Mirror of Justice

European Union Court of Justice Declaration on Embryonic Stem Cell Research

Yesterday, October 18, the Court of Justice of the European Union declared in the case of Oliver Brüstle v. Greenpeace that the process of removing stem cells from a human embryo, which necessitates death of the embryo, cannot be patented. However, the use of the embryo for therapeutic or diagnostic purposes which are applied to the embryo and are therefore useful can be patented.

This is an important ruling for EU state members and for the rest of the world’s law and legal systems.

Brüstle holds a 1997 patent concerning the isolation of neural precursor cells taken from human embryos. However, Greenpeace challenged the patent in the German Federal Patent Court, and the court ruled that Brüstle’s patent was invalid in so far as it covers processes for obtaining precursor cells from human embryonic stem cells. The German appellate court decided to refer Brüstle’s appeal to the European Court. The question before this court is whether the exclusion from patentability of the human embryo covers all stages of life from fertilization of the ovum or whether other conditions must be met, such as a certain stage of development must first be reached.

The European Court [decision HERE] noted that it would not decide questions of a medical or ethical nature but would address the legal questions in the case. It found that European Law excludes any possibility of patentability where the “respect for human dignity” can be adversely affected. It also found the need to understand the nature of the “human embryo” in a wide sense. The court concluded that as soon as the human egg is fertilized it must be considered a “human embryo” which is the commencement of a new human being. Moreover, in the process of parthenogenesis where the nucleus from a mature human cell is transplanted in a non-fertilized human egg whose further development is stimulated must also be classified as a “human embryo.” In short, new human life has begun.

The court also found that scientific research entailing the use of human embryos cannot access the protection of patent law. However, it noted an exception where the research is done for therapeutic or diagnostic purposes applied to the human embryo and which are useful to it such as correcting a malformation and improving the chances of its life.

The court also concluded that an invention cannot be patented where the implementation of the process requires either the prior destruction of human embryos.

While the debate over this important right-to-life issue may not be over, this is an important and encouraging development.

 

RJA sj

 

County clerks should not have the same conscience rights as pharmacists

Today over at Public Discourse, Helen Alvare responds to Linda Greenhouse's critique of the Witherspoon Institute's challenge to the Obama Administration's proposed rule on contraceptives.  I feel compelled to supplement Prof. Alvare's response to a particularly troubling dimension of Greenhouse's critique.  Greenhouse argues that government clerks should not be able to refuse marriage licenses to same-sex couples, then she makes an eyebrow-raising leap:

More common are pharmacists who assert religious reasons for refusing to dispense emergency contraception, the “morning after” pill that prevents pregnancy after unprotected intercourse.  What are we to make of public health workers who use the power of their state-issued licenses to impose their own version of morality on those they are licensed to serve?

I do not support a right of conscientious refusal for government employees tasked with providing certain morally contestable services to the public.  If the government chooses to accommodate current office-holders by having a co-worker handle a particular case, that's fine.  But, particularly in defining the role going forward, the government is justified in requiring its agents to act consistently with government policy.  It's not simply a question of public access, but a question of the message to be communicated to the public on the government's behalf.  If a state has decided to extend marriage to same-sex couples, then the government has a legitimate interest in ensuring that its employees responsible for issuing marriage licenses embody that policy decision.  Same for police officers and firefighters -- you do not have a right not to protect abortion clinics.

But using the existence of a professional license to convert millions of private sector workers into government agents is another matter entirely.  Professional licenses ensure competence; they should not be turned into a mechanism of uniformity, especially when it comes to morally contested services.  That's a huge jump that would eviscerate the vitality of a morally diverse marketplace and wipe out the capacity of individual providers to act consistently with the dictates of conscience.

The Talking Cure Redux

In this post from a few weeks back, I registered some thoughts about the current media interest in taking religion seriously.  That post was about the rather low probability that media attention to a candidate's references to religion, or about how a religious tradition has shaped the candidate's political judgment, will enhance the voting public's understanding of the candidate and his or her views.  Much more probable, I claimed, was that religion would be used strategically by the journalist or media member in a clownish fashion simply to reaffirm and harden the author's pre-existing political views and opinions, or those of her audience.

I noted that one often hears two kinds of response to this claim, which I called Response One and Response Two.  Response One is to blame the candidate -- the door was opened by the candidate, and the media and the rest of us went through.  In the rough and tumble of politics, religion can be either the candidate's rhetorical armor or the sharp stick with which he can be gleefully gored by his opponents.  Response Two had to do with good faith and searching engagement with the candidate's religious views to understand his political outlook.  Response One, I argued, far better represented the profound shallowness of our current political culture (with honorable exceptions, to be sure).  

I know that citations to Maureen Dowd's work are generally met with dyspepsia, but she does write for the leading newspaper in the nation, and this column about Mitt Romney and the Church of Jesus Christ of Latter Day Saints seems to me to be an exemplar of Response One engagement with religion.  Note, first, the opening-the-door move at the end of the piece -- that the candidate is fair game for the media hunter loaded for bear: "Republicans are the ones who made faith part of the presidential test.  Now we'll see if Mitt can pass it."  And the entire point of the column is to ridicule, to laugh, to dismiss, to giggle, to smear, and to lampoon -- all in the service of scoring cheap and shallow political points.  What else?  That's simply the nature of the game.

The surprising thing is not, of course, that Dowd would write a column like this.  Nor is it that Response One discourse is far and away the dominant form of public engagement with religion -- in the nation's leading newspaper perhaps even more than anywhere else.  The surprising thing is that we academics would ever think otherwise, that we would imagine that because Response Two sometimes (though not always) can be found in the academy, that it must also have traction in today's political climate.  The surprise is that we would delude ourselves that Response Two might someday supplant Response One, or at least that we might eventually get more of Response Two engagement if we let loose the Response One dogs.  What we will get is what we largely always get from political speech-making and the media's political reaction to it, whether religion gets sprinkled in or not: low-grade chatter.     

"The American Bible"?

In this very engaging review, "Why Read Moby Dick?", the author quotes writer Nathaniel Philbrick as saying that Moby Dick is essential reading because "it's as close to being our American Bible as we have.
  What a bizarre thing to say!  Moby Dick is essential reading, but the "American Bible" is, of course, the Bible.

Legal Indictments and Indictments of Other Kinds

When someone is indicted in criminal law, the meaning of the indictment is that a grand jury has found that it is more probable than not that the accused has committed a specific criminal offense.  An indictment is an accusation by the government.  The accused cannot be brought to trial without it.  One ought to take note of an indictment, but one ought also to recognize that different standards of proof govern indictments than criminal trials and that little in the way of evidence is often needed to obtain an indictment.  Lastly, there is generally no opportunity to present exculpatory evidence or make any pre-trial motons in the indictment process.  The indictment is the prosecutor's instrument alone.  I know that most posters here will know this, but I thought it might be useful to clarify the specific and limited quality of a legal indictment since, as Rob notes below, Bishop Finn was indicted under a Missouri statute.  I believe, but am not sure, that the statute is section 210.115.1 of the Missouri Code, which states:

When any . . .  minister . . . has reasonable cause to suspect that a child has been or may be subjected to abuse or neglect or observes a child being subjected to conditions or circumstances which would reasonably result in abuse or neglect, that person shall immediately report or cause a report to be made to the division in accordance with the provisions of sections 210.109 to 210.183 . . . .

One of the reasons that I think it important to emphasize the particular and somewhat arcane legal meaning of an indictment is because of columns like this one by Anthea Butler, a professor of religion at the University of Pennsylvania, who titles her piece, "Bishop Finn-dicted For Protecting Pedophile Priest." 

Professor Butler properly notes the fact of Bishop Finn's indictment, but then makes some statements which, at least from a legal perspective, are not sound.  She claims, for example, that "the indictment is another warning shot aimed at the enclave of the Vatican."  The expression of symbolic minatory messages is not the purpose of a legal indictment.  She connects the indictment to "[c]hanges to the liturgy" which she believes "have many up in arms[.]"  Again, liturgical preferences have nothing at all to do with this indictment.  She claims that "Cardinals and Bishops like Philadelphia’s Bishop Chaput can only whine about how terrible the press is, without being accountable for the actions that have caused the press to scrutinize the church so intensely."  If this is a reference to the indictment of Bishop Finn, I'm afraid it is misplaced.  "Cardinals and Bishops like Philadelphia's Bishop Chaput" had no legal duty to report child abuse under the Missouri statute. 

And Professor Butler concludes with this: "The church does not need another plan; what’s needed is action and more indictments to get the attention of an institution that has sacrificed children to protect its rotten hierarchy. I for one cannot wait for the real purge of tainted clerics to happen."  Once again, Professor Butler's excitement for the coming purge and the issuance of "more indictments" has nothing to do with the legal indictment of Bishop Finn. 

Obviously Professor Butler is interested in indictments of other kinds -- political, social, cultural, religious -- but these are not legal indictments, and I think it important to keep the difference clearly in view.

ADDENDUM: The state prosecutor in the case, Jackson County Prosecutor Jean Peters Baker, rightly notes what this criminal indictment is all about.  From the linked report: "Baker emphasized that the pursuit of the case was the result of a grand jury investigation.  'I've done my best to make sure that this was a fair process,' she said.  'This has nothing -- nothing -- to do with the Catholic faith.  This is about the facts of the case, nothing more.  This is about protecting children.'"

Remembering Pope John Paul II: "Be Not Afraid!"

October 16, 1978.  What a great day.  We celebrated the election, life, and ministry of Blessed Pope John Paul II this past Sunday at my parish (and I hope you did at yours, too!).  I was really happy to learn today that, going forward, the memorial for the late, great Pope will be October 22 (which is also the wedding anniversary for my wife and me). 

Smith on "Freedom of Religion or Freedom of the Church?"

As Paul Horwitz mentioned, over at Prawfsblawg, one of the papers that was presented at the (excellent) "Matters of Faith" conference at Alabama was Steve Smith's Freedom of Religion or Freedom of the Church?  You can get a version of the paper on SSRN (here).  Here is the abstract:

This essay argues that the well known problems in modern religion clause jurisprudence can be traced back to a common mistake: we have supposed that the clauses are about religion when in fact they are (or should be) about the church. Part 1 of the essay argues that the understanding which supposes that the Constitution requires special treatment of “religion,” or that it creates or accepts a special category of “religion” that involves distinctive benefits and burdens and disqualifications, rests on a false dichotomy, or a debilitating category mistake. Part 2 briefly recounts how, historically, a campaign for freedom of the church - a campaign devoted to maintaining the church as a jurisdiction independent of the state-developed into a commitment to freedom of conscience (conscience being the “inner church,” so to speak). The section then relates how this commitment to freedom of the church - both the institutional church and the inner church - came to be reconceived as a more generic commitment to freedom of religion, with the unfortunate consequences considered in Part 1.

My first reaction to this (as per usual, for Steve) fascinating paper, and to Steve's presentation at Alabama, was "crap.  What's left for me to say, for the 30 years or so until I retire?  Time to re-tool as a Third Amendment scholar . . ."  Thinking about it more, at the conference and on the plane home, I asked myself what the implications for judicial doctrine and practice would be, were the First Amendment to be understood (as I think I think it should be) along the lines Steve suggests.  Three come to mind: 

First, the Religion Clauses -- specifically, the "secular purpose" requirement -- would no longer have a job to do in identifying the constitutional limits on morals legislation.  There are, certainly, such limits, and should be, but the enterprise of finding them would not involve trying to identify and categorize as either "religious" or "secular" the purposes or motives that were thought to produce that legislation.

Second, the Supreme Court's Smith decision would be, pretty much, right, at least when it comes to exemptions for religiously motivated conduct from otherwise religion-neutral and (truly) generally applicable laws.

Third, the project of evaluating symbolic expression by governments and public officials would be taken from "endorsement test"-wielding judges and given to citizens, acting in and through politics, and (I hope) taking seriously the demands of civic friendship, and plain old common decency, in a diverse political community.

Anyway, check out the paper.

"Directly to the Core": The WSJ Nails It on the Ministerial Exception

Today, the editors of the Wall Street Journal succinctly and helpfully cut through the distractions to the heart of the matter, and reminded readers that:

Most debates over church-state separation deal with such peripheral issues as saying the pledge of allegiance in class. This case goes directly to the core of what Americans have understood about religious freedom for centuries.

Exactly.  Indeed, Justice Sotomayor, when she was on the Second Circuit, recognized as much, and wrote in one case (which the WSJ op-ed quotes): 

Federal court entanglement in matters as fundamental as a religious institution's selection or dismissal of its spiritual leaders risks an unconstitutional 'trespass. . . on the most spiritually intimate grounds of a religious community's existence.'"

Again:  exactly.  It is tempting, but mistaken, to imagine that we can safely allow litigants to harness secular state power in support of their complaints against their churches and their churches’ teachings.  And, we should not kid ourselves; this is what the government’s (and, sadly, several legal scholars’ and commentators’) extremist position against the ministerial-exception entails.

Infernal Obsolescence

This is an interesting piece by J. Peter Nixon about how traditional views of hell are increasingly seen as tiresome, motivationally inefficacious, and generally outré.  The story neglects an important piece of the banalization of hell, of course.  From Sartre's No Exit -- as you remember, the scene is a drawing room decorated in Second Empire furnishings (which I've always kind of liked, though to Sartre's modernist taste, it looked "rather like a dentist's waiting room") in which three people are trapped with nothing but each other:

Garcin: Will night never come?

Inez: Never.

Garcin: You will always see me?

Inez: Always.

Garcin: This bronze.  Yes, now's the moment; I'm looking at this thing on the mantelpiece, and I understand that I'm in hell.  I tell you, everything's been thought out beforehand.  They knew I'd stand at the fireplace stroking this thing of bronze, with all those eyes intent on me.  Devouring me.  What?  Only two of you?  I thought there were more; many more.  So this is hell.  I'd never have believed it.  You remember all we were told about the torture-chambers, the fire and brimstone, the "burning marl."  Old-wives' tales!  There's no need for red-hot pokers.  Hell is -- other people! 

Bishop Finn indicted

Kansas City bishop Robert Finn has been indicted for failing to report suspected child abuse:

The indictment is the first ever of a Catholic bishop in the 25 years since the scandal over sexual abuse by priests first became public in the United States.

Bishop Finn is accused of covering up abuse that occurred as recently as last year — almost 10 years since the nation’s Catholic bishops passed a charter pledging to report suspected abusers to law enforcement authorities.

Not sure why the concluding paragraph was necessary to include:

Bishop Finn, who was appointed in 2005, alienated many of his priests and parishioners, and won praise from others, when he remade the diocese to conform with his traditionalist theological views. He is one of few bishops affiliated with the conservative movement Opus Dei.