Thursday, July 5, 2012
Last week I traveled to Seattle to pay my last respect to a man whose kindness, generous counsel, and professionalism made an indelible mark on my life and set the stage for what I've been fortunate to accomplish over the past quarter-century.
Judge Robert R. Beezer of the United States Court of Appeals for the Ninth Circuit passed away just before this past Easterl. Last week, on June 27, a public memorial for Judge Beezer was held in the Nakamura United States Courthouse in Seattle. I had the honor of clerking for Judge Beezer in 1985-86.
The speakers at the public memorial spoke to Judge Beezer’s character, his professionalism, his love for the law and the court, and his humanity. Chief Judge Alex Kozinski, Judge Diarmuid O’Scannlain, Judge Margaret McKeown, and Judge Richard Tallman spoke of him as a lawyer and a judge, a man who lived his professional life by a code of civility and respect for the rule of law, especially the procedural rules that govern litigation and sometimes the progress of life itself. He insisted on treating other judges and the lawyers that appeared before him with respect. He strove to maintain civility and professional courtesy, even (no, especially!) in the midst of litigative strife or judicial disagreements.
As but one of the many examples of his professional courtesy shared during the memorial, Judge McKeown described how a then-senior practitioner of trusts and estates had gone well beyond extending courtesy to her as a younger lawyer on the opposite side of a lawsuit when he offered her a ride every morning to the courthouse to spare her difficulties in transportation. But, showing his consummate professionalism, he remained a zealous advocate for his client, not hesitating to take appropriate procedural advantage to benefit his client during the course of the trial.
In sum, Judge Beezer was a model for lawyers and judges that being an effective lawyer and strong representative of a client is fully consistent with professional courtesy and civil discourse.
My former co-clerk, Brad Englander, and the judge’s daughter, Allison Beezer, spoke of his mentorship, his humor, his guidance, his humility, and his infectious joy in the simple things in life. He took great pleasure in seeing the lives unfold of those who loved, both his children and grandchildren and three decades of law clerks (who often became “adopted” members of his family).
During the memorial, my co-clerk and now long-time friend Brad Englander told a story from our days as clerks for Judge Beezer that has remained close to my heart and that of my wife for a quarter-century. Just before Thanksgiving in 1985, Seattle was socked with a heavy snowstorm. The city having made the economic decision not to invest in snow-removal equipment since significant snow-fall was not typical in Seattle, the city was effectively shut down for several days. Transportation throughout the city –- and out of the city –- was difficult or impossible. Both Brad with his fiancé and I with my wife had plans to spend the Thanksgiving holiday out of town. But the snow left us stranded. Judge Beezer then invited all of us to spend Thanksgiving dinner with his family, one of the most memorable evenings of my life. Both Brad and I continue to be deeply touched by that hospitality, which was so characteristic of Judge Beezer, all these years later.
Let me add one additional story about Judge Beezer that, precisely because it is rather silly, sheds more light on his playful personality and genuine humanity. During my clerkship (and beyond), Judge Beezer often would volunteer to sit for a day or two on an additional argument panel in Seattle beyond his ordinary monthly set of arguments, because the court was short-handed. On one such occasion, I was in the courtroom in the Seattle courthouse watching the arguments, because I had worked on the bench memo for one of the cases. A lawyer was arguing his case by reading prepared remarks, only occasionally pausing to answer a question which he plainly viewed as an unwelcome interruption. [Note: Let it be other than obvious to law students or lawyers who have not argued an appellate case, reading your argument is a very bad practice and judges who ask you questions are your friends, as you then know what points to emphasize in your argument.]
On the bench, Judge Beezer was playing with a rubber band as he listened to this lawyer drone on. The rubber band suddenly broke in the judge’s hand. The rubber band leaped out toward the lawyer at the podium, but then arched over his head to land in the aisle behind him. The lawyer never missed a word in his reading, not even noticing what had happened as he continued to look down at and recite from his prepared remarks. The judge had an odd look on his face. When I asked him afterward whether he’d been embarrassed, he said, no, the look on his face was because it really hurt when the rubber band snapped in his hand.
I know Judge Beezer would have been very pleased with the public memorial, grateful to his fellow judges and former clerk for their remarks, and very proud of his daughter for her loving and humorous words. I think Judge Beezer would have been most gratified with the themes touched on by those who spoke, because they were exactly the things for which he would have wanted to be remembered –- civility, professionalism, and mentorship were deliberately adopted features of his character.
And now may Robert Beezer live on joyfully in our hearts while he rejoices in the presence of God, looking forward to that blessed day when we all will join together again as one family.
Wednesday, July 4, 2012
Today we in the United States celebrate our national day and observe the completion and proclamation of the Declaration of Independence. It is a day in which we announce publicly and reflect personally upon the self-evident truths about the nature and dignity of the human person. While the document is a part of our national heritage, it asserts several principles that are immutable about everyone everywhere by relying on the Laws of Nature and Nature’s God which lead any person to acknowledge that in fundamental ways all persons are made equal by their Creator, God who (not the state, not some political party or organization, not some other human power) bestows the human person with particular unalienable rights. Virtually every person is gifted with the capacity to rely on his or her intelligence to comprehend and appropriate the intelligible reality where these rights become evident and their meaning becomes comprehendible.
This does not mean that everyone is equal in every way, nor does it mean that everything every person wants to do is equal in merit or truth with whatever else anyone elsewhere wants to do. It does mean, however, that each of us possesses in his or her own uniqueness a commonality with everyone else which everyone has the capacity to understand as I have already presented. This is what we celebrate and upon which we reflect today. In a national context, we further deliberate how our forbearers considered certain actions by others to be abuses and usurpations of claims to authority and exercises of power. They discovered the self-evident truths and would remain silent and inactive no longer about how these truths had been discarded by the state.
Today we hear a great deal about freedom in the context of our nation’s governance once again. In the setting of our Catholic faith, the Catholic bishops have declared that in the present age there remain problems with the exercise of civil power that threatens that which is fundamentally the possession of the person and not the state—religious freedom, the first liberty that is a self-evident truth. As we celebrate our national day and proclaim freedom, I want to offer these few thoughts about the meaning of religious liberty that is true for the believer as it is true for the one who is not.
The first point to remember about this freedom is that it is a natural right and because of this its existence comes from no earthly power, and its exercise is not a license (as the infamous Casey dicta describes liberty) but a responsibility as it is the common property of each member of the human family. Responsibility implies a distinction between the ought and the want.
Freedom, moreover, has two components—the from and the for. The Declaration of Independence in a temporal fashion explains this, and the Declaration of Religious Freedom of the Second Vatican Council does the same in the spiritual. Both explanations, when faithful to their essence, focus on the existence of truth versus falsehood. This is the freedom for something. Both demonstrate an antipathy to coercion. This is the freedom from something. The human person once again has been gifted with the fundamental capacity to comprehend these points.
There are those in the Church, our nation, and the world who also claim the necessity for freedom. I do not think that all of them have a proper understanding of this God-given gift, though, for often times their conception of freedom is whatever will satisfy the want for the self or the like-minded. This self and the group of like-minded enter alliances with those other persons who hold on to this same conception of freedom which is characterized by subjectivism and zealously protected by the will that has little or no virtue. What sustains this alliance is the concurrence to let each person decide for one’s self what is right and what is wrong and to not interfere with these decisions. This leads to the perilous course of freedom’s application about which John Courtney Murray warned a half century ago. However, when a different voice about freedom is raised and introduced into the public square, this alliance perceives a threat and reacts in ways seeking the silence of this alternative voice—the voice of authentic religious freedom.
This is the state of affairs today and why many bishops and other Catholics are participating in the Fortnight of Freedom. The soul which motivates this expression of freedom for the Church and her members is kin to the one that animated those who signed and proclaimed the Declaration of 1776. This is something worth acknowledging, celebrating, and protecting for the present moment and for our posterity.
Pope Paul VI highlighted this in one of his allocutions at the conclusion of the Second Vatican Council when he asked the temporal authorities of the world this rhetorical question which he also answered,
What does the Church ask of you today? … She asks of you only liberty, the liberty to believe and to preach her faith, the freedom to love her God and serve Him, the freedom to live and to bring to men her message of life. Do not fear her. She is made after the image of her Master, whose mysterious action does not interfere with your prerogatives but heals everything human of its fatal weakness, transfigures it and fills it with hope, truth and beauty. Allow Christ to exercise His purifying action on society. Do not crucify Him anew. This would be a sacrilege for He is the Son of God. This would be suicide for He is the Son of man. And we, His humble ministers, allow us to spread everywhere without hindrance the Gospel of peace on which we have meditated during this council. Of it, your peoples will be the first beneficiaries, since the Church forms for you loyal citizens, friends of social peace and progress.
A blessed Independence (and interdependence) Day to one and all.
RJA sj
Monday, July 2, 2012
In a previous post, I stressed the importance of standing up for the religious freedom of people of every faith, not just those who share our own convictions. In view of a recent development in Germany, I here wish to say that Christians, especially those of us who are Catholics, should be particularly outspoken in defending the rights of Jews and the Jewish people. It is not simply the memory of past crimes committed by Christians, including leaders of the Church, against Jews---crimes sometimes committed in the very name of Christian faith. It is the fact that we are taught by our Church, and so we believe, that the Jews are the chosen people of God, bound to him in an unbroken and unbreakable covenant. Moreover, for Christians, Jews are, in the words of Blessed Pope John Paul II, our "elder brothers in faith." From a Christian point of view, the Jewish witness in the world has profound and indispensable spiritual meaning.
The recent development in Germany against which we Christians should loudly raise our voices is described by David Goldman ("Spengler") in an article published today: "On June 26, the District Court of the Federal State of Cologne ruled that circumcision of children for religious reasons at the instruction of parents constituted the infliction of bodily harm and therefore was a punishable offense." Of course, for observant Jews, circumcision of male children is not optional. It is required as a matter of Jewish law. To prohibit it is, in effect, to forbid Jews from being Jews.
In his article (here: http://www.atimes.com/atimes/Global_Economy/NG03Dj02.html), Goldman, himself an observant Jew, includes the text of a letter he wrote to two German judges. He says: "Not even the Nazis thought of banning circumcision as a way of uprooting Jewish life in Germany. If your decree withstands a constitutional challenge, Germany once again will be Judenrein." Further on he says: "The neo-pagan illusions of National Socialism have been crushed, although they lurk at the fringes of German politics. Despite their defeat, the National Socialists may have succeeded in extirpating the presence of the divine in German life. No action by responsible public officials since the end of the war has advanced their cause as forcefully as the evil decree you have promulgated."
Of course, comparing anything to the unfathomable horrors of the Nazi genocide is problematical. The National Socialists hunted down and cruelly murdered every Jewish man, woman, and child they could find. They didn't simply make it impossible for believing Jews to live in Germany or its occupied lands by banning a practice mandated by religious law. One can nevertheless understand the sense of outrage that would cause Goldman and others in the Jewish community to draw the comparison. What the Cologne court has done is outrageous. It is an outrageous assault on the religious liberty and the rights of conscience of Jews (and Muslims, by the way---the actual case in the Cologne court happened to concern Muslim parents who for religious reasons sought the circumcision of their son).
What was the judges' motive? I'm not certain. I'm reasonably confident that it was not simply an act of anti-Jewish animus. Still, its disregard for the rights of Jews, rooted in their obligation to fulfill their duties under their covenant with the divine Creator and Ruler of the universe, is deeply disturbing to say the least. Perhaps the judges were moved by an argument, increasingly common in certain circles, claiming that circumcision results in a reduction of sexual pleasure, and thus counts as a form of child abuse when performed on infants (who, of course, cannot consent to the procedure). This argument was among those made by people who recently attempted to persuade the City of San Francisco to enact a law banning circumcision. Fortunately, the City did not enact the ban---for now.
As we Catholics and those of other faiths who have joined with us conclude our Fortnight for Freedom later this week on Independence Day, let us be mindful that the freedom we seek is freedom for all. Yes, it is about the appalling HHS mandates; and yes, it is about laws that shut down Catholic services to orphaned children or Catholic assistance to women trafficked into sexual slavery and other forms of exploitation; but it is also about laws that undermine the ability of Jews, Muslims, and persons of any other faith to fulfill their religious duties; and it is about the rights of people of every religion to manifest their faith in public life as well as in their temples, churches, mosques or homes.
Clarke Forsythe reflects on the progress made by the pro-life cause during the 20 years since Casey.
Among other things, Clarke's piece makes me feel really old. The then-just-decided Casey decision was the reading assignment for my first class in law school, "Constitutional Law" with Joe Goldstein. (My recollection is that my views about the case were not shared by the majority of my classmates!)
Steve Smith is blogging with us over at CLR Forum for the next little while. Surf on over to check out his first post.
The latest decision in this long legal battle (which began back in 1995) was written last Friday by United States District Judge Loretta Preska, who issued a permanent injunction against the City of New York from implementing its policy of excluding Bronx Household of Faith and other organizations engaged in “worship services” from using public school facilities on equal terms with other groups. For some previous discussion of the case, see this, this, and this.
The court readopted its legal findings from the preliminary injunction, but addressed the City’s new claims as well. It held that the policy violated the Free Exercise Clause because it (a) was not neutral, therefore lifting it out of the framework of Employment Division v. Smith; and (b) does not satisfy strict scrutiny.
In specific, the court said that the City policy “substantially burdens” the church’s capacity to congregate together, because of the exorbitant price of renting property in the City. No other location than a public school would be able to accommodate the full congregation, and the church’s planned building is still under construction; other locations would compel the church to reduce its membership.
The court also rejected an argument that I’ve discussed before – the City’s claim that it has an interest in avoiding Establishment Clause violations, or in vindicating “concerns” about the Establishment Clause. The bottom line is that the court holds that whle “a concern over an actual violation of the Establishment Clause could certainly justify a burden on the free exercise of religion under Lukumi,” a concern about the appearance of violating the Establishment Clause cannot do so. Slip op. at 22 (and take a look at the, to my mind, persuasive footnote to Justice Scalia’s dissent in Locke v. Davey). This was a “misperceived Establishment Clause concern” on the part of the City, not a real one. Slip op, at 26. Also noteworthy is the court’s emphasis on the sui generis nature of Locke, which arguably was the Supreme Court’s own view. Slip op., at 25.
The court also held that the City’s interest in the policy was not compelling — avoiding the appearance, as opposed to the reality, of an Establishment Clause violation is not a “compelling interest.” There was no issue of endorsement because close to 95% of all permits issued by the City go to non-religious organizations. “In short,”
none of the scant evidence that Defendants point to proves that an Establishment Clause violation would result but for Ch. Reg. D-180’s religious use prohibitions. Instead, the opposite is true. “[V]iewed in its totality by an ordinary, reasonable observer,” Galloway v. Town of Greece, 681 F.3d 20, 2012 WL 1732787, at *8 (2d Cir. 2012), a policy that treats neutrally all applicants—religious and secular alike—would not “convey[] the view that the [Board] favored or disfavored certain religious beliefs[.]
Finally, the court holds that the policy violates the Establishment Clause as well. You ought to check out the affidavit of Marilynne Cole setting forth an exchange with a school board official discussed by the court at pp. 49-50. That seems to me fairly strong evidence of excessive entanglement, as the government decides precisely which forms of religious expression and activity will be permitted and which forms excluded (“Bible study would be ok,” the official says, ” but not prayer meetings”).
Next stop: the Second Circuit.
