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.

Tuesday, March 2, 2010

Thanks, Michael

Thanks, Michael, for pointing this out. I would suggest that my route is more direct.


RJA sj

What the Archbishop actually said ...

... is provided in the link I provided!  Take another look, Robert.

Archbishop Chaput in Houston

Thanks to Michael P. for the postings linking the opinions of Sandro Magister regarding the address given by Archbishop Chaput yesterday in Houston.

I, for one, think it is important to read what the archbishop actually said


RJA sj


Chaput in Houston (2010) on Kennedy in Houston (1960)

[Cross-posted at ReligiousLeftLaw.]

[HT:  MOJ friend Gerry Whyte of Trinity College Dublin.]

Pick your favorite language, click, and read.

Newsletter chiesa

2 marzo 2010

La dottrina del cattolico Kennedy? Da dimenticare

Nel 1960 teorizzò la più rigida separazione tra Chiesa e Stato, per farsi accettare come presidente. Mezzo secolo dopo, l'arcivescovo Chaput lo accusa d'aver fatto un grave danno. Un saggio del professor Diotallevi sui limiti e i fallimenti della laicità


The Doctrine of the Catholic Kennedy? Worthless

In 1960, he theorized the most rigid separation between Church and state, in order to be acceptable as president. Half a century later, Archbishop Chaput is accusing him of causing serious damage. An essay by Professor Diotallevi on the limits and shortcomings of secularism


La doctrine du catholique Kennedy? À oublier

En 1960 il s'était fait le théoricien de la plus stricte séparation entre l'Église et l'État, afin de se faire accepter comme président. Un demi-siècle plus tard, l'archevêque Chaput l'accuse d'avoir provoqué de gros dégâts. Un essai du professeur Diotallevi sur les limites et les échecs de la laïcité


¿La doctrina del católico Kennedy? Mejor olvidarla

En 1960 teorizó la más rígida separación entre Iglesia y Estado, para hacerse aceptar como presidente. Medio siglo después el arzobispo Chaput lo acusa de haber hecho un daño grave. Un ensayo del profesor Diotallevi sobre los límites y fracasos de la laicidad

European Court of Human Rights

Press release issued by the Registrar  

Chamber judgment1

 
Kozak v. Poland (application no. 13102/02)

SUCCESSION TO TENANCY OF A FLAT DENIED TO HOMOSEXUAL AFTER HIS PARTNER’S DEATH IN BREACH OF THE CONVENTION

Unanimously

Violation of Article 14 (prohibition of discrimination)

in conjunction with Article 8 (right to respect for private and family life)

of the European Convention on Human Rights

    

Principal facts

The applicant, Piotr Kozak, is a Polish national who was born in 1951 and lives in Szczecin (Poland). For several years, he lived together with his partner in a homosexual relationship. They shared a municipality flat rented by the applicant’s partner. After his partner had died in April 1998, the applicant applied to the municipality to succeed to the tenancy of the flat. The municipal buildings department denied the request in June 1998, claiming that the applicant had not lived in the flat before his partner’s death, and ordered the applicant to move out.

While eviction proceedings against him were still pending, the applicant brought proceedings against the municipality in 2000, seeking to have his succession to the tenancy acknowledged. Relying on the housing act in force at the time, he brought forward that he had a right to succession, as he had run a common household with his partner for many years and had thus lived with him in de facto marital cohabitation. The claim was dismissed by the district court, holding in particular that Polish law recognised de facto marital relationships only between partners of different sex. On appeal, the judgment was upheld by the regional court in June 2001.

The regional court did not grant the applicant’s request to have referred to the Supreme Court the question of whether the clause “de facto marital cohabitation” also concerned persons living in a homosexual relationship. Nor did it obtain a ruling of the Constitutional Court on whether that clause, understood as including only heterosexual partners, was compatible with the Polish Constitution and the Convention.

Complaints, procedure and composition of the Court

Relying in particular on Articles 8 and 14, the applicant complained that the Polish courts, by denying him the right to succeed to a tenancy after the death of his partner, had discriminated against him on the ground of his homosexual orientation.

The application was lodged with the European Court of Human Rights on 23 August 2001.

Judgment was given by a Chamber of seven judges, composed as follows:

Nicolas Bratza (United Kingdom), President,

Lech Garlicki (Poland),

Giovanni Bonello (Malta),

Ljiljana Mijović (Bosnia and Herzegovina),

David Thór Björgvinsson (Iceland),

Ján Šikuta (Slovak Republic),

Ledi Bianku (Albania), judges, 

and Lawrence Early, Section Registrar.

Decision of the Court

The Court agreed with the Polish Government that some of the applicant’s statements concerning the nature and duration of his relationship with his partner and his residence in the latter’s flat that he had made before the domestic courts and authorities had been inconsistent. However, it was not for the Court to decide which of the trial courts made correct findings of fact. It had to confine its examination to the proceedings at issue, concerning the applicant’s succession to tenancy.

The Court observed that in establishing whether the applicant fulfilled the conditions of the housing act the domestic courts had focused on the homosexual nature of the relationship with his partner. While the district court had also expressed some doubts as to whether the applicant had lived in the flat at the relevant time, both courts had rejected his claim on the grounds that under Polish law only a relationship between a woman and a man could qualify for de facto marital cohabitation.

The Court accepted that the protection of the family founded on a union of a man and a woman, as stipulated by the Polish Constitution, was in principle a legitimate reason which might justify a difference in treatment. However, when striking the balance between the protection of the family and the Convention rights of sexual minorities, States had to take into consideration developments in society including the fact that there was not just one way of leading one’s private life. The Court could not accept that a blanket exclusion of persons living in a homosexual relationship from succession to a tenancy was necessary for the protection of the family. It therefore unanimously concluded that there had been a violation of Article 14 taken in conjunction with Article 8.

Can a state restrict immigration in order to protect its culture?

Liav Orgad has posted an interesting new paper, Illiberal Liberalism: Cultural Restrictions on Migration and Access to Citizenship in Europe. Here's the abstract:

This article addresses a simple but important and understudied question: Is culture a legitimate criterion for regulating migration and access to citizenship? While focusing on France, Germany, the Netherlands, the United Kingdom and Denmark, I describe how these states embrace illiberal migration policies which violate the same values they seek to protect. I then construct a two-stage set of immigration-regulation principles: In the first stage, immigrants would have to accept some structural liberal-democratic principles as a prerequisite for admission; these principles are not culturally-oriented but constitute a system of rules governing human behavior in liberal democracies. In the second stage, as part of the naturalization process, immigrants would have to recognize and respect some constitutional principles essential for obtaining citizenship of a specific state. I call this concept 'National Constitutionalism'. As the American debate on immigrant integration policy comes at a decisive moment, the European experience has some important lessons for U.S. policymakers.

How does the Church handle this tension?  On one hand, the Church emphasizes the importance of culture and warns about the homogenizing dangers of globalization.  On the other hand, the Church speaks out in favor of liberal immigration policies.  Would the Church ever support restrictions on immigration in order to maintain a distinct culture?  Perhaps the Church teaches that keeping people out reflects an overly narrow or defensive view of culture?  Or maybe that culture is not coterminous with political boundaries, so immigration policy is a poor proxy for defense of culture?  Has the Church already addressed this tension somewhere?

Happy Texas Independence Day!

Monday, March 1, 2010

A follow-up on my post concerning the needle-exchange program of the Albany diocese

 

 

Readers may recall that on February 13, I posted my thoughts on the Albany diocese’s plan to proceed with a needle exchange program. On February 19, I invited one of the interlocutors who commented on my post to provide me with “the peer review scientific literature that attests to his” views which were critical of my position. Although I did not hear back from this commenter, I independently did a search of “peer review scientific literature” on the topic of needle exchange programs. In particular, I consulted documentation available through the National Institute of Health. My study of these reports demonstrated that the authors largely concluded that, “methadone treatment is the modality most directly targeting the injection drug user”; therefore “it has the greatest capacity for reducing HIV risk behaviors.” Interestingly the same documentation of the NIH states that, “the efforts of community-based organizations offering AIDS prevention outreach and needle exchange have resulted in increased demand for treatment services, suggesting the need for drug abuse treatment programs to work collaboratively with these organizations on behalf of a common concern about the health and well-being of their clients.” The emphasis here is not on needle exchange programs per se but on treatment programs that may work in tandem with exchanges.

I hope that readers of my original post understood me to say that the health of drug users and others who may be associated with those addicted are the major concern. While there appears to be some correlation between treatment programs and needle exchange programs if the organizers of both collaborate with one another, nothing is said about the availability of data indicating what happens to the needles given in the exchange since supervision and treatment appear not to cover monitoring of the use of the needle once the new one is given to the addict who may also be under treatment. Giving clean needles does little to assist the health of drug users and their friends, sexual partners, and casual acquaintances.

If treatment is not the principal focus of a program, will programs that only provide clean needles really address the underlying and related problems of drug addiction? The NIH materials that I consulted suggest no. As some research indicated: “making available the implements of drug taking, needle exchange programs” was not considered as a way of “removing, societal sanctions against drug use. The response of those championing the harm reduction strategy was that rehabilitation, although a laudable goal, was impossible in the absence of a client’s survival.” While there is other data from these studies suggesting that those involved in needle exchanges may be more inclined to enter treatment programs, there is virtually no data about “sexual partners” or other persons who may be “recruited” into drug use by those addicts who do exchange needles. There is little if anything known about the effects of needle exchanges on third parties who know and come in contact with the addict who is receiving clean needles.

The peer review material repeatedly emphasizes the important correlation between exchange programs and treatment. But if that correlation does not exist or succeed, what happens then? The answer is obvious: the abuse of drugs continues perhaps with some decrease in risks to the needle exchanger but not for anyone else.

The point of my original post was this: must the Church, through her charitable works, be forced to engage in needle exchange program to combat drug abuse and related health issues? My position was and remains that the Church in her good and well-formed conscience must do what she can to treat those afflicted with drug dependency. There is no reason why a treatment program must also provide needle exchange opportunities. These points that I have made appear to be reflected in the NIH studies which indicated that “the primary barrier to linking needle exchange clients to treatment is the lack of available or effective treatment in many communities.” What prevents any organization, including Catholic Charities, from concentrating its resources on treatment? Apparently none; moreover, peer review scientific data indicate that treatment is the real objective, not providing means for continuing addiction which may reduce blood-borne disease infection of the addict.

Some of the peer review scientific data concede that with the often expected 30% drop out rates from treatment programs, it might be “better” to instruct addicts on “safer drug injection.” In other words, there is a concession that drug addiction rather than treatment and cure may be all that is possible. And if this peer review literature is correct, then what is Catholic Charities to do? In spite of the fact that my interlocutor suggests that needle exchanges do not encourage drug use, it seems from the peer review data suggest otherwise.

I have presented my position that Catholic Charities ought not be involved with needle exchanges or, for that matter, instruction on “safer drug injection.” My argument about what happens to the “new” needles once given but whose use is not supervised is not “irrelevant” as my interlocutor suggested: “Most importantly, the arguments about what people are doing with the needles and whether there is an assurance that they’re not being shared is utterly irrelevent. [sic] These programs are very well demonstrated to reduce the transmission of blood borne diseases. Whether some of the syringes from the program are shared does not matter because those injections would have been with a dirty needle anyways. The bottom line is the one that matters, and the bottom line shows that these programs save lives and are incredibly cost effective at doing so.”

It matters a great deal what becomes of the syringes once they leave the exchange site. The assertion that it does not matter if syringes from the program are shared “because those injections would have been with a dirty needle anyways” is problematic. My interlocutor concedes that there is a problem with dirty needles; well, my point is that the fact that a needle may be new and clean one day does not mean that it will remain so until returned to the exchange site. Indeed, he concedes my point and yet he dismisses it. A needle intended for one injection becomes a used needle that may be used again, and my interlocutor concludes that it is “a dirty needle anyways.” He further maintains that sexual partners and other third parties are protected by the exchange programs. But are they really? There is no data in the peer review materials to indicate that such a conclusion can be tendered and supported because there is no information about what happens to the “new” needle once it leaves the exchange site.

Let us hope and pray that any Catholic organization contemplating needle exchange projects reconsider this; moreover, let us encourage them to help those suffering drug addiction find treatment rather than sustenance of this destructive menace.

 

RJA sj

 

John Allen and Globalization

This is the seventh installment of our examination of John Allen’s book, The Future Church.This time, we consider with Allen the Church in relation to globalization.

Continue reading

New blog of interest

MoJ readers may be interested in a new blog that has just launched, titled Law, Religion, Ethics: A multi-faith dialogue.  There is a wonderful assortment of scholars from a variety of faith traditions (including no faith tradition) who have signed on, and a few of us MoJers will be chiming in from time to time.