has a statute on the books related to faith healing which the court had previously interpreted to mean the following: "[T]he statutes permit a parent to treat a child by prayer or other spiritual means so long as the illness is not life threatening. However, once a reasonable person should know that there is a substantial risk that the child will die without medical care, the parent must provide that care, or allow it to be provided, at the risk of criminal sanctions if the child does die."
In upholding the conviction, the court distinguished a very interesting, but also very confusing, case decided by the Oregon Supreme Court in 1995, Meltebeke v. Bureau of Labor and Industries, involving a civil sanction imposed by the Oregon Bureau of Labor and Industries on an employer who was accused of religious discrimination by "creating an intimidating and offensive working environment" after proselytizing an employee. The Oregon Supreme Court held that because proselytizing was a constitutionally protected religious "practice," the state could not enforce its labor rule against the employer without violating the state constitution unless it could prove that the employer "knew" that the conduct would result in forbidden discrimination. But--and this is the confusing part--the Oregon Supreme Court distinguished between "conduct motivated by one's religious beliefs" and "conduct that constitutes a religious practice." Proselytism was a religious practice, and therefore demanded that the state prove a knowing state of mind. Other kinds of conduct which are not religious practices themselves but are only "motivated by religious beliefs" do not demand that the state prove a knowing state of mind.
The defendants in Beagley argued that in light of Meltebeke, they could not be convicted of criminally negligent homicide without suffering a constitutional violation. The state, they argued, had to prove that they knew that their child would die by engaging in faith healing and failing to get medical care for him. But the Oregon Court of Appeals rejected that argument. Though it expressed some justified puzzlement at the distinction in Meltebeke between a religious "practice" and "conduct motivated by religious belief," it nevertheless held that "allowing a child to die for lack of life-saving medical care is clearly and unambiguously--and, as a matter of law--conduct that 'may be motivated by one's beliefs.'"
I'm not sure that this statement, however forcefully expressed, is persuasive, but the Court of Appeals was to some extent hemmed in by the confusing language of Meltebeke (Meltebeke was also limited to civil cases).
Setting aside the specifics of Oregon case law, however, there is another fact in Beagley that makes for an interesting parallel with the Philadelphia case. In Beagley, there was evidence that three months before their sons' death, the parents' granddaughter also died from lack of medical care. That evidence was admitted, the court said, to show that it was more probable that the defendants should have known that their son was in danger. It also showed, the court claimed, that the defendants did know that their son was in danger.
I agree with the proposition that this is further evidence that the defendants "should have known" that their son was in danger. But without more facts, I am not certain that I agree with the statement that evidence of the granddaughter's death shows that they "did know" of their son's danger. More evidence about their state of mind would be necessary before concluding that they were conscious of the risks that they were taking.
But in any event, charges of criminally negligent homicide or reckless manslaughter (but not reckless murder) both seem to me to be within the plausible range. And in both cases, Professor Berger is right to say that "by admitting the case[s] in the first place the court[s] already decided that divine healing as a substitute for modern medicine is ruled out by the legal definition of reality." "Reality" here is brought to bear in these cases by the criminal law through the baseline mechanism of criminal negligence: one is criminally negligent if one should have been aware of certain risks and where one's lack of awareness deviates in an extreme way from what reasonable people would do in the face of medical reality.
Thursday, June 20, 2013
Honoring Judge John T. Noonan, Jr.
The eighth annual John F. Scarpa Conference on Law, Politics, and Culture will celebrate and explore the scholarly and judicial achievements of Judge John T. Noonan, Jr. Judge Noonan's vast and diverse scholarly corpus includes now-classic contributions on canon law, bribery, usury, contraception, religious freedom, development of doctrine, legal ethics, jurisprudence, and many other topics. The conference will be held at Villanova Law on Friday, November 15, 2013, and Judge Noonan will deliver the keynote address. Please mark your calendar and plan to attend. Other confirmed speakers include:
--His Eminence, William Cardinal Levada, Prefect Emeritus of the Congregation for the Doctrine of the Faith
-- Richard W. Painter, S. Walter Richey Professor of Corporate Law, University of Minnesota Law School
-- Kenneth Pennington, Kelly-Quinn Professor of Ecclesiastical and Legal History, The Catholic University of America
--Robert Rodes, Paul J. Schierl/Fort Howard Corporation Professor of Legal Ethics, Notre Dame Law School
--Joseph Vining, Harry Burns Hutchins Collegiate Professor of Law Emeritus, University of Michigan Law School
Wednesday, June 19, 2013
Niall Ferguson on "The Regulated States of America"
Recalling Alexis de Tocqueville's praise of American preference for building voluntary associations to work together rather than relying on government, Niall Ferguson writes in the Wall Street Journal that modern American has become "Planet Government." The suffocating effect is not only felt in the economic sphere but in the decline of intermediary associations on matters of religion and morality, charity and community. It is no accident that nations (and states within the United States) with the largest governmental sectors also become nations (and states) with the lowest levels of charitable giving and of religious faith.
The column ends with a prescient quote from de Tocqueville -- and one can readily substitute "spirit of faith" or "spirit of community" for "spirit of free enterprise here:
Tocqueville also foresaw exactly how this regulatory state would suffocate the spirit of free enterprise: "It rarely forces one to act, but it constantly opposes itself to one's acting; it does not destroy, it prevents things from being born; it does not tyrannize, it hinders, compromises, enervates, extinguishes, dazes, and finally reduces [the] nation to being nothing more than a herd of timid and industrious animals of which the government is the shepherd."
Tuesday, June 18, 2013
Gerber on Religious Freedom in Rhode Island
Rhode Island is celebrating the 350th anniversary of its royal colonial charter this year. The occasion
reminds me of one of my all-time favorite cases in constitutional law, Luther v. Borden, in which the struggle over the representative failings of the charter (nearly 200 years after it came into being) and all of the attendant political intrigue so typical of the Ocean State was deemed nonjusticiable by the Supreme Court. There aren't too many Guarantee Clause controversies any longer, but you can still spot one every so often. As my former boss, Judge William E. Smith, put it to me: "Not much has changed around here since then."
Have a look at this interesting short piece by Professor Scott Gerber (another law clerk veteran of the US District Court for DRI) discussing religious freedom in Rhode Island. Particularly interesting are Prof. Gerber's points about Rhode Island's complicated history and the distinction between "liberty and license."
Feminism, Law and Religion
Ashgate Publications has just published Feminism, Law and Religion as part of its series on Gender in Law, Culture and Society, edited by Marie Failinger (Hamline), Lisa Schiltz and me. (Each of the three of us also has a chapter in the book.)
Here is Ashgate's description:
With contributions from some of the most prominent voices writing on gender, law and religion today, this book illuminates some of the conflicts at the intersection of feminism, theology and law. It examines a range of themes from the viewpoint of identifiable traditions such as Judaism, Christianity, Islam and Buddhism, from a theoretical and practical perspective. Among the themes discussed are the cross-over between religious and secular values and assumptions in the search for a just jurisprudence for women, the application of theological insights from religious traditions to legal issues at the core of feminist work, feminist legal readings of scriptural texts on women’s rights and the place that religious law has assigned to women in ecclesiastic life.
Feminists of faith face challenges from many sides: patriarchal remnants in their own tradition, dismissal of their faith commitments by secular feminists and balancing the conflicting loyalties of their lives. The book will be essential reading for legal and religious academics and students working in the area of gender and law or law and religion.
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