Mirror of Justice

San Diego declares bankruptcy

Last night San Diego became the largest diocese (so far) to declare bankruptcy. (HT: Open Book)  The first trial of 150 lawsuits alleging abuse by 60 priests was set to begin today.  San Diego joins Tucson, Spokane, Portland (Ore.), and Davenport (Iowa).

Edith Stein Project: Report 1

For the third year in a row, a group of undergraduate students at Notre Dame planned and organized a major conference (a list of great speakers and over 200 registered attendees) promoting the development of the new feminism.  This year’s theme was “Toward Integral Healing for Women and Culture.”  In their Mission Statement for this year’s conference (which was held last weekend), the organizers say: 

“We all live in a world where women have been hurt by practices, attitudes and cultural norms that are often taken for granted.  Healing is needed on an individual level for those who have been victimized by real violence, and on a cultural level for all who are negatively impacted by a society where eating disorders, pornography, sexual assault, and attacks on women’s sexual health are common concerns.  These issues directly affect men and women, and we believe that their involvement in these types of healing and change is essential. 

“In celebrating women’s unique gift to be an instrument of empathy and healing, the conference will focus on the specific problem issues that require healing, as well as seek to provide a forum for discussing means to achieve this healing.

“Edith Stein, our patron saint, writes, ‘the capacity for empathy with others and their needs and the capacity and docility for adaptation are more developed in the nature of woman.  She (woman) has a profound need to share her life with another and, consequently, a capacity for unselfish love, for commitment, a capacity to transcend the self.   Furthermore, her inclination towards maternity draws her to all living and personal things and to a type of more specific, contemplative knowledge.  Her nature as mother and companion illuminates the essence of personal relationship.  Gifted with the capacity for carrying life, as the continuation of Eve called ‘mother of all living,’ she is also responsible for preparing ‘the restoration of life.’”

The mission statement then sets out the specific goals of the conference, and I am here to testify that they met and exceeded what they set out to do. 

Unique in an academic setting, the conference included academic presentations, personal testimony, and reports on direct action. The line-up included:

• Wendy Shalit, author of “A Return to Modesty” and the forthcoming “Girls Gone Mild” opened the conference with a talk entitled “Modesty:  The Last Taboo.” 
• Economist Jennifer Roback Morse spoke on her book, “Smart Sex:  Finding Life-long Love in a Hook-Up World.”
• Theologian Sr. Jane Dominic Laurel, O.P., spoke on “Women, Imagination, and the Cultivation of the Feminine Spirit in the Works of Cervantes and Edith Stein.”
• MOJ friend and alum, Paolo Carrozza, used examples from his work on the Inter-American Commission of Human Rights in his lecture entitled “Human Rights, Violence against Women and Reflections on Deus Caritas Est.
• Kathleen Gibney, formerly of the Notre Dame psychology department, spoke on “Awakening the Spirit of Women:  Gifts of Personal Reflection and Social
  Action.”
• Economist Catherine Ruth Pakaluk spoke “Splitting the Baby:  Creative Solutions for Mothers in a Second-Best Economy.”
• Ethics professor Janet Smith talked on “Contraception:  A Women’s Friend or Foe.”
• Theologian Pia de Solenni spoke on “Renewing the Feminine Image.”
• Philosopher Maria Fedoryka spoke on “Edith Stein and the Vocation to Love”
• Deirdre MacQuade, the U.S.bishops spokesperson on pro-life issues tied the conference together in her banquet speech, which reminded all of the call to prayer.

All of these talks were excellent, giving us fruitful information, ideas to chew on, and a basis for grounding human dignity and the new feminism in our nature as creatures created in God’s image.  The conference would have been worth it just to feast on the wisdom and knowledge of these thoughtful women (and man).  But, the conference was so much more than this. Students addressed real life problems of sexual assault, eating disorders, and sexual addiction.  And, other speakers, from magazine publishers to direct service providers spoke about their work in healing a wounded culture. 

My next post will reflect on these aspects of the conference.

Also, I invite other attendees to email me their reflections on the conference, which I will attempt to post.

Bainbridge on conscience and Catholic facilities

Our own Prof. Bainbridge comments here on Wesley Smith's recent piece, warning about the proposed California assisted-suicide law and its effect on religious health-care providers.

Catholic Universities and pluralism

Prof. Ed Edmonds (Notre Dame) passes on this, from ZENIT:

Catholic Professors Discussing Plurality Online

Internet Congress Ends March 3

PARIS, FEB. 25, 2007 (Zenit.org).- In an online international seminar, professors are debating the challenges faced by Catholic universities in a culturally and religiously pluralistic world.

The event is the fifth forum of the International Catholic Association of Institutions of Educational Sciences (ACISE), which will end March 3.

The seminar is entitled "Intercultural Dialogue in Education: Practical Experiences and Theoretical Points of View."

Bart McGettrick, a participant and former chairman of ACISE, told ZENIT that the online international congress is important because it "is useful for professors in Catholic universities to be in communication."

He said that there are "both common issues and values across the Catholic communities, as well as very different ways in which these are reflected in practice."

The former principal of St. Andrew's College of Scotland, and dean of education at Glasgow University, added: "The social, cultural, political and economic environments of each country offer opportunities to show how Christian values have a relevance to modern society and thought.

"It is a duty of educators to be open to these ideas and to share experiences both for ourselves and for others."

According to McGettrick: "The Church does have a duty to have an 'intellectual voice.' This should be heard by the wider public as part of contemporary thinking.

"If the Church does not do this the ideas and values of the marketplace become dominant and loud.

"We need to live in times when we can grow from out roots and reach to a world that currently lacks strong leadership."

He continued: "All around there is confusion, weakness and lack of ethical courage.

"University professors have a duty to provide some of that leadership and this seminar should provide some confidence in doing so."

Bella

Last Friday night I saw the excellent and moving movie, Bella, which won the People's Choice Award at the 2006 Toronto International Film Festival.   In the movie, a famous soccer player has withdrawn from the world after a tragic event cuts his career short.  While working in his brother's restaurant, he encounters a young waitress in crisis.  Their day together brings him out of himself and shows her the healing power of family.  Let us hope that the this film finds a distributor so that it can be shared with a wide audience.

"Doing God's work"

Scott Horton has a long post, over at Balkinization, on William Wilberforce, the anniversary of Parliament's vote to abolish the slave trade, and the role of religion in politics.  Here is a bit:

Wilberforce mustered many powerful arguments against the slave trade. At first, he avoided denunciations of the slave traders, and instead appealed to their humanity and inherent sense of justice. Throughout the Napoleonic Wars, Wilberforce was also a persistent advocate of the doctrine of humane warfare and raised his powerful voice repeatedly for the humane treatment of all prisoners taken in time of war. He also mobilized the emerging humanitarian law doctrine of protection for prisoners to oppose the slave trade. A large part of the West Africans impressed into bondage and shipped across the sea to be sold were, he pointed out, actually prisoners taken in warfare on the African continent. As such, he argued, they were entitled to humane treatment which could not be squared with the revolting conditions found on board of the slave trading ships. This shows the close, mutually reinforcing relationship between humanitarian law and human rights law that has continued to this day.

For Wilberforce's campaign, opposition to torture was the critical element. Given Biblical texts which explicitly or implicitly condoned the Peculiar Institution, it was difficult to frame a theological attack on slavery per se. But torture was another matter. The cruel abuse of a human being held in captivity was accepted by Wilberforce and most of his colleagues as an offense against Divine Law. Consequently the slave trade was thought a far more vulnerable target than slavery itself. In Wilberforce's great opening speech of 1789, frequently cited as the most important parliamentary address delivered in that memorable era, he dwelt heavily on the physical conditions of the slave ships: how slaves were stripped naked, bound and shackled, packed into the holds of the ship like sardines in a can, subjected to unbearable fluctuations of heat and cold, given inadequate water and food, deprived of sanitation. In such conditions the slaves screamed in agony, many calling out to be killed to put an end to their misery. And very many, by some reckonings most, expired in the process. Wilberforce's contemporaries readily accepted this thesis: that torture could not be permitted, even torture of slaves whose humanity was doubted. It is curious that today, two centuries later, the notion of slavery is a nonstarter, but torture seems to be accepted as fair grounds for debate. There can be no doubt that William Wilberforce would be appalled to make this discovery.

William Wilberforce may be something of an unwanted model for some of today's human rights advocates. He was an Evangelical Christian and, moreover, a Conservative. He sat for decades as a Tory MP for a Yorkshire constituency in Parliament, and his success comes at least to some extent from his close friendship with William Pitt, the youngest prime minister in Britain's history. But these are, I think, among the traits that make Wilberforce such an important figure for us today. He demonstrates the universality of the human rights message and its appeal across partisan and philosophical boundaries. He demonstrates that a political conservative who builds from traditional religious values, who embraces the joys of private property, who advocates a restrained government of limited powers, has every reason to advocate the cause of human rights. He demonstrates that there are and always were compassionate conservatives - men and women who truly earned this label.

How might Wilberforce's example, and success, inform the pro-life movement?

"Bleeding Heart right-winger"

This piece describes Sen. Brownback as a "bleeding heart right-winger," noting his positions on aid to Africa, Darfur, and immigration, among other things.  I wonder, how close is a "bleeding heart right winger" to a member of the "Seamless Garment Party," often discussed here at MOJ?

Abortion as a moral good

Erstwhile John Edwards staffer Amanda Marcotte has some bracing thoughts about abortion to share.  (I am sure John Edwards is relieved not to have to defend them):

To see that abortion is moral, you just need to look at women as human beings with lives that have value. When a woman chooses abortion, she's not indulging some guilty pleasure, like sneaking in a round of adultery at lunch, to bring up a genuinely immoral action that should not be criminal. She is probably thinking about her family's well-being and yes, her own well-being. Taking your own well-being into consideration is called "selfish" by anti-choicers, but I think valuing yourself is a moral good, even if you are female. In fact, especially if you are female, since you live in a world where having self-esteem can be an act of moral courage that requires some defiance. If I got pregnant, I wouldn't even have to suffer much mental strain to realize that abortion would be the best choice for myself, my family, and my relationship.  Abortion, not just the right to abortion but the actual procedure, is a moral good that helps women and families and should be honored as such. Women who get abortions should be recognized as people who can accurately weigh their choices and make the most moral one.

Firing U.S. Attorneys

Michael links to Ada, Cohen's complaint about the firing of seven U.S. Attorneys.  For what it's worth, the complaint strikes me as misplaced.  These U.S. Attorneys were nominated by this President, and serve in the Executive Branch of his administration.  President Clinton, remember, fired every single GOP-appointed U.S. Attorney -- except one -- when he came into office and, quite understandably, replaced them with his own nominees.  Is there politics at work here?  Of course.  And?

Fr. Schall on law and morality

This is worth a read.  Fr. James Schall asks about the role of law and politicians in protecting human life.  In particular, he thinks about the impact that abortion's "legality" has on people's views about its morality.

The Justice Department's "New Religious Freedom Initiatives"

Professor Friedman ("Religion Clause" blog) provides this news about the Justice Department's latest moves with respect to religious freedom:

Gov. O'Malley on the death penalty

A few days ago, Gov. Martin O'Malley of Maryland had this op-ed, "Why I Oppose the Death Penalty," in The Washington Post.  The piece seems informed by O'Malley's understanding of, and engagement with, the Church's evolving position on the issue.  He writes:

In evaluating whether Maryland's criminal death penalty should be replaced with life without parole, one must be guided by the answers to two basic questions:

· Is the death penalty a just punishment for murder?

· Is the death penalty an effective deterrent to murder?

O'Malley appears to assume that the answer to the first question is, in some cases, "possibly, yes."  But, he then refines the question, and asks whether, "[n]otwithstanding the executions of the rightly convicted, can the death penalty ever be justified as public policy when it inherently necessitates the occasional taking of wrongly convicted, innocent life?"  And, in answering this question, O'Malley turns to the question of deterrence:  "Does the use of the death penalty -- while rarely, if ever, 'just' -- save more innocent lives than it takes?"  Finally, he concludes with this:

And if the death penalty as applied is inherently unjust and lacks a deterrent value, we are left to ask whether the value to society of partial retribution outweighs the cost of maintaining capital punishment. While I am mindful of and sensitive to the closure (and in some cases the comfort) that the death penalty brings to the unfathomable pain of families that have lost loved ones to violent crime, I believe that it does not.

Human dignity is the concept that leads brave individuals to sacrifice their lives for the lives of strangers. Human dignity is the universal truth that is the basis of ethics. Human dignity is the fundamental belief on which the laws of this state and this republic are founded. And absent a deterrent value, the damage done to the concept of human dignity by our conscious communal use of the death penalty is greater than the benefit of even a justly drawn retribution.

While, in the end, I share Gov. O'Malley's view on the "policy question," I'm a bit uneasy with a few of the moves in his opinion piece.  Or, maybe I'm just misunderstanding.  It is not entirely clear to me what "work" O'Malley's claims about deterrence, cost, and risk-of-error are doing with respect to the "is the death penalty just?" question.  Now, certainly, if we are consequentialists, the question whether the death penalty's costs (money & risk of wrongful executions) outweigh its benefits (closure for victims and deterrence) is an important one.  But, does O'Malley think that "the concept of human dignity" precludes capital punishment or not?  If it doesn't, then would it matter if the death penalty could be administered less expensively, or if we had good data on deterrence?

"Aid in Dying" and Religious Liberty

A bill has been introduced in the California legislature that "would authorize an adult who meets certain qualifications, and who has been determined by his or her attending physician to be suffering from a terminal disease, as defined, to make a request for medication prescribed pursuant to this bill to provide comfort with an assurance of peaceful dying if suffering becomes unbearable."  Does this sound suspiciously like assisted suicide?  Not so fast.  The bill provides:

The patient must self-administer the medication provided under this chapter. Actions taken in accordance with this chapter shall not, for any purpose, constitute suicide, assisted suicide, mercy killing, or homicide, under the law. Every state agency, department, or office that prepares or issues a document or report that describes or refers to the medical practice described in this chapter shall use the phrase "aid in dying" to describe or reference the medical practice in the document or report.

Whatever it's called, Wesley Smith argues that the bill would require Catholic nursing homes and hospices to permit this practice in their facilities.

UPDATE: I just noticed that Steve Bainbridge also weighed in on this today.

"YOU'RE DOING A HECKUVA JOB, BROWNIE": Or, Is This Any Way to Run the U.S. Attorney Offices

New York Times
February 26, 2007

Editorial Observer
Why Have So Many U.S. Attorneys Been Fired?
It Looks a Lot Like Politics
By ADAM COHEN

Carol Lam, the former United States attorney for San Diego, is smart and tireless and was very good at her job. Her investigation of Representative Randy Cunningham resulted in a guilty plea for taking more than $2 million in bribes from defense contractors and a sentence of more than eight years. Two weeks ago, she indicted Kyle Dustin Foggo, the former No. 3 official in the C.I.A. The defense-contracting scandal she pursued so vigorously could yet drag in other politicians.

In many Justice Departments, her record would have won her awards, and perhaps a promotion to a top post in Washington. In the Bush Justice Department, it got her fired.

Ms. Lam is one of at least seven United States attorneys fired recently under questionable circumstances. The Justice Department is claiming that Ms. Lam and other well-regarded prosecutors like John McKay of Seattle, David Iglesias of New Mexico, Daniel Bogden of Nevada and Paul Charlton of Arizona — who all received strong job evaluations — performed inadequately.

It is hard to call what’s happening anything other than a political purge. And it’s another shameful example of how in the Bush administration, everything — from rebuilding a hurricane-ravaged city to allocating homeland security dollars to invading Iraq — is sacrificed to partisan politics and winning elections.

U.S. attorneys have enormous power. Their decision to investigate or indict can bankrupt a business or destroy a life. They must be, and long have been, insulated from political pressures. Although appointed by the president, once in office they are almost never asked to leave until a new president is elected. The Congressional Research Service has confirmed how unprecedented these firings are. It found that of 486 U.S. attorneys confirmed since 1981, perhaps no more than three were forced out in similar ways — three in 25 years, compared with seven in recent months.

It is not just the large numbers. The firing of H. E. Cummins III is raising as many questions as Ms. Lam’s. Mr. Cummins, one of the most distinguished lawyers in Arkansas, is respected by Republicans and Democrats alike. But he was forced out to make room for J. Timothy Griffin, a former Karl Rove deputy with thin legal experience who did opposition research for the Republican National Committee. (Mr. Griffin recently bowed to the inevitable and said he will not try for a permanent appointment. But he remains in office indefinitely.)

The Bush administration cleared the way for these personnel changes by slipping a little-noticed provision into the Patriot Act last year that allows the president to appoint interim U.S. attorneys for an indefinite period without Senate confirmation.

Three theories are emerging for why these well-qualified U.S. attorney were fired — all political, and all disturbing.

1. Helping friends. Ms. Lam had already put one powerful Republican congressman in jail and was investigating other powerful politicians. The Justice Department, unpersuasively, claims that it was unhappy about Ms. Lam’s failure to bring more immigration cases. Meanwhile, Ms. Lam has been replaced with an interim prosecutor whose résumé shows almost no criminal law experience, but includes her membership in the Federalist Society, a conservative legal group.

2. Candidate recruitment. U.S. attorney is a position that can make headlines and launch political careers. Congressional Democrats suspect that the Bush administration has been pushing out long-serving U.S. attorneys to replace them with promising Republican lawyers who can then be run for Congress and top state offices.

3. Presidential politics. The Justice Department concedes that Mr. Cummins was doing a good job in Little Rock. An obvious question is whether the administration was more interested in his successor’s skills in opposition political research — let’s not forget that Arkansas has been lucrative fodder for Republicans in the past — in time for the 2008 elections.

The charge of politics certainly feels right. This administration has made partisanship its lodestar. The Washington Post reporter Rajiv Chandrasekaran revealed in his book, “Imperial Life in the Emerald City,” that even applicants to help administer post-invasion Iraq were asked whom they voted for in 2000 and what they thought of Roe v. Wade.

Congress has been admirably aggressive about investigating. Senator Charles Schumer, Democrat of New York, held a tough hearing. And he is now talking about calling on the fired U.S. attorneys to testify and subpoenaing their performance evaluations — both good ideas.

The politicization of government over the last six years has had tragic consequences — in New Orleans, Iraq and elsewhere. But allowing politics to infect U.S. attorney offices takes it to a whole new level. Congress should continue to pursue the case of the fired U.S. attorneys vigorously, both to find out what really happened and to make sure that it does not happen again.

 

RES IPSA LOQUITUR

New York Times
February 27, 2007

Child Health Care Splits White House and States
By ROBERT PEAR

WASHINGTON, Feb. 26 — Governors clashed with the White House on Monday over the future of the popular Children’s Health Insurance Program, an issue that some members of both parties said was as important as money for the Iraq war.

In the session at the White House, when President Bush reported on progress of the war, governors pressed him to provide more money so they could guarantee health insurance for children. In response, administration officials said states should make better use of the money they already had.

Gov. Sonny Perdue of Georgia, a Republican, said afterward, “Health care for children ought to be a priority, irrespective of anyone’s views on the war.”

Georgia will exhaust its allotment of federal money for the Children’s Health Insurance Program within three months, Mr. Perdue said. Thirteen other states expect to run out by September, according to data released here at the winter meeting of the National Governors Association.

Governors said the Clinton and Bush administrations had encouraged them to expand children’s coverage and had granted waivers allowing them to cover parents and even some childless adults.

Having successfully expanded the health insurance programs in their states, some governors now suggest that the Bush administration is pulling the safety net out from under many children.

In his budget this month, Mr. Bush said he wanted to return the program to its “original objective” of covering children with family incomes less than twice the poverty level. Budget documents note that 16 states cover children above that level and that “one state, New Jersey, covers children up to 350 percent of the federal poverty level.”

A family of four is classified poor if its annual income is less than $20,650.

An influential member of Congress said Monday that he would not be taking up White House proposals to restrict eligibility and financing for the child health program.

“I have absolutely no intention of moving the president’s proposals through our subcommittee,” said the lawmaker, Representative Frank Pallone Jr., Democrat of New Jersey.

Mr. Pallone is chairman of the Health Subcommittee of the Energy and Commerce Committee, which has authority over the children’s program.

Speaker Nancy Pelosi said Monday that “Democrats in Congress understand the urgency” of the problem and would provide money to the 14 states that did not have enough to cover their current enrollment. Although Mr. Bush would reduce federal payments for adults and for children with family incomes above 200 percent of the poverty level, Mr. Pallone said states should have discretion to cover children above 200 percent of the poverty level and adults in some circumstances, too.

“In New Jersey, we made a decision to go up to 350 percent of the poverty level, because we have the highest cost of living in the country,” Mr. Pallone said.

Likewise, he said, New Jersey found that covering adults increased the likelihood that their children would stay on the rolls.

“The hallmark of all this is flexibility,” Mr. Pallone said. “A robust Children’s Health Insurance Program is an important part of any effort to try to achieve universal coverage.”

The federal government spends $5 billion a year on the program. Mr. Bush wants to continue that level, and he is seeking an ”additional allotment” of $4.8 billion over the next five years.

States would need substantially more to continue their programs with current eligibility rules and benefits. New estimates from the Congressional Budget Office show that the states face shortfalls of $700 million this year and a total shortage of $13.4 billion from 2008 to 2012.

Gov. Jim Douglas of Vermont, a Republican, said the Bush proposals would jeopardize his state’s phenomenal success in covering children. In Vermont, he said, fewer than 4 percent of the children are uninsured, and “we don’t want to lose ground.”

Bush administration officials emphasized that states received a fixed amount of federal money each year, and they said individual children did not have a legal entitlement to benefits. Michael O. Leavitt, secretary of health and human services, said he would work with Congress to find “a short-term solution” for states exhausting their allotments this year. He said states could avoid shortfalls by managing their programs better.

In his experience as governor of Utah, Mr. Leavitt said, “when we were out of an allotment, we just discontinued enrolling people until we had room.” Likewise, he said, states could cover more people if they provided less comprehensive benefits.

Gov. Ted Strickland of Ohio, a Democrat, said: “If we don’t get the money we need, children will go without coverage.”

“In the meeting with the president and Secretary Leavitt,” Mr. Strickland said, “when questions were raised about children maybe having to be removed from the program or eligible children not being able to participate, we were told that that was basically a management problem.”

Gov. Jon Corzine of New Jersey, a Democrat, said that under the president’s proposals “we will end up having fewer children covered.” That prospect “was chilling to some of us,” Mr. Corzine said, adding that states wanted to avoid “rationing health care to our most vulnerable and our most needy.”

Gov. Edward G. Rendell of Pennsylvania, a Democrat, said Mr. Bush’s budget request was “clearly insufficient” to continue coverage for the six million children enrolled in the program.

Many governors want to expand the program, which they see as a foundation for their efforts to expand coverage generally.

Mr. Rendell framed the issue as a choice, asking: “Should we be giving tax cuts to billionaires and millionaires or should we be giving health care to children? Should we make health care for children, at the very least, an entitlement?”

Domestic policy is in a straitjacket because of the cost of the war, the cost of tax cuts and the president’s plan to balance the budget within five years, Mr. Rendell said.

Gov. Arnold Schwarzenegger of California, a Republican, said federal aid was essential to his $12 billion plan for universal health coverage. Mr. Schwarzenegger said that in a private meeting he told the president, “We need the federal government’s help.” He did not say whether he got a commitment.

 

Parental Rights Lose in Lexington, Mass.

The Lexington, Mass. case that Fr. Araujo recently discussed has been decided against parental rights.  The federal district court dismissed the parents' complaint that they had a constitutional right to receive notice and an opportunity to remove their kindergarten and first-grade children from sessions reading books that presented same-sex sexual relationships or marriage as morally positive.  Parker v. Hurley, 2007 WL 543017 (D. Mass. Feb. 23, 2007).

Although the age of the children is quite young here, the decision seems unfortunately consistent with most of the recent precedent -- including this from the Ninth Circuit --holding that once parents send their children to public school, they have no constitutional rights whatsoever to opt them out of any objectionable curriculum.  A prominent rationale in these decisions is that if the parents wanted a curriculum congenial to their moral views, they could have chosen a private school -- an argument, of course, that in its disregard for the economic realities of modest-income families, ought to appeal more to anti-tax libertarians than to the politically left-ish people who typically make it.

As I understood the situation around the country, opt-outs from sex-education programs have been widely granted by school districts over the years.  Massachusetts has such a provision requiring notice and an opportunity to opt out of curriculum that "primarily involves human sexual education or human sexuality issues."  Mass. Gen. Laws c. 71, section 32A.  On the issue of homosexual conduct, the Lexington school district (and likely others as well) sought to avoid this duty to accommodate by claiming that the issue is one of teaching tolerance rather than teaching about sexuality.  The district court did not decide this state-law dispute; having dismissed the parents' claims, it also dismissed the claim under the state statute without prejudice to the plaintiffs suing in state court.  This was proper under the law of federal jurisdiction, but it does of course leave the parents objecting to same-sex marriage to the tender mercies of the Massachusetts state court system that (in the Goodridge ruling) has declared such objections irrational and hateful.

Not a bright picture for parental rights, in other words, except for a thin silver lining.  The parents objected that their children were being "indoctrinated" into approval of the morality of same-sex sexual relationships.  The district court answered that this was nothing more than an "epithe[t]": "'Indoctrination' is a pejorative term for teaching," and "[i]t is, obviously, the duty of the schools to teach."  Some of you will remember the several Supreme Court opinions (most notably Lemon v. Kurtzman) that forbade state aid to Catholic and other religious schools on ground that they engaged in "indoctrination" of students.  Critics of the Court sometimes pointed out that this was simply a nasty word for teaching, which all schools do -- public and private -- and should admit to doing.  Now, in the cases that we know are still upcoming about the permissibility of aid programs (i.e. school choice) under state constitutions, there's at least a district court opinion to cite and quote to support this argument for school choice.

So this decision continues the unfortunate trend of denying parents any option of partial exit from state controlled education.  But at least it provides a small bit of authority to help defend the broader exit option of school choice -- to bolster the case for permitting modest-income parents who choose religiously grounded "teaching (not indoctrination)" to receive the same state assistance in educating their children as parents who choose secular "teaching (not indoctrination)." 

Tom

God and the Welfare State

In the current issue of America, I review Lew Daly's God and the Welfare State.  Here's the opening:

A wave of recent books has left the distinct impression that the harnessing of religious ideals to political power has ushered in a new Dark Ages in American public life. In God and the Welfare State, Lew Daly departs from the trend of near-hysterical claims by exploring the religious underpinnings of President George W. Bush’s faith-based initiative in terms that actually shed more light than heat. The book does not read as an indictment of Bush’s purported theocratic agenda for making it easier for religious organizations to secure public funding for social services. Rather, the book illuminates the gap between political rhetoric and policy reality. Religious leaders routinely (and rightfully) accuse Bush of failing to embody the prophetic concern for the poor that is found in his own faith tradition. Daly, who has studied religious ethics at Union Theological Seminary in New York City, offers nothing novel in this regard. What he does offer is a nuanced tracing of the two closely related Christian principles that are most clearly reflected in the president’s approach to poverty.

Baptists, Biblicists, and Beyond

Sightings  2/26/07

Baptists, Biblicists, and Beyond
-- Martin E. Marty

"Myths of the Baptists" is the mis-worded headline above a story reporting from across the Atlantic that does not treat all Baptists, and that also deals with more than just Baptists.  John Whale of the Church Times and the Sunday Times reviews Andrew Greeley and Michael Hout's survey-rich study The Truth about Conservative Christians: What They Think and What They Believe.  A quote from the book: "Our findings confirm those of other academic researchers who continue to point out the glaring gap between religious and political conservatism."  And from Whale: "At the polls, on this evidence, even the godly serve their economic interest first.  The Republicans' real base is not the religious right but the affluent."  Agreed -- but might the Republican party not make a two-base hit with affluence and religion?

Greeley, of the University of Arizona, and Hout, of Berkeley, are both Catholics, as Whale finds it important to note.  In their study, these authors expound a three-fold distinction based on the General Social Survey.  First and most numerous are conservative Protestants in largely white denominations, including Southern and other Baptists, Pentecostals, and Lutherans of the Missouri and Wisconsin Synods.  Next are "mainline Protestants": Methodists, most Lutherans, Presbyterians, and Episcopalians.  Third are African-American Protestants in their four or five main denominations.  African-Americans do side with the first group in their hold on the Bible, born-again experience, and evangelism.

The conservatives vote Republican, the mainliners split evenly between Republicans and Democrats, but "the African-Americans plumped nine to one for Democratic presidential candidates since the 1960s."  Nor are the biblicists found to be solid on the issues that inflame them.  "Their marriage discipline wobbles: conservative Protestant men declare more sexual partners than do mainline Protestant men."  Do the stuffy old squares need to get born again to play around?  Yet the conservatives do tend to vote "family values."  They don't just tramp to the polls "in lockstep."

Of most importance is that the impression of lockstep arises when the public hears "electoral threats from the religious Right's leaders directed at any politician who refused them backing, etc. ....  That those leaders could deliver the votes of their rank and file was not disputed."  But it should have been disputed, it is implied.  "The explanation appears to be that conservative Protestantism has turned docile, at least in public.  The pew lets the pulpit speak for it."  The Southern Baptist Convention in 2000 adopted an "authoritarian system of decision-making" that evidently awes the two scholars who belong to that relaxed body called "Catholic."  Why are the conservative Protestants so authoritarian?

Because, says Whale, the Bible, their supreme guide, is "a collection of books in which you can find at least two opinions about everything" -- so "you need a firm umpire."  Half of conservative Protestants say they avoid alcohol on biblical literal grounds, yet "any biblical concordance shows 'wine' symbolizing everything from abject evil to ultimate good."

Whale goes on: "Without bossy interpreters to think for you, you would be lost.  And such interpreters can overstate levels of conviction among conservative Christians on wider questions, it seems, and hear no protest from the pew."  Half of them will drink to that! 

[Martin E. Marty's biography, current projects, upcoming events, publications, and contact information can be found at www.illuminos.com.]

----------

Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.

Wounded Healers

Sightings  2/22/07

Wounded Healers
-- John G. Stackhouse, Jr.

By now we've all heard the latest about Ted Haggard, former pastor of New Life Church in Colorado Springs, Colorado, and former head of the National Association of Evangelicals.  Brother Haggard -- and, as a fellow Christian, he is my brother -- was found to have been having sexual relations with a male prostitute in Denver.  He resigned in disgrace, and has since been in counseling.

According to the February 6 issue of the Denver Post, the four pastors in charge of overseeing New Life Church in the wake of this disaster made a surprising -- to some, an astonishing, and to others, an absurd -- announcement.  One of them, Rev. Tim Ralph of Larkspur, Colorado, was quoted as explaining Haggard's three-year relationship with the man in these terms: Haggard "is completely heterosexual.  That is something he discovered.  It was the acting-out situations where things took place.  It wasn't a constant thing."

Columnists have had a field day with this recent announcement, of course, with many wondering what stresses could possibly drive a "completely heterosexual" man into the arms of a male lover.  Others have simply gotten the story wrong, saying that Haggard is claiming to have been "cured" of homosexuality in just three months, rather than the years that might be expected for rebuilding such a basic component of one's personality -- if indeed such a thing is possible at all.  The media circus continues.

In all of this, I am reminded of the late Henri Nouwen, the superb spiritual writer who taught at Harvard and Yale before spending his last years in pastoral service at L'Arche, Jean Vanier's community for the developmentally disabled.  Nouwen also wrestled with homosexuality -- "wrestled" with it because his religious beliefs, like Haggard's, diagnosed it as a deformation of the personality.

Also like Haggard, Nouwen maintained a position of spiritual advisor to many.  His sexual difficulty did not disqualify him from offering his considerable gifts to others -- nor should Haggard's have kept him from pastoral service.

Unlike Haggard, however, Nouwen refused to engage in preaching or public activism against homosexuality.  He avoided, that is, any risk of incurring the taint of hypocrisy, which is a far more serious problem -- in the Bible and in the public eye -- than is homosexuality.

Nouwen gave us the lovely phrase, the "wounded healer."  Some have exploited this term -- as all lovely things are vulnerable to exploitation -- to suggest that you can be entirely comfortable with all manner of sins and still be a spiritual leader.  You can be proud, you can be lustful, you can be greedy, you can wrathfully dismiss dissenting colleagues, and on down through the seven deadlies -- but hey, you're a "wounded healer" and darned popular -- in other words, "blessed in your ministry."  So it's okay, right?

No, says Nouwen, by word and by example.  Serve, yes, offering your God-given talents to make God's beloved world a better place.  But serve out of consciousness of your wound, which means to serve in humility, in compassion, in patience.  "There but for the grace of God go I."

Nouwen's insight is that, clergy or not, we must not wait to become perfect before we help others.  We can help them, that is, precisely as fellow sufferers, with genuine fellow feeling -- but also with a strong and clear sense of our limitations.  And even if you've never been a fan of Ted Haggard, nor of the populist celebrity-evangelicalism that he exemplifies, you can still cultivate sympathy for him, for his family, and for his church.

And, thanks to Brother Nouwen, we can also better recognize that our wounds may not be healed right away, nor even over months or years.  According to Nouwen's theology, God may well allow some of those wounds remain a while -- for as we endure their pain, their shame, and their debility, we may be given the gift of remembering just how needy each of us is, and how great the possibilities of restoring love.

[John G. Stackhouse, Jr., is Sangwoo Youtong Chee Professor of Theology and Culture at Regent College.]

----------

Sightings comes from the Martin Marty Center at the University of Chicago Divinity School.

"they might not understand"

First, an excerpt from John Allen's report:

. . . . Archbishop Myers told NCR on Feb. 22 that he has “no intention” of announcing communion bans against candidates in the 2008 presidential elections, a position he expects the “vast majority” of other American bishops to adopt as well.

Myers said debates over communion should not be restricted to politicians.

“Anyone should live their professional lives in accord with Catholic teaching,” he said. “People should be honest. If they’re struggling with one or another point, that’s one thing. But if over a spectrum of issues they are not in agreement with the church, they should withhold themselves from communion.”

As for formal bans, Myers said that while he “may have some sympathy” for the instinct behind such moves, he won’t do it himself, and regards them as “practically impossible to enforce.”

“For the most part, communion in this archdiocese is distributed by laypeople,” he said. “There’s a danger that they might not understand the issues so clearly, and end up imposing their own politics on who gets communion and who doesn’t.”

Second, a question or two:  What's really going on here?  Under the Archbishop's watch, "laypeople" are "[f]or the most part" in charge of distributing the Body and Blood of Christ, and those poor "laypeople" "might not understand" what, presumably, some other people (clergy?) could (and do?) understand ("clearly"?).  But even laypeople can read Redemptionis sacramentum and suspect that it is not being observed in New Jersey: 

"[158.] Indeed, the extraordinary minister of Holy Communion may administer Communion only when the Priest and Deacon are lacking, when the Priest is prevented by weakness or advanced age or some other genuine reason, or when the number of faithful coming to Communion is so great that the very celebration of Mass would be unduly prolonged.[259] This, however, is to be understood in such a way that a brief prolongation, considering the circumstances and culture of the place, is not at all a sufficient reason."

Little wonder, I suppose, that politicians wishing to abuse and injure the visible communion of the Church have pretty much a green light in New Jersey.  The clergy have effectively put the laity in charge of communion, the laity (we're told) don't know what's going on, and the politicans -- who we can be sure do know what's going on when they claim to have a right to receive communion while causing a scandal to the faithful by there persisent, public disregard of a central, nonnegotiable Church teaching -- are without benefit of Church leadership that will teach them that they are putting themselves outside the visible communion of the Church.  Pastoral prudence is called for, to be sure -- and it does not include saying in a news interview that the Church cannot protect the sacramental communion because she has turned it over to benighted laity. 

But this is how it works today.  My former pastor, as soon as he reached our parish, resurrected the practice of distributing communion at all Sunday Masses -- both those he celebrated and those celebrated by other priests.  A member of the parish who had long cherished serving unchecked as what the Church, but not she, refers to as an Extraordinary Minister of Holy Communion, informed the incoming pastor as follows: "I have a right to distribute communion that you can't take away just because you're the pastor." 

 

The Delta Zetas: Defenders of Subsidiarity!

Civil society is built on the right of association, which is inseparable from the right to exclude.  Sometimes the decision to exclude is based on high-minded ideals and core moral convictions; sometimes it's not.

The Jurisprudential Implications of the Anna Nicole Case

It's no simple task to link Catholic legal theory and Anna Nicole Smith, but here goes:  Legal Realism has helped us discern the human dimension of a judge's decision-making, and at least one thoughtful scholar has recently called for judges' own values to "reenchant" the law.  Can we all agree that Judge Larry Seidlin's handling of the Anna Nicole case provides the most compelling case yet for a return to formalism?

Culture Watch: The New Tupperware Party

It's been interesting to watch strip clubs and the rest of the "adult entertainment" industry go from shady and disreputable to mainstream and acceptable.  (Is there any sitcom that has not featured a "visit to the strip club" episode?)  Now, apparently, our fascination with strippers has spawned a new cultural phenomenon: pole dancing parties.  I'll be the first to acknowledge the warped view of gender and sexuality reflected in a previous generation's  expectation that women's social lives could flourish around the quest to keep leftover food fresh.  But I'm not sure that this is an improvement.

Religious Freedom Based on Equality?

I've posted on SSRN a draft book review, forthcoming in the Texas Law Review, of the new book by Chris Eisgruber (provost at Princeton) and Lawrence Sager (dean at Texas), Religious Freedom and the Constitution -- a book that I think is quite impressive even though mistaken in several ways.  From the review abstract:

Eisgruber and Sager are the most sophisticated proponents of an approach to the Religion Clauses that emphasizes equality and nondiscrimination as opposed to any distinctive substantive liberty or autonomy in religious matters. . . .  The book is commendable because, among other things, it confronts the central problem for an equality-based theory of religious rights: how to square it with the special treatment of religion reflected in a good deal of constitutional case law, in widely held intuitions, and in the very fact that the First Amendment contains two clauses singling out religion for concern - one of which, the Free Exercise Clause, speaks by its terms of freedom rather than equality.

This essay argues, however, that Eisgruber and Sager fail to show that special treatment of religion can be explained as nondiscrimination without reference to religious autonomy. Thus, although their theory generates many normatively attractive results - offering, for example, a rationale for potentially strong protection of free exercise rights - they can only generate them by surrendering a focus on equality and nondiscrimination. I first argue that Eisgruber and Sager cannot give religious liberty the robust protection they claim without giving it more protection than some deeply felt nonreligious reasons for acting, and without showing some special concern for religious autonomy. I next turn to the special limits that Eisgruber and Sager reaffirm on government assistance to religion - especially government expression of religious sentiments - and conclude that Eisgruber and Sager cannot defend these special Establishment Clause limits and still object to giving exemptions to religious exercise but not secular beliefs. Finally, I discuss the primary alternative to an equality-based theory - the principle that government should respect and promote the choices of individuals and groups in religious matters - and present a brief case for it, both affirmatively and in response to Eisgruber and Sager's criticisms.

Tom

Equality, Privacy, and Roe

Yale law prof Jack Balkin argues that, in light of rapidly expanding genetic technology, it is important to interpret Roe as being grounded in gender equality rather than reproductive privacy.  Here's an excerpt:

If Roe is about reproductive choice in the abstract, about the rights of people to reproduce (or not reproduce) without interference from the state, future litigants will demand that courts insulate new reproductive technologies from regulation on the grounds that individuals should be free to have children by any means that science permits. Currently, there is no clear boundary that makes a generalized right to reproductive autonomy inapplicable to new reproductive technologies like cloning or genetic engineering. One might argue that only traditional methods of reproduction are protected, but such arguments may be unavailing precisely because the technology never existed before. The question will be whether the privacy principle applies in the new technological context, just as courts have asked whether the free speech principles apply to the Internet, or whether the Fourth Amendment's prohibition against unreasonable searches applies to infrared sensors directed at people's homes. Nor can we easily draw lines between "natural" methods of reproduction protected by the right to privacy and technologically assisted methods that are not. By now, the process of reproduction for many couples is thoroughly imbued with various forms of medical and technological assistance, including fertility clinics and in vitro fertilization. Assuming for the moment that the right to reproduce extends to using fertility clinics and in vitro fertilization, it will be difficult for courts to draw lines. The privacy interpretation of Roe may have a stopping point, but it may not be the one we now imagine, or it may simply be unprincipled and ad hoc.

New York Times Online
February 22, 2007,  11:38 am

Sam Brownback: Wilberforce Republican

By Sarah Wheaton

Senator John McCain calls himself a “Teddy Roosevelt Republican,” and both Rudolph W. Giuliani and Mitt Romney, the other perceived frontrunners for the G.O.P. nod, have tried to tie themselves to Ronald Reagan.

Sam Brownback (Photo: Charlie Riedel/Associated Press)

But the latest comparison might be a bit of a head-scratcher for most, especially those who don’t identify as evangelicals.

Senator Sam Brownback: William Wilberforce Republican.

If you don’t know who he is, never fear—Hollywood is coming to the rescue with Friday’s release of  “Amazing Grace.” The film details Mr. Wilberforce’s successful, 20-year effort as a British member of parliament to abolish the slave trade in the British Empire. He was inspired by his evangelical Christian beliefs. And Mr. Brownback, a devout Catholic who was previously an evangelical Protestant, “is deeply inspired by William Wilberforce,” said Brian Hart, his campaign spokesman.

A March 2006 article in The Economist first named Mr. Brownback a “Wilberforce Republican,” referring to his faith-grounded efforts to end human trafficking, fight genocide and AIDS in Africa and to reform prisons.

The Kansas senator is running with the association. Last Thursday, he introduced a bill to honor the British abolitionist, and on Friday, he’ll participate in a panel discussion following a screening of “Amazing Grace” in Los Angeles.

“We must continue to follow Wilberforce’s example and fight for the dignity and freedom of every person,” Mr. Brownback said in a press release about the bill. “It is intolerable that 200 years after Britain banned its slave trade, there are still hundreds of thousands of victims of human trafficking who are used as bonded labors, sex slaves, and in other horrifying capacities.”

“This will help him in the sense that Senator Brownback comes across as this sweet gentleman, but here he is saying forthrightly, ‘I am a conservative on many issues, but I’m also for the downtrodden and the oppressed,’” said Michael Cromartie, vice president of the Ethics and Public Policy Center, a Washington think tank. “Claiming the mantle of Wilberforce this early on and around the time of this movie is all to the good, and now the others who are doing it will be following him.”

Other social conservatives, such as Mike Huckabee, the former Arkansas governor, wouldn’t be the only ones to potentially follow Mr. Brownback. Mr. Wilberforce is familiar to evangelicals (i.e. Republican voters in the Iowa caucuses and South Carolina primary) because people like Charles Colson and James Dobson mention him on their radio shows, said Mr. Cromartie. But he’s also “invoked all the time” at Capitol Hill prayer meetings attended by a diverse group that includes Mr. Brownback and Senator Hillary Rodham Clinton. Plus, as an abolitionist, Mr. Wilberforce would have appeal to potential supporters of the Democratic candidates as well.

“I see him as somebody who could be claimed by anybody but someone with business interests,” said Mr. Cromartie, because big British business wanted to keep the slave trade alive. Indeed, sponsors of “Amazing Grace” include Mr. Dobson’s Focus on the Family, Sojourners, a liberal evangelical group, and Wilberforce University, a predominantly black school in Wilberforce, Ohio.

Joseph Loconte, a senior fellow at E.P.P.C. who wrote an op-ed in Wednesday’s Los Angeles Times calling for contemporary politicians to follow Mr. Wilberforce’s example with a faith-based approach to human rights, wrote in an email to The Times that it is fair to call Mr. Brownback a “conviction politician” in the Wilberforce vein.

But, he continued, it won’t necessarily help him in his presidential bid:

Americans don’t normally vote for a presidential candidate because they want a great social reformer (think about the failed presidential bids of Democratic contender William Jennings Bryan). In post-9/11 America, they probably want a leader who understands the deepest threats to our national security–the existential threat of radical Islam, for example–and what to do about them. Anyone seeking the presidency now is going to have to persuade Americans that he, or she, is the best person to take on this task.