Friday, August 29, 2014
A very interesting essay in Christianity Today on the author's experience at Vanderbilt with its "all comers" policy. One feature of the piece that struck me was how such policies end up flattening out beliefs or creeds as such. The terrible problem seems to be that people have distinctive beliefs. The policy's aim seems to be to compel all associations to reflect certain core commitments, which in turn destroys their own distinctive creeds, thereby demolishing what is special about them in the first place:
In writing, the new policy refers only to constitutionally protected classes (race, religion, sexual identity, and so on), but Vanderbilt publicly adopted an "all comers policy," which meant that no student could be excluded from a leadership post on ideological grounds. College Republicans must allow Democrats to seek office; the environmental group had to welcome climate-change skeptics; and a leader of a religious group could not be dismissed if she renounced faith midyear. (The administration granted an exception to sororities and fraternities.)
Like most campus groups, InterVarsity welcomes anyone as a member. But it asks key student leaders—the executive council and small group leaders—to affirm its doctrinal statement, which outlines broad Christian orthodoxy and does not mention sexual conduct specifically. But the university saw belief statements themselves as suspect. Any belief—particularly those about the authority of Scripture or the church—could potentially constrain sexual activity or identity. So what began as a concern about sexuality and pluralism quickly became a conversation about whether robustly religious communities would be allowed on campus.
In effect, the new policy privileged certain belief groups and forbade all others. Religious organizations were welcome as long as they were malleable: as long as their leaders didn't need to profess anything in particular; as long as they could be governed by sheer democracy and adjust to popular mores or trends; as long as they didn't prioritize theological stability. Creedal statements were allowed, but as an accessory, a historic document, or a suggested guideline. They could not have binding authority to shape or govern the teaching and practices of a campus religious community.
Wednesday, August 27, 2014
As an advocate and practitioner of judicial googling, I'm hoping that Judge Posner will eventually come across Ryan Anderson's "7 Reasons Why the Current Marriage Debate Is Nothing Like the Debate on Interracial Marriage." If he had been able to read it before yesterday's oral arguments, perhaps Bloomberg's headline would be something other than "Appeal Judge Sees Tradition of Racism in Gay-Marriage Ban."
At a time when "metrics" and "assessment" are the watchwords in legal education (and elsewhere), this nice reflection (in the University of Notre Dame student newspaper) by my friend, Fr. Joe Corpora, might be helpful. A bit:
We need to know our nothingness, our lowliness and our emptiness. The more we empty ourselves of pride and worldly worth, the more God can fill us with himself. The more we humble ourselves, the more God can exalt us. It’s a complete reversal of the world’s values as we experience them day-to-day. And since we are terrified to be “nothing,” we are always looking for ways to prove that we are something.
If we are nothing, what can make us feel like we are something? Data, metrics and graphs: things that calm our fears with numerical assertions of our importance. These can make us feel like we’re somebody big and we’re going somewhere important. I lament that the Church and her institutions have become more and more addicted to data and metrics during the past 40 years. Is this addiction to data and metrics related to Mary’s fading into the background and our corresponding loss of knowing our dependence on God? . . .
Tuesday, August 26, 2014
Various news sources are speculating about the case of the former papal nuncio to the Dominican Republic, Josef Wesolowski, who is alleged to have sexually abused children and youth in the country where he served. Much of this speculation, often accompanied by misleading headlines of various articles, is just that, opinion and conjecture. There is not a whole lot of appreciation or analysis of the law of the Church and of nations that applies to this case.
Let’s start with the law of the Church. All things being considered, it appears that the Holy See acted as expeditiously as any sovereign would be obliged to do in reining in its natural person subject, i.e., Josef Wesolowski, through the exercise of the nationality principle (Wesolowski held and used a diplomatic passport of the Holy See). This is not the law of the “Vatican” or the Church or Holy See but the law of nations, i.e., public international law. Along with complementary norms of the Code of Canon Law, this principle of the law of nations would explain Wesolowski’s recall to Rome and the initiation of due process against him—a principle which applies to all sovereigns temporal and spiritual. It is the principle of personal jurisdiction which has led to his dismissal from the clerical state, i.e., his laicization. Some commentators do not understand the significance of this element of the juridical process. As a cleric, I can assure anyone that this is a legal event of profound legal, ecclesiastical, and moral significance. To many non-clerics, it may seem nothing or a mere tap on the wrist. In reality, it is something of momentous significance.
In the further exercise of due process, Wesolowski has appealed the decision resulting in his laicization. Of course, many defendants—be they engaged in civil or criminal proceedings—have the juridical right to appeal most decisions that are unfavorable to them. Mr. Wesolowski has exercised this right as it is the right of any defendant. Due process does not stop with the initial decision in most contested matters, nor does it stop with Wesolowski’s laicization.
Mr. Wesolowski has allegedly committed wrongs against his victims and against his priestly state that has led to his laicization, but he has also committed crimes against the law of the sovereign that issued his nationality as a diplomat. As long as he was a recognized diplomat, he enjoyed diplomatic privileges and immunities against the receiving country, i.e., the Dominican Republic, under public international law. The Holy See is a party (1964) to the Vienna Convention on Diplomatic Relations (1961) which specifies that diplomats are protected from virtually all law enforcement in the country where they serve. As Article 31 of the Convention states, “A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.” The Convention does have exceptions to this principal rule, but they do not seem to apply to the Wesolowski case.
If things get complicated for the diplomat because of actions that are covered by Article 31 of the Convention, he or she can be recalled by the sending state (here, the Holy See) or declared persona non grata by the receiving state (here, the Dominican Republic) and expelled. It is not appear that the Dominican Republic expelled Wesolowski, but it is clear that the Holy See recalled him and brought the initial legal action against him in the form of laicization and the removal of his diplomatic immunity.
It must be remembered who and what are protected by the doctrine of diplomatic immunity: it is for the protection of the sending sovereign (the Holy See). While the diplomat can benefit from the protection of diplomatic immunity, the doctrine does not subsist principally for the protection and convenience of the individual diplomat himself or herself. It exists under international law for the sending state which sent the diplomat so as to augment the efficient performance and functioning of diplomatic missions.
The legal doctrine of diplomatic immunity raises further issues about additional due process matters. This is clear from Article 32 of the Convention which posits that, “The immunity from jurisdiction of diplomatic agents… may be waived by the sending State” and the waiver ‘must be express.” But it is the sending State, here the Holy See, that makes this call. As the Holy See has stripped Wesolowski of his diplomatic immunity, it appears that further legal proceedings in the Vatican are pending against him. It would therefore be premature to suggest at this stage that Mr. Wesolowski has escaped justice that includes justice and its due process in the Dominican Republic and his native Poland. As his immunity has been purged, Mr. Wesolowski is subject to additional due process of law by any competent legal authority which has a rightful claim of jurisdiction over him. This could mean the legal authorities of the Holy See and the Vatican City State or the Dominican Republic or his native Poland.
One final point needs to be made now even though many more things can and need to be said about this case. There may be some plaintiffs’ counsel who will see the legal actions taken by the Holy See and the Church against Mr. Wesolowski as presenting an opportunity to sue the Holy See in the courts of the temporal authorities for the wrongs allegedly committed by him. I am confident that the Holy See and the Church will rely on the principles of public international law that have protected other sovereigns from liability from the wrongs perpetrated by their diplomats who committed grave wrongs against the citizens of receiving states and betrayals of the service to which Wesolowski pledged himself on behalf of the Holy See and the Church. Here one cannot dismiss the good will exercised by the Holy See with any competent legal authority concerning the means of redressing the wrongs he allegedly committed. They have apparently caused great wrongs against the people of the Dominican Republic, and they have also caused great offense against the Holy See and the Church, both of which have the legal right to proceed against him. To contend that only the Dominican Republic and her people have been wronged and the Holy See and the Church have not would generate a new injury; but this last injury has redress in the law of nations, too.
Friday, August 22, 2014
Prof. Arkes' response to Prof. Miller's recent Public Discourse essay ("Prof. Arkes and the Law") is up, as is Prof. Miller's rejoinder, "What Reason Can Know and What Government Should Legislate." My own thoughts on the matters under discussion are very close to Prof. Miller's. I continue to be puzzled by some of Prof. Arkes' (and others') criticisms of RFRA or of the arguments of the lawyers and judges whose have the jobs of interpreting and applying it. If the point is simply that the RFRA regime reflects premises about "religion", "belief", etc. that connect imperfectly with the Truth, then I say, "sure, but so it goes."
Here's a bit, from the rejoinder:
In my article, I argued that conferring on public officials a general power to inquire into moral or religious truths is dangerous because such people are no better than anyone else at sorting out true beliefs from false ones and they are just as likely as everyone else to think that ideas different from their own are unreasonable or perverse. Because of this, Arkes speculates that I may have “lost confidence that there is indeed a discipline of reason that may guide and restrain judges, as it guides and retrains everyone else.” Now, I have often said that I am an Aristotelian-Thomist in morals, and so there can be no doubt that I believe that reason can determine what is moral and what is immoral. Arkes’s question is helpful, however, because it highlights what I think is the central confusion in his position.
That is, Arkes consistently runs together what reason, in some abstract philosophical sense, can know, with what we can expect from the efforts at reasoning of particular human beings. The first is a question of whether certain sound arguments exist; the second is a question of how likely particular human beings are to discover and embrace these arguments. These are very different things. . .
Read the whole thing(s).
Thursday, August 21, 2014
Wednesday, August 20, 2014
Last month I wrote about a satanic black mass, which is scheduled to be held in Oklahoma City in September. Earlier this month, Archbishop Coakley called for prayer and penance to avert the planned sacrilege. In addition to Holy Hours, Eucharistic Processions, and Benediction, the Archbishop is asking all Catholics to say the Prayer to St. Michael the Archangel now though September 29 (the Feast of the Archangels). Please join us in this prayer.
Today, the Archdiocese filed a Petition for Replevin against the organizers, contending that the consecrated host that the organizer claims to possess "must have been procured, either by that person or by another, by illicit means: by theft, fraud, wrongful taking, or other form of misappropriation." Here is a link to the Petition.
Michael Caspino of Busch & Caspino (Irvine, Ca.) and Chris Scaperlanda of McAfee & Taft (OKC) represent the Archdiocese. Yes, I'm a proud dad.
Tuesday, August 19, 2014
A couple of months ago, I posted up a brief message on the publication of my first novel, Marital Privilege, by North Star Press. I promised to post something more about it a few days later, but the summer got away from me, with launch party, book signings, distributions to incoming St. Thomas law students, and of course multiple other scholarly and professional projects. But now is a good time for me to follow up, as the novel is now available on Kindle at Amazon and on the Nook at Barnes&Noble.
The lead character in Marital Privilege is a law professor, and, while I should warn sensitive readers that the story begins with tragedy, the novel has themes of law, faith, and hope in the middle of tragedy. A distinctly Catholic sensibility will be found throughout the story.
Here is the back cover description:
Candace Klein is one of the lucky ones in her professional life, finding genuine meaning in her work as a law professor. But her personal life is troubled by a growing distance from her husband, Bill, who languishes in a dead-end job working for her father.
Suffering the horrific loss of her child in a car bombing, Candace grieves and seeks solace in her faith. Then a politically-climbing prosecutor, Robby Sherburne, takes control of the criminal investigation and promises the death penalty for a child-killer. Meanwhile, Ed Burton, a suburban cop, simply tries to follow the evidence where it leads.
When her husband becomes the target of the investigation, Candace asserts the “marital privilege” and refuses to cooperate. This ultimately provokes a crisis of identity between her professional commitment to the justice system and her resolute loyalty to her husband.
More information about the novel can be found here.
Prof. Robert Miller (Iowa) has a nice essay up at Public Discourse in which he responds to the argument that Prof. Hadley Arkes (and some others) has made, that is, "that the plaintiffs in Burwell v. Hobby Lobby, most of their supporters in the public square, and Justice Alito in his majority opinion in the case have adopted a mistaken and dangerous understanding of religious freedom." (I addressed this argument in this post, and Prof. Arkes responded here.)
Here is a taste (but I recommend reading the whole thing):
. . . In the law of religious freedom, the morality of the religious practices of the man who claims a right to religious freedom is relevant, but so too are many other considerations. Once again, it matters that the law is a system administered by imperfect human beings. In particular, long and sad experience has shown that legislatures and courts are not good at sorting out true religious beliefs from false ones, and majorities, whether religious or non-religious, tend to persecute religious minorities, which produces social strife and sometimes bloodshed. Even when a law is not aimed at restricting a minority’s religious practices, if the law in fact does so, such pernicious consequences often follow. This means that, sometimes, even though a certain religious practice is based on false beliefs and is morally wrong, nevertheless making a law to suppress that practice is wrong too. For just such reasons, our law includes provisions like the religion clauses in the First Amendment and the Religious Freedom Restoration Act (RFRA), which limit the government’s involvement and interference in religious matters. . . .
Two items--one new and one old--on the declaratory theory of law, whose absurdity seems to be taken for granted in our own day.
First, a very rich and subtle paper by Alan Beever, The Declaratory Theory of Law, 33 Oxford Journal of Legal Studies 421 (2013). Here is the abstract:
This article examines the declaratory theory of law and defends it from the most prominent modern attack on it. It explains that the real declaratory theory is not the caricature of it criticized in modern writing and that, in fact, the theory properly understood is remarkably close to the position adopted by some of the theory’s most notable opponents. The article further examines the common law’s continuing commitment to the declaratory theory, a commitment that remains strong despite the considerable hostility of the academy. It explains that this commitment reflects the nature of the common law.
And from the paper:
[John Hamilton] Baker [in his volume, An Introduction to English Legal History] utilizes an example to illustrate his analysis of the declaratory theory as it relates to equity. This ′stock example′ is that of a debtor who gave a creditor a sealed bond, who later repaid the money, but did not make sure that the bond was cancelled. Imagine that A borrowed money from B and gave B formal written evidence of this debt, later repaid that money, but did not cancel the document that he had given B. In these circumstances, the common law courts treated the bond as irrefutable proof that the debt still existed. Hence, even if A could prove that he had repaid the debt, the common law courts held such evidence to be irrelevant. This is where the Court of Chancery stepped in, ensuring that the debtor did not have to pay twice, thus altering the outcome that the common law alone would have produced. How can this be understood as fulfilling the law?
As Baker argues, ′it was not that the common law held that a debt was due twice ... such [a] proposition ... would have been dismissed as absurd′. In other words, it was a principle of the common law that debts must be paid only once, or rather that a (once) paid debt no longer exists. However, the common law was unable to enforce its own principle, because it also insisted on a high degree of certainty that meant that written deeds trumped oral evidence no matter how probative the latter was. Hence, equity fulfilled the common law by producing the result that the common law would have produced were its rules of evidence less pedantic. It did so, not by maintaining that the debt had been paid and so no obligation existed. That would have involved too direct a confrontation with the common law. Instead, it insisted that, though the obligation existed, it would be unconscionable for the creditor to enforce it.
Here, then, we see equity being applied in order to produce the results called for by the principles of the common law, where the common law was unable to achieve those results because of some impediment. Though the creation of this equitable rule changed the positive law, it did so in accordance with the principles of that law and in that sense preserved and fulfilled the law. It was surely in this sense that the medieval councillors and chancellors believed that they were declaring what the law already was. Of course, they were aware that they were altering the positive law. They knew that but for their judgments B could enforce the debt and that it was their judgments that prevented that from happening. They knew that this amounted to a change in what is now called the law. In fact, they made their judgments quite self-consciously in order to produce that change. But they believed that they did so in accordance with the principles of the law. To repeat Baker′s words, ′They were reinforcing the law by making sure that justice was done in cases where shortcomings in the regular procedure, or human failings, were hindering its attainment by due process. They came not to destroy the law, but to fulfil it.′
Second, this review of an interesting looking volume on Lord Coke by Elio A. Gallego Garcia, Common Law: El Pensamiento Politico Y Juridico De Sir Edward Coke. From the review:
As Gallego puts it, every conception of the law is defined by three great questions: is the law the product of the will or of the reason? Do we recognize or not a natural law superior to any human law? And finally, what role has custom in relation to the positive law? Coke’s vision of the law is extremely relevant to our days. We have grown used to judges who reinterpret laws in the most curious ways, typically in accordance with their own views of the good rather than the language of the law before them.
This spectacle seems unstoppable, in the United States at least. But Coke, a person who devoted his whole life to the law, tells us something completely different. Law is not something we construct: it already exists. We receive it, we discover it, and we declare it. Judges cannot reshape it, doing violence on it to make it fit the latest sociological fashion. The attempt resembles more the old sophists who were good at distorting reality but unable to found a just society.
From this perspective, we can better understand a sentence of Coke’s that was important in igniting Gallego’s interest in him. It says: “Reason and authority are the two brightest lights of the world.”
August 19, 2014 | Permalink
Monday, August 18, 2014
Here is the Call for Proposals for the annual Nootbaar Institute conference, confirmed speakers for which include several MOJ contributors.
CALL FOR PROPOSALS
Wisdom, Law, and Lawyers
PEPPERDINE UNIVERSITY SCHOOL OF LAW, MALIBU, CALIFORNIA
FEBRUARY 27-28, 2015
At a time when law is seen by many as purely a matter of power politics and the lawyer’s role as purely a matter of pursuing client economic interests, we want to consider how wisdom should influence deliberations in legislative chambers, courts, and lawyers’ offices. Both theoretical wisdom and practical wisdom have much to say about law. We hope to learn from many traditions, both religious and secular. Please join us for the conversation. The following speakers are already confirmed:
William S. Brewbaker III, William Alfred Rose Professor of Law, University of Alabama School of Law
Jonathan Burnside, Professor of Biblical Law, University of Bristol, England
Alberto R. Coll, Professor of Law, Director, European and Latin American Legal Studies Program, Director, International Law LL.M. Program, DePaul University College of Law
Daisy Hurst Floyd, Dean and University Professor of Law and Ethical Formation, Mercer University School of Law
Samuel J. Levine, Professor of Law & Director, Jewish Law Institute, Touro Law Center
Tremper Longman III, Robert H. Gundry Professor of Biblical Studies, Westmont College
Benjamin V. Madison III, Professor and Co-Director of Center for Ethical Formation and Legal Education Reform, Regent University School of Law
Rick Marrs, Provost, Pepperdine University
Russell G. Pearce, Edward & Marilyn Bellet Professor of Legal Ethics, Morality and Religion Fordham University School of Law
Ellen Pryor, Professor and Associate Dean for Academic Affairs, UNT Dallas College of Law
Michael Scaperlanda, Gene and Elaine Edwards Family Chair in Law and Professor of Law, University of Oklahoma College of Law
Brett Scharffs, Francis R. Kirkham Professor of Law and Associate Dean for Research and Academic Affairs, J Reuben Clark Law School, Brigham Young University
Steven D. Smith, Warren Distinguished Professor of Law and Co-Executive Director, Institutes for Law & Religion and Law & Philosophy, University of San Diego
Susan Stabile, Professor of Law and Faculty Fellow for Spiritual Life, University of St. Thomas School of Law
Deanell Reece Tacha, Duane and Kelly Roberts Dean, Pepperdine University School of Law
David VanDrunen, Robert B. Strimple Professor of Systematic Theology and Christian Ethics, Westminster Seminary, California
Cheryl Wattley, Professor of Law, UNT Dallas College of Law
R. George Wright, Lawrence A. Jegen III Professor of Law, Indiana University Robert H. McKinney School of Law
The conference will be organized around three general themes:
1. The Nature of Wisdom – What do our traditions teach about the nature of wisdom? Speakers are likely to address the conference topics from Greek, Jewish, Christian, Islamic, Buddhist, and Confucian perspectives.
2. Wisdom and Law - The Hebrew and Christian Bibles’ Wisdom Literature identify wisdom as both a source of law (by wisdom "lawgivers establish justice," Proverbs 8:15) and an end of law (God's ordinances "make wise the foolish, Psalms 19). What is (and what should be) the relationship between wisdom and law? How might wisdom influence some of the issues that confront nations today?
3. Wisdom and Lawyers – In recent decades, legal profession scholars have identified practical wisdom as the key lawyer virtue. Have developments in the profession and the legal market made it more difficult for lawyers to exercise that virtue. In today’s legal world, can lawyers or clients be, in Jesus’s phrase, both "wise as serpents and innocent as doves"? How should wisdom influence a lawyer’s work? Is it even possible for wisdom to influence a lawyer’s work in the current state of the legal profession?
Feel free to propose any topic that would fit within this broad range of themes.
If you would like to present a paper or organize a panel, please submit your proposal by Friday, September 19, 2014 via email to firstname.lastname@example.org. Proposals should be two pages maximum and should include a short abstract and a bio.
If you have questions about the substance of the conference, contact Bob Cochran at email@example.com. For questions about the details of the conference, contact the Nootbaar Institute office by email, firstname.lastname@example.org or by phone, (310) 506-6978.
For more information on the conference as we have it and to view details of past conferences, see:
The conference will be co-sponsored by Pepperdine’s Nootbaar Institute on Law, Religion, and Ethics and the Glazer Institute for Jewish Studies.
[MOJ reader Christian E. O'Connell wrote and sent in the following and -- with his permission -- I am posting it here]:
RFRA, the Pitchfork and the Crozier
Christian E. O’Connell [*]
Will no one rid Professor Marci Hamilton of these turbulent priests?
The Cardozo law professor’s resentment at the meddlesome shepherds of the Catholic Church is palpable in her new essay (“The Circle Starts to Close”) at Justia’s Verdict. The U.S. bishops pressed, albeit unsuccessfully, for an abortion-related exception to the Religious Freedom Restoration Act (“RFRA”) at the time of its enactment; they’re currently “sinking who-knows-how-much-money” into RFRA litigation to avoid being compelled to provide what Hamilton terms “cost-free contraception coverage.” Perhaps most insolent of all in Hamilton’s tally of grievances, the bishops “lobbied like crazy” alongside evangelical Protestants and others for informed consent laws requiring physicians to provide certain information to women seeking elective abortions.
Now that an ostensibly religious organization called the Satanic Temple has commenced a campaign to avail its women members of a RFRA exemption to state informed consent laws, Hamilton is gratified by the prospect of seeing the Catholic episcopate hoist with its own petard. By Hamilton’s reckoning, the road to the Satanic Temple’s victory is paved with the intentions of those who, like the bishops, welcomed the U.S. Supreme Court’s decision in Burwell v. Hobby Lobby.
Sunday, August 17, 2014
Remarks by Robert P. George at the
Annual Ahmadiyya Muslim Convention
Friday, August 15, 2014
It is a pleasure to join you at this Jalsa Salana (annual convention). Thank you for inviting me to share some reflections, and for the high honor of receiving the Ahmadiyya Muslim community’s 2014 Humanitarian Award.
I’d like to frame my remarks by noting two dates, one from just weeks ago, the other of which we will mark just weeks from today.
On July 27 of this year, in Pakistan’s Punjab province, an Ahmadi woman and her two granddaughters, including a seven-year-old and her baby sister, were burned alive in a mob attack which left nine other Ahmadis badly burned.
And on September 7 we will mark the 40th anniversary of the passage of an amendment to Pakistan’s Constitution which declared that Ahmadis are non-Muslims in that country.
Taken together, these injustices underscore the plight of the Ahmadiyya today, especially in Pakistan, where the forces of intolerance and hatred continue their assault on your community and religious freedom.
This assault takes place in a world in which 75 percent of people, including millions of Ahmadiyya Muslims, live in countries which grossly violate this precious right.
Simply stated, the war against the Ahmadiyya is part of a global war on freedom and dignity.
So what is behind this global war?
More than any other factor, it is the continued operation of a truly unique and monstrous idea – first introduced in the last century -- that some have called totalitarianism.
It’s an idea that says that we can perfect the world if we grant fanatical leaders and political movements unlimited power and authority to remake humanity as they see fit – elevating these leaders and movements to godlike status, above every law and custom, every belief and institution, and every moral norm and precept in history.
In the 1930s and 1940s, this evil idea threatened the world through Nazism and other forms of fascism, which hijacked loyalty to nation as the vehicle for its unlimited aims.
After World War II, with Nazism defeated, its greatest threat was from Communism, which hijacked economic class for the same purpose.
By the close of the 20th century, these two movements had committed every crime imaginable, from assaults on conscience to the perpetration of genocide. When the dust had settled, nearly 150 million human beings had perished.
Today, while we still see that threat coming through Communism, particularly in China, which remains a world-class human rights and religious freedom violator, we see something else as well:
We see how the same extremist, totalitarian impulse which drove Nazism and Communism has now hijacked religion as its latest vehicle, resulting in the same horrifying outcomes for humanity.
From ISIL and al Qaeda to the Taliban and the Iranian leadership, these new totalitarians have unleashed terror and tyranny on a global scale.
Across the world, they have launched terror attacks on civilians, obliterating all traditional distinctions between combatants and non-combatants – exactly as the Nazis and Communists did.
In Iraq, they brutalize men, women, and children and threaten the lives and liberties of religious minorities and most of the Muslim majority.
From Afghanistan, they launched the 9/11 attacks and seek again to destroy every human right, from religious freedom to the rights of women.
In Pakistan, they have assassinated leaders and target both Muslims and religious minorities who dare to dissent from their beliefs.
In Iran, they control the government and regularly execute religious dissenters while supporting terrorist groups around the world.
And let me add that wherever the Ahmadiyya are violently persecuted, it is these extremist, totalitarian forces that are leading the charge.
Now let’s be clear:
These forces cannot possibly represent authentic Islam or any other religion.
No religion on the face of the earth, including Islam, ever stood, as these forces do, and as their Nazi and Communist cousins did, for the idea that leaders and their followers may break any law, commit any crime, perpetrate any atrocity, without being accountable to anyone or anything.
And that leads us to a question:
These extremist forces call themselves Islamic, but how can they be when they view hundreds of millions of Muslims, as well as non-Muslims, as legitimate targets for abuse and death?
Make no mistake: This is not a struggle of religion against humanity. Rather it is a struggle of tyranny against freedom—the same struggle that Nazism and Communism waged against the world in their day.
Violent Islamist extremists who murder, rape, and pillage, violating every norm of morality, dishonor God by their crimes and doubly dishonor him by claiming to commit them in His name. They say that you are not true Muslims; I say that they are not true Muslims.
You, the Ahmadiyya, find yourselves in the midst of the struggle. Let me highlight for the record what you know so well.
In Pakistan, under pressure by totalitarian extremists and their supporters, its government and constitution still label Ahmadis as “non- Muslims.”
Pakistani law bars Ahmadis from calling their worship centers “mosques,” from publicly uttering the traditional Islamic greeting or quoting from the Qur’an, and from displaying the basic affirmation of Islam.
It prohibits the Ahmadiyya from sharing or publishing their beliefs, restricts them from building houses of worship and holding public meetings, and prevents them from voting unless they register as non-Muslims.
Worst of all, the same extremist forces which cheer on the government when it deprives Ahmadis of their religious freedom also unleash horrific violence and death, as we saw in the July 27 attack and countless other atrocities.
For these and other reasons, our commission continues to call for the United States to designate Pakistan a country of particular concern, marking it as among the worst religious freedom violators in the world.
Unfortunately, these anti-Ahmadiyya forces are not limited to Pakistan. In Indonesia, violent extremist forces since 2008 have vandalized at least 50 Ahmadiyya mosques, and continue to pressure officials to close places of worship or ban Ahmadiyya activity altogether. In Saudi Arabia, Ahmadiyya members have been deported for their beliefs. In Egypt, they have been charged under its blasphemy laws. In 2010, USCIRF’s intervention helped a number of members leave Egypt for safety abroad.
From these examples, one thing is clear. Those behind the persecution of the Ahmadiyya Muslims are some of the worst enemies of human freedom and dignity.
But what a refreshing difference there is between you and your persecutors.
Unlike them, you believe that people have inherent dignity, worth, and God-given rights which no movement or government can ever take away.
You believe that human beings were created for fellowship and peace.
You believe in the right of every member of the human family to worship freely according to conscience.
And after 9/11, it was you, the Ahmadiyya Muslim community, who put your beliefs into action. You literally gave your blood to our nation, donating more than 25,000 bags of blood in memory of those who perished that day.
Unlike your persecutors’ message of tyranny and hate, yours is a voice for reason and freedom. You advocate not only for yourselves but for the rights and dignity of others.
At stake is nothing less than the future of humanity. At stake is what kind of world we will one day hand over to our children and to our children’s children. Will it be a world of light, love, and liberty, or will it be a world of darkness, despair, and despotism? Will it be a world where dignity shines, or where dehumanization dominates?
And so my Ahmadi friends, my brothers and sisters, let us continue to stand together, to work together, to persevere together. Let us offer ourselves as God’s servants for freedom and dignity, life and liberty, humanity and decency.
Thank you, my dear friends. God bless you.
August 17, 2014 | Permalink
Friday, August 15, 2014
A Second Court Victory in a Week for the Dignity of Prisoners (and for the University of St. Thomas and University of Arkansas Clinics)
For I was ill and you cared for me, in prison and you visited me. Matthew 25:36
A couple of days ago (here), I was delighted to report a victory for a prisoner’s right to confidentiality in correspondence with his attorney in a published Ninth Circuit decision (here). Scott Nordstrom, a death row inmate whose legal mail was read when he was challenging his conviction, was represented by the University of St. Thomas Appellate Clinic, which I supervise.
Just three days after that decision, the Ninth Circuit affirmed the human dignity of prisoners again in another case involving our UST Appellate Clinic, in which the lead was taken by our partners at the University of Arkansas Federal Litigation Project supervised by my colleague Professor Dustin Buehler and which was argued to the court by students (now graduates) Mason Boling and Lauren Murphy.
In Colwell v. Bannister (decision here), a prisoner who had suffered from blindness in one eye due to cataracts for a decade challenging the prison’s refusal to grant surgery despite the recommendations of his doctors. Yesterday, the Court of Appeals reversed the District Court’s grant of summary judgment to the Nevada Department of Corrections.
In words that speak eloquently to the fundamental dignity of all persons, including our neighbors held in prison, the Ninth Circuit held “that the blanket, categorical denial of medically indicated surgery solely on the basis of an administrative policy that ‘one eye is good enough for prison inmates’ is the paradigm of deliberate indifference.”
Thursday, August 14, 2014
Dr. Donald Drakeman has posted a thoughtful response to my short essay, "Freedom of Religion and the Freedom of the Church" (about which I posted the other day), at the Law & Liberty blog. Drakeman's response is called "Negotiating the Freedom of the Church." He notes, among other things:
As the religious mission moves out of the church and toward more direct contact with the world, however, the rest of the world may push back. The polls say that there is some support, albeit more limited, for the concept of the church carrying its religious freedom rights into the world. Accordingly, as in Cardinal George’s message, churches may need to articulate not only the religious importance of their educational and healing missions, but also the practical importance to society of the churches’ continuing to maintain them. . .
Read the whole thing, and also John Inazu's contribution, "Freedom of the Church Not Freedom of Religion."
I thought this essay, by Samuel Goldman, was interesting and thoughtful. The basic idea: One possible response to the MacIntyre-ian conclusion that "we live amidst the ruins of Western civilization" is -- as readers of After Virtue remember -- the so-called "Benedict Option." Goldman discusses another possibility, the "Jeremiah Option" -- a strategy that "[t]he Hebrew Bible and Jewish history suggest . . . according to which exiles plant roots within and work for the improvement of the society in which they live, even if they never fully join it."
This strategy lacks the historical drama attached to the Benedict Option. It promises no triumphant restoration of virtue, in which values preserved like treasures can be restored to their original public role. But the Jews know a lot about balancing alienation from the mainstream with participation in the broader society. Perhaps they can offer inspiration not only to Christians in the ruins of Christendom but also to a secular society that draws strength from the participation of religiously committed people and communities.
Check it out. Thoughts welcome.
UPDATE: Bryan Kern suggests some additional "options":
atheism as the need to respond adequately to many people’s thirst for God, lest they try to satisfy it with alienating solutions or with a disembodied Jesus who demands nothing of us with regard to others. Unless these people find in the Church a spirituality which can offer healing and liberation, and fill them with life and peace, while at the same time summoning them to fraternal communion and missionary fruitfulness, they will end up by being taken in by solutions which neither make life truly human nor give glory to God."
Tuesday, August 12, 2014
A Victory for Confidentiality in Prisoner Legal Correspondence With Lawyers: University of St. Thomas Appellate Clinic
For I was in prison and you visited me. (Matthew 25:36)
As lawyers, we have the opportunity and means not only to follow Christ’s call to visit those in prison but to use our privileged access to the legal system to directly assist those in prison, by seeking to overturn wrongful convictions, by challenging unjust and excessive sentences, and by working to uphold the dignity of the “neighbor” who is subject to incarceration.
As lawyers who work regularly with prisoners are painfully aware, it is always an uphill battle to present a prisoner’s plea to a court. But as a testament to the ever-present (if sometimes seemingly dormant) potential for genuine justice in our court system, a deserving prisoner does win one, at least once in a while.
So I am delighted to report a victory in the Ninth Circuit yesterday for the basic right of prisoners to correspond with their lawyers without such legal mail being read by prison officials — a success attributable to the persistence of a death row inmate, Scott Nordstrom, and to the legal representation we were able to provide him through the University of St. Thomas Appellate Clinic.
Consistent with our Catholic social justice mission at the University of St. Thomas, we’ve established an Appellate Clinic in which I work with a team of students to provide pro bono representation to pro se parties in federal appellate litigation. Over the past year, Michelle King and Joy Nissen Beitzel, now recent graduates of the law school, have been working with me on a case involving an Arizona death row inmate, Scott Nordstrom, who challenged the prison’s policy and practice of reading inmate correspondence with attorneys. We were supported in this effort by our partners at the University of Arkansas Federal Appellate Litigation Project: Professor Dustin Buehler and students Mason Boling and Lauren Murphy
Monday, August 11, 2014
A Plea on Behalf of Victims of ISIS/ISIL Barbarism in Iraq
It is imperative that the United States and the international community act immediately and decisively to stop the ISIS/ISIL genocide and prevent the further victimization of religious minorities. This goal cannot be achieved apart from the use of military force to degrade and disable ISIS/ISIL forces. President Obama was right to order airstrikes against ISIS/ISIL to stop its advance on key cities, as well as to provide humanitarian assistance to people fleeing their assaults. Much more needs to be done, however, and there is no time to waste.
We, the undersigned, are Democrats, Republicans, and Independents. We are conservatives, liberals, and moderates. We represent various religious traditions and shades of belief. None of us glorifies war or underestimates the risks entailed by the use of military force. Where non-military means of resolving disputes and protecting human rights are available, we always and strongly favor those means. However, the evidence is overwhelming that such means will not be capable of protecting the victims of the genocide already unfolding at the hands of ISIS/ISIL. That is why Iraq’s Chaldean Patriarch Sako has requested military intervention.
Therefore we call upon the United States and the international community to do everything necessary to empower local forces fighting ISIS/ISIL in Iraq to protect their people. No options that are consistent with the principles of just war doctrine should be off the table. We further believe that the United States’ goal must be more comprehensive than simply clamping a short-term lid on the boiling violence that is threatening so many innocents in ISIS/ISIL’s path. Nothing short of the destruction of ISIS/ISIL as a fighting force will provide long-term protection of victims.
We call upon President Obama and the Congress of the United States to expand airstrikes against ISIS/ISIL with a view to eroding its military power, and to provide full air support for Kurdish and other forces fighting against ISIS/ISIL. Further, we endorse the Washington Post’s call for the United States to provide arms, ammunition, and equipment to Kurdish forces, Sunni tribesmen, and others who are currently hampered in their ability to fight ISIS/ISIL by a lack of sophisticated weapons and other resources. The U.S. should also assist with intelligence. We are hopeful that local forces, with adequate support and assistance from the U.S. and the international community, can defeat ISIS/ISIL.
The expansion of humanitarian aid to the displaced and fleeing is also urgent. Local churches and aid agencies are overwhelmed, and we have grave concerns about how these victims of violent religious persecution will be cared for this winter. The U.S. can and should take the lead in providing food, water, medicine, and other essential supplies.
We must be mindful that in addition to stopping the genocide, the U.S. and Europe have very concrete interests in disabling ISIS/ISIL. As the Washington Post has warned:
“The Islamic State forces, which have captured large numbers of U.S.-supplied heavy weapons, threaten not only the Iraqi and Kurdish governments, but also Lebanon, Turkey and Jordan. With hundreds of Western recruits, they have the ambition and capability to launch attacks against targets in Europe and the United States.”
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August 11, 2014 | Permalink
My colleague Mark Movsesian has a good post on the subject. A bit:
But Mideast Christians are often an afterthought for the United States, and it seems they are in this situation again. A Wall Street Journal report, which quotes unnamed members of the Obama administration, indicates the threat of genocide against Yazidis was the primary factor in the American decision to intervene. “This was qualitatively different from even the awful things that we’ve confronted in different parts of the region because of the targeted nature of it, the scale of it, the fact that this is a whole people,” the official said.
That is a rather myopic view of the situation. We’re offering assistance to 40,000 Yazidi refugees whom ISIS has driven from their homes and threatened to slaughter. Great—we should. But in the weeks before ISIS turned on the Yazidis, it had displaced more than 100,000 Christians from their homes and driven them into the desert. ISIS eliminated major Christian communities in Mosul and Qaraqosh, and the US responded only with a concerned statement from its UN ambassador. And this is to say nothing of the hundreds of thousands of Christians who have become refugees since the invasion of Iraq in 2003. If genocide correctly describes what threatens the Yazidis, it also describes what’s happening to Iraqi Christians. Indeed, many of these Christians are the descendents of people who suffered genocide at the beginning of the 20th century.
There are reasons why America tends to treat Mideast Christians as an afterthought. Mideast Christians lack a natural constituency in American public life. They are, as one commentator observed, too foreign for the Right and too Christian for the Left. Most of our foreign policy elites have a blind spot about them. And I don’t mean to single out the Obama administration. Nina Shea of the Hudson Institute has recounted her attempts to get the Bush administration to focus on the plight of Iraq’s Christians, only to be told by Condoleezza Rice that assistance for Christians would make the United States appear sectarian.
To draw attention to the plight of Iraq’s Christians is not special pleading. The US should not concern itself only with Christians; other religious minorities deserve our attention, too. But, in the Middle East and around the world, Christians are often targeted for persecution in particularly severe ways, and the human rights community often seems not to notice.
Sunday, August 10, 2014
Perhaps not right down the Catholic Legal Theory fairway (but maybe somewhere in the rough), but I'm teaching a seminar in constitutional theory this fall here at St. John's for the first time, and I thought to ask the good readership and writership at MOJ about suggestions. I'm using the terrific reader by Gehardt, Griffin, Rowe, and Solum as my basic text, though I am supplementing it with a number of other materials. I've organized the course to be a little bit interpretation-heavy, and doutbless there are points of emphasis that are slightly particular to my interests (constitutional theory skepticism and the role of history and tradition may figure somewhat more prominently than they otherwise might). But please write to me with recommendations for changes, additions, deletions, etc. The tentative syllabus is after the break.
Friday, August 8, 2014
In the "Age of Feeling" in which we live, the reality of evil is obscured, and what were once correctly understood as vices are regarded as emotional problems---if they are regarded as problems at all. When the concepts of evil and vice disappear, people lose awareness of the need for repentance and reform; when evil and vice are redescribed as emotional problems, people are deceived into supposing that they can and should be managed by way of therapy. The culture of narcissism and the therapeutic culture are the two sides of one coin. The therapist usurps the role and authority of the priest, and the priest reimagines himself as a therapist.
Today at Public Discourse, my colleague and dear friend Russell Nieli, a Lecturer at Princeton and the author of (among other valuable writings) a superb book on Wittgenstein, offers a deeply thoughtful reflection on the tragic case of Elliot Rodger, the Santa Barbara killer:
"What [Elliot Rodger] needed was not a psychiatrist—he had been seeing therapists and psychiatrists for much of his life—but a preacher or a priest who could explain to him the self-destructive vice lurking within his soul, the importance of gratitude, the necessity of repentance, the evil of covetous envy, and most crucial of all, the importance of charity, humility, loving kindness, and trust in a higher power."
Read the entire essay here:
August 8, 2014 | Permalink
Thursday, August 7, 2014