Mirror of Justice

Hitchens on England and Popery

More Reformation Day reading:  Christopher Hitchens -- I cannot help it, I think he's a great writer, even if he hates Mother Theresa! -- has a great review of James Sharpe's new book, "Remember, Remember:  A Cultural History of Guy Fawkes Day."  Here is a taste:

And it is in that seminal period, when the King James Bible was being written by committee, and the plays of Shakespeare performed, that James Sharpe locates his excellent chapter of history. The Cromwellian revolution was still a half-century in the future, the defeat of the Spanish Armada (also hailed by bonfires and braziers) two decades in the past, and relations between Catholics and Protestants in England and Scotland were extremely tense. Queens Mary and Elizabeth had both sent, respectively, Protestants and Catholics to the stake and the chopping block. And the new king--a Scottish import with a taste for witch trials and a verbatim knowledge of the two testaments--wanted a church and a Bible in his own Protestant image. A minority of Rome's loyalists, led by a man named Robert Catesby, met in the Duck and Drake Inn on the Strand (could anything be more English?) and decided to send king and parliament to perdition by means of a huge explosion.

Unmasked by treachery, tortured and executed, they put their coreligionists into the horrible position of seeming like a fifth column with a dual loyalty. And the Protestant hardliners, determined to rub in this very point, established the grisly commemoration, by order of Parliament and consecrated in the authorized prayer book, as a means of associating their own cause with patriotism. Some echoes of this persist to the present day, especially in stubbornly Presbyterian Northern Ireland, but also in novels like Brideshead Revisited, where Waugh's devout Lady Marchmain sighs that one can't seem to stop people thinking of Catholics as spies. Another indirect legacy can be guessed at: The English Protestants were delighted to have an alternative celebration to the Catholic feasts of All Saints' Day and All Souls' Day (sometimes known in the calendar as All Hallows), which take place on November 1 and 2. From this late-medieval fiesta of sectarianism, then, we can partly derive the tedium and foolishness of Halloween.

Some random thoughts:  Part of the aftermath of the alleged Gunpowder Plot was the torture and execution of Fr. Henry Garnet, S.J. (who, it was said, knew about the Plot beforehand).  Fr. Garnet's nephew, St. Thomas Garnet, also a martyr (and the son of one Richard Garnet), is my son's patron saint.

When I was in the first grade, at my public school in Anchorage, Alaska, my teacher -- Mrs. Gustafson (hmmmm) -- commemorated Guy Fawkes Day (I forget how).

When I was teaching in London, two years ago, I commented to one of the staff in the University of Notre Dame's facility that I was surprised by the fact that Guy Fawkes Day was being celebrated (apparently) by Catholics.  She asked, "why wouldn't they celebrate it?" 

Antonia Fraser's "Faith and Treason" is an accessible, good read about the Gunpowder Plot, and about the recusant Catholics and English Martyrs.

Abortion in Portugal

"Portugese Abortion Vote Denied," reports the BBC:

Portugal's constitutional court has thwarted the government's plan to hold a referendum next month on relaxing the country's strict abortion laws.

Judges said the vote could not be held before September 2006 because the same referendum had been rejected by the president in the current legislature.

The government wants voters to decide whether abortions in the first 10 weeks of pregnancy should become legal.

Abortions are currently only legal in certain situations such as rape.

"We want a law which is more modern and more European," said Prime Minister Jose Socrates, announcing that his government would propose a referendum for next September.

"More modern and more European" -- sigh.

Reformation Day: Bringin' It

Tom says, "[a]ll right, Rick!  Let's have a good old fashioned Protestant-Catholic brawl on Reformation Day."  Here we go! 

Oh wait, I don't think we disagree (that much)!  Tom writes:

[T]he Reformation emphasized the importance of individual conscience, which certainly plays an important role in arguments for political freedom.  (I know, I know, unmitigated individualism leads to (a) the need for a Hobbesian Leviathan to control things and (b) unrestrained wants for which people demand big government to make provision and (c) the destruction of intermediate institutions; and the Reformation brought all that on.  We'd have to have a long conversation about whether Protestantism meant unmitigated conscience, and what the status of conscience was in medieval Catholicism, and probably some other things as well.)

I guess in posing my thesis -- "Contrary to widely held belief, the Reformation was, on balance, a bad thing for political freedom." -- I was thinking about (a), (b), and (c). 

Tom also makes a nice point about the connection between the fact of disagreement (i.e., the reality of pluralism) and political freedom.  I am not sure, though, that I agree with Tom that "the fact of disagreement" is something for which the Reformation is responsible.  I mean, there was disagreement (lots of it!) before, during, and after the Reformation, and I'm not sure there was really more pluralism in England under Elizabeth and James than under the pre-divorce Henry.

It seems to me that our understanding of political freedom depended largely on the medieval struggle (described by John Courtney Murray, and also wonderfully by Harold Berman) for the "Freedom of the Church," that is, for the principle that the political authority is not the sole authority.  It seems to me that meaningful political freedom depends largely, if not entirely, on a thick civil society, on competing norm-generating communities, and on ideas of limited government.  We owe these latter ideas, in particular, to the Church's rejection of secular authority's claims over the Church.  The Reformation, in a nutshell, not only eradicated the "middle man" between the individual and (speaking anachronistically, I know) the state, but also undermined the primary check on the state's ambitions.

Alito, Sovereign Immunity, and CST

Like Tom and Eduardo (and Patrick Brennan), I have my doubts about the Court's sovereign-immunity cases.  (Cf., e.g., Greg Sisk).  I would note, though, that the error is more than 100 years old (Hans v. Louisiana), so I'm not sure what is to be done.  I am also going to persist in thinking that, although -- as Eduardo says -- the Chief Justice and Justice O'Connor came to a different conclusion, Judge Alito's interpretation and application of the relevant precedents (putting aside, as the Judge would have had do) in the FMLA case was, to my mind, more convincing than the Court's.  (That is, I think the Court shrank bank from the reasonably clear implications of its own precedents).

Ann Althouse -- a specialist in these matters -- appears to agree with me ("[Alito's opinion] is stunningly well and concisely written and quite correct, though it is not the position the Court ultimately took in Nevada Department of Human Resources v Hibbs. . . .    Anyone who tries to say that Alito is hostile to women's rights because of this decision is utterly wrong."

But put all that aside (for now).  Eduardo writes:

More importantly, though, it seems to me that there is an inconsistency between Catholic Social Teaching, which advocates a preferential option for the poor and oppressed and is broadly sympathetic with government interventionism in the exercise of that option, on the one hand, and the advocacy of the broadest possible application of doctrines (constitutional and otherwise) that make it substantially harder to pursue effective legislative solutions to problems affecting those groups through the political process.

This is an important claim.  And, I disagree with it -- unless, by "broadest possible application" Eduardo means "unreasonable" or "incorrect."

The Constitution's structural and enumerated-powers features are judicially enforceable, in my view, and a judge committed to the rule of law should -- without apology -- enforce them.  That these features are (reasonably and in good faith) thought, by some, to "make it substantially harder to pursue effective legislative solutions to problems affecting those groups through the political process" does not, in my view, create any tension between Catholic teaching and the robust, meaningful enforcement of these features.  If our Constitution is law, and if part of that law is a prohibition on the purported exercise by Congress of certain powers denied to it by that law, then I do not agree that Catholic teaching should be thought of as pushing judges toward under-enforcing that law, in order to ease the way for what some will regard (but others will not regard) as "effective legislative solutions."

So, when Eduardo writes:

I think similar arguments could be made about a fairly direct connection between judicial doctrines embraced by Scalia, Thomas, et al. and substantive policy results on issues of immense concern to Catholic Social Teaching.  Unnecessarily reading limits on congressional power for all they're worth seems to me to be at least in tension with the "substantive commitments . . . of many Catholics" on a great many issues.

This is not the time to consider whether -- even if Eduardo is right here -- the doctrines embraced by (say) Breyer, Brennan, et al. (e.g., the notion that the Constitution authorizes Justices to invalidate abortion-related measures that strike the Justices as inconsistent with their own understanding of the demands of the mystery of the universe; or the notion that the Establishment Clause is violated by the indirect flow of public funds to parochial schools) threaten at least as much as Scalia's views "substantive policy results on issues of immense concern to Catholic Social Teaching."  My point here -- or, my claim -- is that it is not "unnecessar[y]" to "read[] limits on congressional power for [what] they are worth."  In my view, a meaningful commitment to the rule of law, under our Constitution, demands that Article I be taken as seriously as, say, the First or Fourteenth Amendments.

Finally, I think Eduardo's charge that Judge Alito "support[s] . . . the right of employers to discriminate against those suffering from AIDS" is a bit strong.  If I recall correctly the case to which Eduardo refers, Judge Alito was interpreting a statute, not expressing any "support" for discrimination.  More generally, though -- as my fellow MOJ-ers have probably tired of hearing me say -- I do not concede that the policies favored by "judicial and political conservatives" are any more likely than those favored by judicial and political liberals to be in opposition to CST, reasonably understood and prudentially applied.

Of course -- and I hope this goes without saying -- I am delighted (notwithstanding our disagreement on these few points) that Eduardo has joined the Mirror of Justice, and I look forward to many more conversations and exchanges like this.

Rick

More on Alito, Catholics, and the Court

Over at "The Volokh Conspiracy", Todd Zywicki has an interesting post called "Alito and the Changing Face of Conservativism," which is a worthwhile companion to Eduardo's earlier observation that the Catholics on the Court today tend to be "conservative" while, in years past, Catholic voters were part of the New Deal and Great Society coalitions.  He opens with this:

One of the more interesting elements of the Alito is what it says about the changing face of conservatism in the United States and the general drift of ethnic Catholics (some might say "urban Catholics") toward the Republican Party. Alito, along with Scalia, now makes the second ethnic Catholic to be appointed to the Court (no Poles yet, of course). I have yet to see an in-depth profile of his personal life, but one profile I read this morning indicated that he is the son of an Italian immigrant who worked in the New Jersey State Government, presumably from a relatively modest background (I'm just speculating on that point for now). Thus, three of the most conservative Justices (probably the three most conservative) on the Supreme Court would be a black man raised in Georgia poverty and two Italian-Americans, all Catholic as well. This group traditionally has been Democratic and liberal in orientation, which adds to the puzzle. Perhaps this is simply an isolated coincidence, but I wonder whether this demographic fact says something deeper about the nature of modern conservatism and political alignments in the country.

Also, David Bernstein passes along a helpful "Top Ten" list of things we can expect from a Court with a Catholic majority:

9) Oral arguments in Latin;

7) Collections between each session of oral argument;

6) Supreme Court windows replaced with stained glass;

3) Supreme Court opinions will be deemed infallible and unreviewable by any earthly authority [[original]Ed. - Sorry - that does not appear to be a change at all]

And, the number one change which a Catholic majority would make to the Supreme Court . . .

1) Wednesday night bingo!

More on Alito and State Immunity

I should make clear that I think the Court's 11th Amendment immunity jurisprudence is poor constitutional interpretation and does mostly reflect the general policy preferences of the conservatives (to figure out "some way to protect the states").  And maybe Alito, as a general conservative, will take the 11th Amendment jurisprudence and run with it as a justice.  I just don't think that the FMLA case is a great piece of evidence.  And because it lends itself to good sound bites, it will be used a lot against him, more than I think is warranted.

Tom

I Awake, and Rise to Rick's Challenge!

All right, Rick!  Let's have a good old fashioned Protestant-Catholic brawl on Reformation Day.

I don't know exactly what the argument underlying your thesis is, and I might actually agree with it.  But here are two thoughts that should at least call it into question.  One is that the Reformation emphasized the importance of individual conscience, which certainly plays an important role in arguments for political freedom.  (I know, I know, unmitigated individualism leads to (a) the need for a Hobbesian Leviathan to control things and (b) unrestrained wants for which people demand big government to make provision and (c) the destruction of intermediate institutions; and the Reformation brought all that on.  We'd have to have a long conversation about whether Protestantism meant unmitigated conscience, and what the status of conscience was in medieval Catholicism, and probably some other things as well.)

Second, just the very fact of fundamental disagreement leads ultimately to government having to provide greater freedom.  This I take to be one of the theses of John Courtney Murray in his argument in the late 1940s that the religion clauses were "articles of peace, not articles of faith."  And it was picked up by Gerry Bradley in his 1987 article on the "no religious tests" clause, arguing that the religion clauses stemmed from the practical fact of pluralism rather than from a theory of individual conscience (for which Protestants have tended to claim credit).  (Is there a difference between political and religious freedom on this score?)  But even if the rationale for freedom was the fact of disagreement rather than the idea of individualism, isn't the Reformation also responsible for the fact of disagreement?

Tom

Catholics and the Court, Responding to Rick

First, I apologize for my sloppy language, though I think it's fair to say that Alito did write an opinion holding the FMLA unconstitutional as applied to suits for damages against a certain (significant) class of employers.  In any event, I don't agree that this was a run-of-the-mill application of the Court's 11th Amendment precedent.  There was certainly ample room to come out the other way, as the Chief Justice and Justice O'Connor ultimately did.  The 3d Circuit opinion strikes me as a robust and enthusiasiastic interpretation of the relevant precedent.

This is important, and it goes to Rick's third point.  Rick says: 

The judicial conservativism of, say, Justice Scalia (or, I admit, me) need not be seen as in tension with the substantive left/ progressive / social-justice political commitments of many Catholics, because Justice Scalia (whatever his policy views are, and I assume they are conservative) is, for the most part, happy to leave these matters to the political process, so long as they are not pursued through legislative means that exceed Congress's powers.

I think Rick's qualification is crucial.  I agree that there is certainly a difference between judicial conservatism and political conservatism, though I think that gap can be overstated (see Bush v. Gore).  More importantly, though, it seems to me that there is an inconsistency between Catholic Social Teaching, which advocates a preferential option for the poor and oppressed and is broadly sympathetic with government interventionism in the exercise of that option, on the one hand, and the advocacy of the broadest possible application of doctrines (constitutional and otherwise) that make it substantially harder to pursue effective legislative solutions to problems affecting those groups through the political process.  Judicial conservatives consistently favor the latter, and I think there is at least some reason to believe that their efforts in that regard are related to substantive political preferences.

For example (and setting aside for the moment the proper role of personal religious views in judicial decision-making), assuming (heroically) the cogency of the constitutional exegesis underlying the Court's 11th Amendment jurisprudence, it's hard to say that there is no tension between Catholic Social Teaching and the decision by judge Alito, in a position of doctrinal uncertainty, to favor the broadest possible application of sovereign immunity doctrine when the effect is to prevent the application of a statute like the FMLA, whose principal beneficiaries will be working class women.

I think similar arguments could be made about a fairly direct connection between judicial doctrines embraced by Scalia, Thomas, et al. and substantive policy results on issues of immense concern to Catholic Social Teaching.  Unnecessarily reading limits on congressional power for all they're worth seems to me to be at least in tension with the "substantive commitments . . . of many Catholics" on a great many issues.   

Finally, all of this seems academic to me (not that there's anything wrong with that), as we all know that Scalia, Thomas, (probably) Alito, and (at least earlier incarnations of) Roberts are judicial and political conservatives and are, accordingly, opposed to many substantive policies favored by CST (e.g., Alito's support for the right of employers to discriminate against those suffering from AIDS).  Sometimes this opposition bleeds into their judicial decisionmaking (Scalia's pinched readings of civil rights statutes comes to mind), and sometimes it does not.  My point was not that their judicial decision-making is necessarily in tension with CST, though I think it is in many areas, but rather that, as indivdiuals, their political conservatism is not representative of American Catholics as a whole.  The reasons for the lack of representation of progressive Catholics on the Court are complicated, but I think it largely has to do with the fact all but two of the sitting justices (and ALL of the Catholics) were nominated by Republicans.

Alito and State Immunity

I want to publicly welcome Eduardo Penalver to the blog -- great to have you!  I won't deny the point that Alito is conservative -- more than I'd like, probably, on several issues.  Concerning the Family and Medical Leave Act case, though, my sometime assignment to teach federal courts makes me conclude that he was just following the Supreme Court's lead at the time he wrote the panel decision in that case.  When Alito wrote the decision (Chittister, here) in 2000, the SCT had for several years been greatly expanding the immunity of states from damages, and severely limiting Congress's ability to abrogate immunity through legislation enforcing the Fourteenth Amendment.  One of the broadest pro-immunity decisions had just come down in 2000 (Kimel), holding that age discrimination suits against states for damages were barred by state immunity. 

The SCT's Hibbs decision of 2003, holding that the Family Medical Leave Act did validly abrogate the state's immunity, came as a big surprise.  By the time of Hibbs, the Court had suggested that to abrogate state immunity validly, a federal statute had to protecte a class that was "suspect" under Fourteenth Amendment decisions, such as race or sex -- Kimel said age discrimination didn't qualify, and the disability act was struck down as violating state immunity (Garrett, 2001) -- and also that it had to protect that class against intentional discrimination vs. just discrimination in effect (that's how the Religious Freedom Restoration Act fell in 1997 in the Boerne case).  Finally, in in Garrett and other cases, the Court required overwhelming factual records to justify applying the laws to states.  But the Court then turned around in Hibbs and held that the Family Medical Leave Act prevented sex discrimination, even though its terms apply equal to male and female employees.  How FMLA could satisfy the Court's earlier, tough tests has never been clear.

I don't think Alito can be faulted for reading the tea leaves wrong on this one -- or more accurately, for the fact that there were no tea leaves to read that would have suggested Hibbs was on the way.

Tom

Reformation Day

Today is -- as a number of my Separated Brethren pals have reminded me -- "Reformation Day."  On this day, many Protestants celebrate Luther's nailing his 95 Theses to the door of the church in Wittenberg, Germany.  Here is a (provocative, I hope!) thesis of my own:  Contrary to widely held belief, the Reformation was, on balance, a bad thing for political freedom.  Discuss (in a spirit of Christian charity, of course).

Rick

More "Catholic" than Catholics

A few days ago, Tom posted the results of a survey that suggested that born-again Christians and evangelicals were more Catholic than Catholics on a host of issues including contraception and fetal stem cell research.  Could it be that those who identify themselves as born-again or evangelical are likely to attend church more often and take their faith more seriously than a great number of Catholics? 

Michael

Alito, Catholics, and the Court

A few quick thoughts in response to Eduardo's post:  He writes that Judge Alito "famously authored the opinion holding the Family Medical Leave Act unconstitutional, which was reversed by the Supreme Court in an opinion by Chief Justice Rehnquist (with Kennedy, Scalia, and Thomas dissenting)."  If I remember correctly, the majority opinion that Judge Alito authored (and which was, as Eduardo points out, reversed) did not "hold[] the [FMLA] unconstitutional," but only concluded that Congress had not effectively abrogated states' "sovereign immunity" from lawsuits for money damages under the Act.  I'm not wild about the Court's sovereign-immunity line of cases, but Alito's opinion was, as I recall, a perfectly reasonable application of the relevant precedents.

Next, Eduardo notes that "Catholic voters long made up an important part of the New Deal coalition.  While Catholics have no doubt grown more comfortable voting for Republicans over the past few decades, it would be hard to argue that the (potentially) five Catholic justices would be representative of the politics of Catholics as a whole."  This is a good point, re: representativeness.  That said, I am inclined to think that the shift in Catholics' voting practices was not just a result of Catholics growing more comfortable with Republicans, but of dramatic shifts in the positions of both parties and also of the increasing salience of "culture" and "values" issues (and of the Democrats' leftward movement on those issues).

Third:  Eduardo's post raises the possible tension between the "conservativism" of Catholic Justices like Justice Thomas and Scalia (who, in my view, actually have very different judicial philosophies, and disagree more than many people realize) and the political stance of many (most?) Catholic citizens.  Here's how I see it:  The judicial conservativism of, say, Justice Scalia (or, I admit, me) need not be seen as in tension with the substantive left/ progressive / social-justice political commitments of many Catholics, because Justice Scalia (whatever his policy views are, and I assume they are conservative) is, for the most part, happy to leave these matters to the political process, so long as they are not pursued through legislative means that exceed Congress's powers.  And, on the "social" questions, where the Church's teachings are (arguably) "conservative", it seems to me that Justice Scalia's views (both as a judicial matter and as a policy matter) are in line with most Catholics' views.  Even though Catholics disagree on whether abortion should be outlawed, I expect most believe -- or, if presented with the question, would say they believe -- that it may be reasonably regulated.

Rick

Catholic Social Thought and a Theory of Precedent?

In doing a public-radio interview this morning on the Alito nomination, I was struck again by how much concerning his ultimate decisionmaking on the Court might turn on his approach to precedent (stare decisis).  How much deference should a justice give to past decisions, and what factors should s/he consider -- and in what order of importance -- to decide whether to adhere to or overrule past decisions?

Abortion rights are obviously a major issue in this regard.  But to take just one other issue, Alito has shown some inclination to be vigorous in limiting Congress's legislative power over economic matters.  For example, in a 1996 dissent in U.S. v. Rybar, he argued for striking down the federal law prohibiting the possession of machine guns (I'm not saying that he was incorrect on that; I'm just using the case to raise the issue).  Would he go as far back as Justice Thomas in restricting the commerce power (doubtful), or would he be more like Scalia and Rehnquist, or Kennedy and O'Connor (who have made only moderate cutbacks)?  That question could depend significantly  on the extent to which, even if he thinks the Commerce Power was meant to be narrower than it's become, he nevertheless thinks many of the broad precedents should be followed as a matter of stare decisis.

Constitutional theory about stare decisis and the weigh of precedent is less well developed -- fuzzier -- than are the various theories about the substantive interpretation of the Constitution (originalism, political-process theories, etc.).  And a lot of prudential calculations go into it, including, I think we ought to admit, assessments of the nation's mood (which bears some relation to, even if it's not the same as, the degree of societal reliance on a past decision, which is a reocgnized part of the analysis about whether to follow precedent).  That's why some anti-fuzzy scholars like Mike Paulsen hate for precedent to play any significant role in constitutional decisions.

In our discussions about Roberts and precedent, we've mostly discussed whether Catholic moral positions on substantive questions such as abortion should override any prima facie duty to follow precedent.  I'd like to ask a different question now:  whether Catholic social thought has anything to offer on the question of precedent itself in law and legislation.  Does the tradition have anything to say on the values of stability versus the values of getting some question right?

I'm not asking about Catholic insights on stare decisis as to Church teachings on faith and morals (where there is the argument that the Church doesn't get things wrong, or is at least guided by the Holy Spirit in ways that the Justices are not).  I'm asking about Catholic insights, from the social-teaching tradition, on the issues of stability, reliance, etc., in civil matters.  And could a justice be legitimately informed by Catholic thought (or religious thought, or general moral reasoning) on that general matter?

Any thoughts on this from co-bloggers or readers?

Tom

Catholics and the Court

Picking up on Rick's note that Alito would make five Catholics on the Court, on most issues it looks as if Alito would be as conservative as Scalia or Thomas.  For example, he famously authored the opinion holding the Family Medical Leave Act unconstitutional, which was reversed by the Supreme Court in an opinion by Chief Justice Rehnquist (with Kennedy, Scalia, and Thomas dissenting).  It is worth noting, then, that, if Alito is confirmed, the five Catholics on the Court would also happen to be its most conservative five members (Roberts, Scalia, Kennedy, and Thomas, plus Alito).

This is an interesting phenomenon.  After all, it was not long ago that one of the most liberal members of the Court, William Brennan, was a Catholic.  And Catholic voters long made up an important part of the New Deal coalition.  While Catholics have no doubt grown more comfortable voting for Republicans over the past few decades, it would be hard to argue that the (potentially) five Catholic justices would be representative of the politics of Catholics as a whole.

The UNFPA and China

My colleague Elizabeth Brown responds to Rick's post defending the Bush Administration's decision to withhold funding from the United Nations Population Fund:

Rick states "The reason not to support the U.N. Population Fund is to avoid funding -- and arguably, culpably cooperating with -- intentional and unjustified homicides."  He obviously believes the UNFPA is engaged, in the words of the Kemp-Kasten Amendment, of assisting the government of China in its "program of coercive abortion or involuntary sterilization."  That China has a coercive program to enforce its one-child policy is not in doubt.  The UNFPA, however, has strongly condemned this program and does not provide abortions or abortion-related services in China.  In fact, the May 29, 2002 Report of the China UN Population Fund Independent Assessment Team of the U.S. State Department stated that "We find no evidence that UNFPA has knowingly supported or participated in the management of a program of coercive abortion or involuntary sterilization in the PRC."  The press release from the NLRC from which Rick quotes was issued on July 20, 2002 and it notes that China maintains coercive measures to support its one-child policy, which is certainly true.  The NLRC press release, however, does not contain any empirical evidence to refute the conclusion of the State Department that the UNFPA has not knowingly supported or participated in China's program of coercive abortion or involuntary sterilization.  If the State Department's conclusion is true, providing funding to the UNFPA would not be funding or aiding evil (coercive abortions or involuntary sterilizations) as the UNFPA is not engaged in those activities and is not supporting them in China. . . .

The 2005 State Department Report on Human Rights and other studies suggest that "constructive engagement" by the UNFPA is having some positive effects in reducing the number of abortions within the 32 counties in which the UNFPA operates.  According to the State Department report, the policy of the Central Government in China formally prohibits the use of physical coercion (but not economic coercion) to compel persons to submit to abortion or sterilization.  The National Population and Family Planning Commission (NPFPC) of China has set up a hotline for use by UNFPA project county residents to lodge complaints against local officials who attempt to violate the law.  Under State Compensation Law, citizens may sue officials who exceed their authority in implementing the birth planning policy and some individuals have exercised that right.  Local officials who have used population schools as detention centers have been fired or sanctioned administratively for violating the law.  The spacing requirement for parents who want permission to have a second child was removed in five and relaxed in ten of the thirty counties participating in UNFPA's Country Program V.  Authorities in China continue to reduce the use of targets and quotas.  Twenty-five of China's thirty-one provinces have eliminated the requirement for birth permits before married couples conceive their first child.  With the passage of State Council Decree 357 in 2002, corruption related to the social compensation fees (the economic tax on additional children) has declined and the NPFPC has investigated 10,000 complaints against local officials over these fees.  Other studies indicate that the number of abortions per live births has dropped in the thirty-two counties in which the UNFPA operates so that the rates are now lower [than] the number of abortions per live births in the United States.  Granted these are minor steps, but they are positive steps in the right direction. . . .

If the UNFPA isn't funding or aiding China's coercive policies as the State Department concluded in 2002 and denying funding to the UNFPA in 2002 resulted in an estimated 2 million unwanted pregnancies, 800,000 induced abortions and 4,700 maternal deaths, as well as 77,000 infant and child deaths, according to the UNFPA, I am at a loss as to how the United States can continue to claim that this policy is promoting a "culture of life."

Catholics, Evangelicals, and Community Worship

Relevant to our discussion of the differences between Catholics and Evangelicals in suburbia, there is an interesting article up on Slate.com about the practice of holding hands during the Lord's Prayer. 

Alito on Free Exercise of Religion

In addition to other opinions that will be discussed (most notably his dissent in Casey that would have upheld spousal notoficiation for abortion), Alito is also the author of what is currently one of the most important decisions under the Free Exercise Clause: Fraternal Order of Police v. Newark, 170 F.3d 359 (3d Cir. 1999).  The decision held that a Muslim police officer had a constitutional right to wear a beard as required by his faith, notwithstanding a police department rule prohibiting facial hair, because the department had already made a similar exception for officers needing to wear a beard for medical reasons (such as a sensitive-skin condition).  The opinion has been highly influential in the wake of Employment Division v. Smith, the peyote case, which had rejected  exemptions from law for religious conduct when the law in question was "neutral and generally applicable."  Alito, in a careful opinion, wrote that the presence of the other major exemption made the department policy not generally applicable and suggested that the department regarded other interests as more important than the constitutional right of religious exercise.  This is the best reading of the free exercise right, I believe, but it was not compelled by precedent.  It suggests a hospitable attitude on Alito's part toward religious freedom, within the bounds of precedent and the historical purposes of the Free Exercise Clause.   And as the case indicates -- and as with so many cases involving free exercise -- a hospitable attitude toward religious freedom is also a hospitable attitude toward religious and cultural (even ethnic) minorities such as Muslims.

Alito has written several other opinions concerning religion and the state under the First Amendment (see here and here for starts at analysis). 

Tom

Bush nominates Alito

President Bush this morning is nominating Judge Samuel Alito, of the United States Court of Appeals for the Third Circuit, to fill Justice O'Connor's seat on the United States Supreme Court.  This is a fabulous choice.  Few -- if any -- of his generation have the breadth and depth of Judge Alito's legal credentials and experience:  he's been a mob-busting prosecutor, a deputy in the Office of Legal Counsel (the Department of Justice's brain trust), and a lawyer in the Solicitor General's office.  He's also been a sitting, well regarded judge for more than a decade.

There's also this:  Judge Alito will soon be the fifth Catholic currently serving on the Court.  Chris Hitchens must be freaking out.

Program on the Philadelphia Grand Jury Report

For those readers in the Philly area on Tues, Nov.1 at 3:30pm, we will be holding at Villanova Law (rm. 30) a panel of "Reflections on the Grand Jury Report on Sexual Abuse in the Archdiocese of Philadelphia," featuring Jim Post (VLS '68), former president of the national Voice of the Faithful; Charles Zech, an economist and Director of Villanova University's Center for the Study of Church Management; and yours truly. I will be talking about some of the legal issues. Moderating all this and offering his own thoughts will be my colleague, Patrick Brennan, our Scarpa Chair of Catholic Legal Studies. As you can imagine, the Grand Jury Report continues to generate angst and recriminations running in all sorts of directions here in the Archdiocese. I should also add that on December 8, at 12 noon at the law school, Nick Cafardi, former dean of Duquesne Law, a canonist, and original member of the USCCB's National Review Board for the Protection of Children and Youth, will speak on "The Code of Canon Law and the Philadelphia Grand Jury Report: A Civil Law Critique of the Canonical Process." I will post an announcement of that program again when we are closer to the date. I suspect Patrick and I will have some posts on Tuesday's program after it's over. I see full and public discussion of these difficult and sensitive topics in a Catholic law school as essential to our mission.

--Mark

Forget the Ford Escort!

I'm holding out for a used Popemobile with the custom plexiglass dome!

-- Mark

The Ultimate "Driven to Church on Sundays" Used Car

From Reuters:

The only car the late Pope John Paul II ever owned sold at auction for $680,000 on Saturday to a Houston attorney and car collector. . . .

The 1975 powder-blue Ford Escort went on the auction block in Las Vegas after a father-son ownership spat was resolved earlier this month. . . .

Pope John Paul, who died in April, drove the car himself and put 60,000 miles on it before giving it in 1996 to Kruse International, an Indiana rare automobile museum and auction house, to sell with the proceeds going to charity.  [That buyer then had the father-ownership spat and auctioned the car again this year. -- ed.]

The prospective auction was discussed in May in this story, which includes details like: (1) the car came with the rosary beads that John Paul threw in as part of the 1996 deal; (2) the late Pope used the car to get away for hikes (or maybe for gelato, see here); and (3) Benedict XVI has yet to reach his predecessor's name recognition but is off to a respectable start, given the six-figure price his former VW Golf fetched on E-Bay this spring.

Tom

"More Catholic than the [Catholics]"?

A new Harris Poll has some interesting numbers on public opinion concerning various "healthcare policies, programs, and practices."  Major pattern: "the attitudes of Catholics are generally very similar to those of all adults and, on some issues, very unlike the official position of the Pope and the Church."  On these issues, it looks like more evangelical Protestants than Catholics are reading the encyclicals:

Birth control/contraception is supported by 93 percent of all adults, including 90 percent of Catholics and 88 percent of born-again Christians, the "very religious" and Evangelicals.

Condom use to prevent HIV and other sexually transmitted diseases is supported by 92 percent of adults, including 93 percent of Catholics, 82 percent of born-again Christians, 83 percent of the "very religious" and 81 percent of Evangelicals

Embryonic stem cell research is favored by 70 percent of all adults, including 70 percent of Catholics. However, it is supported by only 45 percent of born-again Christians, 38 percent of Evangelicals and 51 percent of the "very religious."

Funding of international birth control programs is supported by 70 percent of the public, including 66 percent of Catholics, but only 53 percent of born-again Christians and 48 percent of Evangelicals.

I know that Harris has a reputation as a "liberal" poll, which may lead it to overstate overall support for some of these measures.  (Among "healthcare policies," they include "abortion rights" and get a pretty high number of support (63 percent) for that undefined term.)  But it seems less likely that any bias in the poll affects the relative numbers of Catholics, the overall public, and evangelicals.

Tom

More on the UNFPA

My follow up to the posting by Rob and Rick on the UNFPA will be brief and empirical. I was intrigued by Mr. Kristof's portrayal of UNFPA. I must confess that I saw a very different organization at work in my 8 years experience at the UN. If the UNFPA directed its advocacy efforts and its in situ projects on basic health care concerns for the world's neediest rather than on "gender" issues of "reproductive health rights and services", the world, especially mothers and children, would be a lot better off than they are. And so would many future members of the human family who sadly and tragically will not see the light of day because of this organization's activities, which are in desperate need of reformation.   RJA sj 

More on the United Nations Population Fund

Rob's post raises the question -- also raised by Mr. Kristof in his recent NYT column -- whether there is a tension between (a) President Bush's opposition to funding the U.N. Population Fund and (b) the President's professed pro-life commitments.  And, Rob's colleague, Elizabeth Brown, asks:  "[S]houldn't the supporters of the policy have to show that it has in fact done something concrete to save lives rather than be merely a symbolic gesture which imposes real harms on women and children in other countries?"  Apparently, by "something concrete, Prof. Brown means that President Bush has to "show that the denial of funding has prevented more abortions and deaths from complications from abortions than the lives lost due to stillbirths and deaths in childbirth which are occurring because the UNPF didn't receive the $125 million from the US to pay for the medical programs that would have prevented these deaths[.]"

I don't think so.  That is, it seems to me that the question whether someone is "pro-life" need not be answered by asking whether, all things considered, more people (including unborn children) died during that person's administration than would have died under someone else's, or than would have died had that person pursued other policies.  The reason not to support the U.N. Population Fund is to avoid funding -- and, arguably, culpably cooperating with -- intentional and unjustified homicides.  It seems to me that, even if it were the case that, on balance, the U.N. Population Fund "saves more lives" than it takes, that fact would not undo the wrong of such culpable cooperation.  It appears that Prof. Brown's argument tracks pretty closely the argument, advanced by some, that cloning and then destroying human embryos for research purposes should be endorsed and funded -- even if the practice involves ending human beings' lives -- because such activities could produce medical breakthroughs that will save lives.

Relatedly, a colleague, and former counsel to the President's Council on Bioethics, passed on to me this press release from the National Right to Life Committee: 

It has been reported . . . that the Bush Administration within the next few days will announce that it will deny U.S. funding ($34 million) to the United Nations Population Fund (UNFPA) and redirect those funds to other programs.  A spokesman for the National Right to Life Committee (NRLC) today expressed strong approval of this reportedly imminent action.

"The UNFPA is a cheerleader and facilitator for China’s birth-quota program, which relies heavily on coerced abortion,” said NRLC Legislative Director Douglas Johnson. “Top UNFPA officials have been completely cozy with China’s birth-quota bosses. For 20 years, top UNFPA leaders have consistently praised China’s program and attacked its critics.”

The Bush Administration reportedly has determined that the UNFPA remains in violation of the Kemp-Kasten anti-coercion law. The amendment prohibits giving U.S. “population assistance” funds to “any organization or program which, as determined by the President of the United States, supports or participates in the management of a program of coercive abortion or involuntary sterilization.”

. . .   "In China, government officials continue to subject women and their families to crushing fines and employment sanctions, and even destroy their homes, for becoming pregnant without government permission,” said NRLC’s Johnson. “U.S. law prohibits funding an agency that in any way participates in such a coercive program.”

For two decades, top UNFPA officials have vigorously defended China’s program against its critics, and have held China’s program up as a model for other developing nations. For example, UNFPA Executive Director Nafis Sadik told a congressional briefing on May 24, 1989, “The UNFPA firmly believes, and so does the government of the People’s Republic of China, that their program is a totally voluntary program.”  (For factsheets containing numerous similar examples, contact NRLC at Legfederal@aol.com or 202-626-8820.) Currently, the official website of China’s State Family Planning Commission features a report on an award presented earlier this year to Sadik, who headed the UNFPA from 1987 to 2000. (See www.sfpc.gov.cn/EN/enews20020114-2.htm)

Currently UNFPA prefers to focus attention on 32 Chinese counties (out of about 2,800) in which the UNFPA says that China’s government “has agreed to lift” birth quotas. But last year a private team of investigators associated with the Population Research Institute (PRI) traveled in one of these counties -- without government officials witnessing their interviews -- and documented that local officials were employing destruction of homes, incarceration of family members, and other forms of coercive pressure on women who were pregnant outside of the quota system.

This evidence and other testimony regarding systematic coercion in China was presented at a hearing of the House International Relations Committee on October 17, 2001, posted here .

Moreover, a report by three British members of Parliament who traveled to China in April found that even in the 32 counties “where UNFPA insists that only voluntarism exists,” Chinese citizens “still have to pay a ‘social compensation’ payment if they have more than one or two children. . . . Chinese officials confirmed that the compensation payment is set at a level, which most families would find extremely difficult to pay. It therefore acts as a pretty powerful incentive to conform. This is a form of coercion.” (The British team recommended continued funding of the UNFPA by the United Kingdom, but their observations provide additional evidence that the Kemp-Kasten Amendment would be violated by U.S. funding of the UNFPA.)

NRLC takes no position on federal funding of contraceptive services. Nor does NRLC take any position on what the funding level for the population assistance program should be so long as President Bush’s “Mexico City Policy” and the Kemp Kasten Amendment remain in effect. NRLC is strongly opposed to any weakening of these two policies, which would result in resumption of U.S. taxpayer support for organizations which promote abortion and even programs of coercive abortion.

Rick

Uelmen reviews "Modern Catholic Social Teaching"

The new collection, edited by Kenneth Hines and others, called "Modern Catholic Social Teaching", is reviewed by our own Amy Uelmen in the Oct. 21, 2005 issue of Commonweal.  I do not have a link to the review, but can report that Amy characterizes the collection as generally "evenhanded," with the exception of Leslie Griffin's attack on John Paul II's "error has no rights" pontificate.  Amy also regrets that complaints about the late Pope, and a lack of attention paid to the Compendium on the Social Doctrine of the Church are, in places, "distractions."  And, noting that many of us tend to see in the CST tradition "the principles [we] support," she expresses the hope that we can "find a way to develop productive conversations about CST that reach across political and ideological lines."  Mirror of Justice, anyone?

The UN Population Fund and the Culture of Life

Since we're on the topic of the UN, here's a recent NYT column by Nicholas Kristof titled, "Mr. Bush, This is Pro-Life?"  An excerpt:

Mr. Bush and other conservatives have blocked funds for the U.N. Population Fund because they're concerned about its involvement in China. They're right to be appalled by forced sterilizations and abortions in China, and they have the best of intentions. But they're wrong to blame the Population Fund, which has been pushing China to ease the coercion - and in any case the solution isn't to let African women die. . . . Pregnant women die constantly here because they can't afford treatment costing just a few dollars. Sometimes the doctors and nurses reach into their own pockets to help a patient, but they can't do so every time.

. . . . Somewhere in the world, a pregnant woman dies like that about once a minute, often leaving a handful of orphans behind. Call me naive, but I think that if Mr. Bush came here and saw women dying as a consequence of his confused policy, he would relent. This can't be what he wants - or what America stands for.

My colleague Elizabeth Brown asks:

Since the cutting off of this funding is frequently cited as one of President Bush's major acts in support of the culture of life, shouldn't the supporters of the policy have to show that it has in fact done something concrete to save lives rather than be merely a symbolic gesture which imposes real harms on women and children in other countries?  To date, the US has denied about $125 million to the UNPF and has not provided this amount of money to other programs that offer a similar range of medical services (excluding abortion) for pregnant women and young children that the UNPF offers.  If President Bush wants to claim credit for this policy as supporting a culture of life, doesn't he have to show that the denial of funding has prevented more abortions and deaths from complications from abortions than the lives lost due to stillbirths and deaths in childbirth which are occurring because the UNPF didn't receive the $125 million from the US to pay for the medical programs that would have prevented these deaths?

Subsidiarity and Children's Rights

Jonathan Watson continues our conversation by suggesting how subsidiarity might play into the evaluation of the UN's Convention on Children's Rights:

It seems to me . . . that subsidiarity is intended not only as a warning to higher bodies, but against abdication of responsibility by lower orders as well.  Just as it would be a violation of this principle to interfere with state government who are having no problems dealing with. . . say . . . education, so it would be for a lower organization to willingly sign a document which abdicates responsibility or permits a higher organization to interfere where not necessary.

With these in mind, some aspects of the UN Children's document are salvageable. The parts dealing with international cooperation in situations where children need to move between states, where child slavery or prostitution is involved, or where international drug traffic is involved strike me as situations in which no lower order institution (state government) could possibly act effectively. On the other hand, those clauses previously discussed which allow for the possibility of state interference in the moral fiber of the family run afoul of the principle of subsidiarity.

But subsidiarity would give more leeway than this, wouldn't it?  Especially if the Convention's enforcement will stem primarily from moral sausion and public shaming within the international community (at least among those states for which shame is a possibility), it seems to me that the norms to be espoused could prudently go beyond "spillover" situations.  For example, couldn't the Convention stake out claims in favor of access to education (without necessarily mandating the substantive ends of that education) even though that impacts directly on the life of the family?  Certainly there are some fundamental truths that trump the deference given to lower bodies' decision-making authority under subsidiarity (the right to life, most obviously).  Maybe the scope and depth of the truths to be "operationalized" will vary with the degree of coercive power backing them.  But if the Convention is understood as embodying truth claims embraced by the signatory states, isn't there a subsidiarity-friendly benefit to encouraging/pressuring states (and consequently, the subcommunities within those states) to adopt certain practices that they are in fact disregarding, even if there is no discernible reason why those subcommunities could not decide to adopt such practices on their own?  In other words, subsidiarity seems to contemplate top-down action when lower bodies fail -- as a matter of fact -- to adhere to principles consistent with human dignity, not just when they are incapable of adhering to those principles.  (To be clear, I'm putting to the side the question of what the substance of those principles should be.)

Rob

The Convention on the Rights of the Child

My thanks to Rob and Rick for their comments on the Convention and thanks for the views of Jonathan Watson and Pat Shrake that were passed along. It is interesting to note that the manner in which the reference to John Paul II was placed in the source that Rob quotes tends to suggest the His Holiness made a statement about the Convention. Indeed, he took the statement from the Declaration and Reservation that is recorded on the HCHR website. What that body does not convey is the impossibility that the Holy Father could have said this in 1984, five years before the Convention text was finally adopted and submitted to the UN General Assembly so that it could be forwarded for signature and ratification.

Actually, the paragraph that is quoted on the HCRC website is a part of the Declaration and Reservations made by then Archbishop Renato Martino, the Permanent Observer of the Holy See to the United Nations on April 20, 1990 in which he made reference to the Pope’s 1984 comment that children are “that precious treasure given to each generation as a challenge to its wisdom and humanity.” The Pope himself was not commenting on the Convention, it was rather Archbishop Martino providing the Holy See’s view at the time it signed and acceded to the Convention regarding the Holy Father’s great concern about the welfare of children.

When all is said, the Holy See did approve the Convention subject to its Declaration and Reservations. The reservations foresaw problems lurking in the future that were manifested in Cairo and Beijing several years later. So, it is important for us to understand that the Holy See became a party to the Convention subject to this Declaration and Reservations. Time after time the Holy See has had many opportunities to voice its concern about “rights” of the child that are not anchored to its well known position on the family and parents rights and prerogatives that are protected in earlier instruments and the Universal Declaration of Human Rights. So I am suggesting that it is quite possible and consistent with the Church’s view to develop Catholic Legal Theory that is skeptical of some current views of what the Convention means.

From a Catholic perspective, the Convention has to be understood in the context of the many affirmations made by the Holy See regarding families, parents, and children. Indeed, one could not understand the Church’s endorsement of the Convention without an appreciation of the Church’s Charter of the Rights of the Family (1983) and John Paul II’s Apostolic Exhortation, Familiaris Consortio (1982). As I have mentioned earlier, the Church’s endorsement of the Convention was also before the 1994 Cairo Conference on Population and Development and the 1995 Beijing Fourth World Conference on Women. These conferences brought to light understandings of human rights that are in conflict with those of many States including the Holy See. Moreover, in recent years, strained and exaggerated interpretations of provisions of the Convention on the Rights of the Child have begun to surface in UN debates with which the Church has taken issue and expressed its disagreement. I hasten to add that the Holy See typically looks at all relevant documents and texts and their provisions in asserting its views on the meaning of the articles of the Convention on the Rights of the Child. Many of these texts, including the Universal Declaration of Human Rights and the 1966 Covenant on Civil and Political Rights talk about the rights of parents with regard to the proper upbringing of children. To some extent these are reflected in the Convention on the Rights of the Child. But there are indeed those who take a very different approach in giving meaning to the provisions of the Convention on the Rights of the Child so that children essentially become divorced from the protection and the upbringing rights and duties of parents. From these perspectives, it would seem that the child is an autonomous entity from its birth and no person, including no parent, has the right to interfere. Strange interpretation, but it and others like it exist. I hasten to add that some of the newer interpretations of the Convention open the door to “experts” in children—but not their parents— being able to determine what is in the best interest of the child when the child himself or herself cannot make that determination. Some of these experts are aligned with organizations like Planned Parenthood.

These are relevant matters to take into account when one considers the Convention and its meaning today. It would be fair to say that the general understanding of its provisions in 1990 are challenged by some of today’s strong, positivist interpretations. The concerns raised in previous postings on this topic are genuine and need to be taken into account regarding what this Convention means and what it does not.   RJA sj

Catholics and Community: the Conversation Continues

Amy Welborn linked to our conversation on Catholics, suburbia, and community, and it has spawned an interesting and growing set of readers' comments.  Check it out here.

Rob