Wednesday, August 20, 2014
Last month I wrote about a satanic black mass, which is scheduled to be held in Oklahoma City in September. Earlier this month, Archbishop Coakley called for prayer and penance to avert the planned sacrilege. In addition to Holy Hours, Eucharistic Processions, and Benediction, the Archbishop is asking all Catholics to say the Prayer to St. Michael the Archangel now though September 29 (the Feast of the Archangels). Please join us in this prayer.
Today, the Archdiocese filed a Petition for Replevin against the organizers, contending that the consecrated host that the organizer claims to possess "must have been procured, either by that person or by another, by illicit means: by theft, fraud, wrongful taking, or other form of misappropriation." Here is a link to the Petition.
Michael Caspino of Busch & Caspino (Irvine, Ca.) and Chris Scaperlanda of McAfee & Taft (OKC) represent the Archdiocese. Yes, I'm a proud dad.
Tuesday, August 19, 2014
A couple of months ago, I posted up a brief message on the publication of my first novel, Marital Privilege, by North Star Press. I promised to post something more about it a few days later, but the summer got away from me, with launch party, book signings, distributions to incoming St. Thomas law students, and of course multiple other scholarly and professional projects. But now is a good time for me to follow up, as the novel is now available on Kindle at Amazon and on the Nook at Barnes&Noble.
The lead character in Marital Privilege is a law professor, and, while I should warn sensitive readers that the story begins with tragedy, the novel has themes of law, faith, and hope in the middle of tragedy. A distinctly Catholic sensibility will be found throughout the story.
Here is the back cover description:
Candace Klein is one of the lucky ones in her professional life, finding genuine meaning in her work as a law professor. But her personal life is troubled by a growing distance from her husband, Bill, who languishes in a dead-end job working for her father.
Suffering the horrific loss of her child in a car bombing, Candace grieves and seeks solace in her faith. Then a politically-climbing prosecutor, Robby Sherburne, takes control of the criminal investigation and promises the death penalty for a child-killer. Meanwhile, Ed Burton, a suburban cop, simply tries to follow the evidence where it leads.
When her husband becomes the target of the investigation, Candace asserts the “marital privilege” and refuses to cooperate. This ultimately provokes a crisis of identity between her professional commitment to the justice system and her resolute loyalty to her husband.
More information about the novel can be found here.
Prof. Robert Miller (Iowa) has a nice essay up at Public Discourse in which he responds to the argument that Prof. Hadley Arkes (and some others) has made, that is, "that the plaintiffs in Burwell v. Hobby Lobby, most of their supporters in the public square, and Justice Alito in his majority opinion in the case have adopted a mistaken and dangerous understanding of religious freedom." (I addressed this argument in this post, and Prof. Arkes responded here.)
Here is a taste (but I recommend reading the whole thing):
. . . In the law of religious freedom, the morality of the religious practices of the man who claims a right to religious freedom is relevant, but so too are many other considerations. Once again, it matters that the law is a system administered by imperfect human beings. In particular, long and sad experience has shown that legislatures and courts are not good at sorting out true religious beliefs from false ones, and majorities, whether religious or non-religious, tend to persecute religious minorities, which produces social strife and sometimes bloodshed. Even when a law is not aimed at restricting a minority’s religious practices, if the law in fact does so, such pernicious consequences often follow. This means that, sometimes, even though a certain religious practice is based on false beliefs and is morally wrong, nevertheless making a law to suppress that practice is wrong too. For just such reasons, our law includes provisions like the religion clauses in the First Amendment and the Religious Freedom Restoration Act (RFRA), which limit the government’s involvement and interference in religious matters. . . .
Two items--one new and one old--on the declaratory theory of law, whose absurdity seems to be taken for granted in our own day.
First, a very rich and subtle paper by Alan Beever, The Declaratory Theory of Law, 33 Oxford Journal of Legal Studies 421 (2013). Here is the abstract:
This article examines the declaratory theory of law and defends it from the most prominent modern attack on it. It explains that the real declaratory theory is not the caricature of it criticized in modern writing and that, in fact, the theory properly understood is remarkably close to the position adopted by some of the theory’s most notable opponents. The article further examines the common law’s continuing commitment to the declaratory theory, a commitment that remains strong despite the considerable hostility of the academy. It explains that this commitment reflects the nature of the common law.
And from the paper:
[John Hamilton] Baker [in his volume, An Introduction to English Legal History] utilizes an example to illustrate his analysis of the declaratory theory as it relates to equity. This ′stock example′ is that of a debtor who gave a creditor a sealed bond, who later repaid the money, but did not make sure that the bond was cancelled. Imagine that A borrowed money from B and gave B formal written evidence of this debt, later repaid that money, but did not cancel the document that he had given B. In these circumstances, the common law courts treated the bond as irrefutable proof that the debt still existed. Hence, even if A could prove that he had repaid the debt, the common law courts held such evidence to be irrelevant. This is where the Court of Chancery stepped in, ensuring that the debtor did not have to pay twice, thus altering the outcome that the common law alone would have produced. How can this be understood as fulfilling the law?
As Baker argues, ′it was not that the common law held that a debt was due twice ... such [a] proposition ... would have been dismissed as absurd′. In other words, it was a principle of the common law that debts must be paid only once, or rather that a (once) paid debt no longer exists. However, the common law was unable to enforce its own principle, because it also insisted on a high degree of certainty that meant that written deeds trumped oral evidence no matter how probative the latter was. Hence, equity fulfilled the common law by producing the result that the common law would have produced were its rules of evidence less pedantic. It did so, not by maintaining that the debt had been paid and so no obligation existed. That would have involved too direct a confrontation with the common law. Instead, it insisted that, though the obligation existed, it would be unconscionable for the creditor to enforce it.
Here, then, we see equity being applied in order to produce the results called for by the principles of the common law, where the common law was unable to achieve those results because of some impediment. Though the creation of this equitable rule changed the positive law, it did so in accordance with the principles of that law and in that sense preserved and fulfilled the law. It was surely in this sense that the medieval councillors and chancellors believed that they were declaring what the law already was. Of course, they were aware that they were altering the positive law. They knew that but for their judgments B could enforce the debt and that it was their judgments that prevented that from happening. They knew that this amounted to a change in what is now called the law. In fact, they made their judgments quite self-consciously in order to produce that change. But they believed that they did so in accordance with the principles of the law. To repeat Baker′s words, ′They were reinforcing the law by making sure that justice was done in cases where shortcomings in the regular procedure, or human failings, were hindering its attainment by due process. They came not to destroy the law, but to fulfil it.′
Second, this review of an interesting looking volume on Lord Coke by Elio A. Gallego Garcia, Common Law: El Pensamiento Politico Y Juridico De Sir Edward Coke. From the review:
As Gallego puts it, every conception of the law is defined by three great questions: is the law the product of the will or of the reason? Do we recognize or not a natural law superior to any human law? And finally, what role has custom in relation to the positive law? Coke’s vision of the law is extremely relevant to our days. We have grown used to judges who reinterpret laws in the most curious ways, typically in accordance with their own views of the good rather than the language of the law before them.
This spectacle seems unstoppable, in the United States at least. But Coke, a person who devoted his whole life to the law, tells us something completely different. Law is not something we construct: it already exists. We receive it, we discover it, and we declare it. Judges cannot reshape it, doing violence on it to make it fit the latest sociological fashion. The attempt resembles more the old sophists who were good at distorting reality but unable to found a just society.
From this perspective, we can better understand a sentence of Coke’s that was important in igniting Gallego’s interest in him. It says: “Reason and authority are the two brightest lights of the world.”
August 19, 2014 | Permalink
Monday, August 18, 2014
Here is the Call for Proposals for the annual Nootbaar Institute conference, confirmed speakers for which include several MOJ contributors.
CALL FOR PROPOSALS
Wisdom, Law, and Lawyers
PEPPERDINE UNIVERSITY SCHOOL OF LAW, MALIBU, CALIFORNIA
FEBRUARY 27-28, 2015
At a time when law is seen by many as purely a matter of power politics and the lawyer’s role as purely a matter of pursuing client economic interests, we want to consider how wisdom should influence deliberations in legislative chambers, courts, and lawyers’ offices. Both theoretical wisdom and practical wisdom have much to say about law. We hope to learn from many traditions, both religious and secular. Please join us for the conversation. The following speakers are already confirmed:
William S. Brewbaker III, William Alfred Rose Professor of Law, University of Alabama School of Law
Jonathan Burnside, Professor of Biblical Law, University of Bristol, England
Alberto R. Coll, Professor of Law, Director, European and Latin American Legal Studies Program, Director, International Law LL.M. Program, DePaul University College of Law
Daisy Hurst Floyd, Dean and University Professor of Law and Ethical Formation, Mercer University School of Law
Samuel J. Levine, Professor of Law & Director, Jewish Law Institute, Touro Law Center
Tremper Longman III, Robert H. Gundry Professor of Biblical Studies, Westmont College
Benjamin V. Madison III, Professor and Co-Director of Center for Ethical Formation and Legal Education Reform, Regent University School of Law
Rick Marrs, Provost, Pepperdine University
Russell G. Pearce, Edward & Marilyn Bellet Professor of Legal Ethics, Morality and Religion Fordham University School of Law
Ellen Pryor, Professor and Associate Dean for Academic Affairs, UNT Dallas College of Law
Michael Scaperlanda, Gene and Elaine Edwards Family Chair in Law and Professor of Law, University of Oklahoma College of Law
Brett Scharffs, Francis R. Kirkham Professor of Law and Associate Dean for Research and Academic Affairs, J Reuben Clark Law School, Brigham Young University
Steven D. Smith, Warren Distinguished Professor of Law and Co-Executive Director, Institutes for Law & Religion and Law & Philosophy, University of San Diego
Susan Stabile, Professor of Law and Faculty Fellow for Spiritual Life, University of St. Thomas School of Law
Deanell Reece Tacha, Duane and Kelly Roberts Dean, Pepperdine University School of Law
David VanDrunen, Robert B. Strimple Professor of Systematic Theology and Christian Ethics, Westminster Seminary, California
Cheryl Wattley, Professor of Law, UNT Dallas College of Law
R. George Wright, Lawrence A. Jegen III Professor of Law, Indiana University Robert H. McKinney School of Law
The conference will be organized around three general themes:
1. The Nature of Wisdom – What do our traditions teach about the nature of wisdom? Speakers are likely to address the conference topics from Greek, Jewish, Christian, Islamic, Buddhist, and Confucian perspectives.
2. Wisdom and Law - The Hebrew and Christian Bibles’ Wisdom Literature identify wisdom as both a source of law (by wisdom "lawgivers establish justice," Proverbs 8:15) and an end of law (God's ordinances "make wise the foolish, Psalms 19). What is (and what should be) the relationship between wisdom and law? How might wisdom influence some of the issues that confront nations today?
3. Wisdom and Lawyers – In recent decades, legal profession scholars have identified practical wisdom as the key lawyer virtue. Have developments in the profession and the legal market made it more difficult for lawyers to exercise that virtue. In today’s legal world, can lawyers or clients be, in Jesus’s phrase, both "wise as serpents and innocent as doves"? How should wisdom influence a lawyer’s work? Is it even possible for wisdom to influence a lawyer’s work in the current state of the legal profession?
Feel free to propose any topic that would fit within this broad range of themes.
If you would like to present a paper or organize a panel, please submit your proposal by Friday, September 19, 2014 via email to [email protected]. Proposals should be two pages maximum and should include a short abstract and a bio.
If you have questions about the substance of the conference, contact Bob Cochran at [email protected]. For questions about the details of the conference, contact the Nootbaar Institute office by email, [email protected] or by phone, (310) 506-6978.
For more information on the conference as we have it and to view details of past conferences, see:
The conference will be co-sponsored by Pepperdine’s Nootbaar Institute on Law, Religion, and Ethics and the Glazer Institute for Jewish Studies.
[MOJ reader Christian E. O'Connell wrote and sent in the following and -- with his permission -- I am posting it here]:
RFRA, the Pitchfork and the Crozier
Christian E. O’Connell [*]
Will no one rid Professor Marci Hamilton of these turbulent priests?
The Cardozo law professor’s resentment at the meddlesome shepherds of the Catholic Church is palpable in her new essay (“The Circle Starts to Close”) at Justia’s Verdict. The U.S. bishops pressed, albeit unsuccessfully, for an abortion-related exception to the Religious Freedom Restoration Act (“RFRA”) at the time of its enactment; they’re currently “sinking who-knows-how-much-money” into RFRA litigation to avoid being compelled to provide what Hamilton terms “cost-free contraception coverage.” Perhaps most insolent of all in Hamilton’s tally of grievances, the bishops “lobbied like crazy” alongside evangelical Protestants and others for informed consent laws requiring physicians to provide certain information to women seeking elective abortions.
Now that an ostensibly religious organization called the Satanic Temple has commenced a campaign to avail its women members of a RFRA exemption to state informed consent laws, Hamilton is gratified by the prospect of seeing the Catholic episcopate hoist with its own petard. By Hamilton’s reckoning, the road to the Satanic Temple’s victory is paved with the intentions of those who, like the bishops, welcomed the U.S. Supreme Court’s decision in Burwell v. Hobby Lobby.
Sunday, August 17, 2014
Remarks by Robert P. George at the
Annual Ahmadiyya Muslim Convention
Friday, August 15, 2014
It is a pleasure to join you at this Jalsa Salana (annual convention). Thank you for inviting me to share some reflections, and for the high honor of receiving the Ahmadiyya Muslim community’s 2014 Humanitarian Award.
I’d like to frame my remarks by noting two dates, one from just weeks ago, the other of which we will mark just weeks from today.
On July 27 of this year, in Pakistan’s Punjab province, an Ahmadi woman and her two granddaughters, including a seven-year-old and her baby sister, were burned alive in a mob attack which left nine other Ahmadis badly burned.
And on September 7 we will mark the 40th anniversary of the passage of an amendment to Pakistan’s Constitution which declared that Ahmadis are non-Muslims in that country.
Taken together, these injustices underscore the plight of the Ahmadiyya today, especially in Pakistan, where the forces of intolerance and hatred continue their assault on your community and religious freedom.
This assault takes place in a world in which 75 percent of people, including millions of Ahmadiyya Muslims, live in countries which grossly violate this precious right.
Simply stated, the war against the Ahmadiyya is part of a global war on freedom and dignity.
So what is behind this global war?
More than any other factor, it is the continued operation of a truly unique and monstrous idea – first introduced in the last century -- that some have called totalitarianism.
It’s an idea that says that we can perfect the world if we grant fanatical leaders and political movements unlimited power and authority to remake humanity as they see fit – elevating these leaders and movements to godlike status, above every law and custom, every belief and institution, and every moral norm and precept in history.
In the 1930s and 1940s, this evil idea threatened the world through Nazism and other forms of fascism, which hijacked loyalty to nation as the vehicle for its unlimited aims.
After World War II, with Nazism defeated, its greatest threat was from Communism, which hijacked economic class for the same purpose.
By the close of the 20th century, these two movements had committed every crime imaginable, from assaults on conscience to the perpetration of genocide. When the dust had settled, nearly 150 million human beings had perished.
Today, while we still see that threat coming through Communism, particularly in China, which remains a world-class human rights and religious freedom violator, we see something else as well:
We see how the same extremist, totalitarian impulse which drove Nazism and Communism has now hijacked religion as its latest vehicle, resulting in the same horrifying outcomes for humanity.
From ISIL and al Qaeda to the Taliban and the Iranian leadership, these new totalitarians have unleashed terror and tyranny on a global scale.
Across the world, they have launched terror attacks on civilians, obliterating all traditional distinctions between combatants and non-combatants – exactly as the Nazis and Communists did.
In Iraq, they brutalize men, women, and children and threaten the lives and liberties of religious minorities and most of the Muslim majority.
From Afghanistan, they launched the 9/11 attacks and seek again to destroy every human right, from religious freedom to the rights of women.
In Pakistan, they have assassinated leaders and target both Muslims and religious minorities who dare to dissent from their beliefs.
In Iran, they control the government and regularly execute religious dissenters while supporting terrorist groups around the world.
And let me add that wherever the Ahmadiyya are violently persecuted, it is these extremist, totalitarian forces that are leading the charge.
Now let’s be clear:
These forces cannot possibly represent authentic Islam or any other religion.
No religion on the face of the earth, including Islam, ever stood, as these forces do, and as their Nazi and Communist cousins did, for the idea that leaders and their followers may break any law, commit any crime, perpetrate any atrocity, without being accountable to anyone or anything.
And that leads us to a question:
These extremist forces call themselves Islamic, but how can they be when they view hundreds of millions of Muslims, as well as non-Muslims, as legitimate targets for abuse and death?
Make no mistake: This is not a struggle of religion against humanity. Rather it is a struggle of tyranny against freedom—the same struggle that Nazism and Communism waged against the world in their day.
Violent Islamist extremists who murder, rape, and pillage, violating every norm of morality, dishonor God by their crimes and doubly dishonor him by claiming to commit them in His name. They say that you are not true Muslims; I say that they are not true Muslims.
You, the Ahmadiyya, find yourselves in the midst of the struggle. Let me highlight for the record what you know so well.
In Pakistan, under pressure by totalitarian extremists and their supporters, its government and constitution still label Ahmadis as “non- Muslims.”
Pakistani law bars Ahmadis from calling their worship centers “mosques,” from publicly uttering the traditional Islamic greeting or quoting from the Qur’an, and from displaying the basic affirmation of Islam.
It prohibits the Ahmadiyya from sharing or publishing their beliefs, restricts them from building houses of worship and holding public meetings, and prevents them from voting unless they register as non-Muslims.
Worst of all, the same extremist forces which cheer on the government when it deprives Ahmadis of their religious freedom also unleash horrific violence and death, as we saw in the July 27 attack and countless other atrocities.
For these and other reasons, our commission continues to call for the United States to designate Pakistan a country of particular concern, marking it as among the worst religious freedom violators in the world.
Unfortunately, these anti-Ahmadiyya forces are not limited to Pakistan. In Indonesia, violent extremist forces since 2008 have vandalized at least 50 Ahmadiyya mosques, and continue to pressure officials to close places of worship or ban Ahmadiyya activity altogether. In Saudi Arabia, Ahmadiyya members have been deported for their beliefs. In Egypt, they have been charged under its blasphemy laws. In 2010, USCIRF’s intervention helped a number of members leave Egypt for safety abroad.
From these examples, one thing is clear. Those behind the persecution of the Ahmadiyya Muslims are some of the worst enemies of human freedom and dignity.
But what a refreshing difference there is between you and your persecutors.
Unlike them, you believe that people have inherent dignity, worth, and God-given rights which no movement or government can ever take away.
You believe that human beings were created for fellowship and peace.
You believe in the right of every member of the human family to worship freely according to conscience.
And after 9/11, it was you, the Ahmadiyya Muslim community, who put your beliefs into action. You literally gave your blood to our nation, donating more than 25,000 bags of blood in memory of those who perished that day.
Unlike your persecutors’ message of tyranny and hate, yours is a voice for reason and freedom. You advocate not only for yourselves but for the rights and dignity of others.
At stake is nothing less than the future of humanity. At stake is what kind of world we will one day hand over to our children and to our children’s children. Will it be a world of light, love, and liberty, or will it be a world of darkness, despair, and despotism? Will it be a world where dignity shines, or where dehumanization dominates?
And so my Ahmadi friends, my brothers and sisters, let us continue to stand together, to work together, to persevere together. Let us offer ourselves as God’s servants for freedom and dignity, life and liberty, humanity and decency.
Thank you, my dear friends. God bless you.
August 17, 2014 | Permalink
Friday, August 15, 2014
A Second Court Victory in a Week for the Dignity of Prisoners (and for the University of St. Thomas and University of Arkansas Clinics)
For I was ill and you cared for me, in prison and you visited me. Matthew 25:36
A couple of days ago (here), I was delighted to report a victory for a prisoner’s right to confidentiality in correspondence with his attorney in a published Ninth Circuit decision (here). Scott Nordstrom, a death row inmate whose legal mail was read when he was challenging his conviction, was represented by the University of St. Thomas Appellate Clinic, which I supervise.
Just three days after that decision, the Ninth Circuit affirmed the human dignity of prisoners again in another case involving our UST Appellate Clinic, in which the lead was taken by our partners at the University of Arkansas Federal Litigation Project supervised by my colleague Professor Dustin Buehler and which was argued to the court by students (now graduates) Mason Boling and Lauren Murphy.
In Colwell v. Bannister (decision here), a prisoner who had suffered from blindness in one eye due to cataracts for a decade challenging the prison’s refusal to grant surgery despite the recommendations of his doctors. Yesterday, the Court of Appeals reversed the District Court’s grant of summary judgment to the Nevada Department of Corrections.
In words that speak eloquently to the fundamental dignity of all persons, including our neighbors held in prison, the Ninth Circuit held “that the blanket, categorical denial of medically indicated surgery solely on the basis of an administrative policy that ‘one eye is good enough for prison inmates’ is the paradigm of deliberate indifference.”
Thursday, August 14, 2014
Dr. Donald Drakeman has posted a thoughtful response to my short essay, "Freedom of Religion and the Freedom of the Church" (about which I posted the other day), at the Law & Liberty blog. Drakeman's response is called "Negotiating the Freedom of the Church." He notes, among other things:
As the religious mission moves out of the church and toward more direct contact with the world, however, the rest of the world may push back. The polls say that there is some support, albeit more limited, for the concept of the church carrying its religious freedom rights into the world. Accordingly, as in Cardinal George’s message, churches may need to articulate not only the religious importance of their educational and healing missions, but also the practical importance to society of the churches’ continuing to maintain them. . .
Read the whole thing, and also John Inazu's contribution, "Freedom of the Church Not Freedom of Religion."
I thought this essay, by Samuel Goldman, was interesting and thoughtful. The basic idea: One possible response to the MacIntyre-ian conclusion that "we live amidst the ruins of Western civilization" is -- as readers of After Virtue remember -- the so-called "Benedict Option." Goldman discusses another possibility, the "Jeremiah Option" -- a strategy that "[t]he Hebrew Bible and Jewish history suggest . . . according to which exiles plant roots within and work for the improvement of the society in which they live, even if they never fully join it."
This strategy lacks the historical drama attached to the Benedict Option. It promises no triumphant restoration of virtue, in which values preserved like treasures can be restored to their original public role. But the Jews know a lot about balancing alienation from the mainstream with participation in the broader society. Perhaps they can offer inspiration not only to Christians in the ruins of Christendom but also to a secular society that draws strength from the participation of religiously committed people and communities.
Check it out. Thoughts welcome.
UPDATE: Bryan Kern suggests some additional "options":
atheism as the need to respond adequately to many people’s thirst for God, lest they try to satisfy it with alienating solutions or with a disembodied Jesus who demands nothing of us with regard to others. Unless these people find in the Church a spirituality which can offer healing and liberation, and fill them with life and peace, while at the same time summoning them to fraternal communion and missionary fruitfulness, they will end up by being taken in by solutions which neither make life truly human nor give glory to God."