Mirror of Justice

Verbal Harassment and Disorderly Conduct: Crimes of a Different Era

In this New York trial court decision, People v. Louis, the court held that a defendant's abusive, vulgar, and (in my opinion) threatening phone messages to an assistant district attorney in Nassau County constitute protected speech under the First Amendment.  Over a two-month period, the defendant left screaming expletive-laden phone messages directed specifically at the ADA that included these statements: ""I will rain hell on your office and make sure heads roll"; "I'm coming at you with fury" (but really, check out the case -- I'm not doing it justice).  The defendant was charged with Aggravated Harassment in the Second Degree.  The court ruled that this series of messages did not rise to the level of a true threat (e.g., Chaplinsky) against the ADA, and held further that the harassment statute was unconstitutionally vague and overbroad.

Continue reading

Famine on the Horn of Africa: A Call for Relief

The former chair of the board of Catholic Relief Services, Archbishop Timothy Dolan, once summed up its work by saying: "“At Catholic Relief Services, we don’t just help people who are Catholic; we help people because we are Catholic.”  When Jesus taught the disciples about the Kingdom of Heaven, the very first virtue that He ascribes to the blessed was that "I was hungry and you gave me something to eat."  Matthew 25:34.

Millions are at risk in Somalia from the famine, especially the children.  In the Minneapolis Star-Tribune yesterday, a photograph of a small Somali boy taken by Schalk Van Zuydam of the Associated Press is printed at this link.  It is hard to look at this image, but please do look and do not go on with your day without taking some step to help these children.

The causes of the tragedy unfolding in Somalia are multiple; the blame falls on many for this catastrophe, beyond the weather; the long-term solution in an area of anarchy is hard to envision.  But the need of the moment is dire.  Take a moment to contribute to immediate relief for the starving; and clicking here is one easy way to do it.

Summer 2011 Journal of Catholic Social Thought

You'll want to run to your local newsstand to purchase the Summer 2011 issue of the Journal of Catholic Social Thought, which is published by Villanova University (the journal is available at the Philosophy Documentation Center for those with access to it). The issue is comprised of papers delivered at a symposium last fall at Villanova Law on Ministers of the Law: A Natural Law Theory of Legal Authority (Eerdmans, 2010) by Jean Porter, the John A. O'Brien Professor of Theology and Concurrent Professor of Law at Notre Dame. There is much to admire and much to disagree with in the book--as Russell Hittinger says in his blurb on the back of it, Porter "illuminates and at the same time renders subtle in every hue and shade a most difficult set of questions on natural law. I could not stop reading, and in some places disagreeing with, this splendid work." The symposium papers include appreciations and also respectful but tough disagreements from Kevin Flannery, SJ (Pontifical Gregorian University), Nicholas Wolterstorff (Yale), Brad Lewis (Catholic University of America), Jay Mootz (UNLV), Maris Köpcke Tinturé (a very promising young philosopher of law at Oxford and student of John Finnis's), and our own Patrick Brennan, as well as a keynote address from Jean Porter.

And Speaking of the Removal of Crosses...

Here is the complaint of American Atheists, Inc. and several individual taxpayers against New York City and other entities demanding the removal of the so-called "Ground Zero Cross" from the planned September 11 "Memorial and Museum."  The cross was actually a historical part of the rubble itself.  Perhaps in light of anticipated standing difficulties, among the individual plaintiffs' allegations is that the cross has caused them "dyspepsia, symptoms of depression, headaches, anxiety, and mental pain and anguish."  Paragraph 47.  It seems from paragraph 48 that plaintiffs are also, or perhaps in the alternative, asking that a memorial to the non-religious who fell on September 11 be added (I cannot imagine that this would be objectionable), though I am not certain about this.

A response to Marc

I could understand and respect an argument maintaing that the crucifix in classrooms is so deeply embedded in Italian tradition (I understand you to so argue in your excellent forthcoming book) that the adoption of a secular state was not intended to provide a foundation for tearing down the crucifixes from the classrooms. (Even in Germany, the crosses remain unless a student complains). What I cannot respect are the arguments made to say that the crucifix transcends religion or the particular arguments that it transcends Catholicism.

I agree that the Italian state is not a theocracy, but its use of religious symbols makes it religious in important ways (symbols matter) and sectarian as well. I do not think it fair to argue that the choice is between a secular state and a theocracy. There are many things in between. I am not as confident as you that secular states do not exist on the planet. Switzerland, for example, does not allow crosses in its classrooms or its teachers to wear headscarfs (I think they got that case wrong). I do not know enough to claim that it does or does not qualify as a purely secular state.  But even if there are no purely secular states on the planet, even if some states are more or less secular than others, I remain convinced that the Administrative Court's opinion is provincial and either ignorant of or disrespectful of the Protestant tradition (a part of the Protestant tradition, by the way that I am not sympathetic to). I am jarred by the irony of a court making pronouncements about theological matters and downplaying the religious significance of the cross while claiming to be secular!

Of Secular States and Secularists

Steve, with respect, I strongly disagree with your post below.  I think that this statement in your post is, quite frankly, startling: "In my view, the Lautsi case shows that the Italian state is secular in name only and that it has purchased that name at the cost of religious frivolity on the one hand and the draining of religion from the primary symbol of the Christian religion on the other."

If the Italian state is not a secular state, I can't see that any nation on earth can claim the title.  Its government is run by civil, not religious authorities.  It is a constitutional state of human, not divine, laws -- including laws guaranteeing the right to abortion.  It is not a theocracy in any sensible interpretation of that word.

What the Lautsi case shows, in fact, is that it is perfectly possible for a state to be both deeply secular in the relevant sense without adhering to the view that it needs to secularize itself and its citizenry -- to remove systematically all symbols of its Christian and Catholic heritage, scrubbing the public square clean of them.  It's a lesson that secularists the world over have yet to learn, but (as many secularists are my friends) I continue to hold out hope for them. 

The Crucifix in Italian Classrooms

I recently taught the Italian crucifix case in my class in Paris. The major issues in the European Court of Human Rights were the rights of parents to direct the upbringing of their children and the right of religious liberty. The Court held that there was sufficient division within Europe on these issues, so that it was not a clear violation, or in court-speak, it fell within the "margin of appreciation."

I think it is a very difficult trick to say that forcing a student to study "under the cross" in a state school (the German constitutional denunciation of the practice in Bavaria) is consistent with either of these rights though the decision is not surprising - given the relative lack of power of the European Court compared to the U.S. Supreme Court and the diversity of views in Europe.

Even more difficult, however, was the Italian Administrative Court's conclusion that a crucifix in a state school is consistent with the Italian requirement of secularity. That Court recognized that the crucifix was a religious symbol, but it suggested that the crucifix was a symbol of Christianity in general, not a symbol of Catholicism. Then, in a crucial move, it argued that the crucifix transcended religion. The crucifix, according to the Court, stands for "charity over faith itself" which means that it stands for "tolerance, equality, and liberty  which form the basis of the modern secular State and of the Italian State in particular."

Of course, arguing that the crucifix transcends religion is offensive - not less so when it is likely that the reason for wanting to have the crucifix in the classroom is religious. But the underlying theology is worth comment. The court claims that the crucifix transcends Catholicism. But most Protestants avoid the crucifix in favor of the cross. Even more breathtaking is the assertion by a court no less that the crucifix stands for "charity over faith." We pause as Martin Luther rolls over in his grave.

Finally, the court declares that the crucifix stands for tolerance, equality, and liberty as the basis of a secular state. Suffice it to say that this does not look at the crucifix in the long sweep of history. Indeed, Italy's principal Christian church did not come to value religious liberty until the second Vatican Council and there are some grounds to question its commitment to the secular state.

 The European Convention on Human Rights does not require states to be secular; Italy claims to be a secular state. In my view, the Lautsi case shows that the Italian state is secular in name only and that it has purchased that name at the cost of religious frivolity on the one hand and the draining of religion from the primary symbol of the Christian religion on the other.

cross-posted at religiousleftlaw.com

Marshall McLuhan

I should think lawyers would be especially interested in the way that technology and media shape culture, so it's worthwhile noting the centenary of Marshall McLuhan's birthday on July 21. It's produced a series of good articles about the odd but interesting McLuhan, often remembered now (if at all) for his cameo appearance in Woody Allen's "Annie Hall" when McLuhan is produced by Allen in line at a movie theater to upbraid a pompous professor for misinterpreting McLuhan's work. Many of the recent pieces, including an article in yesterday's New York Times, have noted the importance of McLuhan's conversion to Catholicism to his work. See also Alan Jacobs at The New Atlantis (who is more circumspect about the extent of McLuhan's lasting contribution, while tracing out the scope of his influence on Neil Postman and two of McLuhan's students, the Jesuit Walter Ong and Hugh Kenner) and Father Raymond De Souza.

Nicholas Carr, in an essay adapted from The New Republic, summarizes the case:

Neither his fans nor his foes saw him clearly. The central fact of McLuhan's life was his conversion, at the age of twenty-five, to Catholicism, and his subsequent devotion to the religion’s rituals and tenets. He became a daily Mass-goer. Though he never discussed it, his faith forms the moral and intellectual backdrop to all his mature work. What lay in store, McLuhan believed, was the timelessness of eternity. The earthly conceptions of past, present, and future were by comparison of little consequence. His role as a thinker was not to celebrate or denigrate the world but simply to understand it, to recognize the patterns that would unlock history’s secrets and thus provide hints of God’s design. His job was not dissimilar, as he saw it, from that of the artist.

And that is echoed in this nice bit by Jeet Heer:

Indeed, [McLuhan's] faith made him a more ambitious and far-reaching thinker. Belonging to a Church that gloried in cathedrals and stained glass windows made him responsive to the visual environment, and liberated him from the textual prison inhabited by most intellectuals of his era. The global reach and ancient lineage of the Church encouraged him to frame his theories as broadly as possible, to encompass the whole of human history and the fate of the planet. The Church had suffered a grievous blow in the Gutenberg era, with the rise of printed Bibles leading to the Protestant Reformation. This perhaps explains McLuhan’s interest in technology as a shaper of history. More deeply, the security he felt in the promise of redemption allowed him to look unflinchingly at trends others were too timid to notice.

(Purely as an aside, it strikes me that although Canada has become more secularized than the US over the past few decades, Canadian Christianity has produced an outsized number of significant figures over that period--in addition to McLuhan, Charles Taylor, Bernard Lonergan, Robertson Davies, the unduly neglected George Parkin Grant, and, of course, Natalie MacMaster, the best Celtic fiddler in the world today and a native of Cape Breton Island.)

Let's brainstorm the reasons why most physicians won't perform late-term abortions . . .

Reading The Washington Post's profile of late-term abortion provider LeRoy Carhart, I was struck by this line:

Most doctors will not perform abortions beyond 22 or 24 weeks for various reasons, including legal concerns, social stigma, inadequate training or inexperience.

Lots of reasons, but one glaring omission.  I guess personal moral convictions play no role here?

Ireland to compel priests to break seal of confession(?)

The Catholic Herald is reporting that the Irish government is seeking to compel Catholic priests to break the seal of confession.  The debate will sound familiar to all American lawyers familiar with our Free Exercise and religious-exemptions cases and arguments:

Irish Children’s Minister Frances Fitzgerald said: “The point is, if there is a law in the land, it has to be followed by everybody. There are no exceptions, there are no exemptions.”

Fr PJ Madden, spokesman for the Association of Catholic Priests, insisted that the sacramental seal of confession is “above and beyond all else” and should not be broken even if a penitent confesses to a crime.

I would welcome corrections from Canon Law experts and theologians, but I assume that a Catholic priest cannot tell the government what he learns in confession, no matter how serious.  (Has everyone seen the old Montgomery Clift film, I Confess?  Great stuff.)  So, what would the point of this law be (other than to grandstand, which is certainly a venerable legislative aim)? 

One possibility is that the government wants to create conflict within the Church, which I expect would happen if, say, a priest who did reveal sins learned in Confession was disciplined by his Bishop.  It is possible that the goal is to put the Church -- already reeling in Ireland -- on the defensive yet again (thereby weakening still further its influence in Irish culture, politics, etc.)  It's possible that those introducing the legislation really do believe that "if there is a law of the land, it has to be followed by everybody" (but I doubt it).  I have to expect, as the article suggests, that such a law would mean that no priest (or anyone else) would confess to committing serious crimes, and so the Church would lose the opportunity to tell such persons to "turn themselves in."

So, again . . . what's the point?