Friday, March 30, 2012
I received from the library today my hot-off-the-presses copy of my teacher Robert Burt's new book, In the Whirlwind: God and Humanity in Conflict I'm really looking forward to it. Here's some blurb-age:
God deserves obedience simply because he’s God—or does he? Inspired by a passion for biblical as well as constitutional scholarship, in this bold exploration Yale Law Professor Robert A. Burt conceptualizes the political theory of the Hebrew and Christian Bibles. God’s authority as expressed in these accounts is not a given. It is no less inherently problematic and in need of justification than the legitimacy of secular government.
In recounting the rich narratives of key biblical figures—from Adam and Eve to Noah, Cain, Abraham, Moses, Job, and Jesus—In the Whirlwind paints a surprising picture of the ambivalent, mutually dependent relationship between God and his peoples. Taking the Hebrew and Christian Bibles as a unified whole, Burt traces God’s relationship with humanity as it evolves from complete harmony at the outset to continual struggle. In almost every case, God insists on unconditional obedience, while humanity withholds submission and holds God accountable for his promises.
Contemporary political theory aims for perfect justice. The Bible, Burt shows, does not make this assumption. Justice in the biblical account is an imperfect process grounded in human—and divine—limitation. Burt suggests that we consider the lessons of this tension as we try to negotiate the power struggles within secular governments, and also the conflicts roiling our public and private lives.
Today the Pontifical Council for Justice and Peace has published "Vocation of the Business Leader: A Reflection." Sr. Helen Alford and my colleague Mike Naughton coordinated the project, supported by a cast of contributors that includes Stefano Zamagni, Andre Habisch, and my colleagues Ken Goodpaster and Bob Kennedy. From the foreword by Peter K.A. Cardinal Turkson and Bishop Mario Toso: "This reflection offers business leaders, members of their institutions, and various stakeholders a set of practical principles that can guide them in their service of the common good. . . . [T]he Church does not relinquish the hope that Christian business leaders will, despite the present darkness, restore trust, inspire hope, and keep burning the light of faith that fuels their daily pursuit of the good."
Here is more from the Pope's Cuba homily, on religious freedom:
The right to freedom of religion, both in its private and in its public dimension, manifests the unity of the human person, who is at once a citizen and a believer. It also legitimizes the fact that believers have a contribution to make to the building up of society. Strengthening religious freedom consolidates social bonds, nourishes the hope of a better world, creates favourable conditions for peace and harmonious development, while at the same time establishing solid foundations for securing the rights of future generations.
When the Church upholds this human right, she is not claiming any special privileges for herself. She wishes only to be faithful to the command of her divine founder, conscious that, where Christ is present, we become more human and our humanity becomes authentic. This is why the Church seeks to give witness by her preaching and teaching, both in catechesis and in the schools and universities. It is greatly to be hoped that the moment will soon arrive when, here too, the Church can bring to the fields of knowledge the benefits of the mission which the Lord entrusted to her and which she can never neglect. . . .
The penultimate sentence in this quote (above) is relevant, I think, to the debate about the religious-freedom implications of the preventive-services mandate. As I noted the other day, it is a mistake to think about the mandate only in terms of the question whether it purports to require culpable cooperation-with-evil. Instead, the mandate burdens religious freedom, it seems to me, by compromising the integrity of Catholic institutions' witness.
It is available here:
. . . The truth is a desire of the human person, the search for which always supposes the exercise of authentic freedom. Many, without a doubt, would prefer to take the easy way out, trying to avoid this task. Some, like Pontius Pilate, ironically question the possibility of even knowing what truth is (cf. Jn 18:38), claiming is incapable of knowing it or denying that there exists a truth valid for all. This attitude, as in the case of scepticism and relativism, changes hearts, making them cold, wavering, distant from others and closed. There are too many who, like the Roman governor, wash their hands and let the water of history drain away without taking a stand.
On the other hand, there are those who wrongly interpret this search for the truth, leading them to irrationality and fanaticism; they close themselves up in “their truth”, and try to impose it on others. These are like the blind scribes who, upon seeing Jesus beaten and bloody, cry out furiously, “Crucify him!” (cf. Jn 19:6). Anyone who acts irrationally cannot become a disciple of Jesus. Faith and reason are necessary and complementary in the pursuit of truth. God created man with an innate vocation to the truth and he gave him reason for this purpose. Certainly, it is not irrationality but rather the yearning for truth which the Christian faith promotes. Each man and woman has to seek the truth and to choose it when he or she finds it, even at the risk of embracing sacrifices.
Furthermore, the truth which stands above humanity is an unavoidable condition for attaining freedom, since in it we discover the foundation of an ethics on which all can converge and which contains clear and precise indications concerning life and death, duties and rights, marriage, family and society, in short, regarding the inviolable dignity of the human person. This ethical patrimony can bring together different cultures, peoples and religions, authorities and citizens, citizens among themselves, and believers in Christ and non-believers.
Christianity, in highlighting those values which sustain ethics, does not impose, but rather proposes Christ’s invitation to know the truth which sets us free. The believer is called to offer that truth to his contemporaries, as did the Lord, even before the ominous shadow of rejection and the Cross. The personal encounter with the one who is Truth in person compels us to share this treasure with others, especially by our witness. . . .
On the Public Discourse website, here is a good commentary by Teresa Collett (University of St. Thomas law professor and president of University Faculty for Life) on CIANA (the Child Interstate Abortion Notification Act). CIANA is designed to prevent the transportation of minors across state lines to obtain abortions without complying with the parental involvement laws of the minor's home state. (Some years ago, I testified on some of the constitutional issues raised by CIANA. See.) Teresa's commentary and her congressional testimony focus on why parental involvement laws promote the health of young women.
Friend and OCU law professor, Andy Spiropoulos, recently noted that while OKC leaders dream of a opening a racially and economically diverse school in downtown Oklahoma City they ignore the reality that the city already has such a school in Villa Teresa, which is run by the Carmelites. He concludes that it really isn't about money since states come out ahead under most school choice programs. Read his op ed here: http://journalrecord.com/2012/03/21/right-thinking-a-tough-lesson-to-digest-opinion/
Wednesday, March 28, 2012
Last night, I participated in a panel discussion, sponsored by the Notre Dame Right to Life student group, on the HHS preventive-services mandate. My focus was on the religious-freedom dimensions of the debate. Here is a story about the panel from the campus newspaper. And, here are the notes from my talk:
Because I am a lawyer, I cannot resist splitting hairs. And so, I want to distinguish my question – the “religious freedom” question – from three others.
First, I am not talking about whether we think the “Affordable Care Act” is good policy, or whether the insurance-coverage mandate is constitutional, or whether we prefer the Democrats' health-care-related propossals to the Republicans'. These are perfectly good questions, but they are different from the question whether religious employers should be exempt from the preventive-services mandate. This question is not – it should not be – a “liberal” or a “conservative” issue. Democrats and Republicans agree – liberals and conservatives agree – that America’s commitment to religious freedom is foundational, and fundamental.
Second, I am not talking about the merits of the Church’s teachings on sexual ethics, or about the social and other effects of contraception. These are also – obviously – important questions, and others can speak more usefully about them than I can. My point is, it should not matter, for purposes of the religious-freedom question, whether or not you are a Catholic, or whether or not you embrace the Church’s vision of human sexuality. Remember: It is always the case, in religious-freedom cases, that we are talking about the protection of minority views. The whole point of constitutional protections for religious freedom, and of “accommodations” and “exceptions,” is to protect and respect minority and unpopular views. After all, the views of the majority, and popular views, do not need special protection.
Third, I am not talking about the important, technical questions about whether it would constitute “cooperation with evil” for Notre Dame or other religious employers to comply with the mandate. Smart people disagree about this question. But, this question is different from the religious-freedom question. The “religious freedom” of institutions like Notre Dame is not just the freedom to avoid being coerced into doing wrong. It also includes the freedom of Catholic institutions to bear witness to the truth of the Faith, to act with integrity, and to act coherently, in accord with their Catholic character.
So, all that said, I want to (very briefly) mention three aspects of my question, the “religious freedom” question.
First, is the mandate unconstitutional? Does it violate the First Amendment? My answer to this question is . . . possibly. [Explain.]
Second, is the mandate illegal? That is, does it violate a federal statute, the Religious Freedom Restoration Act? I say . . . probably. [Explain.]
Third, is the mandate inconsistent with our traditions, and with our longstanding commitment to pluralism and religious freedom? Here, I say . . . yes. Even if we assume that the mandate is constitutional under current doctrine, and that it does not violate RFRA, this does not mean that it respects religious liberty, or that it is consistent with our traditions of accommodating minority views and valuing pluralism. Sometimes, a democracy like ours, with ideals like ours, accommodates religious freedom even when it does not have to. In this case, the better policy – the policy that better implements our commitments – is to provide a broader religious-liberty exemption to the preventive-services mandate. . . .
A significant trial began in Philadelphia this week. A similarly important hearing took place in Kansas. Both cases may indicate a sea change in how jurisdictions will seek accountability of Catholic Church officials for their role in failing to protect children from clerical perpetrators.
As most MOJ readers know, two priests are on trial related to the child sex abuse scandal of the Philadelphia Archdiocese. Originally three defendants were to be tried together. Former priest Edward Avery and current priest James Brennan were accused of conspiracy and sexually assaulting children. What makes this case particularly legally interesting is the third defendant, Msgr. William Lynn, who is not accused of assaulting children. However, he is accused of endangering the welfare of children and conspiracy in his role as Secretary for the Archdiocese. As the New York Times described it, "[t]he defendant, Msgr. William J. Lynn, 61, is the first Roman Catholic supervisor in the country to be tried on felony charges of endangering children and conspiracy — not on allegations that he molested children himself, but that he protected suspect priests and reassigned them to jobs where they continued to rape, grope or otherwise abuse boys and girls."
The history of the case is lengthy and dramatic. This reality continued last week when Avery pled guilty to conspiracy and sexually assaulting a boy in 1999. He was sentenced to 2 ½ - 5 years incarceration. During the plea, a local television station reports that "Avery also admitted in court that Msgr. Lynn knew that he had sexually abused children but had nevertheless allowed him to remain in ministry." As a result, Msgr. Lynn moved to delay the trial and select a new jury, arguing that jurors could not have avoided the pretrial publicity and would be tainted. On Monday the judge and counsel individually questioned the jurors and two were dismissed as a result of their exposure to the news coverage. The case began as scheduled.
Prosecutors outlined their case Monday in an hour long opening. (In full disclosure, I am a former Philadelphia Assistant District Attorney.) According to the Philadelphia Inquirer, the theme of the prosecution's opening statement was that Lynn was in charge of investigating allegations of abuse and also of protecting the Archdiocese, he "could not do both," and "chose to spare church leaders and his fellow priests from scandal at the expense of victims and the public." Lynn's defense lawyer's opening theme was to suggest that Lynn was the only person working on this problem and the failure to act and assignments were made by those above him, to include the now deceased Cardinal Bevilacqua. Brennan's defense counsel presented a defense of attacking the credibility of his accuser.
The Washington Post reports that the first day of trial included a list of molesting priests allegedly prepared by Lynn. Avery was on that list. The witnesses testified that although Avery was removed from his parish because of his sexual abuse, his parish was misled as to the reason he was ultimately reassigned and lived at a parish connected to a school. The Philadelphia Inquirer reported that,
[Lynn's] letters to two of Avery's parishioners, read aloud today to jurors at Lynn's trial, praised the priest [Avery] and urged them to disregard any unflattering whispers they might have heard.
"Let me assure you, that is what they are: rumors," Lynn wrote one woman. "Father Avery had requested a health leave from Cardinal Bevilacqua, which was granted."
The trial is expected to last several weeks.
Much of the commentary mentions this is the first trial of its kind. However, yesterday in Kansas, another hearing took place. Kansas Bishop John Finn has been charged with failing to report a fellow priest for his child pornography collection. Today, Finn's lawyers moved to dismiss the charges, arguing, he "did not have a legal obligation to report suspected child sexual abuse by a local priest even if he knew about it…." The Court has taken the motion under advisement.
How the respective courts and juries respond to these charges will likely influence the future decisions of prosecutors. These decisions will also, no doubt, be influenced by how well dioceses are doing in actually fulfilling their obligation to protect the children of their parishes. The role of the "institution" in abuse and its cover up is one critical to explore as we grapple with the reality of child sexual abuse in our culture. No doubt these trials will offer some insights.
I've posted a new paper, How Necessary is the Right of Assembly? Here's the abstract:
This paper continues the conversation initiated by John Inazu's new book, Liberty's Refuge: The Forgotten Freedom of Assembly, by locating Inazu's analysis within our legal system's broader struggle to reconcile liberty claims by groups with our commitment to the individual's rights-bearing primacy. I underscore the timeliness and relevance of his approach, then ask three questions: 1) Why does Inazu limit the freedom of assembly to non-commercial groups? 2) Is Inazu's argument more appropriately pitched to judicial or political actors? and 3) If the right of association were to be interpreted less narrowly by courts, could it carry the burden that Inazu seeks to lay on the right of assembly?
Feedback is welcome.