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.

Saturday, September 7, 2013

The Use of Force: Fasting and Prayer


Pope Francis issued a letter on September 4 addressed to President Vladimir Putin of the Russian Federation who is hosting the G20 that has gathered at St. Petersburg for their periodic summit. [the letter is HERE]

The Holy Father follows the efforts of his predecessors of modern times beginning with Benedict XV (who was the Roman Pontiff during the First World War) who have exhorted the pursuit of peaceful means of resolving disputes—even disputes commenced by tyrants. It is important to recognize the international juridical elements of their pleas and how these Vicars of Christ, including Francis, emphasize uniform elements in their respective requests and pleas geared to avoiding the use of force. Their counsel brings a different dimension to the so-called Just War theory.

Interestingly, Pope Francis begins with a short discussion about economic issues, but as Popes John Paul II and Benedict XVI have emphasized in a number of their respective annual World Day of Peace messages, economic issues have a direct role in the stabilization of peace or its disruption.

A second important element—a point emphasized by both Benedict XV and Pius XII in their respective interventions during the two world wars—is to search for and use peaceful means for resolving disputes, for they have a far better hope of maintaining a just peace than does the use of force.

A third point follows: Francis, like his predecessors, is not naïve about the use of force and its existence and practice in the contemporary age. Therefore, if force is regrettably used, all efforts must be exercised to ensure that those adversely affected by any use of force or military conflict be protected with the necessary humanitarian aid so those who are the victims of the use of this force will suffer minimally, if at all.

In the meantime, those of us who are able to do so are encouraged to fast and pray for the wisdom of God which is the most effective means of resolving disputes and of promoting a lasting reconciliation.


RJA sj


September 7, 2013 in Araujo, Robert | Permalink

Saturday, August 24, 2013

But there is a coherent jurisprudential argument…


Like Patrick, I was surprised by Jody Bottum’s claim that there is no coherent jurisprudential claim against same-sex marriage (SSM). Since as early as 2000, a number of folks (on both sides of the SSM question) have been willing to engage in discussion and debate about the meaning of marriage. I am one of those members of this group, and I am joined by colleagues and friends here at the Mirror of Justice who have been willing to discuss the meaning of marriage in public forums.

Over these past thirteen years, a number of us have continued to express our desire to engage those with different perspectives on the nature of marriage and why the Church’s teachings on this important institution of civil society are correct. What I have also experienced is that there are supporters of SSM who are willing to debate the topic, but there are some—perhaps many—who are not. It appears that for them there is no need to discuss or debate: they are right because they are right and that’s all there is to it; there is no need for debate. Period.

Mr. Bottum, whose writing I have admired in the past because of his careful analysis and generally measured language, has made a remarkable departure from his previous modus operandi. Asserting that contempt against the Church and its authorities is deserved, he contends that the earned ridicule is based on “loony, pie-eyed judgment” leading the Church and her shepherds “to engage in a sex-based public-policy debate they are doomed to lose.” It seems that Mr. Bottum is of the view that the Church has initiated this particular debate (if in fact there really is a debate), but most of the time it is those whose radical and often totalitarian ideas raise the subject of sex, sexual orientation, gender identity, SSM, etc. and, in doing so, confound objective reason comprehending intelligible reality. But these individuals for the most part are not interested in healthy democratic debate because they are intent on foisting on the public “the things we share” but really don’t share.

I can just imagine that if someone who is opposed to the concept of SSM wrote and published essay employing the tone sometimes used by Mr. Bottum in his Commonweal essay, many would express outrage about the insensitivity and wrongfulness of such an attack. Where is the outrage now? Should there be outrage? Mr. Bottum and his supporters apparently do not think so.

Five years ago, I was invited to present a paper at a conference on SSM. I know the conveners well, and they labored valiantly to invite a balanced set of speakers with very different views on the meaning of marriage to address the issue of SSM. Interestingly, most of the SSM supporters who were invited to participate—all expenses paid—declined the invitation. I was looking forward to engaging some of the SSM supporters on the topics of equality and equal protection which are frequently employed by SSM advocates to justify their position. Sadly, the several SSM supporters who do rely on the equality argument, as I call it, chose not to attend and therefore would not participate. I cannot speculate why they declined the opportunity to engage me and others in discussion and deliberation, but it struck me and others that they did not want to debate the subject on a level playing field. Perhaps my impression is flawed, but I don’t think so. The hope of the organizers of the conference was to have a spirited, honest, and respectful discussion on “things we share,” but this aspiration was hindered. Honest and open debate has always been an essential element of robust democracy and the legal institutions essential to democracy. But recognition of this point does not surface in Mr. Bottum’s discourse on things we Americans presumably share.

Incidentally, some of my thoughts on SSM and related matters, which I argue are coherent, have been presented earlier at the Mirror of Justice HERE, HERE, HERE, HERE, HERE, and HERE.

This brings me to another point that I have already addressed on this site, and that is the emergence of a problem addressed more than half a century ago by individuals such as Jacob Talmon and Christopher Dawson. The problem is totalitarian democracy. For those unfamiliar with the entity, it is a despotic form of governance that emerges from the efforts of the members of a political and social elite who use the forms of democracy to construct a political institution where there is no departure from the unbridled will of the elite who are intent on controlling most, if not all, aspects of public and even private life. Such a political institution is contrary to the ideals of the American people and to which Mr. Bottum pays lip service but not genuine commitment. I would very much like to participate in the things that we presumably share with Mr. Bottum and with those folks with whom I cannot agree on all counts. But I do not fear meeting and engaging them in a respectful fashion which gets us closer to understanding the truth of human nature and the desirability of the good over evil; virtue over vice; and right over wrong. That is what democracy and the common good are all about. However, the totalitarian democrat is interested in none of this because the only thing that can be shared with him or her is that person’s view and no other.

This is not good for the law of a democracy, but, to borrow from Blessed John Paul II, it may be all right for a thinly disguised totalitarianism that calls itself a democracy.


RJA sj

August 24, 2013 in Araujo, Robert | Permalink | Comments (0)

Friday, August 9, 2013

Another Welcoming Address (hypothetical) at Law School Orientation

Thanks to Michael M. for his posting, with his substantive commentary, of Rick Garnett’s address on the mission of a law school at a Catholic university. I hope to offer a few other considerations to my friends who contribute to the Mirror of Justice and to our readers who are interested in the same topics addressed by Rick and Michael as we enter the Vigil of another academic year in which fresh faces and minds begin legal studies at a time when many folks properly raise and attempt to answer questions about lawyers, the law, and legal education. I hasten to add that this draft address will never be given by me. Perhaps one day it will be delivered, with many needed improvements I am certain, by someone else who shares my interests and concerns about the law and legal education which opts for the modifier “Catholic”. I further preface this draft address by giving it a slightly narrower twist from Rick’s in that my target is the fourteen law schools that have some affiliation with universities that rely on the duals monikers “Catholic” and “Jesuit”. In this context, I rely on the point made by then Father Avery Dulles, who studied the law for a year at Harvard before he was called to military service at the beginning of World War II. The argument he made in 1999 was that the second modifier, “Jesuit”, must mean an intensification of the first, “Catholic.” After all, as a Jesuit and lawyer and law teacher, I am confident that I have something to say about legal education in an institution which in some fashion relies on “the Jesuit tradition” (or something like this) that is rarely, if ever, defined. So, here goes:


In the name of the Father, and of the Son, and of the Holy Spirit, Amen!

Welcome ladies and gentlemen; welcome friends. Welcome to ________ School of Law. For many of you, the formulaic words I just uttered will be strange to you; for others, you have heard them before; and, for still others, you use them in the prayer that you have been offering to God for a long time. They are words that were used often by Saint Ignatius of Loyola the founder of the Society of Jesus, the Catholic religious order commonly referred to as the Jesuits. Moreover, they are words frequently used by the men of the Society of Jesus who founded schools, colleges, and universities across the globe over the past five centuries. But the Catholic Church is no stranger to education, including higher education. After all, the roots of the oldest, major European universities were in some fashion or other founded by people of the Church and for the Church.

I am sure that most of you might recall that somewhere in the promotion literature of this law school, you read and may even recall some reference to the Jesuits and their tradition in tertiary education. Moreover, I am confident that you were told that this education would be substantively different from that which you would have obtained had you matriculated at some other law school. I am also certain that in your time here, you will on occasion run into the term Jesuit again. But what does it mean? In particular, does it mean anything to you and to your education? Furthermore, what is really different about the education that you will receive here? Skeptics, including some of your professors and classmates, may suggest that reliance on the word “Jesuit” is a best an artifact of or, at worst, an impediment to the reason why you are here. And without any real clarity, you’ll be told that the distinction of the education to be had at this institution is different, but the reasons for the difference will often be ambiguous.

So, please allow me to explain what is or should be the distinction of this school, and let me offer an explanation why I think the skeptics are wrong. The reason for this school needing to take a different tack is that I think and believe that this institution is much more—or should be much more—than the Ivy League, big state university, or other famous private or public law school to which you may have gone or wanted to go but were not invited to attend. So, where do I begin in offering the distinction and the explanation proving that the skeptics shouldn’t be dubious?

Let’s start with history, something with which most of you are familiar. I am a student of history, but as you will soon discover, all lawyers who wish to be good at the craft of the profession need to be good historians in order to understand fully their clients, the specific cases on which they will be working, and the law itself. Research into the background of all of these items I just mentioned requires rigorous historical investigation. When it comes to the law, you may be surprised to find out that it, too, started a long time ago. Let’s begin with the ancient civilizations of the Near East. The Decalogue of the Old Testament has provided major contributions to our civil law of the present day in spite of the protests of some civil libertarians that there can be no connection between the things of God and those of Caesar. If you doubt me, just look at Commandments IV through X and then consider where, not if, they appear in the law that you will be studying. I realize that Commandment VI is disregarded by many in our society today, but it still is and should remain good law for people of good will. There are other major elements of the civil law of today that are rooted in the religious beliefs of our ancestors that many of us accept and follow today.

Since many of you are probably interested in rights—human rights—you may be surprised to discover that they, too, are rooted in the work of people of faith such as the sixteenth century Dominican priest, Francis de Vitoria, and the Jesuit who continued in his footsteps, Francis Suárez. These two fellows understood well that the human person is a citizen of two cities, to borrow from Saint Augustine of Hippo, viz., the City of God and the City of Man. Moreover, they also realized that what each and every human being can rightfully and objectively claim as his or her fundamental right is not a creation or gift of the state but of God. Rights inhere in the dignity of the human person. They are not something which the civil law gives; for whatever it gives, it can take away without any real question or doubt. Authentic rights are ingrained in the nature of the human person. As the person preexists the state, so, too, do the rights of the human person.

But with rights that are authentic come responsibility. This is something that many “experts” of the law fail to grasp today, but if they do, they are reluctant to admit this.

Everyone likes freedom or liberty, but not everyone thinks about the duties that tether the rights we claim to their responsible exercise. Sooner or later you will encounter in your legal studies the 1992 U.S. Supreme Court decision of Planned Parenthood v. Casey. The plurality of justices who drafted the interesting definition of liberty contained in this decision offered an exaggerated and subjective understanding of human freedom when they asserted that each person can determine without any outside influence what his or her freedoms are.

But this recent definition excludes something critical, i.e., the fact that the exercise of freedom must be objective if it is to mean anything that is durable. Objectivity, not subjectivity, makes us realize that we share a world with all of God’s creation that includes our fellow human beings. So, if you or I claim something as “my rights”, should we not consider that it is something that the other person should also be able to claim? But if my claim and your claim are directed in a head-on collision, what can prevent the clash? The answer is: responsibility. What I seek for myself is something that my neighbor should also be able to pursue if it is genuine to the dignity of all members of the human family.

This brings me to a second important item that should be a part of any aspiring lawyer’s education at this school which claims to be “Jesuit”: what is the law about? Does it have a nature? My answers to these two inextricably related questions is that the law is a mechanism of the societies in which we live—local, regional, national, and global—that must ensure the preservation of right relations between and amongst all the members of these societies. But how do we know what is needed to constitute what is right in our human enterprise of relationships, those planned and those that are not? You will hear an occasional reference in your legal careers, which begin today, to the natural law. Many will dismiss it as a relic of the past that is responsible for all sorts of problems such as the justification for slavery and the oppression of certain peoples based on sex, religion, race, ethnicity, etcetera. This dismissal is nonsense. Without the natural law, we would not have the means of objective reasoning that is essential to the law; moreover, we would not have the republican democracy that we have, but not seem to ignore, in the United States. The natural law is the use of objective reason by the intelligent mind to comprehend the intelligible reality that surrounds us so that our law-making will lead to norms that are just and proper because they are our tools of civil society to ensure the restoration and preservation of right relations amongst all peoples—local, regional, national, and global.

Thirdly, you will hear much about justice and its derivative “social justice” in your time in law school and your legal career thereafter. Moreover, you will often hear that this institution of social justice is what makes this school different from others because social justice is at the core of our school’s existence. Well, that’s all well and good, but let me ask you if you have ever heard any university and its law school proclaim that it is for injustice or, more particularly, social injustice? Of course not! But rarely, if ever, will you hear a coherent explanation of what justice and social justice mean and are all about. It is assumed that we all know what we are talking about when we employ these important and powerful concepts. But it is hard to imagine that political parties, nongovernmental organizations, lobbies, citizens’ groups, and individuals whose views on the law and the meaning of life are so dramatically opposed can use these terms to mean the same thing. Let me offer an explanation of what justice and social justice are and should be about.

I have already tipped my hand on the issue of justice: right relationship between and amongst people. What does this mean? It does not mean that I get or you get what we want as individuals. It does mean that we receive what is our due that is objectively determined by the reasoning process essential to the law, it administration, and its adjudication. In the search for justice we use the intelligence God has given to us so that it can be employed by virtuous people to assess and decide what is right and what is wrong; what is good and what is evil; what is worthy and what is vice. This is the path to determining what is due the person and his or her neighbor.

The matter of social justice concerns the recognition and practice of virtues by citizens and their societies that are essential to good governance and good law. What are virtues in case some of you don’t know? Well, the theological ones are faith, hope, and charity. These virtues are something that the Framers of our legal institutions in this country understood well. But they also understood that the cardinal virtues are also vital to the project we call the human or civil law. These cardinal virtues are: courage (the ability to stand up to pressure by doing what we ought to do and to avoid doing what we ought not do); prudence (the wisdom, the sagacity to comprehend what is at stake and what is needed to resolve problems we face with equity); forbearance (the ability to avoid the temptation to seek the self-satisfaction of revenge and retribution when mercy is needed to temper our judgment); and, finally, justice (the ability to comprehend what is due to each person as an individual and as a member of societies).

There are many other things that should be presented, discussed, and, yes, even debated by reasonable people of good will in their law school years, but the topics I have identified today are essential as you begin your career in the law at this school that likes to call itself Catholic and Jesuit. Questions will be a major part of your life here at ________ School of Law, so you are quite right to ask why should my proposals offered today be a part of your formation?

My answer is preliminary but, I think, also promising. If you consider what I have said here today, you will be a better lawyer because you will be a better person who understands more fully what you, society, and the law are about. It takes a better human being who comprehends the dual citizenships of which I spoke earlier to pursue this enterprise we call the law. When this comprehension seeps into your daily routine, you will have an increasingly better grasp of who you are, what life is all about, where you and your fellow human beings are going, and why we need a legal system that serves, not dictates the lives of God’s greatest creation—the noble human person and the societies of human persons.

Father Ignatius understood these matters well. And with God’s help, may you comprehend them, too!

May God abundantly bless each of you not only during your course of studies here at _______ School of Law but also during the rest of your lives in the law, this great gift of human society that our loving Creator has given us and for which we have a measure of considerable responsibility as lawyers through our ability to comprehend what He asks of us!



RJA sj


August 9, 2013 in Araujo, Robert | Permalink

Tuesday, July 30, 2013

The Feast of Saint Ignatius of Loyola Redux


Readers of the Mirror of Justice may recall that two years ago on the Feast of Saint Ignatius of Loyola I posted at this site a pivotal segment of the Formula of the Institute by which the Society of Jesus was recognized by the Holy See back in the mid-sixteenth century. The link to my previous posting is HERE. A principal reason for posting then was to help readers understand why there is a Society of Jesus. The myths abound, but it is good to know the reality.

Since July of 2011 when I last posted on the subject of the feast, some things relevant to this memorial which the Church celebrates on July 31 and to the role of the Society of Jesus in the world (including the realm of education) have changed—whether for the better or not, I shall leave for another day. But one major change is clear as we have our first Jesuit pope, who is and remains a son of Father Ignatius. In spite of what others may argue or suggest, he remains a Jesuit until he is dismissed from the Society. I do not see any reason to justify this.

Still, I am asked by the curious, the faithful, and the skeptical a similar question: “So, what do you think of the Jesuit pope?” I think the intention underlying this question is to extract my impression of what the pope will do. My fundamental answer is based on the reason why Father Ignatius established a religious institute which was approved by Pope Julius III in 1550 under the Formula of the Institute. Here are some of the critical details that go into the formulation of my answer.

1. A man enters the Society of his own free will—because he desires to serve and follow Christ as a Soldier of God beneath the banner of the Cross. Once a member, regardless of his grade within the order, a Jesuit must continue to serve God and the Church with fidelity. Because he is a soldier, he may well face hostility from those forces pitted against God and the Church, but still he must serve the Triune God and the Church.

2. In particular, the Jesuit’s service to God and the Church is under the direction of the Roman Pontiff or whoever the pope appoints as his delegate. Since the current pope is a Jesuit, it is clear that this pledge of service which follows Pope Francis is not to serve himself personally but to attend with diligence and fidelity the office he holds which necessitates aiding God and the Church in whatever way he can.

3. The pope’s Jesuit service (and this applies to all members of the Society) can manifest itself in a multitude of contexts; however, there is one central objective of the order, i.e., to strive (a strong transitive verb) for two things: (a) the defense and propagation of the Catholic faith, and (b) the progress of souls in Christian life and doctrine. The tenets of the Catholic faith which Jesuits are called to defend and propagate (not sacrifice and frustrate) are revealed by God’s truth and the long history of teachings that the Church has established upon God’s truth. The progression of a person’s Christian life is to be accord with God’s truth as contained in the doctrines the Church has recognized over two thousand years. In this fashion, souls make progress by avoiding sin and seeking Christian virtue.

4. While the particular ministries for achieving the objectives of the Society of Jesus are diverse (education is a principal one), it is clear that another element of what the pope must do is to preserve, protect, and offer vigorously the sacraments of the Church. One of the sacraments is confession (the sacrament of reconciliation). It is through this sacrament that a penitent expresses his or her responsibility for offending God and the neighbor by freely choosing to sin. Yet, sin can be forgiven if the penitent seeks God’s mercy and forgiveness through the Church’s ministers who are competent to offer this sacrament. Pope Francis surely is a member of this group of ministers of this sacrament as he has already demonstrated on numerous occasions.

5. The sacrament of reconciliation is crucial the Church, her members, and the Society of Jesus because, as the Constitutions of the Society of Jesus note, the end of the Society is directed toward the salvation of souls—not only of the subject Jesuit but also of our fellow human beings whom we serve in many ways. The sinner is and must be loved; however, this does not translate into loving the sin as well. To the contrary, the sin must be identified and explanation offered as to why it thwarts God’s plan for human salvation. The reason why salvation is necessary is because of the existence of Original Sin and the commission of our own sins. Sadly, with our free will, sin is not a relic of the past, and this is something that Pope Francis has not forgotten and will continue to teach us even as he continues to reach out to all of us who sin. The sinner is not identified by who he or she is; the sinner is identified by what he or she does; what he or she fails to do; or, what he or she thinks of doing.


So, when the media, Jesuits, Catholics, and anyone else offer opinions about what the pope will do or what he should do, the authentic answer to this and related issues must be viewed through the lens of why the Society of Jesus exists. It does not exist to agree with popular culture; it does not exist to confirm the opinions of any elite; it does not exist to rationalize the license of freedom untethered by the responsibility for the common good and obeying God and His laws which is a duty of all Christians. The Society of Jesus does exist for the salvation of souls and saving the human person from sin. That is what Pope Francis is about because that is what a Jesuit is about.


RJA sj 

July 30, 2013 in Araujo, Robert | Permalink

Sunday, July 14, 2013

Another Observation about Hollingsworth


I have been reading again the two marriage decisions issued by the Supreme Court recently, i.e., United States v. Windsor and Hollingsworth v. Perry. Previously, I offered several remarks on Hollingsworth on this site, but now I see a reason to add another thought about the Proposition 8 case, its influence on Windsor, and what Justice Alito said in his dissenting opinion in Windsor.

In Windsor, Justice Alito notes at page 15, footnote 7 of his dissenting opinion that the Brief of the Constitutional and Civil Procedure Professors, amici curiae, asserted in their Hollingsworth brief that Judge Walker’s “factual findings are compelling and should be given significant weight.” This brief continued by stating that “Under any standard of review, this Court [the Supreme Court of the United States] should credit and adopt the trial court’s findings because they result from rigorous and exacting application of the Federal Rules of Evidence, and are supported by reliable research and by the unanimous consensus of mainstream social science experts.” [Italics added by RJA sj] Several of these claims by law professors cited by Justice Alito are untenable. Why do I make this observation?

First of all, one of Judge Walker’s findings (with references to the supportive testimony; in particular one deponent’s statement that the “Catholic Church views homosexuality as ‘sinful’”) was that: “Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians.” Fact Finding, N. 77, p. 101.

The more I consider what these colleagues in the teaching profession have indirectly said about religion (Catholicism, in particular) by urging adoption of Judge Walker’s findings and the shadow that their arguments about his findings cast, I appreciate all the more what Justice Alito said regarding these contentions: “Only an arrogant legal culture that has lost all appreciation of its own limitations could take such a suggestion seriously.”

I will put aside the issue of sinfulness mentioned in Judge Walker’s findings since I do not think Federal judges or other civil officials should decide whether any act is sin or sinful. Making this determination falls outside of the civil official’s competence. Catholic teaching informs us that any sexual activity—be it hetero- or homosexual—outside of marriage that is the union of one man and one woman is also sinful. But whether this religious belief harms co-habiting male and female partnerships is a dubious claim to make. There are occasions where sin and wrongful doing under the law coincide. For example, lying is a sin. We had a discussion about this at the Mirror of Justice some time ago. But lying, e.g., perjury, is also an offense under the law. In such a case, a court dealing with lying is not looking at the act of lying as a sin but, rather, as an offense against the civil code or common law. While not having the authority to address the sin, the court has the jurisdiction to address the purported crime and civil wrong.

Consequently, judges do have the competence to decide if something is right or wrong, i.e., consistent or not, with human behavior that is a subject of the law. In this context, let me parse the rest of the Judge Walker’s finding, relevant to this posting, that “Religious beliefs that gay and lesbian relationships are… inferior to heterosexual relationships harms gays and lesbians.” The issue of considering inferiority may well fall within the competence of a court as the judge(s) may raise the question of equality, equal protection under the law, and due process when one status may be considered inferior to another. So the next issue to consider is this: how does this matter of “inferiority” harm homosexual couples? Should we consider whether there is a qualitative and objective distinction between the two? Making this consideration is essential to whether or not there really is harm that needs to be addressed by the law.

In order to assess the merits or lack thereof of the inferiority argument, it is essential to consider whether the heterosexual couple and the homosexual couple are different in any meaningful, substantive way. Why? Well, one indisputable fact that did not make it into the findings of fact of the District Court helps shed understanding on the nature of this distinction: the complementarity of the sexes which is manifested in their sexual activity. This is a relevant fact upon which Judge Walker did not comment or recognize in this finding, but there is an implicit assumption in his finding that hetero- and homosexual couples are the same in every respect. But they are not.

But then, one might next ask: why should complementarity matter? It matters because two persons of the opposite sex (and who are of physical, biological maturity) have the capacity or the potential for the capacity to do something which the same-sex couple cannot do. In this regard, the same-sex couple is, in fact, “inferior.” It does not mean that they are necessarily less human or less deserving of legal protection on matters where the fact of complementarity of the sexes is not relevant (e.g., can they be denied the right to register to vote? No.), but when it comes to the issue of sexual complementarity having a bearing on marriage, there is a difference which makes one couple “inferior to”, i.e., different from, the other. As I have argued at the Mirror of Justice and elsewhere before, the accuracy and the truth of this distinction can be demonstrated with the following hypothetical: planet A and planet B are respectively colonized by humans; opposite-sex couples are sent to planet A, and same-sex couples are sent to planet B. I shall assume that neither group has the means of assisted reproductive technologies. In one hundred years we return to both planets. Will both still be populated? The answer is clear: No, only planet A will be. Why? The answer remains in the fact of the distinction between the two kinds of couples. While both kinds may have love and commitment, only those sent to planet A will be able to sustain the human race due to the complementarity of the sexes.

The religious person relying on faith alone might not make this observation; but the religious person who pays attention to objective reason can, does, and must contend that this distinction bears a vital difference between the two kinds of couples. But so can any other person, lay or expert, who makes the distinction based on objective reason that is crucial to rigorous and exacting applications of collecting data and evidence reach the same conclusion about this important difference between same-sex and opposite-sex couples. To contend, as the law professors cited by Justice Alito, that Judge Walker’s finding results “from rigorous and exacting application of the Federal Rules of Evidence, and [is] supported by reliable research and by the unanimous consensus of mainstream social science experts” is suspect, to say the least. While I tend to shy away from language employed by Justice Alito, I do not shy away from the logic and truth that undergirds his point.

The criticism and condemnation of religious persons for asserting that there is a difference between opposite-sex and same-sex couples is wrong; objective reality, which is the subject of “rigorous and exacting” fact-finding, demonstrates without question that those who make this distinction are making a truthful statement that is not only relevant but also vital to the law. To say otherwise is the real harm.


RJA sj


July 14, 2013 in Araujo, Robert | Permalink

Sunday, July 7, 2013

A homily for the Sunday after the Fourth of July

14th Sunday—C

Isaiah 66:10-14

Galatians 6:14-18

Luke 10:1-12, 17-20


This past week we prepared for a wonderful annual celebration—our Nation’s Independence. Events: reunions, parades, fireworks. A remembrance of those who preceded us—their sacrifices for future generations: for liberties, for freedoms, for self-determination—all in accord with the self-evident truths about the human person noted by Thomas Jefferson in the Declaration of Independence. Also, for many of us, we observed the second Fortnight for Freedom, which reminds us of our first liberty: the free exercise of our faith. We celebrate these and other issues—AND we reflect on the tribulations and triumphs that have made us and our country. Our nation’s story is a story of suffering and success; coincidentally, this is the story that Isaiah relates. The end of Isaiah’s prophecy proclaims that God’s People are once again in right relation with him and one another—hence prosperity abounds. God has blessed them abundantly. But that was not so, for many of the people had removed themselves from God.

This is the context surrounding the conclusion of Isaiah’s prophecy. Even though God’s people had, on their own accord, drifted from God—even apostatizing—God forgives and welcomes back home to Jerusalem the leadership of His people who had been abducted to a distant and foreign land.

Think of the ancient Hebrew slaves and the domination of Egypt over them. This is an important theme upon which Isaiah dwells—Jerusalem was ransacked and its leadership abducted. BUT, peace and prosperity were restored; God’s people and their leadership were restored to live and to prosper once they recognized and repented their turning against God and what He asked of His people.

Some other important points need to be considered regarding their story. When they remained in right relation with God, and one another, God blessed them in this independence. They exercised their freedom wisely. But, when they sought to do their own thing—cut themselves off from God and from one another, they did not prosper. They faced disaster in the kind of independence—from God—that made them focus only on what they wanted for themselves. They did not see the plight of others. They did not see God nor did they understand their vital relation with him!

So, what is independence; what is self-determination for us? How do we best understand it in the terms of who we are, people of a great Nation, and people of God? It is God who helps us understand better what our authentic human nature is, and what it means to be independent.

Saint Luke’s Gospel provides another forum for considering this.

Here are the seventy-two who are being sent off to evangelize after receiving their commission. They are told that there is much work and so few to engage in it—the harvest is bountiful, but the laborers are few. Through our baptism, we follow these seventy-two. We have also been charged with the duties associated with proclaiming the good news in a variety of ways. We encounter people and a culture that is not always receptive to God’s ways—something that often gets prominence whenever certain elements of society pursue a wrong course of action.

By way of example: the full page advertisement of Freedom from Religion Foundation in the July 4th issue of the NYT. These folks celebrated the “Godless Constitution”—and relied on the slogan “in reason we trust.” This is misguided; this is wrong. Washington, Adams, and Madison, on whom they rely in the advertisement were men of faith. Even Jefferson, who is also quoted, insisted that religion be taught at the University of Virginia, which he founded. Another element to consider is this: the American Constitution Society of (the ACS for short) a few years ago published a booklet containing three founding documents of our nation: the Declaration of Independence, the Constitution, and the Gettysburg Address (150th anniversary of the Battle of Gettysburg was commemorated this past week).

For Lincoln’s address the ACS left out the phrase “under God.” Why? It took people like Professor Robbie George of Princeton University to notice that something important to Lincoln was missing from the ACS publication of the Gettysburg Address. Perhaps the ACS, like the Freedom from Religion Foundation, also think and assert that the nation and its fundamental law are Godless. For starters, they ought to reread Jefferson’s Declaration very carefully wherein he, Jefferson, refers to our Creator who gave us inalienable rights which are components of the self-evident truths also mentioned by Jefferson.

In this context, the new encyclical, Lumen Fidei has something quite relevant to the theme of today’s scripture readings. In N. 26, Pope Francis (with assistance from Pope Benedict XVI) asks an important question: “Can Christian faith provide a service to the common good with regard to the right way of understanding Truth?” Of course, ours is a faith of reason—a reason that is objective, unlike that of the American Constitution Society or the Freedom From Religion Foundation. So what is there to do, if anything, by us, God’s present day laborers? Fidelity in God’s truth—that is what there is to do, and, as in the time of Jesus, more laborers are needed. But we might be a good starting group!

Nevertheless, we must be mindful that there has been and will continue to be opposition to the truth of God. Those who remained faithful to God’s ways in the past experienced PRESSURE. How about our time? Will those of today, who also remain faithful, experience the same pressure? It seems that we are constantly reminded by the skeptical that religion might be tolerated, but only if religion remains a private matter and out of the public square. But this is not what God’s people are called to do: i.e., to be faithful only in private but not in public. Be assured, my friends, that God doesn’t abandon us in our times of need when we strive to remain faithful and serve him in our daily lives; so, let us be bold by seeking, proclaiming, and living the truth of God in the light of our faith even though there is pressure to do otherwise. That is a part of what Francis has asked of us because that is what God has asked and continues to ask of those who freely respond to be his laborers in the present age.

These thoughts give us an opportunity to reflect on how we can take up our call with the seventy-two. Sometimes in great ways, but most of the time in small ways, God, through the Son, asks us to go out amongst the wolves of our time. We are asked to encounter a culture, a people who have gone astray, BUT to remind them that the kingdom of God is at hand—the kingdom in which every person reflects the greatness of God through the joyful gift of life that can only be bestowed by God.

But how do we do this? How do we know what it is that God asks of you or me? Jesus—filled with God’s wisdom— shows us God’s ways of greatness that lead us to that authentic human destiny that makes us FREE from and INDEPENDENT of the Shackles of the Slavery of our misdirected ways—ways that make us want things that remove us from the nobleness of God that can also be a part of our human nature.

Jesus—wants to place a yoke on us. Not a yoke of slavery, but a way of life that binds us to one another and to God. This yoke is not heavy, the burdens it generates are bearable—they are easily maintained because, as Matthew indicates, Jesus is there to help us support whatever burden may be produced. YES, we are independent in many ways, ways that make us the agents of the gift of free will given to us by our Creator. But in the exercise of this great gift, we must also see how we ARE INTER-DEPENDT on one another and with God—for this too is part of our authentic human nature and our part of our heritage as patriotic Americans. But when temptations lure us away from this nature, prayer is needed.

May our prayer for one another and for ourselves be that we are open to God’s revelation that the meek and humble—not the superficially powerful—see and adopt in their lives. For, filled with the Peace of Christ and the Wisdom of God, we are truly independent because we rely on our interdependence with HIM who saves and whose divine image we bear.

With this as our guide, let us join the seventy-two in their, and our, search for God’s peace to those places where God’s harvest is abundant but where He needs more workers—more disciples! God has given us the benefit of discipleship in our baptism; may we not respond to one who is so generous to us?

And with this as our proper attitude, we can see that the few in number will continue to grow, and with this it will be possible to ensure that God’s harvest will be all the greater. My dear sisters and brothers, are we free for this commission? Our presence here at the Eucharist suggests that we are, so may we continue to be mindful that there is no greater independence than to follow the Lord!



July 7, 2013 in Araujo, Robert | Permalink

Friday, July 5, 2013

Lumen Fidei

Pope Francis's first encyclical, The Light of Faith, (with the assistance of Pope Benedict XVI) has just been released. Here is the link: Lumen Fidei .

One of the most striking elements is the Holy Father's acknowledgment that the light of faith has been dimming in some sectors of the Church. For those of us interested in and involved with the project of Catholic legal theory, we need to reflect upon what else can be done to intensify the light of truth which God, through Jesus, has given us.

Pope Francis also reminds us that we must be like and be not like Peter: to avoid the temptation to deny our responsibility, and to embrace our duty to present the faith boldly through the efforts of our helping others distinguish clearly between right and wrong, good and evil, virtue and vice. As Blessed John Paul II often did, Pope Francis concludes with a prayer to Mary, our Mother.

There is much more to be pondered in this encyclical, and perhaps others will join me in offering thoughts about it in the coming days.


RJA sj

July 5, 2013 in Araujo, Robert | Permalink

Monday, July 1, 2013

Following Up on Religious Liberty and SSM


I begin by thanking Rick on his posting of earlier this afternoon concerning Ross Douthat’s and Matthew Franck’s pieces on the impact of the SSM juggernaut, last week’s decisions by the Supreme Court of the United States, and the impact of the letter that several of my friends here at the Mirror of Justice (i.e., Tom Berg and Rick Garnett) have been sending to various officials and law makers around the country arguing for robust religious liberty protection should same-sex couples be granted the legal ability to marry in these officials’ jurisdictions. I am grateful to Tom and Rick and their fellow advocates who have joined them in drafting and submitting letters and legal briefs to these officials, and I am confident that these letters and other documents are filled with sound and objective reason. That is the way the law is supposed to be and on which it is supposed to be founded: principled, moral and containing sound rationale that is objectively based. However, if one listens to the “arguments” offered by jurists, advocates, and supporters of SSM, one will find that the justifications offered to support conclusions and decisions are not formulated and presented in the same fashion. The same can be said of abortion supporters; the same can be said of advocates for euthanasia legislation; and, the same can or will be said about the work of sponsors for other morally problematic issues in the coming years.

Quickly returning to the matter of SSM, the central argument offered by its supporters is the need for equality, equal protection of the laws, and the necessary due process needed to advance the first two themes just listed. But as I and others have argued here and elsewhere, the equality argument does not hold when subjected to unbiased scrutiny; therefore, the adjunct equal protection and due process issues ineludibly fail.

What is important to many folks promoting SSM—as is the case with those advancing “abortion rights”, and, I am sure, some of the other morally problematic subjects to which I have referred—is not contributing to a sound, just, and equitable legal system but to victory—a victory at any cost especially if the cost is borne by their opponents. If either defeat or only partial victory is the result of their efforts, they will persist and return to legislators and judges seeking what they want, and they will persevere until they get what they want. Their superficial argument seems attractive, perhaps even compelling, when the word “equality” or the phrases “equal protection” and “due process of law” are thrown into the mixture. But what is really going on is not the protection of authentic equality by advancing equal protection and due process, but is, rather, the sacrifice of critical and objective reasoning and a moral evaluation of that which is essential to sound theories and, therefore, sound practices of equal protection and due process. Who gets caught in all this and whose substantial interests in the matter are sacrificed become less and less important until the promoters of change obtain their goals. What does this do to the law, its rule, and the laws presumably made under our Constitution?

They become totalitarian and positivist. And that is something which I do not think is compatible with our republican democracy or what the Framers of our basic law had in mind. If one thinks differently and reflects on the positive and despotic states since and including that of Henry VIII’s manufacture, one who sees merit in my perspective may also begin to connect the dots and realize what is going on. As one prominent academic sympathetic with the goals of SSM advocates has asserted in the recent past, when sexual liberty and religious liberty are in conflict, religious liberty (in spite of what the First Amendment objectively states) must yield to sexual liberty in most cases. Oddly enough, this is not in line with the plurality formula of liberty (a most problematic formulation, by the way) presented in Planned Parenthood v. Casey that presumably applies to everyone: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

Perhaps what will be added in due course is this addendum: “unless one’s understanding of these matters is also based, at least in part, on one’s exercise of religious freedom.” In essence, then, the subtext of the Casey formulation will be: “Liberty for me, but not for thee!” I would not be surprised if those who intentionally or unintentionally are leading us on to a path to the positivist state might be considering such an amendment to a definition of freedom that is already knotty.

Being one who hopes in goodness and truth prevailing, I pray that this will not happen and that people of good will, such as Rick and Tom, can arrest with their colleagues this dangerous movement in time.

However, I am sufficiently grounded in history to know that if the drive to the positivist state and legal system has succeeded before (as it has), it can happen again. And if it does, those of us interested in developing Catholic legal theory will likely have to find something else to occupy our time. Perhaps helping to reform legal education, which is proceeding more and more in the direction of ideologies that support the positivist mindset I have briefly discussed, might be something to consider—but I, for one, have always thought that this is an important part of the project of Catholic legal theory in the first place.


RJA sj


July 1, 2013 in Araujo, Robert | Permalink

Thursday, June 27, 2013

Navigating the Thicket of Hollingsworth v. Perry


In its conclusion, the majority in Hollingsworth v. Perry stated that states “cannot alter [the role of the Federal courts in determining standing] by issuing to private parties who otherwise lack standing a ticket to the federal courthouse.” My objective is to demonstrate why I consider that the majority missed important distinctions about the status of the petitioners/proponents in Hollingsworth and why they did and do have standing in accordance with the authorities relied upon by the majority.

To be clear about what follows, the majority in Hollingsworth concluded that the Federal courts, including the Supreme Court of the United States, did not have jurisdiction to hear the petitioners’/proponents’ writ of certiorari because they did not have standing—a vital issue for presenting a matter over which the Federal courts can have jurisdiction. Without standing, there is no jurisdiction. As the majority notes, it is not enough that the would-be party have “a keen interest in the issue” for more is required. This party, in order to be properly before the Federal judiciary, must have “a concrete and particularized injury.” The Hollingsworth majority concluded that the petitioners/proponents did not enjoy this status, and therefore they did not have standing, and therefore the Federal judiciary did not have jurisdiction. In reviewing the authority that applies to the issue of standing and the majority’s use of this authority, I conclude that they, the majority, were wrong. Here’s why:

First of all, there is no question that the method of enacting Proposition 8 was a lawful means of amending the laws of the State of California, specifically its constitution. Procedural challenges to the amendment were nullified by the lawful authorities of the state. Moreover, the amendment was narrow and did not adversely affect the interests of those who sought legal protection of same-sex unions. The gist of the matter was that the term “marriage” would not be given to these unions which otherwise enjoyed rights and privileges protected by other laws of the state. However, proponents of same-sex unions were not satisfied because they wanted to use the nomenclature of “marriage” to apply to their unions. The legal obstacle they faced was that the amendment to the state’s constitution defined “marriage” as the union of a [one] man and a [one] woman. Consequently, those advocating for the legal ability to use the term “marriage” for same-sex unions challenged the legal validity of the amendment to the state constitution in Federal District Court. So I return to the status of the petitioners/proponents in Hollingsworth.

As the majority noted in Hollingsworth, executive members of the state government—including the governor and attorney general—have the conventional duty, amongst other matters, to support and defend the Constitution of the State of California “against all enemies, foreign and domestic” and that these obligations are done so “freely, without any mental reservation or purpose of evasion.” As it turns out, the governor and the attorney general enforced the amendment to the state’s constitution contained in Proposition 8; however, when the time came to defend it, they refused to do so in violation of their constitutional oath.

This left a lacuna in the conventional mechanism for defending a lawfully promulgated state law, so the petitioners/proponents in Hollingsworth stepped in. We all need to be mindful that the petitioners were also the proponents of Proposition 8 [hence my use of the term “petitioners/proponents] who, under the laws of California, were analogous to legislators who might have otherwise been involved in the promulgation of the state’s laws including amendments to its constitution. When the Federal District Court allowed the petitioners/proponents to intervene in the Federal proceedings, it did so conscious of the fact that the governor and attorney general failed in their constitutional duty to protect the constitutional amendment. But it is crucial to recall that the petitioners/proponents of Proposition 8 were not mere citizens asking the Federal judiciary to recognize them as substitute defenders; rather, they were the initiator-proponents of the amendment who were the very people who worked long and hard for the crafting of its language, for the seeking of signatures to place their initiative on the ballot, and for the advocacy essential for its passage by the general population of citizen-voters. Without the efforts of the petitioners/proponents, there would have been no Proposition 8 and no amendment to the state’s constitution regarding the use of the term “marriage.”

When the state officials lawfully charged with the legal duty to defend the state’s constitution in the Federal challenge to its legality failed to do so, the petitioners/proponents stepped in. At first, no questions about their status, and therefore their standing, were raised. However, the Ninth Circuit eventually raised a concern about the petitioners/proponents status, and certified a question presented to the California Supreme Court: whether the official proponents of the successful amendment to the state constitution now being reviewed by the Federal judiciary “either had a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty failed to do so.” [Italics are those of Araujo]

As the majority opinion in Hollingsworth conceded, the California Supreme Court agreed to decide this question posed by the Ninth Circuit in all its elements. In addressing all of the charge, the state’s supreme court “answered in the affirmative.” This means that the petitioners/proponents had the particularized interest to defend the legality of their amendment; or, they had the authority to stand in the place of the state officials to uphold the amendment’s validity thereby enabling them “to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refused to do so.”

Notwithstanding this particular interest of the petitioners/proponents and the authority granted to them by the highest tribunal of California, the majority in Hollingsworth concluded that the petitioners/proponents did not have standing before the Federal judiciary.

Put simply and with great respect for the members of the majority, this conclusion of law is wrong.

The fact that the petitioner proponents were the parties responsible for amending the state’s constitution from the beginning to the end of the legal process distinguishes them from simply being members of the general citizenry who also have an interest in the defense of the state’s laws. Without the efforts of the petitioners/proponents, there would have been no state law upon which the plaintiffs seeking invalidation of the amendment could have complained. In short, there was a case and controversy solely and directly attributable to the efforts of the petitioners/proponents. A challenge to their efforts and only their efforts led to a personal and tangible harm because the very fruit of the labor of the petitioners/proponents was invalidated by the Federal courts who concluded that the law for which they, the petitioners/proponents, were solely responsible for making into a reality was invalid. Again, without their arduous toil, there would have been no constitutional amendment to invalidate. In essence, the invalidation of their work was both personal and tangible to them and constituted a real harm because their effort and only their effort was annihilated by the strokes of several judicial pens.

The majority in Hollingsworth asserted that parties to the Federal review of this state constitutional amendment “did not contest that the respondents [the opponents of Proposition 8] had Article III standing to do so.” But neither did anyone object to the petitioners’/proponents’ status regarding standing until the Ninth Circuit ordered the parties in Hollingsworth to address the standing issue (see p. 3, slip opinion). However, the concerns of the Ninth Circuit were addressed, as mentioned earlier, when the state supreme court answered in the affirmative the status of the petitioners/proponents.

It is relevant to take note of what the California Supreme Court said in responding to the Ninth Circuit. In general it stated:


Thus, in an instance—like that identified in the question submitted by the Ninth Circuit—in which the public officials have totally declined to defend the initiative’s validity at all, we conclude that, in light of the nature and purpose of the initiative process embodied in article II, section 8 of the California Constitution (hereafter article II, section 8) and the unique role of initiative proponents in the constitutional initiative process as recognized by numerous provisions of the Elections Code, it would clearly constitute an abuse of discretion for a court to deny the official proponents of an initiative the opportunity to participate as formal parties in the proceeding, either as interveners or as real parties in interest, in order to assert the people’s and hence the state’s interest in the validity of the measure and to appeal a judgment invalidating the measure. In other words, because it is essential to the integrity of the initiative process embodied in article II, section 8 that there be someone to assert the state’s interest in an initiative’s validity on behalf of the people when the public officials who normally assert that interest decline to do so, and because the official proponents of an initiative (in light of their unique relationship to the initiative measure under art. II, § 8 and the relevant provisions of the Elec. Code) are the most obvious and logical persons to assert the state’s interest in the initiative's validity on behalf of the voters who enacted the measure, we conclude that California law authorizes the official proponents, under such circumstances, to appear in the proceeding to assert the state’s interest in the initiative’s validity and to appeal a judgment invalidating the measure. Neither the Governor, the Attorney General, nor any other executive or legislative official has the authority to veto or invalidate an initiative measure that has been approved by the voters. It would exalt form over substance to interpret California law in a manner that would permit these public officials to indirectly achieve such a result by denying the official initiative proponents the authority to step in to assert the state’s interest in the validity of the measure or to appeal a lower court judgment invalidating the measure when those public officials decline to assert that interest or to appeal an adverse judgment.


More particularly with regard to the petitioners/proponents in Hollingsworth, the California Supreme Court further concluded that:


[W]e respond to the question posed by the Ninth Circuit in the affirmative. In a postelection challenge to a voter-approved initiative measure, the official proponents of the initiative are authorized under California law to appear and assert the state’s interest in the initiative’s validity and to appeal a judgment invalidating the measure when the public officials who ordinarily defend the measure or appeal such a judgment decline to do so. [Italics added]



Yet the majority in Hollingsworth concluded that the petitioners/proponents did not have a “direct stake” in the Federal proceedings’ outcome in spite of their interest to protect their lawful efforts in seeking and achieving a constitutional amendment for which they were solely responsible.  The majority contended that the petitioners/proponents only raised a “generally available grievance about government.” This is incorrect when one carefully examines all of the state supreme court’s answer to the certified question regarding standing presented by the Ninth Circuit.

The majority further contended that the petitioners/proponents only had a “unique, special, and distinct role in the initiative process.” But there is more to this role that needs to be considered. The petitioners/proponents also satisfied the need for having the authority and responsibilities for asserting California’s interest in the amendment’s validity which, in the words of the California Supreme Court not further relied upon by the majority, “enable[d] them [the petitioners/proponents] to defend the constitutionality of the initiative… when the public officials charged with that duty refused to do so.”

Hence, the petitioners/proponents were not simply “concerned bystanders.” They were authorized by the State of California to do what they did; therefore, they had standing to prosecute the appeal since they were deputized to defend the state constitutional amendment in view of the fact that the governor and attorney general, in violation of the duties of their office, refused to do so. The Hollingsworth majority discussed at length the principles of Karcher v. May (1987) in which the Supreme Court of the United States acknowledged that the New Jersey speaker of the state house of representatives and the president of the state senate had standing to vindicate the validity of a challenged state law when the state attorney general declined to defend the law in a legal challenge. However, the Hollingsworth majority note that, also under Karcher, the house speaker and senate president lost their standing when they failed to be reelected to their legislative leadership positions as speaker and president, respectively.

In the estimation of the Hollingsworth majority, the petitioners/proponents of Proposition 8 are similarly situated to the former legislative leaders in Karcher because they only had the authority to assert the state’s interest in the initiative’s validity. But, in fact, they had more: they also had the duty, per the ruling of the state supreme court, to defend the constitutional amendment when the governor and attorney general refused to do so. For some reason not well explained if explained at all, the Hollingsworth majority analogized the status of the petitioners/proponents to the status of the New Jersey speaker of the house and president of the senate who lost their standing when their lost their leadership offices. Such is not the case with the petitioners/proponents who retained their right “to defend the constitutionality” of the amendment “when the public officials charged with that duty refused to do so.” This included the right to represent the state on any appeal of lower court decisions. As the typical state officials charged with this duty were not willing to defend the state’s “cognizable interest” resident in the constitutional amendment, the state supreme court acknowledged with great clarity that the petitioners/proponents were competent to defend the state’s interests at all levels of judicial proceedings.

This is a substantive distinction from the situation in Karcher. While the Hollingsworth majority recognized that California has the capacity “to vindicate [such] interests [by] designat[ing] agents to represent it in Federal court,” it failed to see that California had done precisely this in conferring this authority on the petitioners/proponents to have standing so that a legally promulgated amendment to the state’s constitution could be defended when those normally charged with the responsibility refused to do so at any and all stages of judicial proceedings.

The status of the petitioners/proponents in Hollingsworth is also different from that in the case of Arizonans for Official English v. Arizona. (See slip opinion at p. 13) In Arizona, it was the Ninth Circuit by itself that concluded that a non-government party could be substituted for the governor when the governor chose not to appeal the case. In Hollingsworth, things are substantively different: it was the Ninth Circuit that began the inquiry, but it was the decision issued by the state supreme court in response to a certified question presented by the Federal appellate court that carried the day. In Arizona, there was no such declaration by competent legal authority determining the status of the committee “to defend, in lieu of public officials, the constitutionality of initiatives made law of” Arizona. In Hollingsworth, the majority disregarded the crucial fact that the petitioners were authorized to act as agents of the state when they were given the specific charge by the California Supreme Court to defend the constitutional amendment and “to appeal any judgment invalidating” the amendment “when the public officials charged with that duty refuse[d] to do so.”

Thus the interest of the petitioners/proponents was not “a generalized one” as the Hollingsworth majority stated. Rather their interest was based on an official and specific obligation imposed by the highest tribunal of the State of California which has the authority to determine, as it has in the past, who, if anyone, can defend the state’s constitution when the governor and attorney general decided to abandon their constitutional duties. Furthermore, the petitioners/proponents were not only acting under this charge, they were also taking measures to protect their initiative which would never have become a part of the law of California if they had not done what they did in securing their initiative’s passage and incorporation into the laws of the state.

Analogies are important in the law and one needs to be applied here: the petitioners/proponents of Proposition 8 were, in effect, serving as a legislative body operating under the laws of California seeking to amend the state’s constitution. When their amendment became of part of the law of the state, they also had been charged by the State of California’s highest tribunal to defend that law and seek appeal of any declaration that the law was invalid because those normally bearing this responsibility abandoned their duty.

The grievance of the petitioners/proponents was not a generalized one or simply that of a taxpayer’s complaint; rather, it was the case and controversy that properly belonged to very group of persons whose sole efforts enabled the Federal courts to declare the product of their work unconstitutional.

Consequently, the petitioners/proponents were aggrieved by the District Court and the Ninth Circuit decisions on the merits. Their injury was personal and tangible, and the lower Federal court decisions were adverse to their very clear and specific activity that made an idea into law. If this does not satisfy the grounds for standing, I doubt that much else could.


RJA sj

June 27, 2013 in Araujo, Robert | Permalink

Sunday, June 23, 2013

Homily for the First Sunday of the Fortnight of Freedom

12th Sunday—C

Zechariah 12:10-11, 13:1

Galatians 3:26-29

Luke 9:18-24


The question of human identity is as old as human history. The fundamental question is: who am I; or, what am I? I began thinking about this essential matter almost half a century ago. During my college years, my sophomore English professor mandated that she would make gentlemen out of my fellow classmates and I; her method was to have us select an American poet and commit to memory ten poems of that poet. We would then recite from memory five of the poems before our classmates—all who were anxious as I. I chose Emily Dickinson—after all, her poems are rather short. But one of the poems I chose and recited was: “I’m nobody…” In this poem, Dickinson—and for that matter, anyone else—declares something about her (or his) identity and therefore addresses the interlinked questions of: who and what am I?


Today, all of our readings tackle the issue of identity: the prophet Zechariah addresses the identity of the Messiah who will be persecuted before God’s people are saved from their sin and uncleanliness—for us Catholics this is clearly our Lord, Jesus Christ. [As an aside, the reference to the mourning of Hadadrimmon is unclear—there is some thought that H was a god of antiquity, and something terrible happened at the Plain of Meggido, but no one is sure what happened.] In his letter to the Galatian church, Saint Paul reminds the faithful—including us—that our identity as Christians and as disciples of the Lord materializes at our baptism when we put on Christ. In Saint Luke’s Gospel, the question of identity is raised by Christ Himself when He asks the disciples: “Who do the crowds say that I am?” Peter offers the correct answer here and elsewhere in the synoptic Gospels (both Mark and Matthew). Well, the question of identity is settled then—or is it?


For you see the question of identity as a disciple of Christ surfaces time and again. Yesterday on June 22, we commemorate every year on the 22nd of June two great saints—Thomas More and John Cardinal Fisher. In doing so, we must necessarily reflect on their identity. Like other martyrs, a fundamental question is this: what made them “tick”; what made them open to the ultimate sacrifice of giving their lives for that in which they believed? More was Lord Chancellor of England; he had been a successful and rather wealthy Oxford-educated lawyer; and he was a confidant—perhaps even friend—of King Henry VIII. John Fisher was a Cambridge man who was ordained into the priesthood in his early adulthood. He returned to his beloved university and assisted (with the generous help of his friend, Lady Margaret Beaufort, the paternal grandmother of King Henry) in the founding of several of the Cambridge colleges and university professorships. Eventually, he became the chancellor of Cambridge University. Fisher also became the bishop of Rochester at an early age, and he was bishop of that diocese for over thirty years. He must have anticipated what Pope Francis has been saying of late about bishops being wedded to their dioceses without having ambitions to go to a larger, more prosperous one, because Fisher never succumbed to leave his poor diocese for another or others! I hasten to add that the diocese of Rochester in his time was very poor in comparison with the dioceses over which Cardinal Wolsey administered.


Both Fisher and More were very clear on who they were. Indeed, they were prominent members of English society in the early sixteenth century; they were highly educated and displayed their intelligence without pride for they were humble before God and man. But there is abundant evidence that at the heart of their respective identities was their unshakeable fidelity to the Church. They were patriots first and last and devoted to their king; but, their commitment to God and His holy Church took precedence. They labored hard to be both good subjects of the king AND faithful sons of the Church.


However, the king tested time after time their fidelity to the Church, and it was their fidelity that cost them their lives by depriving them of their heads when Henry (with the help of Parliament, Thomas Cramner, and Thomas Cromwell) decided that he would rid himself of his wife of over twenty years, Queen Catherine, and establish himself as the “supreme” head of the church in England. Sorry Saint Peter and your successors: move over—I’ve now decided who is in charge of God’s work! Both Fisher and More knew that Henry’s actions were wrong. The monarch’s self-authored divorce from Catherine violated the law of God and the Church and his self-proclamation of Supreme Head of the Church in England, moreover, contravened the Magna Carta. But both defiances did not stop an intelligent man who was driven by worldly ways to transform himself into a despot. More and Fisher knew that at the heart of the Magna Carta was the several-times stated principle of the freedom of the Church. This is essentially a vital element of the First Amendment of the United States Constitution. This was and is a freedom not simply to be free from the civil authority; it was and is also the freedom to do what is essential to the Church’s mission in society without interference or pressure from the state. The Church’s freedom was also the freedom of More and Fisher. They understood well our Lord’s exhortation in Luke’s Gospel: in order to save one’s eternal life, it may be necessary to sacrifice some of one’s life in the City of Man. This is the nobility of self-denial; it is the affirmative response of what Pope Francis urges us in not being “self-referential”; it is the duty of one who desires to follow Christ by taking up one’s cross each day in order to be faithful in following the Lord who showed us the true path by His own sacrifice.


And this is where we come into to chronicle of identity—as disciples and as a free people who believe in God and His Church. On this past Thursday, the U.S. bishops announced the beginning of the second annual Fortnight of Freedom. It will conclude on Independence Day. Freedom and its inseparable companion, responsibility to be virtuous citizens of the City of God and the City of Man, are at the core of our individual and corporate identities of American citizens and as members of the Catholic Church. Our heritage is founded on the duty of citizens and their freedom to be true to our identity. We are not the servants or subjects of the realm, as were More and Fisher. Rather, we are participants in a realm who are served by a state whose sole ambition is and must be to attend and protect its people; not to be served by them against their will. The state is not the common good; rather it exists to serve and safeguard the common good—a vital element of our faith. Like More and Fisher, we are disciples of the Lord Jesus Christ and members of His holy Church. The freedom from state interference and for following Christ is the same freedom possessed and exercised by the same saints whom we commemorated yesterday.


But this freedom is sometimes eclipsed by the ambition of those who do not share our identity or who have abandoned this essential element of their identity. So what can we do as Americans and as Catholics who cherish our freedom as Americans and simultaneously practice it as Catholics—as I have briefly explained freedom?


Perhaps like More and Fisher, who understood what Saint Paul said so many years ago to Timothy: we know in whom we have believed! May this declaration be a part of our identity and our heritage as a free and sovereign people. May it also be a part of our prayer not only for today but for all the days of our lives! For prayer is the distinguishing mark of the good citizen who is also the faithful disciple. This is who we are as individuals and as members of the Church, the People of God. We have put on Christ; may no one remove Him regardless of their intention otherwise.



June 23, 2013 in Araujo, Robert | Permalink