Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, October 25, 2010

"Let Freedom Ring"

I recommend that all MOJ-ers take a few minutes to read Bishop William Lori's (Bridgeport) new pastoral letter, "Let Freedom Ring:  A Pastoral Letter on Religious Freedom."  I had the pleasure and privilege of spending some time with Bishop Lori last week, in connection with the Red Mass in his Diocese, and to talk with him about religious-freedom and constitutional-law questions.  Connecticut is (as the letter describes) something like "ground zero" when it comes to the Freedom of the Church.  I hope, though, that this letter will have a positive, educative effect.  A taste:

The Second Vatican Council’s Declaration on Religious Liberty, issued on December 7, 1965, affirmed one’s right to worship in accord with one’s conscience and also implied the advisability of separating Church and State, that is to say, that advisability of distinguishing between the political power of the State and the religious authority of the Church, and protecting the latter from the former. This Declaration went on to teach that "the right to religious freedom has its foundation in the very dignity of the human person," not "in the subjective disposition of the person but in his very nature" (Dignitas Humanae, no. 2). Nothing in the Vatican II Declaration endorses the notion that society should be free from religion or that religion should be marginalized as something irrational or dangerous. On the contrary, the Declaration on Religious Liberty affirms the natural right of individuals to be free from State coercion with regard to privately held religious convictions as well as the natural right to express those beliefs publicly. This public expression of faith takes the form of worship but includes more than worship: it includes education, and various forms of community service. Here we think of our parishes, our Catholic schools, after-school programs, religious education programs, as well as the array of services offered by Catholic Charities and Catholic hospitals. But we should also lay claim to our natural right to bring our religious convictions into the public square, to engage the culture in which we live, and to participate in debates and discussions which help to shape our character as a civic society. As George Washington said of religion, "Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism who should labor to subvert these pillars of human happiness."

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I don't understand what the legal justification is for changing the statue of limitations retroactively. I particularly don't understand proposals to open a temporary "window" and then close it. Are there not some constitutional grounds on which this can be challenged? It seems clearly to be designed to go after the Catholic Church, and also it seems to be some kind of "ex post facto" manipulating of the law to put people in legal jeopardy who by existing law are not. Couple with that the reasons for statues of limitations in the first place (old evidence and so on), it seems indefensible to change them retroactively. And it is particularly indefensible to open a "window" and then close it again. It would be one thing to change the statute of limitations permanently and make the change retroactive. I would still object to the retroactivity. But to open a "window" and close it again -- in effect temporarily lengthening the amount of time and then shortening it again -- seems to be an acknowledgment that the shorter time is the correct amount of time.

Posted by: David Nickol | Oct 25, 2010 2:56:22 PM

David, I agree entirely with you that the proposals to tinker with the statutes of limitations are driven in no small part by a desire to target the Church (and make money for plaintiffs' lawyers). I'm not sure that people who commit criminal offenses have a "reliance interest" on any particular statute of limitations; it's more (for me) just that such statutes do serve the policy goods that you describe, and so extending them has the potential for serious unfairness.

Posted by: Rick Garnett | Oct 26, 2010 2:03:20 PM

But no doubt you remember the episode of "Superman" in which the bad guys robbed a bank and holed up in a lead-lined bunker that protected them, even from Superman, to wait out the statute of limitations. As the exact moment of their freedom approached, Superman persuaded the U. S. Naval Observatory (or whoever controlled national time back in the 1950s) to let the official US clock run a little fast. The clock in the bunker was tuned to USNO time, and the criminals came out just a few minutes before the statute of limitations expired. Superman was there to apprehend them. Exactly what happened to everyone in the United States and elsewhere who depended on the USNO for accurate time we were never told.

Posted by: David Nickol | Oct 26, 2010 4:18:36 PM