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FORDHAM CENTER ON RELIGION AND CULTURE AND AMERICA MAGAZINE Immigration Reform Monday,
3 May 2010 | 6 – 8 p.m. From America’s first days, our country and our
church have benefited from the talent, determination and faith of immigrants.
Yet today, we scapegoat them and withhold legal protections. Is it time to
reform America’s chaotic immigration system? Can we hold our legislators
accountable for taking action? Cardinal Mahony will speak on why immigration
reform is a moral, humanitarian and legal issue. Thomas R. Suozzi, Nassau County executive, 2001-2009 Clara Rodriguez,
Professor of Sociology, Fordham University David Ushery, anchor and reporter, WNBC-TV News FREE AND OPEN TO THE PUBLIC |
Tuesday, April 13, 2010
A "Catholic" interpretation of the Establishment Clause?
Go here for Scot Powe's review of Donald Drakeman's Church, State, and Original Intent (Cambridge). The book is first-rate, in my view. (Full disclosure: I blurbed the book for the press.)
After a generally helpful review, Powe concludes, oddly, with a clunky pivot to the observation that "[t]hree years ago, the Supreme Court ignored its own recent decision and ruled by a 5-4 margin that Congress could ban the procedure known as partial birth abortion" (I don't think it did, but never mind) and a reminder that Geof Stone had suggested, controversially, that the Court's decision might have something to do with the fact that the five justices in the majority are Catholic. (I responded to Geof here.) Powe then concludes:
A number of conservative Catholic legal scholars have shown support for Drakeman’s conclusion. It is conceivable that a Supreme Court Justice might rely on Drakeman (with or without citation) for a Catholic interpretation of the Establishment Clause; and while decades ago Cardinal Francis Spellman had to lobby President Eisenhower to add a single Catholic to the Court (Ike picked William Brennan, who voted as a separationist and favored Roe v. Wade), six of the nine Justices are now Catholic. Church, State, and Original Intent is not priced for a wide readership, but if it gets the right five readers, it could have a major impact.
There are, it is true, a number of "conservative Catholic legal scholars" (and many others) who agree (as I do) with Prof. Drakeman that the Establishment Clause was misinterpreted, in the parochial-school cases of the 1970s and 1980s, as requiring strict "no aid" separationism. But, this agreement does not make Drakeman's interpretation a "Catholic" interpretation, and a Catholic justice who voted in accord with Drakeman's interpretation would not be adopting (or imposing) a "Catholic" interpretation. Nor would the fact that a Catholic justice (or legal scholar) embraced it make the interpretation "Catholic."
To be sure, there are "Catholic" ways of thinking about religious freedom and church-state relations. For a good start, go here. Or here. Or, if you want to help my SSRN count, here.
The Retirement of Justice Stevens, Q.E.D.
Much has been made how Justice Stevens’ retirement will leave the Supreme Court without a single Protestant justice. Perhaps more significantly, his departure will also leave the Court with only one Mid-westerner (Roberts), and no Cubs fans.
Yesterday morning Chicago public radio broadcast a delightful story recounting Stevens’ family history and deep Chicago roots (available here). It should come as no surprise to learn that Justice Stevens has many admirers in this town. And I confess to having heard nothing but good things about Justice Stevens as a person – that he is an affable man, an avid golfer and an enthusiastic bridge player. I don’t doubt his good faith in the service he rendered to the nation, and I wish him well in his retirement.
When I think of Justice Stevens as a judge, however, I think of his opinions in Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 772 (1986) and Webster v. Reproductive Health Services, 492 U.S. 490, 560 (1989). In these opinions Stevens claimed that the attempt to grant unborn human beings the protection of legal rights was inherently religious and thus unconstitutional.
In Thornburgh Stevens said that he “recognize[d] that a powerful theological argument [could] be made” for the position that the government’s interest in nascent human life remains the same throughout pregnancy but that “our jurisdiction is limited to the evaluation of secular state interests” (at 778). He insisted that “there is a fundamental and well-recognized difference between a fetus and a human being” that will continue to hold sway “unless the religious view that a fetus is a ‘person’ is adopted” (at 779). Of course Stevens never explains why the belief that a nascent human life should enjoy the protections of personhood is “religious” or “theological.” He merely assumes the point and then employs his assumption rhetorically in order to dismiss an argument he never squarely confronts.
In Webster Stevens sought to bolster the claims he made in Thornburgh. And so we are treated to this gem:
I am persuaded that the absence of any secular purpose for the legislative declarations that life begins at conception and that conception occurs at fertilization makes the relevant portion of the preamble [to the Missouri statute in question] invalid under the Establishment Clause . . . . This conclusion does not, and could not, rest on the fact that the statement happens to coincide with the tenets of certain religions . . . . Rather, it rests on the fact that the preamble, an unequivocal endorsement of a religious tenet of some but by no means all Christian faiths, serves no identifiable secular interest (at 566-67).
Did you get that? The statute, which declares that “[t]he life of each human being begins at conception” and that “[u]nborn children have protectable interests in life, health and well-being” (at 504) violates the Establishment Clause because of the “absence of any secular purpose” that follows from the fact that it “serves no identifiable secular purpose” (at 566-67).
The remainder of the Stevens’ opinion is replete with references to the “theological view” endorsed by the Missouri statute (at 568), the “theological tenet” embodied in it (at 570), and the “theological finding of the Missouri legislature” (at 572), as well as a tortured and embarrassing passage in which Stevens purports to explain St. Thomas Aquinas’ views on abortion and analogize them to the Missouri statute.
Sigh.
As I said before, I wish Justice Stevens well in his retirement. As for his successor, hoping for someone who is pro-life is too much to expect from President Obama.
I do hope, however, that the President has the gumption to appoint someone who knows what a syllogism is – someone who knows the difference between making an argument in support of a conclusion, and simply declaring a proposition to be true. “Repetition” is not a synonym for “proof,” “demonstration,” or “argument.”
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Contra Koppelman: How "Red States" reduce abortion
Michael linked, the other day, to my friend Andy Koppelman's provocatively titled post, "How the Religious Right Promotes Abortion." (Obviously, Andy does not use the word "promote" to suggest that abortion-increases are intended by the "religious right." He claims, instead, that "its most stalwart proponents have succeeded in implementing and maintaining policies that keep the abortion rate high.")
Like the claim that was swirling around in the blog-ether in the run-up to the health-care vote -- i.e., that the experiences of other countries show that universal health-care coverage reduces abortions -- Andy's claims did not ring true to me and, it turns out, are incomplete, as Michael New explains at Public Discourse. That they are inaccurate, no doubt, as a disappointment to those who -- whether or not they care about abortion rates -- enjoy the frisson that accompanies epater-ing les "religious right"-ers, (I would not include Andy in this category, since he has always struck me as a fair-minded and charitable scholar-citizen.) Or, maybe not, since -- in my experience, anyway -- there are some "just so" claims (e.g., publicly funded contraception, not legal regulation of abortion, most effectively reduces abortion) that travel through our conversations and for which evidence is convenient but hardly necessary.
Here is New's conclusion:
Andrew Koppelman is the latest in a long line of pro-choice commentators to try to make the case that the best strategy for lowering the abortion rate is not, greater legal protection for unborn children, but rather, more funding for contraception and comprehensive sex education. Unfortunately, the available research and data do not support his arguments. There is no solid evidence that greater federal funding for contraceptives lowers abortion rates. Furthermore, contrary to the claims of Koppelman there exists evidence that well designed abstinence education programs are able to reduce teen sexual activity.
However, the best way to empirically test Koppelman’s claims are to simply analyze abortion data from the state level. If Koppelman’s claims are correct, then sexually permissive, contraceptive friendly blue states should have the lowest abortion rates. However, that is not the case. Data from both the Centers for Disease Control and the Alan Guttmacher clearly indicate that abortion rates are significantly lower in red states than in blue states. Furthermore, the states where Republican Presidential nominees receive the most support have far lower abortion rates than those states where Democratic Presidential nominees perform the best. Simply put, state level data offer no support for Koppelman’s argument.
Overall, it should come as no surprise to pro-lifers that sexual restraint and greater legal protection for the unborn has been and will continue to be the best strategy for lowering abortion rates. The pro-life movement would do well to stay the course. . . .
"Should I stay or should I go?"
by Timothy Radcliffe, O.P.
[The Tablet's lead-in:] As the scandal of child sexual abuse
and its cover-up swirls around the Church, some Catholics are
considering their options as regards their very membership of the
institution. Here a former Master of the Dominicans explains why the
Church is stuck with him, whatever happens. 
Monday, April 12, 2010
What did "the last Protestant on the Supreme Court" stand for?
We've heard from Eduardo and from Rick. My Emory colleague Robert Schapiro, who clerked for Justice Stevens in 1991-92, had this to say today, at CNN.com:
What Justice Stevens stood for
(CNN) -- With the retirement of Justice John Paul Stevens, the United States Supreme Court loses a judge with an unusual ability to get the big things right by getting the little things right.
Justice Stevens will be remembered for his stirring opinions in cases of great national significance. He also should be remembered for his equally compelling commitment to justice in scores of other decisions that received little public notice.
In Hamdan v. Rumsfeld in 2006, Stevens wrote the majority opinion holding that even in the face of real threats of terror, the president must follow the law. The court declared that the Constitution reached into a military detention facility in Guantanamo Bay, Cuba, and offered the protection of the rule of law to the man who served as the driver for Osama bin Laden.
For Stevens, no person was above the law, and no person was below the law.
Stevens' passion for this ideal drew support from his experience as a clerk to Supreme Court Justice Wiley Rutledge. In 1946, the Supreme Court upheld the summary trial and the death sentence meted out by an American military tribunal to accused Japanese war criminal Tomoyuki Yamashita. Dissenting, Rutledge affirmed the importance of providing "due process of law" to all people, "whether citizens, aliens, alien enemies or enemy belligerents." In Hamdan, Stevens finally vindicated that principle 60 years later.
For Stevens, that dedication to ensuring justice in all cases constituted the defining characteristic of a judge. In the 2000 presidential election decision, Bush v. Gore, Stevens penned a stinging dissent, castigating the majority for undermining the "Nation's confidence in the judge as an impartial guardian of the rule of law."
Stevens' commitment to the rule of law transcended partisan boundaries. In 1997, he spoke for the Court in Clinton v. Jones, finding that the Constitution did not shield President Clinton with immunity from civil suits.
First appointed to the bench by President Nixon and then elevated to the high court by President Ford, Stevens was a Republican from a different era. His rulings fell out of favor with the ideology of that party. However, Stevens always remained a small-R republican. He detested the idea of a monarch who stood outside of the law.
He often cited the English maxim, "The King can do no wrong," to emphasize the foreignness of that concept of immunity in our republican form of government.
Cases involving presidents are important, but rare. Stevens insisted on promoting the rule of law in all cases. When I think about Stevens, I think not only of Bush and Gore, of Clinton and Rumsfeld, but also of Vladimir Zatko and Jerome Hiersche.
It is a bedrock principle of the American legal system that lack of wealth should not translate into a denial of justice. Accordingly, courts do not charge filing fees to those who cannot afford to pay. In the early 1990s, however, the Supreme Court deviated from that practice by barring access to people it deemed frequent filers of frivolous actions. The court refused to waive the fees for these litigants despite their poverty.
When the court invoked the rule to bar access to one Vladimir Zatko, Stevens dissented. His opinion criticized the court for undermining its commitment to offering "equal access to justice for both the rich and the poor." The court continues to invoke the rule up to this day, and Stevens continues to dissent.
And then there is the tragic case of Jerome Hiersche. The United States government hired Hiersche, a professional diver, to inspect a dam on the Columbia River. Government employees assured Hiersche that the water flow system would be shut off, but it was not. Hiersche's head was pulled into an opening in the system, and he was killed.
The government denied all liability, citing language in a Supreme Court case interpreting an obscure provision of a 1928 statute. Stevens wrote separately to decry this result, imploring Congress to remedy the situation. He declared that "this obsolete legislative remnant is nothing more than an engine of injustice." In his lexicon, there was no stronger rebuke.
The rule of law requires standing up to presidents, but it also demands standing up for the notorious and the nameless, the Hamdans and the Yamashitas, the Zatkos and the Hiersches. When one develops a habit of promoting justice in the obscure cases, the courage to demand justice in the notable cases follows.
Justice Stevens pursued justice in all cases, great and small. The rule of law has lost an important champion on our nation's highest court.
[Cross-posted at ReligiousLeftLaw.]
Katherine Kersten: You'd think the evil of sexual abuse was exclusive to the Catholic Church
Herewith excerpts from this column in the Minneapolis Star-Tribune (the full column is here:
In 2004, a groundbreaking report commissioned by the U.S. Department of Education found that 6 to 10 percent of children in public schools have been sexually abused or harassed by teachers or school employees. Hofstra University Prof. Charol Shakeshaft, the report's author, estimated that about 290,000 students were victimized between 1991 and 2000. "So we think the Catholic Church has a problem?" Shakeshaft told Education Week. "The physical sexual abuse of students in schools is likely more than 100 times the abuse by priests."
How did the media respond to these shocking revelations? With a giant collective yawn. News reports could be counted on one hand, according to NewsMax.com, which contrasted the media's ho-hum reaction with its "wall-to-wall" coverage of Catholic scandals.
* * * *
Since 2002, the Catholic Church has labored mightily to clean up what Benedict has called "the filth" of priestly sexual abuse. In 2009, the U.S. Catholic bishops' annual audit included only six new allegations of clerical abuse of children younger than 18 -- in a church of some 65 million members. Abuse escalated between the mid-1960s and the mid-1980s, but now seems largely to have vanished.
So why does the Catholic Church continue to get all the headlines?
The church draws the mainstream media's ire because, in a world increasingly characterized by moral relativism, it continues to teach enduring moral rules that don't shift with cultural fashions. It dares to challenge the doctrine preached by America's new priestly class -- our opinionmaking elite -- on social issues ranging from abortion and embryonic stem cell research to same-sex marriage.
Deja vu all over again
Whatever one thinks about the media coverage of you-know-what--in another man-bites-dog moment,
I’m with Peggy Noonan in her WSJ piece--there is the you-know-what
itself. Although many MOJ readers will
disagree with me—so what else is new?—I want to say it nonetheless: This is not the first time some powers-that-be in the Church have done the wrong thing for the wrong reason.
In the matter du jour, the wrong thing: the scandalous failure, in the United States, Ireland, and elsewhere, to deal appropriately with the
abusing clergy; the wrong reason: to
preserve the reputation/credibility/whatever of “the Church”.
In the matter du temps perdu, the wrong thing and the wrong
reason: well, let esteemed Catholic (and
British) theologian Nicholas Lash—for twenty years the Norris-Hulse Professor of Divinity at Cambridge University (1978-99)—explain.
(Want to know more about Lash?
google “Nicholas Lash”.)
In a letter to The Tablet on “The origins of Humanae Vitae,” September 13, 2008, Lash wrote:
I do not take issue with Dr. Kal’s argument (Letters, 6 September) but with his use of the expression “the minority report”. There never was any such report. The Pontifical Commission on Problems of Marriage and the Family, as established by Pope John XXIII in 1963, consisted of six people. By the beginning of 1965, the membership had expanded to 55 and, part from a wider range of academic and technical expertise, it now included three married couples. In February 1966, two months before it began its fifth and final session, 16 cardinals and bishops were added. Cardinal Ottaviani was now president, with Cardinals Doepfner and Heenan as vice presidents. (These heavy pastoral guns were added, it seems, because everyone now assumed that the commission was going to propose, with near unanimity, a significant change in Catholic teaching on birth regulation.)
On 28 June 1966, the commission’s report was presented to Pope Paul VI by Cardinal Doepfner and Fr Henri de Riedmatten, the secretary-general of the commission. A few weeks earlier, four members of the commission, having decided that they were going to be unable to sign the report, released a “working paper” explaining their position. It is the paper from which Dr. Kal quotes, and which has often, and incorrectly, been described as the “minority report” of the commission. Two years later, after much agonized thought, Paul VI set the commission’s report aside and issued the encyclical Humanae Vitae.
The four theologians who did not sign the report took the action that they did, in large part, because they feared the damage that such a change to official teaching on birth regulation would do to people’s trust in the authority of the Church. Paul VI grounded his decision to reject the report not on better arguments in the ethics of reproduction, but on considerations of church authority: he felt unable to differ from his predecessors. The irony, and the tragedy as I see it, is that, in the event, it seems to have been his refusal to countenance change which gravely undermined the confidence of so many Catholics in the very authority which he sought to uphold.
Sad, Disturbing News Reporting
Looking for thorough analysis from the news media today may be expecting too much -- the resources for newsroom budgets being what they are. However, what might be an unrealistic expectation is almost an ontological impossibility where the news involves the Catholic Church in general and the Holy See in particular.
A recent story in the New York Times by Laurie Goodstein and Michael Luo entitled “Pope Put Off Punishing Abusive Priest” (here) which Michael P. linked to on MOJ under the provocative “Sad, disturbing news” (here) is a case in point.
The article attempts to paint of picture of a recalcitrant Vatican official, Joseph Ratzinger, who as head of the CDF approached the problem of pedophile priests with "little urgency" notwithstanding the "pleas from American bishops."
It is somewhat surprising to see an American bishop portrayed so favorably where clergy sexual abuse is involved, but where the current Pope is also involved, the media’s prospective seems to change.
The story does at least acknowledge the comments of Vatican spokesman Rev. Federico Lombardi, S.J., who "said it was wrong to draw conclusions based on one letter without carefully understanding the context in which it was written" and quotes Lombardi as saying that "It's evident that it's [i.e. the use of the leaked document by plaintiffs' attorneys in the news media] not an in-depth and serious use of documents."
But then Goodstein and Luo proceed not to seek to discover the context for a proper understanding of the documents. Although Lombardi’s comments would seem to challenge the journalists to provide “an in-depth and serious use of documents” they seem content with something less. They seem content to report that Ratzinger’s decision to laicize former Oakland priest Stephen Kiesle “did not come for two more years, the sort of delay that is fueling a renewed sexual abuse scandal in the church that has focused on whether the future pope moved quickly enough to remove known pedophile priests from the priesthood, despite pleas from American bishops.”
Sometimes, it seems, to get the kind of analysis about the Church that one would hope to receive from the news media, one has to instead turn to . . . well, the Church, or part of the body that is the Church. For just such an analysis I would recommend that MOJ readers see Rev. Joseph Fessio, S.J.’s comments here.
As Father Fessio notes the premise that “defrocking” Kiesle had “anything to do with protecting victims and preventing further abuse” is “completely mistaken.” Indeed, where serious sins like Kiesle’s are involved nothing “at all prevents a bishop from: removing a priest from all ministry; removing his faculties; reporting him to civil authorities.”
Phil Lawler’s analysis of the story can be found here, and commentary by Rev. Zuhlsdorf on the initial AP story can be found here.
Perhaps to ensure providing the necessary context in her future reports Ms. Goodstein would consider putting Fathers Fessio and Zuhlsdorf’s numbers together with Phil Lawler’s on her Rolodex?
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