My high school daughter, Katie, is active with her Catholic high school's pro-life club. When the students went to the Minnesota capitol in St. Paul a couple of weeks ago to support the pending "Unborn Child Pain Prevention Act," she and the others from her school ended up spending half an hour debating the merits of the bill with a pro-choice state legislator in his office. That legislator's mind wasn't changed that day, but he told the small group of high school students how impressed he was with their thoughtful and strong, but always courteous, arguments. Especially those of us who become discouraged from time to time (and I certainly include myself in that number), we must remember that speaking up for the unborn and never tiring in the struggle for life will yield benefits down the road that we may never see on this side of paradise. (And, if a proud father may say so, my daughter thoroughly enjoyed and was energized by the extemporaneous debate -- so we may have other budding lawyer in our family!)
Anyway, because one of her fellow students at Benilde-St. Margaret's High School is featured in the video, Katie sent to me a link to the following YouTube video from Students for Life.
Seldom have I watched something that has given me such hope for the future and such confidence in the finest of our young people. It is worth a few minutes of your time. I promise you'll be uplifted.
The European Court of Human Rights' decision in Lautsi v. Italy relied almost exclusively on an analysis of what Article 2 of Protocol 1 of the Convention on Human Rights required. That provision states: "No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religions and philosophical convictions."
As I noted in my previous post on this case, the Grand Chamber held that "the decision whether crucifixes should be present" in public schools "forms part of the functions assumed by the respondent State in relation to education and teaching" and that it is therefore within the compass of Article 2 as well.
But one might well wonder why. Since the Court tells us that this case turns on the right of member states to set educational curriculum as they see fit (within a proper margin of appreciation), and since it also tells us that whether crucifixes are present in classrooms relates to an educational decision, the obvious question is: What is the relationship between the presence of crucifixes and the educational responsibilities of member states, in this case Italy? Unfortunately, the Court does not make this clear at all. Indeed, it does not even attempt to answer this question, and I think that is regrettable. Perhaps the Court did not want to swim in those waters for fear of writing an overly deep and thick decision; because of the controversial quality of the case, and the likelihood that whichever course it chose would be divisive, the Court wanted to engage in a bit of minimalism. In general I am a supporter of minimalism, particularly the Burkean variety, but because the Court relied so heavily on Article 2, seemingly to the exclusion of any discussion of Article 9, the issue inevitably rears its head and gives at least something of the appearance that the Court's decision was not as thorough as it could have been. Perhaps lack of thoroughness is a good thing sometimes, but it's interesting to begin to think about what something deeper might have looked like.
In fact, I think that the building blocks of a deeper explanation are right within the Court's own decision. The explanation might well be grounded, at least in part, on the lengthy discussion of Italy's historical engagement -- its domestic law and practice -- with the crucifix in public schools, as well as the extensive citation to decisions of Italy's own courts on this question.
One might imagine many different kinds of "educational" reasons for including a crucifix in a classroom. Here are only a very few: to indicate to students that they ought to worship as Catholics; to celebrate Catholicism to the exclusion of all other faiths, whether the students practice it or not; to celebrate Catholicism along with other faiths, in an effort at instilling both a historical consciousness and a sense of civic pluralism with respect to religion; to acknowledge the current cultural and religious preferences of the majority of Italians; to acknowledge the preferences of the majority of Italians as a matter of historical fact; to acknowledge Italy's historical roots as a Christian, and Catholic, country, stretching back to early Christendom; to acknowledge Italy's historical roots as a Christian, and Catholic, country, at the time of the unification of Italy, and the role played in the unification by Catholicism and the papacy; to suggest a connection between the Christian, and Catholic, superstructure of moral and civic values and Italy's contemporary secular/pluralistic civic values; and to suggest something true about the ineliminable inextricability of the cultural, the civic, the religious, and the educational.
Some of these reasons are more amenable to civic educational functions that would fall within Italy's margin of appreciation -- that is, for example, that would not violate other provisions of the Convention -- than others. My own view is that those reasons which suggest something normative and descriptive about the Italian intellectual heritage, history, and traditions of Christianity, and Catholicism specifically, rather than those which indicate something about what students ought, or ought not, to believe as a matter of faith, are more amenable as grounds for concluding that the crucifix (and the cross) have educational value which does not trench on other Convention provisions. Admittedly, these are difficult and complicated questions that present problems of line-drawing, and I emphasize that final qualifier because the general category "education" is slippery and protean. But in light of the Court's almost exclusive reliance on Article 2, I think that a bit more spade-work on this issue might have done the decision some good.
ADDENDUM: Some more and related reflections by Eric Rassbach at The Becket Fund, with a link to thoughts by Paolo Carozza, here.
Thanks, Rob, for your comments on my views about natural law and the Gospel and grace. You are absolutely right: I do not reject reliance on the Gospel and grace. At the same time, I believe that reason, though manifestly fallible, and certainly weakened by sin, is itself a profound gift of God. Indeed, by virtue of our reason and freedom we enjoy a certain (limited, to be sure, but real) sharing in divine power. (I explain this point in some detail and discuss its significance in my 2007 John Dewey Lecture in Philosophy of Law at Harvard, entitled "Natural Law," available here: http://www.law.harvard.edu/students/orgs/jlpp/Vol31_No1_Georgeonline.pdf.) Even apart from revelation, human beings are thus capable of understanding many very important truths, including truths about morality, justice, and human rights and dignity. As St, Paul said (Romans 2:14), there is a law "written on the hearts," even of the Gentiles who do not have the law of Moses---a law sufficient for accountability and judgment. I would add that even those who have access to revealed truth still need to exercise the power of reason. Reliance on revelation alone is insufficient, just as reliance on reason alone is inadequate. As John Paul II famously put the matter in his encyclical letter Fides et Ratio, "faith and reason are like two wings on which the human spirit ascends to contemplation of truth."
I just read an interesting article, “New birth control commission papers reveal Vatican’s hand,” appearing in the National Catholic Reporter [here] in which the author, Mr. Gerald Slevin, asserts that Dr. Grisez (Fr. Ford died in 1989) has engaged in revisionism that “appears to be part of an effort by some traditionalist Catholics—often with the Vatican’s blessing—to rewrite elements of the history of the Second Vatican Council” and the history of Humanae Vitae. Mr. Slevin refers to a short history [here] authored by Dr. Grisez about Fr. Ford (who incidentally earned his law degree from Boston College in 1941) and his work on the Pontifical Commission on Population, Family, and Birth-rate established by Pope John XXIII in 1963 less than two months before the Pontiff died. Dr. Grisez assisted Fr. Ford in his labors on this important Commission.
I am intrigued that Mr. Slevin refers to the documents that Dr. Grisez mentions and provides in his history of Fr. Ford as “new.” They certainly are not new in that they span in range from the early 1960s through the early 1990s shortly after Fr. Ford died.
Well, that might mean that they are “new” in the context of just seeing the light of day.
I am not sure that would be an accurate assessment, though. In 2007 Fr. Eric Marcelo O. Genilo, S.J. published his doctoral dissertation on the moral theology of Fr. Ford and cites many of the documents linked by Dr. Grisez. Fr. Genilo had access to the documents that were in Fr. Ford’s library and files which are now in the Jesuit Archives of the New England Province located at the College of the Holy Cross. Any researcher, as Fr. Genilo has demonstrated, could have access to most, if not all, of these texts which Mr. Slevin has labeled “new.” Fr. Ford’s papers were collected and catalogued after his death in 1989 and then made available to researchers willing to contact and travel to the New England Province Archives. Finally, Fr. Genilo’s published dissertation covers much the same ground contained in the Slevin article but without the rhetorical flourish of the brief article in the NCR.
The European Court of Human Rights has ruled that the presence of crucifixes in Italian state schools does not violate the freedom of religion protected by the Charter. The decision essentailly defers to the decisions that signatory countries make in this area. So the decision of the German high court that the display of crucifixes in German public schools constitutes a violation of the German Constitution is undisturbed. For a link to the decision and a brief favorable discussion, see here.
Under current law the U.S. approach folllows neither the ECHR nor the German approach. Crucifixes are not permitted in American public school classrooms (so the U.S. approach contradicts the ECHR), but the basis in the U.S. is the Establishment Clause; the approach in Germany is closer to our Free Exercise clause. Students may not be required to study "under the cross" if they complain. But crosses are permitted all over Bavaria without violation of German law.
One does not often see the intersection of church autonomy doctrine and criminal law, but that marriage occurs in a recent New York case, People v. Afrika Owes (the decision, maybe behind a pay-wall, here) in which the Abyssinian Baptist Church wanted to put up a $50,000 bond for a defendant charged with conspiracy and criminal possession of a weapon. New York has enacted the "Religious Corporations Law," which governs a religious corporation's "temporal affairs" but not its "ecclesiastical affairs," and whose primary purpose is "to provide for an orderly method for the administration of the property and temporalities dedicated to the use of religious groups, and to preserve them from exploitation by those who might divert them from the true beneficiaries of the corporate trust."
The court here held that the posting of bond in a criminal case was a "temporal affair" and therefore subject to the RCL. Because it was within the ken of the RCL, the statute specifies that the trustees may use corporate property "for some religious, charitable, benevolent or educational object conducted by said corporation or in connection with it" but only "providing the members of the corporation at a meeting thereof shall so authorize" the use. And here, the trustees had not obtained authorization from the governing authority, the congregation -- "[i]n a Baptist church, the congregation is the ultimate governing authority[.]" The trustees violated their fiduciary obligations to administer the temporal affairs of the church by posting the bond without consulting the congregation and obtaining its consent.
From the court's concluding paragraph:
In continuing to disapprove this bail bond, this court is not substituting its judgment for that of the Church about how the Church uses its money. The Religious Corporations Law regulates the use of church property to ensure its use for the support and maintenance of the Church. Church property may be used for other purposes but only if the congregation, the ultimate governing body of a congregational church, authorizes the use of church property for some other purpose at a duly convened corporate meeting. This legally required process ensures that the trustees are, in fact, acting consistently with the wishes of the membership when expending church funds for a purpose other than the support and maintenance of the Church.
A very inteteresting piece by Peter Berger (h/t Movsesian) on the state of Orthodox Christianity in America. Here is a nice bit, with a distinct connection to law (but read the whole thing for an insightful take on the relationship of Orthodoxy to American pluralism):
There are many ways of describing the distinctiveness of Orthodoxy, as against both the Roman Catholic and Protestant versions of Christianity. One way is nicely summed up in a statement by Paul Evdokimov, a lay member of the St. Serge school who did not move to America (he played a courageous role during the German occupation of France, among other things helping Jews to escape from the Nazis). Evdokimov suggests that Western Christianity sees the relationship between God and man as taking place in a courtroom—God is the judge, man is guilty, sentence must be pronounced, Christ takes the sentence upon himself, which allows God to forgive man. The entire transaction is judicial and penitential. By contrast, Eastern Christianity sees the relationship as taking place in a hospital—man is sick, sin is just part of the sickness, Christ is the victor over every part of this sickness (including death, which is the culmination of the sickness). The transaction between God and man is not judicial but therapeutic.
Today is the anniversary of the murder of Salvadoran Archbishop Oscar Romero. On March 24, 1980, Romeo presided at a special evening mass. That evening he proclaimed from the Gospel of John that “Unless a grain of wheat falls to the earth and dies, it remains only a grain. But if it dies, it bears much fruit.” As he concluded his sermon, which preached the need to give one’s life for others as Christ did, he was shot in the heart and died almost immediately.
Romero was tireless in his call for solidarity with the poor and oppressed, a voice for those who had no voice. He was strident in his denunciation of violence and called for a culture of peace and an end to the killings that were destroying his country.
He was criticized by many for being too political in his sermons. But that was a criticism he would not hear, believing that it was the mission of the Church to “save the world in its totality and to save it in history, here and now.” He exhorted that “We cannot segregate God's word from the historical reality in which it is proclaimed. That would not be God's word… It is God's word because it enlightens, contrasts with, repudiates, or praises what is going on today in this society." His duty, he believed, was to help people to apply the Gospel to their own lives and to the reality of the world in which he lived. “We turn the gospel's light onto the political scene, but the main thing for us is to light the lamp of the gospel in our communities.”
Today we remember Oscar Romero, martyr, friend to the poor and prophet of justice. May we remember him by heeding his call.
P.S. Over the course of the last year, I posted sevearl reflections on my own blog, Creo en Dios!, drawn from Romero's homilies. You can find two of them here and here.
Here's law prof, Michael Helfand (Pepperdine) on an arbitration case out of the Florida that was the subject of some blogosphereic and talk-radio conversation:
It seems to me that there is a confusion in the opinion between two issues: (1) cases implicating the church autonomy doctrine and the constitutional protections afforded religious institutions to govern themselves and (2) religious arbitration cases where the parties have signed an arbitration agreement, thereby depriving a court of jurisdiction over a particular dispute (while still leaving a more limited role for the court in evaluating the arbitration on particular grounds). The two issues can intersect in interesting ways (e.g. the Establishment Clause may be implicated in both) but the two issues do not work in the same way.
