Wednesday, February 11, 2009
This is likely my last post for Mirror of Justice. I wanted to thank the other participants and readers here for their dialogue, from which I have learned a great deal. I hate to leave, but with two young kids at home, I simply no longer have time to spend blogging on a regular basis. I'll continue to blog periodically at dotCommonweal, and I'll do the occasional visiting stint at other law blogs, but the time I've put into MOJ over the past few years has become unsustainable for me.
In the spirit of the give and take that characterizes this blog, I didn't want to leave without at least observing that Richard has not provided any evidence to support his repeated assertion that the republican government somehow approved of the violence directed at the Church, even the violence that occurred in the months leading up to the military's uprising. It's ludicrous to me to suggest that the republican government somehow bore the blame for violence that resulted from its ability to maintain order when that inability was calculatedly fostered by its enemies, including those on the far right and the far left, who wanted to see it fail. Of course, with fascist help, the disorder got worse as the military uprising approached and the government's grip on events slipped, but to suggest that that violence somehow served as a justification, apparent or otherwise, for the military's actions, is a strange argument indeed. And, as a descriptive matter, that this violence motivated or justified the military's actions was never the case, as the Basque experience amply demonstrates. The Spanish far-right's designs on the Republic had been set long before those last few months and therefore could not rely on events in that time period for their justification. And it should not need to be said, though I'll say it anyway, that the limited violence directed against the Church prior to the uprising can in no way explain or justify in any moral sense the utter brutality of the nationalists' tactics.
Among the major sources of protection for religious liberty in America today are statutes like the Religious Freedom Restoration Act (RFRA) and state-level counterparts, and one of the most important (and confused) questions under RFRA is what constitutes a sufficient "burden" on religious freedom to trigger the federal government's duty to offer a "compelling" justification for the restriction. The issue is raised in a cert. petition, Navajo Nation v. U.S. Forest Service, in which tribes challenge the spraying of treated/"reclaimed" sewer water for snowmaking purposes on federal lands that they hold sacred and on which they worship. But the Ninth Circuit decision rejecting the Native Americans' claims extends far beyond that case and articulates a stringent test that would cut off many claims, including in cases that were central objects of Congress in enacting RFRA. That is the assertion of an amicus brief of several religious liberty scholars, supporting the cert. petition, that I helped organize and that is distinguished by the names of two other MOJers, Rick Garnett and Michael Perry. A brief by religious organizations, available at the same site, makes similar points. Check them out not just if you're interested in Native-American religious-freedom issues, but also if you're interested in the scope of religious freedom for organizations and individuals generally.
Monday, February 9, 2009
Readers will recall that Eduardo originally asserted quite flatly "as I read the history, the destruction of churches and slaying of priests in Republican Spain did not begin until after the beginning of the nationalist uprising, not 'immediately prior' ..."
After my criticism of his statement, he graciously admitted his error, saying, "Certainly it is true that some violence directed against the Church occurred prior to the 1936 uprising, and I agree that I was guilty of suggesting otherwise. But that hardly undermines my point or legitimates Mr. Krog's ludicrous suggestion. The occasional violence directed at symbols of the Church was simply not on the scale of destruction and wanton violence that occurred in the period immediately after the nationalist uprising."
In point of fact, the burnings and killings were far more than "occasional," and were accelerating in 1936 before as well as after the military intervention, lending it apparent justification. But Eduardo's main point seems to be that "the pre-July violence was simply not of the scale of murder and violence that occurred after the July 1936 military uprising, when thousands of priests and religious were brutally murdered. And there, my description of the violence in republican Spain as the result of the breakdown of the state in part as a consequence of the rebellion (in contrast to the intentional policy of extermination in rebel Spain), was entirely accurate."
I fully agree with Eduardo that Franco's junta planned their executions far more than did the Republican government. But this fact is of a piece with the pre-civil war toleration of private violence by the Republic. During the war, too, much of the Republican suppression was "farmed out," perhaps because of its weakness or perhaps because of a decentralist ideology, with radical political parties having their own private prisons where they could torture or kill with impunity.
In sum, the Spanish Civil War does raise the question of the meaning of private violence, which is the analogy to abortion that Mr. Krog and I pointed to. One way to understand the uniqueness of abortion is to point out that it is an authorization of private killing on a scale previously unknown. Mr. Krog simply noted that many of the killings in Spain were also private yet tolerated by the Republican authorities in the interest of placating their rivals on the left. (Do some moderate Democrats likewise placate those to their left when they support the Freedom of Choice Act?)
No analogy is perfect, but i do think this one comes closer in some ways than the more frequent comparison to the Holocaust. Government-tolerated private pogroms might be still better as an analogy. Imperfect as they are, these analogies are worth reflecting upon in order to gain the distance to judge the world in which we are immersed, and perhaps to avoid some of the resulting consequences. Calling the analogy "ludicrous", as Eduardo does, does not facilitate this reflection.
I am not sure of the precedential weight of these orders, although the orders seem limited to the operation of the benefit plans for federal employees in the Ninth Circuit. I don't think Chief Judge Kozinski's statutory ambiguity argument is very persuasive. I agree with Judge Reinhardt that federal law doesn't permit coverage of the same-sex spouses and that the constitutional issue is unavoidable.
Judge Reinhardt's constitutional conclusion is questionable, although I suppose it should be no surprise that people might disagree about the meaning of Justice Kennedy's opaque opinion in Lawrence. Is it really true that DOMA fails the rational basis test? I suppose that is true if Lawrence applied the rational basis test but that doesn't seem the most persuasive reading of Lawrence. Justice Kennedy was surely applying a form of heightened scrutiny although he didn't go to the trouble of telling us exactly what level of scrutiny he applied. Judge Reinhardt takes the view that promoting traditional morality isn't enough of a reason although that seems only true if a form of heightened scrutiny is being applied.
Perhaps these orders indicate again that there is a need for the Court to clarify the meaning of Lawrence.
Returning to the topic of analogies for legalized abortion, Matt Bowman writes:
Catholic "moderates" on abortion reject the analogy between abortion and slavery or the Holocaust(or other massive 20th century genocides), but they often fail to fully explain why. By definition, analogies are not exact parallels. The question is, are the two analogized situations comparable in relevant and important ways? In slavery and the Holocaust, there are three main, relevant comparisons with abortion. First, dubbing the human-being victims as "non-persons" in legal, societal and linguistic ways. Second, the massive scale of the victimization in the numbers of victims. Third, the extreme gravity of the means of victimization: enslavement or killing. These ways are not peripheral to the experience of either slavery, the Holocaust or abortion. The similarities are not so tangential that it is unfair to also bring in the intense negative emotions associated with those prior atrocities which are recognized as such. On the contrary, these three similarities are at the heart of why those things are thought of so horribly.
-- Martin E. Marty
This week's collage of Wall Street Journal headlines, none of them explicitly but all of them implicitly evoking "public religion" themes, is broken up by passages from the King James Version of the Bible, and from me – my attempts to see if we can find perspective. For beginnings: Since some of the public some of the time trusted the princes of finance (and government, the church, the academy, et cetera), recall the bracing word of Psalm 146:3: "Put not your trust in princes, nor in the son of man, in whom there is no help." What follows are some effects of helpless princedoms, chronicled.
Now for comment: Most of these devastations occurred because the princes were confident about the future, made bad investments, gave worse advice. Micah 5:12 warns, "...and thou shalt have no more soothsayers." Or: "Go to now, ye that say, Today or tomorrow we will…buy and sell, and get gain: Whereas ye know not what shall be on the morrow…But now ye rejoice in your boastings: all such rejoicing is evil."
From the Thursday, February 5th Wall Street Journal: "More Call for Probe on Financial Crisis." "Kodak Fails to Calm Skeptical Investors." "Auto-Parts Makers Seek Bailout." "Kraft, Sara Lee Reduce Forecasts as Consumers Trade Down." "Roche Offers Dim Outlook as Profit Drops 8 Percent." "Cisco CEO Presages Gloom for Retailers." "Allergen Net Drops 6.1 Percent; Job Cut…" "Station Casinos Mulls a Bankruptcy Filing." "Forget Golf: [Wall] Street Junkets Get Junked." "Securities-Lending Business Made Risky Bets. They Backfired on Insurer." "Mortgage Banks Push for Federal Support." "Prudential Says It Lost $1.57 Billion." "Lazard's Net Falls 36 Percent." "AIGs Risky Wagers Helped Cripple Firm." "Costco's Profit Warning Creates A Warehouse of Worry for Investors."
From Psalm 2:4: "God that sitteth in the heavens shall laugh: the Lord shall have them in derision."
Sunday, February 8, 2009
The Roman Forum 2009 Symposium entitled "A Tale of Two Enlightenments: Modern Image Versus Catholic Truth," will take place in Garone Riviera, Italy from July 2-13. The application deadline is April 15. For more information, click here.
Here is a taste of the topics to be addressed:
"A Tale of Two Enlightenments, one founded on the false modern image of itself, the other based on Catholic Truth, needs to be told in all its fullness. That tale has its roots in the Catholic revival of the High Middle Ages and the opposition and distorted imitation of its goals that Christian successes aroused. It is a tale that requires a discussion of everything of importance to human life: theology, philosophy, education, psychology, art and architecture, music, statecraft on the international and national level, family life, the errors of both the French as well as the Anglo-American Revolutions, and the twin evils of capitalism and communism."
Saturday, February 7, 2009
Villanova Law and University of St. Thomas School of Law are pleased to announce the third season of their summer law study program in Rome. Located at John Cabot University in the heart of Rome, the summer program offers comparative law courses and, when possible, courses related to the Catholic mission of the sponsoring schools. Students may earn six credits, while experiencing the many religious, cultural, and historical aspects of Rome. Courses offered in summer 2009 are Comparative Consumer Protection, International Art & Cultural Heritage Law, International Entertainment Law, and Professional Responsibility in the United States and Abroad.
Students in good standing who have completed at least one year of full-time or part-time study at an ABA-accredited law school are welcome. Applications will be accepted through February 16 or until the program is filled.
Richard's cherry picked quotes are unconvincing and, to be honest, somewhat misleading. I will admit to oversimplifying the history a bit in the interest of brevity, but I could just as easily have cited Hugh Thomas as Preston in support of my thesis. Certainly it is true that some violence directed against the Church occurred prior to the 1936 uprising, and I agree that I was guilty of suggesting otherwise. But that hardly undermines my point or legimiates Mr. Krog's ludicrous suggestion. The occasional violence directed at symbols of the Church was simply not on the scale of destruction and wanton violence that occurred in the period immediately after the nationalist uprising. It was certainly nothing on a scale that could even possibly (1) carry the weight of the abortion analogy or (2) diminish the utter evil of Franco and his murderous colleagues, which I had thought was the point I was criticizing.
The church burnings that Thomas describes around page 58, and to which Richard points as evidence contrary to my position, were part of a brief (that is, several day long) wave of protest in May 1931 in which, Thomas says, "[n]o one died," (p. 56) and perhaps 100 churches were damaged, with a small number of them burning to the ground (Thomas only describes one that did so). And it is hardly the case that the government sat idly by. As Thomas describes it, "Maura [the minister of the interior at the time] got permission to use the army . . . , and martial law was proclaimed." (p. 56) It is true that the state might have reacted more quickly, but it did not do nothing. In fact, as Thomas explains, the burnings were the work of the anarchists, who were not very sympathetic with the moderate politics of the republican government in 1931 (see pp. 68-69). Indeed, Thomas describes them as "enemies of the republic." (see p. 45)
Nor is there much support for Mr. Krog's bizarre suggestion that the republican government somehow encouraged and benefitted from the violence against the Church that did occur. If anything, the opposite was true, since the fascists used the attacks on churches as propaganda to their great advantage (notwithstanding their own brutality against the Basque Church, which was more republican in its sympathies than the Church elsewhere in Spain).
Thomas does, as Richard said, say that, immediately after the elections, in early 1936 (but before the actual fascist uprising), there was "a trail of murder and arson" across the country and that "[t]his was partly caused by the euphoria of the socialists and anarchists at being released from prison." But he goes on, in the very next sentence, to say that "[i]t was also the conscious work of the Falange, determined to justify the establishment of a regime of 'order.'" (p. 153) In other words, Richard is right that July 1936 was not a complete discontinuity (what ever is?) with what came before. Rather, with the help of both the left and the right, in the months leading up to the rebellion, the republican government progressively lost its grip. But this was hardly the situation the Mr. Krog or Richard describes, of a republican government that secretly approved of the disorder that surrounded it. Nor was the falange reluctant to take on the government through violence. Richard here is misreading Thomas, who refers only to Jose Antonio Primo de Rivera of being of two minds on the subject (see pp. 153-54).
In any event, the pre-July violence was simply not of the scale of murder and violence that occurred after the July 1936 military uprising, when thousands of priests and religious were brutally murdered. And there, my description of the violence in republican Spain as the result of the breakdown of the state in part as a consequence of the rebellion (in contrast to the intentional policy of extermination in rebel Spain), was entirely accurate. Here's Thomas, one last time (p. 268):
Friday, February 6, 2009
I haven't found the opinions yet, but two judges of the Ninth Circuit, Reinhardt and Kozinski, in separate rulings have included same-sex marriages within persons entitled to federal spousal benefits under the employee-benefits program for public defenders that (as I understand) each circuit administers. Judge Kozinski construed the statutory language to include same-sex spouses so as to avoid a significant constitutional question under Lawrence v. Texas, while Judge Reinhardt went further and held that the part of the Defense of Marriage Act that defines marriage for federal benefits violates equal protection (as opposed to, I assume, the parts of DOMA that shield states from having to accept same-sex marriages performed in other states). Arthur Leonard of New York Law School has a description here. These are not regular panel opinions, just single-judge internal-grievance rulings, but they will still get a lot of attention.