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.

Thursday, November 13, 2008

"If you want peace, work for justice." --Paul VI


The dedication of my third book, Love and Power:  The Role of Religion and Morality in American Politics (Oxford, 1991), reads as follows:
 
On November 16, 1989, in San Salvador, El Salvador,
six Jesuit priests, their cook, and her daughter, were slaughtered.
This book is for them, and for countless others less known
and honored, who remind us with their lives and
with their deaths what it can mean
to bring religion to bear on politics.
 
Some MOJ readers may be interested in this story, which appeared today in the Los Angeles Times:
 
In El Salvador, a new push for justice in priests' slayings

Soldiers and officers convicted or implicated in the deaths of six priests in 1989 are free under a controversial amnesty law. Victims' relatives and rights groups turn to Spain's courts.

By Tracy Wilkinson and Alex Renderos

Reporting from Mexico City and San Salvador — The murder 19 years ago of six Jesuit priests by a U.S.-trained army unit was the turning point in El Salvador's long civil war, an atrocity so grave that it helped force an end to the fighting.

But the soldiers and officers convicted or implicated in the slayings are free under a controversial amnesty law that is receiving new attention thanks to election politics here and a potentially landmark court case in Spain.

Relatives of the priests, who were killed along with their housekeeper and her young daughter, have joined with two human rights organizations and today plan to file suit in Madrid against the generals, colonels and soldiers blamed for the killings.

The plaintiffs are invoking the doctrine of universal jurisdiction, which Spanish courts have championed, that allows a case of egregious human rights violation to be heard in a country even if the acts did not take place there and the defendants do not reside there.

Human rights activists in the Americas and Europe said they hoped the Jesuit complaint could be used to fight impunity and bring justice to the victims' families by joining a procession of Spanish court cases that have forced Latin America to confront its violent past. These include suits against Guatemalan military officers accused in the massacre of indigenous citizens and figures in Argentina's "dirty war" against leftist dissidents.

"This has an invaluable historic importance for El Salvador," said David Morales, program coordinator at a legal think tank in San Salvador that specializes in justice issues. "All Salvadoran society has been the victim here. . . . Just knowing the truth has a restorative effect."

The war between El Salvador's right-wing, U.S.-backed government and leftist guerrillas formally ended in 1992. A national truth commission, as well as several international investigations, established that top army officers had ordered and then covered up the slayings of the priests, whom the military accused of supporting the guerrillas.

Four officers and five soldiers were tried and convicted for roles in the slayings, no one higher in rank than a colonel, but all were released in 1993 under the amnesty law. No one in the top military leadership was ever prosecuted.

The suit names as defendants Gen. Rene Emilio Ponce, the retired former defense minister, and other senior officers. It also names Alfredo Cristiani, the wartime president of El Salvador, who is accused in the suit of complicity in the cover-up, said attorney Almudena Bernabeu of the San Francisco-based Center for Justice and Accountability, one of the two organizations representing the priests' relatives.

The other group is the Spanish Human Rights Assn. Once the complaint is filed, a Spanish judge will decide whether the case will proceed.

Carlos Martin-Baro, brother of slain priest Ignacio Martin-Baro, said he hoped the pursuit of justice could help El Salvador emerge from its current "tragic and violent reality," which many people believe is a legacy of the war and its unresolved divisions. The tiny country remains badly polarized and awash in slayings, kidnappings and drugs.

"Amnesty laws in a given moment might be used to normalize civilian life, but they don't allow the wounds to close," Martin-Baro, a 67-year-old English teacher, said by telephone from Madrid.

In El Salvador, repeal of the amnesty law has become a burning topic in the campaign running up to presidential elections in March.

Ponce, the retired general, led thousands of army veterans on a protest march through San Salvador two months ago to demand the law remain in force. Repealing it would smack of "vengeance," he said, and "far from contributing to reconciliation, will only deepen the political polarization we are living in our country."

The Farabundo Marti National Liberation Front, or FMLN, the onetime guerrilla movement that is now a political party, has suggested in its electoral platform that the amnesty might be ended.

But the party's presidential candidate, Mauricio Funes, recently told an interviewer that he would not touch the law because to do so would "open wounds" and "create a climate of ungovernability." Funes is leading in polls, besting the candidate from Arena, the right-wing party that has ruled since the last years of the war.

An Arena official, Francisco Antonio Prudencio, sharply condemned the lawsuit Wednesday, saying it would dredge up painful memories of "very difficult moments."

"Do they want our country to return to another armed conflict?" Prudencio, who heads the party's human rights committee in the legislature, said in an interview.

Most of the cases that have invoked universal jurisdiction have not ended in conviction. Yet advocates say each case is another brick in an expanding legal foundation that holds wrongdoers accountable wherever they live.

"I don't think I'm being naive when I say that there is increasing consciousness that high-level human rights abusers should not be allowed to move around and seek haven around the world," Pamela Merchant, executive director of the Center for Justice and Accountability, said from Madrid.

Catholics, The Election, and Obama: Another Reflection

This one appears in the new issue (11/15/08) of The Tablet:

Why they didn’t listen

US election 2008

Michael Sean Winters

 American bishops have been conducting a post-mortem on the presidential election after calls by some of them for Catholics not to support ‘pro-abortion' Barack Obama were roundly ignored. Were the bishops right and is their authority now diminished?

During the American presidential election, several United States bishops argued that abortion trumped all other issues and that no Catholic could, in good conscience, vote for Barack Obama.

On 20 October, Archbishop Charles Chaput of Denver, Colorado, called Obama "the most committed ‘pro-abortion' candidate" since the Supreme Court's 1973 decision, Roe v. Wade (which cleared the way for legalised abortion throughout the federal US), and said no Catholic could find reasonable grounds for supporting him. Chaput also questioned the motives of Catholics who seek abortion-reduction policies instead of seeking to overturn Roe: "I think it's an intelligent strategy. I also think it is wrong and often dishonest."

Meanwhile, in Scranton, Pennsylvania, a local October forum on the election at St John's Catholic Church was discussing the pastoral letter, "Faithful Citizenship", which the United States Conference of Catholic Bishops (USCCB) adopted at its 2007 meeting to guide Catholic voters in correctly forming their consciences on political matters. The forum was interrupted by Scranton's bishop, Joseph Martino, who thundered: "No USCCB document is relevant in this diocese. The USCCB doesn't speak for me." The bishop also took particular issue with the claim that voters could consider topics other than abortion.

That same week, retired Bishop Rene Gracida recorded a radio advertisement in which he said: "A Catholic cannot be said to have voted in this election with a good conscience if they have voted for a pro-abortion candidate. Barack Hussein Obama is a pro-abortion candidate."

Finally, the day before the election, Bishop Joseph Finn of Kansas City, Missouri, was asked in a radio interview: "There are Catholics listening right now who are thinking strongly or are convinced that they will vote for Barack Obama. What would you say to them?" The bishop replied: "I would say, give consideration to your eternal salvation." Bishop Finn, who is a member of Opus Dei, had earlier compared the 2008 election to the naval Battle of Lepanto, when a papal fleet turned back Muslim invaders in 1571.

There are many difficulties with these statements. The most obvious is that they did not persuade. Denver voted for Obama by the astounding margin of 75 per cent to 25 per cent and the state of Colorado went blue for the first time in 16 years. In Lackawanna County, Pennsylvania, Obama beat John McCain 63 per cent to 37 per cent. And in Kansas City, Missouri, 78 per cent of the electorate considered their eternal salvation and voted for Barack Obama. Nationwide, Obama won 53 per cent of the Catholic vote, a swing of 13 percentage points over John Kerry's showing in 2004.

Latino Catholics represent the demographic future of both the Church and the country and they broke for Obama in even greater numbers. In Florida, Nevada and Colorado, Latino Catholics were crucial to Obama's turning those states from red to blue, so this demographic is the future not only of the Catholic Church but of Obama's governing coalition.

The second problem with the anti-Obama statements by the bishops is their specificity. "Faithful Citizenship" stated emphatically: "In fulfilling these responsibilities [to help Catholics form their conscience], the Church's leaders are to avoid endorsing or opposing candidates or telling people how to vote. As Pope Benedict XVI stated in Deus Caritas Est, ‘The Church wishes to help form consciences in political life and to stimulate greater insight into the authentic requirements of justice ... The Church cannot and must not take upon herself the political battle to bring about the most just society possible.'"

However, the greatest problem is that these "abortion-only" bishops are living in a parallel universe. In denigrating the Democratic Party and its nominee, the only conclusion is that the Republicans were the salvific choice. The pro-life movement has been carrying water for the Grand Old Party for 35 years and there has been no change in the law. Even if Roe were overturned tomorrow, abortion would not become illegal because  the issue would be kicked back to the individual states. In a study made by Dr Joe Wright, an assistant professor of political science at Penn State University and a visiting fellow at the prestigious Catholic University of Notre Dame, the 16 states that might enact some restrictions on abortion are largely rural, conservative states that only account for 10 per cent of all abortions. Is that enough to make Republicans the "pro-life party"?

Moral theologians can debate whether abortion has the greatest claim on the conscience of a Catholic voter, but debating strategies about how to combat abortion is a political discussion. Barack Obama, at the urging of pro-life Catholics, changed the Democratic Party's platform to endorse reducing the abortion rate specifically through policies that help women facing crisis pregnancies, such as the adoption of universal health insurance and better pre-natal and post-natal care.

Obama made reducing the abortion rate a goal of his administration, mentioning it in both his convention acceptance speech in August and in his third debate with John McCain in October. His approach may or may not produce the desired result, but it is wrong to impugn his sincerity and that of his supporters who have come to believe that the Republicans only pay lip service to the pro-life cause at election time.

The "abortion-only" approach also disparages the moral seriousness of many Catholics. A woman married to an undocumented immigrant might view humane immigration reform as the most important issue. A family that can't afford health insurance for their children might be concerned about that issue as well as abortion. 

The economic meltdown in mid-September is commonly seen as the reason for Obama's ascendancy. Pollsters concluded that the crisis pushed "moral issues" to the side, but that is not exactly right. The economy is a moral issue. For middle-class Americans, buying a house and making the mortgage payments are moral accomplishments, involving delayed gratification and self-discipline. Greed was seen as the principal culprit in the troubles on Wall Street. President-elect Obama grasped the moral dimensions of the economic anxieties felt by so many Americans. In a speech in St Louis a fortnight before the election, he asked: "It comes down to values - in America, do we simply value wealth, or do we value the work that creates it?" His ads spoke of "the dignity of work". He invoked the need for social solidarity as a counterweight to the vagaries of the market. Obama seemed to be channelling an admixture of Franklin Delano Roosevelt and Pope Leo XIII.

But Obama's ace in the hole, especially with young voters and independents, was his promise to end the slash-and-burn partisanship that had made Washington politics so bitter, not only in George W. Bush's term, but during the Clinton years as well. Young people whose principal concern was abortion nonetheless recognised that the 20-year shouting match had manifestly failed to achieve progress on that issue. Young voters concerned about the environment or health care saw their aspirations shipwrecked on the rocks of partisanship. Voters aged 18-29 supported Obama by a margin of more than two to one.

Independent voters, by definition, do not respond to partisan appeals, so Obama's promise of a post-partisan approach to politics resonated with them. For these voters, it was precisely his ability to voice liberal policies in moral terms that were persuasive. Obama's focus on values with both a Christian as well as a liberal pedigree, such as solidarity and the dignity of work, served him especially well with these centrist, non-partisan voters and points the way forward as he re-negotiates the social contract in the wake of the economic meltdown.

Ironically, the issue that gave Obama a leg-up at the start of the race - his early and consistent opposition to the Iraq War - barely figured in the general election. Only 10 per cent of the electorate cited the war in Iraq as the most important issue in the election, compared with 63 per cent who said the economy was the most key issue for their vote.

Voters disapproved of the Iraq War by a margin of 63 per cent to 36 per cent as well. But, even here, the issue overlapped with the economy as Obama questioned why the US Government continued to spend billions in Iraq where the Baghdad Government is running a surplus, while failing to invest in important infrastructure projects at home.

The day after the election, US forces were still at war in both Iraq and Afghanistan. The stock market was still in the tank. The federal budget deficit was still at record levels. One shudders to think of the pressures that are breaking upon this relatively young politician from Illinois. But, like the last president from that state, Abraham Lincoln, Obama seems undaunted by the charge he has been given. His own unlikely story is the best evidence yet that America can overcome her challenges. Catholics, at least most of them, wedded their hopes for America to his.

Wednesday, November 12, 2008

"A New Day"

This piece, from First Things, by Fr. John Jay Hughes, is worth thinking about.  A taste:

The worst aspect of an Obama presidency, I have been telling friends for months, will be his Supreme Court appointments. They will set the so-called constitutional right to an abortion in concrete for years to come. While this remains true, Sen. Obama’s victory challenges pro-lifers in two ways.

We need first to recognize that politics is the art of the possible and that political battles can never be won by attacking our friends. During the annual march on Washington each January, some pro-lifers have had nothing better to do than to stage confrontations with pro-life members of Congress whose support they consider insufficiently militant. I received such an attack myself, during a previous presidential campaign, when a listener found the decibel count of a strong pro-life homily I preached too low. This is madness.

Second, we need to recognize that, for some years to come, abortion will be with us; we must support the kind of limitations on the practice which are in force in most other countries. To oppose such limitations on the grounds that they do not banish all abortions is also madness.

Beyond replacing political naivete with political savvy, the task before pro-life people now is to concentrate on the only task that will bring success in the fight for life: changing hearts and minds.

This is, of course, ex post advice.  That is, it seems clear that Fr. Hughes was not one of those arguing, ten days ago, that "changing hearts and minds" matters and good laws and clear-thinking Justices do not.  But, given the new (in his view, unfortunate) givens -- which seem to include a Congress and an Administration that will be strong proponents of abortion rights -- what to do?  Interestingly, his point is not, so far as I can tell, that those who oppose abortion should settle for re-packaging various spending programs as pro-life measures.  Instead, he suggests:

A good entry point for persuading people that abortion is wrong is pointing out the chilling similarities between the arguments for slavery in the 1850s and those used to defend abortion today. Like today’s pro-choice people, slaveholders said they weren’t forcing others to own slaves. They simply pleaded for the right to do what they wanted with their “property.” That word disguised, of course, the fact that human lives were at stake. The question of pro-choice people today, “Doesn’t a woman have a right to do what she wants with her body?” similarly disguises the fact that exercising these so-called rights involves taking a human life.

I wonder.  I wonder if Fr. Hughes is underestimating the trickiness, in a legal context that is thoroughly committed to the fundamental-right-ed-ness of abortion, of moving the ball with this kind of "pointing out"?  Is this really likely to be a "good entry point" (even if we assume, as I think I am willing to do, that there are instructive similarities)?  I just don't know.

Continue reading

[I thought that the links in this post, lifted from dotCommonweal, would be of interest to many MOJ readers.]

Abortion and the Law

Posted by Cathleen Kaveny

I have tried to link, in several posts or comments, to several things I’ve written over the years on abortion and the law in the U.S.  The links never worked.  But I finally figured out how to do it, thanks to our very talented technology folk at ND. So, if you are not sick of the topic, here they are.  I think these URLs all work.

http://www.nd.edu/~ndlaw/faculty/kaveny/How%20Views%20of%20Law%20Influence%20Pro-Life%20Movement.pdf

http://www.nd.edu/~ndlaw/faculty/kaveny/kaveny-thomist-abortion.pdf

http://law.nd.edu/people/faculty-and-administration/teaching-and-research-faculty/m-cathleen-kaveny

Tuesday, November 11, 2008

Comment on Nelson Tebbe on Exclusions of Religion from Government Aid Programs

I've posted a short paper on SSRN that will appear soon in the University of Pennsylvania Law Review's online format PENNumbra.  It's a comment on a longer piece by Nelson Tebbe (Brooklyn Law School).  Here is the abstract:

Among the most important recent questions under the Religion Clauses has been whether and when government programs that support private activities, such as education or social services, may exclude religious institutions or activities that include religious content. Nelson Tebbe's article, Excluding Religion, argues that government should have "considerable latitude" to make such exclusions, even though he concedes they will discourage citizens from choosing religious options. In this response, published in PENNumbra (the University of Pennsylvania Law Review's online companion), I argue that Tebbe's justifications for excluding religion fail if the protection of citizens' religious choices against government influence is a central purpose of the Religion Clauses. I then turn to the key question whether preserving religious choice is indeed central, and I argue that it is, based on precedent, on traditions and concepts associated with the Religion Clauses, and on the fact that they are counter-majoritarian while Tebbe's position gives majorities great discretion over religious matters.

"Real Change" is coming

The Catholic News Agency reports:

.- President-elect Barack Obama’s transition team is preparing the first actions of his presidency, planning to lift embryonic stem cell research funding restrictions and rules which prevent international organizations that receive U.S. aid from counseling women about the availability of abortion.

The latter rules, known as the “Mexico City Policy,” were developed under the Reagan administration, revoked by the Clinton administration, and restored by President George W. Bush’s administration. 

Cecile Richards, president of Planned Parenthood Federation of America said her organization had been communicating with Obama’s transition staff almost daily. “We expect to see a real change,” the Washington Post reports.

...

The Conversation That Will Happen A Little Later

Readers may remember that we had initially scheduled our MOJ conversation on sexual ethics for the second week of December, to begin with a discussion of Margaret Farley's book, "Just Love."  Due to some unforeseen difficulties with our schedules, we have decided to move this conversation to late spring.  The conversation will happen, just a little later than planned.  Thanks for your patience, we look forward to it.  Michael P., Michael S. and Amy

More Election Reflections: Limited Options

Continuing the discussion with Sean and Susan about whether “don’t vote for Obama” necessarily translated into “vote for McCain,” I think we also have to look at the practical reality of how our two-party system operated in the 2008 election.  From what I recall of my New York ballot in 2004, there was a “right to life” option that year which could have sent a signal of one’s dissatisfaction with both parties.  This year, at least in New York, the “right to life” party was no where to be found.  Someone please correct me if I’m wrong (and I haven’t done any homework on this topic at all), but I am assuming that this year for strategic reasons the "right to life" party was essentially absorbed into the Republican party?  In any case, it was not an option on my ballot, in any of the races.  I think this practical reality sharpens Susan’s concerns: if one was not inclined to vote for McCain, the only seemingly "pro-life" alternative was to not vote at all. 

Moral Guidance?

Regarding Sean's comment, whether it was "vote Republican" or "don't vote for Obama," it is the "or be eternally damned" part of the sentence (which is pretty close to the exact language I heard in one radio quote) which for me moves the statement out of the realm of moral guidance.

Let me be clear.  I don't think there is anything wrong with a bishop saying some version of, "Here is how I weigh things out...here is how I believe the principles apply in comparing candidate x and candidate y....here is why I don't think candidate x's positions on other issues outweigh his position on an instrincis evil.." and any number of other variations.  In fact, I think such statements consitute entirely appropriate moral guidance and are an important part of helping people to form their consciences.

Where Sean and I appear to differ is whether it constitutes moral guidance (as opposed to moral oppression) for a Biship to tell voters they may not come to a particular judgement without risking eternal damnation.  I do not believe that is something that helps form consciences and therefore don't find it to be consistent with the spirit of the document. 

It is also the case that a number of Catholic leaders did more than say "Don't vote Obama."  My recolleciton now is that some of the statements sounded a lot more like Republican endorsements.

More Election Reflections

Sean Dudley appreciates the opportunity to participate in this discussion with Professors Stabile and Uelmen (here). He says:

In response to Prof. Stabile's recent post, I have to say that I don't recall any of the outspoken anti-Obama bishops demanding that I vote Republican, but only that I *not* vote for Obama.  "Forming Consciences" states that when individual voters are presented, as in this election, with mainline candidates who each support intrinsic evils (McCain supports embryo-destructive research), we may choose (1) to support the candidate whom we perceive as the lesser of two evils that will do the most good elsewhere, (2) to vote for a non-mainline candidate who supports no intrinsic evils, or (3) not to vote at all.

When these bishops said that no proportionate reason could justify a vote for Obama, they left open all of the possibilities available under the document except for voting for Obama, who they said could not be the lesser of two evils in this election.  As I see it, that is moral guidance, not moral oppression, and it is an application of the joint statement, not a departure from it.

If a bishop DID say that we had to vote for John McCain, that statement would conflict with "Forming Consciences."  We should not, however, read a pro-McCain message into every anti-Obama statement made during the election season.  So assuming would evidence a mindset on our part that we were morally required to vote for a main-party candidate, which is itself a departure from "Forming Consciences."  As with the Ten Commandments and the Constitution, a "Thou shalt not" from a bishop leaves open plenty of "Thou mayest"s.