Irene Merker Rosenberg, 1939-2010

I am sad to report the death of my colleague, Irene Merker Rosenberg. Professor Rosenberg was the first woman tenured at the University of Houston Law Center. She was a beloved teacher of constitutional law and an excellent scholar. Born in Brooklyn, she received her education at The City College of New York and New York University School of Law. She joined the Law Center faculty in 1974 with her late husband Yale Rosenberg, whom she met at NYU.  In addition to her numerous writings on criminal law and juvenile justice, Irene wrote extensively about Jewish law and its relationship to American constitutional and criminal law.

In an essay about the fortieth anniversary of the juvenile law case  In re Gault, Irene wrote, "Birthdays and anniversaries, especially those ending in zero, tend to put one in a reflective mood. I recollect that as I approached my fortieth, fiftieth, sixtieth, and soon my seventieth birthdays, I found myself thinking about my past, trying to figure out what went wrong, what went right, and why; how I could fix that which was fixable and learning to live with that which was not, mindful of the old adage that one must have the wisdom to know the difference between the two." Irene was a wise woman who shared her insights with students and colleagues. I am sorry that she didn't make it to her 80th birthday and continue to share her wisdom with the rest of us.

Further remembrances of Irene are available here and here.

   

The Tea Party's Constitution

          Tea Party members have put the Constitution back into politics with their frequent invocations of the Constitution as the basis for their movement. Because the Constitution serves as the basis of Tea Party politics, it is important to figure out how the Tea Party interprets the Constitution. Professor Jared Goldstein has written a fascinating essay explaining The Tea Party's Constitution and examining the intellectual roots of the Tea Party's constitutionalism. 

          It is always tricky to describe a person or a movement as fundamentalist, because the word can have pejorative implications. Professor Goldstein non-pejoratively characterizes the Tea Party constitutionalists as fundamentalist because they look to the past for their vision of government and seek to recreate a golden age from the past while criticizing much of modernity. The Tea Party fundamentalists criticize the current version of the American government and long to recreate the Founders' vision of the nation.

          The problem is that the Founders' vision, as interpreted by the Tea Party, presents the Constitution as a divinely ordained blueprint for government, which implements Biblical principles. Any violation of God's law is therefore unconstitutional. According to the Tea Party, the five central constitutional principles are devotion to God, limited government, free markets, personal property, and individualism.  Professor Goldstein shrewdly observes that the Tea Partiers spend little time discussing the actual text of the Constitution and instead rely upon their own principles of God's law. A participant in a recent Tea Party rally, for example, prepared a sort of concordance for the Preamble, connecting its language of justice, liberty, defense, tranquillity and so on to verses in the Bible. 

          Viewing the Founders' era as the golden age to be recreated today suggests that the Constitution was better before the Civil War amendments were added to it.  Indeed some Tea Partiers have backed the repeal of the Fourteenth Amendment, which has given civil equality to slaves, women, gays and lesbians as well as reproductive and sexual privacy rights to men and women, heterosexuals and homosexuals, and married and single individuals. That is one of the problems with fundamentalism: the golden past that fundamentalists idealize was not ideal for slaves and minorities. A return to that past would not be a positive development for many Americans whose political and voting rights were protected after the Civil War amendments, but not before.

          An additional problem with constitutional fundamentalists is that anyone who disagrees with their principles is perceived to be anti-American. Hence the vigorous attacks on President Obama as not just wrong but un- or anti-American, Muslim and communist. 

          Goldstein concludes: The Tea Party view of the Constitution thus is the antithesis of Justice Holmes’ notion that the Constitution was “made for people of fundamentally differing views”—in other words, that the Constitution establishes a framework for resolving fundamental differences through political and legal processes. In … the Tea Party’s view, the Constitution itself establishes the fundamental values—the Founders’ principles—which are eternal and to which the nation must adhere if it is to survive. The Tea Party’s Constitution does not merely provide a framework for resolving differing political views; the Constitution itself resolves those differences.

          In other words, the Tea Partiers are trying to turn the Constitution into a biblical religion that applies to everyone....a goal that the Constitution itself prohibits in the First Amendment. 

Where are the Atheist Women?

          Atheist groups can be as sexist as anyone else. But Ms. Magazine wants you to know that there are many prominent women atheists. More importantly, going back to Madalyn Murray O'Hair, women have been leaders of many atheist groups. 

          Murray O'Hair filed a lawsuit on behalf of her son, William J. Murray III, arguing that his Baltimore public school violated the First Amendment by conducting Bible reading and prayers every school morning. Murray's case was later consolidated with the famous Schempp case, where the Supreme Court ruled in 1963 that the Establishment Clause does not allow the public schools to sponsor prayer and Bible reading.  

         In case you are wondering who are contemporary female atheists, Ms. has a short list and a large list of awesome female atheists. There is also a list of women atheist bloggers.

German Woman Becomes Rabbi

          Alina Treiger, the first German female rabbi since the Holocaust, has been ordained. I never thought becoming a rabbi was a possible profession for a woman, she said. 

          Regina Jones, the first German female rabbi, was ordained in 1935 and killed at Auschwitz in 1944. Germany has other women rabbis but they were educated and ordained elsewhere.

No Female Vendors

          In Saudi Arabia, the top board of senior Islamic clerics has called for a ban on female vendors. The powerful committee said in its ruling Sunday that the mixing of sexes is forbidden and women should not seek jobs where they could encounter men. The Saudi king has been working to modernize the kingdom and to prevent the clerics from issuing such rulings.

Abortion Theology Should Not Be Abortion Law

          My old friend, theologian Charlie Curran, gave a lecture at Southern Methodist University last week that attracted some controversy in the Catholic world. Curran became a distinguished professor at SMU after he was fired from Catholic University many years ago for criticizing the Roman Catholic Church's teaching forbidding contraception (even for married couples). 

        In the lecture,  Curran criticized the church's political and legal strategy toward abortion law in the United States. He did not challenge the church's underlying moral opposition to abortion. Although in the past the church encouraged Catholic voters to reflect on a range of moral issues, Curran observed, today the bishops “now clearly state abortion is the primary issue.” Their rationale for doing so, he said, rests on their conviction that other issues of public policy and law “involve prudential judgments,” but that abortion laws “deal with something that is intrinsically evil and does not involve prudential judgments. Catholics have certitude on the abortion law issue.”

          As a theologian, Curran identifies four reasons internal to the church's teaching why the church is wrong to pursue such an absolutist position on abortion law while refusing to be so absolute on other matters of social justice, such as issues of just war or poverty. Readers interested in theological debates should read Curran's lecture and consider those four arguments, which are: 

• “The speculative doubt about when human life begins;
• “the fact that possibility and feasibility are necessary aspects involved in discussions about abortion law;
• “the understanding and role of civil law;
• “and the weakness of the intrinsic evil argument.”

         Most interesting to non-theologians should be Curran's argument that the religious freedom approach to civil law (which Curran advocates) requires recognition that people of religious faith disagree about the morality of abortion and women's rights. Once there is such disagreement, absolute legal stances based on moral certitude are inappropriate.

          I think this is where the Catholic bishops and many other religious citizens have gone astray over the last thirty years. They assume that their religious belief is absolutely correct and then try to impose that belief on everyone else through force of law. Curran has long tried to persuade Catholics that Catholic theology does not require them to understand the relationship between law and morality in this way.
          I think Americans who take the Constitution seriously should learn how mistaken it is to think that individual moral beliefs should become the universal law. The success of our government depends on laws that respect everyone's religious freedom and not just one group's religious beliefs. 

Religion and Prohibition

          During Prohibition there were exemptions for sacramental wine and other religious uses of alcohol. The Eighteenth Amendment, which took effect in 1920, doesn't say anything about those exemptions. It just says that the manufacture, sale or transportation of intoxicating liquors within the United States is banned. It was federal legislation that exempted religious uses from the laws. When law and religion people talk about Prohibition and exemptions for sacramental wine, they usually say "of course" there were exemptions for sacramental wines. Even Justice David Souter, one of the strictest separationists between church and state to sit on the Supreme Court, wrote that [w]ithout an exemption for sacramental wine, Prohibition may fail the test of religion neutrality and therefore violate free exercise. I had unthinkingly accepted the exemption as well.

          Then I got to Chapter 12 of Daniel Okrent's interesting book, Last Call: The Rise and Fall of Prohibition. Chapter after chapter left the reader feeling sorry for all the people who lost their beer and wine and hard liquor, the vintners in California who tore up their grapes, and maybe even some of the saloon owners. Then I read about Georges Latour, a Catholic Frenchman who moved to California to produced wine in the Napa Valley. Latour was fortunate enough to corner the Catholic sacramental wine market. Okrent writes that Latour chose to "look the other way" whenever his wine was diverted from its legal uses. "When a priest took receipt of an order for, say, 120 gallons of Beaulieu (a not uncommon amount), he suddenly had an inventory of 46,000 communion sips, more or less--or perhaps, 10,000 communion sips, with nearly a hundred gallons set aside for members of the congregation. Sometimes the wine didn't even leave the rectory. In 1932, six cases of Beaulieu's best were shipped to Chicago expressly for the use of Cardinal George Mundelein." 

         Catholics were not the only ones to benefit, because Latour also produced kosher wine. Catholicism has a very official hierarchy, and the bishops had to approve purchases for the priests. In Judaism, however, any rabbi could show a list of congregants and get alcohol for them. The numbers of Jewish congregation members increased dramatically and the names of the dead were added to their enrollment lists. Some rabbis opened "wine stores" where customers signed up for membership as they bought their wine. "There were rabbis who dealt in sacramental champagne, sacramental creme de menthe, sacramental brandy, and various other liquors utterly unconnected to any aspect of Jewish religious practices."

          The First Amendment prevents the courts from investigating many religious claims, and so "any man who dressed in solemn black, possessed a Jewish cast of countenance, and wore a beard was automatically a rabbi," even Rabbis Patrick Houlihan and James Maguire.  

          Many constitutional law scholars continue to argue that the First Amendment requires exemptions from laws for religious believers. Last Call reminded me that the most famous religious exemption from a neutral law of general applicability encouraged people to join churches (so they would get their drink), abetted fake entry into the ministry, gave clergy like the Cardinal special benefits for themselves, and gave the churches more power to recruit new members and to help those members violate the law. 

          So don't assume that religions always deserve exemptions from the law. The case of Prohibition suggests otherwise. 

          

The First Amendment Protects Witches Too

          By now everyone has an opinion, and you can choose which side to take. Was Christine O'Donnell, the Delaware Republican Tea Party Senate candidate, in a debate with her Democratic opponent Chris Coons, making the sophisticated point that the the Establishment Clause has been misinterpreted to require the separation of church and state? Or was she unaware that the First Amendment has an Establishment Clause?  Watch the video or read the transcript: 

          Coons said that “religious doctrine doesn't belong in our public schools.”

          “Where in the Constitution is the separation of church and state?” O'Donnell asked Coons.

          He said it was in the 1st Amendment.

          “Let me clarify,” O’Donnell continued. “You’re telling me that separation of church and state is in the 1st Amendment?”

          “Government shall make no establishment of religion,”  came the reply.

           “That’s in the 1st Amendment,” she asked.

          To me it sounds like she didn't know the Establishment Clause is in the First Amendment. That interpretation is supported by O'Donnell's objection to the main point that Coons was making, namely that  private and parochial schools are free to teach creationism but that "religious doctrine doesn't belong in our public schools." "Local schools do not have the right to teach what they feel?" O'Donnell said. "Talk about imposing your beliefs on the local schools." Coons had the law on his side here. The imposing your beliefs was done by the Supreme Court, which has clearly stated that teaching creation science in the public schools violates the Establishment Clause. Later in the debate, O'Donnell admitted that she couldn't remember the text of the Fourteenth Amendment, which provides the reason why the Establishment Clause applies to public schools in Delaware. The Court has ruled that the Fourteenth Amendment applies the First Amendment (which mentions only Congress) to state and local governments.
            What lessons should we learn from the constitutional debate in Delaware?
        First, if you are going to be a strict textualist in interpreting the Constitution, you should keep a copy in your pocket, as Justice Hugo Black always did. Black was very strict about the Constitution. In the First Amendment context, he thought that no means no, and so believed that Congress should pass no laws limiting First Amendment freedoms. Ironically, the strict textualist Black acknowledged that the clause against establishment of religion by law was intended to erect "a wall of separation between church and State."
          Second, it is naive to think that the text of the Constitution can answer all the questions posed to it. It is clear what the Constitution means when it says that the president must be thirty-five years old and potential senators like O'Donnell must be thirty. But other constitutional questions require analysis and interpretation of what the Constitution means in circumstances unforeseen by the Framers. We think that the Internet is protected by free speech, for example, even though the Internet was not contemplated by the Framers and the word Internet does not appear in the Constitution.

        If O'Donnell was making the point that the words separation of church and state are not in the Constitution, she is mistaken to think that the Constitution can be interpreted by relying only on the words in the Constitution itself. After all, the First Amendment doesn't say that witches enjoy the free exercise of religion. And the Framers were not keen on witches either. But, even if she is not a witch, surely O'Donnell would have to agree that the Constitution protects them too, even though they are not in the text of the Constitution or in the minds of the Framers?

         

Hindus Celebrate Women's Strength

          In October the Hindu American community is celebrating navaratri and the strength of women. Navaratri means nine nights. During those nine nights, Hindus invoke the energy aspect of God in the form of the universal mother, known as Durga, Devi or Shakti. 

"Why mother; why not father?", you may ask. Let me just say that we believe that God's glory, his cosmic energy, his greatness and supremacy can best be depicted as the motherhood aspect of God. Just as a child finds all these qualities in his or her mother, similarly, all of us look upon God as mother. In fact, Hinduism is the only religion in the world, which gives so much importance to the mother aspect of God because we believe that mother is the creative aspect of the absolute. 

          Among the events recommended are ShaktiSeva, to highlight women's strength and energy and to ensure that American women and girls are treated fairly in all matters of public policy. Hindus are urged to honor the Deities, Folk Heroes, Activists, Writers, Artists, Innovators, Politicians....the women, who inspire you, help other women, and learn more about issues affecting women such as domestic violence.

JN36TN and Under God

          JN36TN. Could you tell what JN36TN means if you saw it on a license plate? Does it mean, My name is John, I am 36 and was born in Tennessee? Or does it refer to the Bible's John 3:16: "For God so loved the world, that he gave his only begotten Son, that whosoever believeth in him should not perish, but have everlasting life."

          Shawn Byrne wanted to put JN36TN on his Vermont vanity license plate. The state law required him to explain what the vanity plate meant, and he wrote that it referred to the biblical text. The state refused his request because the law prohibited license plates that referred to religion or a deity. The Second Circuit wisely invalidated the law as an instance of viewpoint discrimination under the Free Speech Clause.  If Byrne had said he was 36-year-old John from Tennessee, the state would have accepted his application. 

          The other examples given by the court confirm that the law should not have survived constitutional scrutiny. The state had allowed messages such as HARMONY, LOVE, EARTH1, AMFREE, PEACE2U, LOVLIFE, THNKPOS, CARP DM, BEJOYFL, DARE2BU, REJOICE. It rejected SEEKGOD, 1GOD, THE REV, AND KRISHNA, but allowed GEMINI; LIBRA; GENESIS and CREED (because they are musical groups); STJOHN (the U.S. Virgin Island); SINNER, ANGEL1, ANGEL21, ANGEL23, ANGELSC, BUDDHA AND GODDESS (because they were nicknames). The state rejected BVM22 when described as a reference to the Blessed Virgin Mary and JMJ1 as a reference to Jesus, Mary, Joseph1. Of course someone named John M. Jones could have qualified for the JMJ1 plate. These examples confirm that the statute favored secular viewpoints over religious viewpoints and violated the First Amendment.

          These types of discrimination sometimes persuade people that our society is anti-religious, which then inspires them to put more religion back in the public square. The Texas legislature did something like this in 2007 when it added the words "under God" to the Texas pledge of allegiance and required that the new pledge be recited in public schools. The pledge states: "Honor the Texas flag; I pledge allegiance to thee, Texas, one state under God, one and indivisible." 

          Although one sponsor of the bill explained that the purpose of the amendment was to honor the religious, Judaeo-Christian roots of the state, another sponsor said that the purpose was to match the language of the Texas pledge to that of the U.S. pledge of allegiance. 

          Under First Amendment case law, legislation must have a secular purpose. The Fifth Circuit foolishly ruled that adding "under God" to the Texas pledge had the secular purpose of matching the national pledge and therefore did not violate the Establishment Clause. Of course the new Texas pledge does not really match the national pledge; it lacks with liberty and justice for all. The Fifth Circuit also concluded that the pledge did not favor religion, endorse religion, or coerce religion.     

          The Fifth Circuit missed the point. The "under God" pledge favors religion just as much as the license plate law disfavors it. Individuals should be free to speak about their religions--even on their license plates. But the government is not supposed to have a religion. The state is not supposed to put that religion into a state pledge and require individuals to recite their allegiance to it. 

         

Excluding Women Reporters

          New York Republican gubernatorial candidate Carl Paladino has rightly received criticism for his antigay comments, including his remarks that children should be shielded from gay activities, especially their parades. Paladino criticized his Democratic opponent, Andrew Cuomo, for marching in New York's gay pride parade and letting his children watch it. 

          Patt Morrison of the L.A.Times reports on the missed story (covered only by the New York Post)--that Paladino's remarks about gays occurred at a Brooklyn synagogue where women reporters were barred from entry. Women on the upper floors of the synagogue then dumped water on the journalists. Morrison suggests that Paladino would have been unlikely to appear at an event that barred African American or Latino journalists, and he would have had an even bigger self-made mess on his hands had that happened. 

          More evidence that religions provide the easiest and most acceptable places to discriminate against women, so much so that it isn't even commented on. 

Religion and Violence

          I spoke last week at a conference at Cardozo Law School, where we celebrated the twentieth anniversary of the Supreme Court's leading case on the Free Exercise Clause, Employment Division v. Smith. Many religious believers have been critical of its holding that religious believers must follow the law. The following case from New Jersey, which was decided earlier this year, explains why Smith is good law.

S.D. filed for a restraining order against her husband in New Jersey because he had beaten her and forced her to have sexual intercourse against her will due to his dissatisfaction with her inability to cook acceptable meals for his houseguests. The couple was wed in an arranged marriage in Morocco in July 2008, when the bride was seventeen years old, and moved to New Jersey in August. On November 1, M.J.R. asked his wife to prepare three special meals for guests the next morning. Although S.D. arose at 5 to prepare breakfast, she was unsuccessful in cooking the three dishes, and there was no food when the guests arrived at 8. At 10, after the guests had left the house, M.J.R. entered S.D.’s room, told her he was going to punish her for her behavior, and pinched her flesh repeatedly for over an hour, leaving bruises on her flesh.

A similar incident occurred two weeks later, after M.J.R. asked his mother to prepare a dinner for guests because S.D. could not cook. After the dinner guests left, the husband took off his wife’s clothes, forcefully pinched her genital area and other parts of her body, locked her in the bedroom, and had sexual intercourse with her without her consent. A third episode of nonconsensual sex occurred a week later, and M.J.R. beat S.D. until she was able to escape through an open window. In all three instances, M.J.R. told S.D. that he was punishing her for her failures as a housewife.

Women in Religious Institutions Lack Employment Rights

          Courts frequently dismiss cases against religious institutions because they mistakenly believe the First Amendment prevents them from intruding on religious employment disputes. They have invented a "ministerial exemption" that prevents religious lawsuits from being heard by a jury.

Consider the case of Madeline Weishuhn, a mathematics and religion teacher at St. Mary's Elementary School in Mount Morris, Michigan. According to the opinion dismissing her lawsuit, Weishuhn’s contract was not renewed after the 2005-06 school year “after a series of employment-related incidents, none of which involved the subject of religion.” The incidents are not described.

Weishuhn is representative of what happens in ministerial exemption cases. The facts are not developed because the cases are dismissed on jurisdictional grounds. If the events at St. Mary’s Elementary School did not “involve[] the subject of religion,” then they should be considered in the courtroom, by a jury.

Michigan newspapers and Weishuhn’s attorney revealed the facts. A student told Weishuhn that a student from another school was being abused by her father. Weishuhn reported the information to the authorities as the Michigan statute about reporting child abuse requires and was fired for doing so. The Michigan Court of Appeals ruled that a parochial school teacher is not protected against retaliatory dismissal and the state’s Supreme Court refused review. According to Weishuhn’s lawyer, “I cautioned [the court], if you're going to [apply the ministerial exception to this case], be very careful because you certainly have to provide protection for these [employees] who are compelled to report under the law and are subject to retaliation, . . . What they are saying is that my client doesn't even have protection for that.”

The appeals court demonstrated the misinterpretation of the First Amendment that plagues the courts, commenting that although “it seems unjust that employees of religious institutions can be fired without recourse for reporting illegal activities, particularly given that members of the clergy, as well as teachers, are mandated reporters. . . . to conclude otherwise would result in pervasive violations of First Amendment protections.” In other words, churches enjoy constitutional freedom to retaliate against employees who report sex abuse, even though the law requires sex abuse reporting, and even though Weishuhn was a teacher (not a minister) who did not violate Catholic teaching.

The larger background to this story is the worldwide sexual abuse scandal in the Roman Catholic Church, in which at least 15,235 victims have been acknowledged by the church in the United States while others estimate that 100,000 victims were involved. Sexual scandals have hit other religious denominations, large and small, in numbers still unknown. If women’s and children’s rights are to be protected, the courts and the law must be on the side of the whistleblowers and not on the side of church autonomy to break the law. The courts need to start enforcing employment laws against religious institutions. 

President a Secret Catholic?

          The latest rumor about President Obama's religion? He always carries a picture of Mary Help of Christians in his wallet. The source of this bizarre rumor? The First Lady, in comments made during a trip to Spain. The First Lady was visiting the home of the Salesian order of priests, and Mary Help of Christians is their patron saint. The First Lady said the first family of the United States has great devotion to the saint. 

          Maybe this was just a polite comment by a guest to a host. Religion reporter David Gibson shrewdly pointed out, however, that the prayer to Mary Help of Christians is associated with two of the greatest battles in history between Christendom and Islam, both victories by papal forces. The Virgin Mary was first formally given the title of "Help of Christians" by Pope Pius V after the dramatic naval victory over the Turkish forces at the Battle of Lepanto in 1571. Then in 1683, the forces of Christendom beat back the 200,000 Ottoman Turks from the gates of Vienna. During the fighting, Emperor Leopold I of Austria took refuge in the Shrine of Mary Help of Christians at Pasau.

          Is this a new shrewd tactic to counter rumors that the president is Muslim? And yet another reminder that it is a good idea to keep religion out of politics? 

No Religious Test

          Article VI of the Constitution includes a No Religious Test Clause: no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. As part of Article VI, the clause is part of the original constitution, preceding the First Amendment, which gets much more attention. At the time of the constitution's drafting, the no religious test clause set a brilliant and original idea of government. The clause contrasted with the history of European nations and the practice of the early states, where religion was a qualification for public office and the religion of the ruler reflected the religion of the majority. 

          President Obama's religion does not qualify or disqualify him for public office. Unfortunately, the president has been forced to spend considerable time describing and defending his religious beliefs. This week, the president described his Christian faith at a discussion that was supposed to focus on the economy:

"I am a Christian by choice" ...

"I came to my Christian faith later in life, and it was because the precepts of Jesus Christ spoke to me in terms of the kind of life that I would want to lead," Obama said. "Being my brothers' and sisters' keeper. Treating others as they would treat me. And I think also understanding that, you know, that Jesus Christ dying for my sins spoke to the humility that we all have to have as human beings."

Humans are "sinful" and "flawed" beings that make mistakes and "achieve salvation through the grace of God," the president continued, adding that we also can "see God in other people and do our best to help them find their, you know, their own grace."

"So that's what I strive to do," Obama said. "That's what I pray to do everyday. I think my public service is part of that effort to express my Christian faith."

          It is time for voters to stop focusing on whether Obama is a Muslim or a Christian. The House Republicans' new Pledge to America requires that every bill have a citation of constitutional authority. This is a good time for everybody to make a public pledge to Article VI of the constitution, citing and defending the proposition that religion is not a qualification or disqualification for public office.

Women Priests

          Today is Sunday Without Women day, a boycott of Catholic masses in protest of women's treatment in the church, and there are stories everywhere about women priests. The New York Times tells the story of Maria Vittoria Longhitano, who was ordained by the Old Catholic Church, which broke away from the Roman Catholic Church in the nineteenth century. The Swiss bishop who ordained her said for Italians unaccustomed to seeing women in priestly garb, Mother Vittoria’s ordination “had a great echo; it was a small earthquake.” (Mother Vittoria is Longhitano's new priestly name.) The Women's Ordination Conference reports that about 100 women have been ordained by bishops since 2002; of course their ordinations are not recognized by the official Roman church. Catholic teaching excommunicates anyone involved in the ordination of a woman.

          The Times pictures Mother Vittoria in traditional priestly garb. 

          Alta Jacko, an 81-year-old Chicago priest, was told she could not attend services in her Catholic church wearing her Roman collar and is no longer allowed to be a lector, merely reading out loud at church, because she was excommunicated.  

          Time Magazine also shows pictures of women in clerical garb and labels its story Robes for Women. The picture shows Nancy Corran and Jane Via. Corran was ordained by parishioners rather than a bishop in San Diego in August, and Via was the country's first woman Catholic priest. 

          Reflecting the facts of these stories, in a National Catholic Reporter article, Rosemary Radford Ruether, the dean of Catholic feminist theologians, reports a dispute among feminists about how to conduct ordinations. One group is ordained by a bishop--the same way men are usually ordained--and then claims they are part of the apostolic succession of the church, just as the men are. The second group looks to the local community for its ordination and is ordained in a collective action of their faith community.

           The theology behind the two groups is different. The community ordination group goes back to very early Christian practices, while the bishop group takes the church's own beliefs about ordination and applies them to women. 

          Ruether argues that both groups can find common theological ground but doesn't address what would be most effective in changing women's role in the church. Withhold funds? Wear a green armband? Boycott mass? A surprising story out of Chicago says that a lot of male priests are helping women prepare to become priests, although they are doing their best to keep their identities hidden so that they don't get excommunicated and lose their jobs.

          One great thing about the American civil rights movements is the constant disagreement about tactics that inevitably arises. Take gay rights to the courts or wait for the legislatures? Have the president abolish Don't Ask Don't Tell or wait for Congress? It will be interesting to see what tactic is most persuasive in establishing future Sundays With Women. 

          

Does First Amendment Protect Pregnant Nuns, Burning Qur'ans?

          The United Kingdom, which does not have a First Amendment, recently banned an ad showing a pregnant nun enjoying ice cream. The ad included the language immaculately conceived to describe its fresh ice cream. The ice cream manufacturer said it was using gentle humor to convey the message that ice cream is our religion. The government, however, thought that the ad distorted and mocked the beliefs of Roman Catholics, an especially serious offense during a week in which Pope Benedict made a historic trip to London. And so the ads were banned.

          Meanwhile, in the U.S., where the pregnant nun ads presumably enjoy the protection of the First Amendment, Justice Stephen Breyer has people debating how much constitutional protection burning Qur'ans enjoys. Referring to Justice Oliver Wendell Holmes' famous statement in Schenck v. United States that the "most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic," Breyer said in a TV interview, "Holmes said [the First Amendment] doesn't mean you can shout 'fire' in a crowded theater,...Well, what is it? Why? Because people will be trampled to death. And what is the crowded theater today? What is the being trampled to death?" Thus Justice Breyer is not prepared to conclude that -- in the internet age -- the First Amendment condones Qur'an burning. 

          The Supreme Court, however, has also held that the First Amendment protects burning the American flag as a means of political protest. It has also ruled, in a case involving the Ku Klux Klan, that the First Amendment allows the states to ban cross burning carried out with the intent to intimidate. Political protest is protected but threats are not. 

          Justice Breyer is probably correct that it will take a lot of new cases to resolve the free speech controversies. Unlike in the UK, however, in any case the First Amendment should still allow individuals to distort and mock religion, even if visiting popes find the speech to be offensive. 

Honor Killings

        Thanks to Feminist Law Professors blog for pointing out this recent series by Robert Fisk about honor killings, in which women (and some men) are killed because they committed sexual misconduct that was perceived to dishonor their families. The killings are performed by Muslims, Christians, and Hindus as well as by families of various ethnic, tribal and cultural backgrounds. Fisk reports: "The details of the murders – of the women beheaded, burned to death, stoned to death, stabbed, electrocuted, strangled and buried alive for the "honour" of their families – are as barbaric as they are shameful. Many women's groups in the Middle East and South-west Asia suspect the victims are at least four times the United Nations' latest world figure of around 5,000 deaths a year." 20,000 women killed each year. 

          Most surprising is that the number of such crimes is increasing every year. 

          Fisk gives names and details. In his words:

These are just a few of the murders, a few names, a small selection of horror stories across the world to prove the pervasive, spreading infection of what must be recognised as a mass crime, a tradition of family savagery that brooks no merciful intervention, no state law, rarely any remorse.

Surjit Athwal

Murdered in 1998 by her in-laws on a trip to the Indian Punjab for daring to seek a divorce from an unhappy marriage

Du'a Khalil Aswad

Aged 17, she was stoned to death in Nineveh, Iraq, by a mob of 2,000 men for falling in love with a man outside her tribe

Rand Abdel-Qader

The Iraqi 17-year-old was stabbed to death by her father two years ago after falling in love with a British soldier in Basra

Fakhra Khar

In 2001 in Karachi, her husband poured acid on her face, after she left him and returned to her mother's home in the red-light district of the city

Mukhtaran Bibi

The 18-year-old was gang-raped by four men in a hut in the Punjab in 2002, while up to 100 men laughed and cheered outside

Heshu Yones

The 16-year-old was stabbed to death by her Muslim father Abdullah, in west London in 2002, because he disapproved of her Christian boyfriend

Tasleem Solangi

The Pakistani village girl, 17, was falsely accused of immorality and had dogs set on her as a punishment before she was shot dead by in-laws

Shawbo Ali Rauf

Aged 19, she was taken by her family to a picnic in Dokan, Iraq, and shot seven times after they had found an unfamiliar number on her phone

Tulay Goren

The 15-year-old Kurdish girl was killed in north London by her father because the family objected to her choice of husband

Banaz Mahmod Babakir Agha

The 20-year-old's father and uncle murdered her in 2007, after she fell in love with a man her family did not want her to marry

Ayesha Baloch

Accused of having sexual relations with another man before she married, her husband slit her lip and nostril with a knife in Pakistan in 2006 

Remembering JFK

          Thanks to Howard Friedman for reminding me that today is the anniversary of John F. Kennedy's famous campaign speech about separation of church and state, given here in Houston before an audience of Protestant ministers 50 years ago. It is a shame that Kennedy's brilliant words upholding separation of church and state and pledging to follow the law instead of church teaching are not endorsed by our current politicians. We would have a more tolerant society if today's politicians would take the Kennedy pledge: 

I believe in an America where the separation of church and state is absolute--where no Catholic prelate would tell the President (should he be Catholic) how to act, and no Protestant minister would tell his parishoners for whom to vote--where no church or church school is granted any public funds or political preference--and where no man is denied public office merely because his religion differs from the President who might appoint him or the people who might elect him....

Whatever issue may come before me as President--on birth control, divorce, censorship, gambling or any other subject--I will make my decision in accordance with these views, in accordance with what my conscience tells me to be the national interest, and without regard to outside religious pressures or dictates. And no power or threat of punishment could cause me to decide otherwise.

But if the time should ever come--and I do not concede any conflict to be even remotely possible--when my office would require me to either violate my conscience or violate the national interest, then I would resign the office; and I hope any conscientious public servant would do the same.

Instead, former Pennsylvania Republican Roman Catholic Senator Rick Santorum visited a Catholic school in Houston this week in order to reject Kennedy's approach to politics. Santorum thinks that Catholic politicians should govern by their faith, which includes opposing gay equality and reproductive freedom, issues on which Kennedy would have follow the Constitution. The Wisconsin Catholic bishops have just drafted a letter telling Catholics how to vote in upcoming elections. In Hawaii, supporters of Democratic gubernatorial candidate Mufi Hannemann are urging Republican voters to cross party lines and vote for Hannemann in order to show their opposition to Neil Abercrombie because he declares no religious affiliation (and therefore may support gay marriage).

          President Obama has repeatedly refused to take the Kennedy pledge, preferring to campaign on his religious values, his church membership, and his status as a mainstream Christian. Too bad the first Muslim president didn't learn the first Catholic president's lesson: only a secular government can assure religious freedom. Don't worry, I know the president is not Muslim, but believe he would  have convinced the country of that more easilyif he had taken the Kennedy pledge to govern by the Constitution instead of his own Christian faith. Or Muslim faith. Or any faith. Even in response to all the anti-Muslim sentiment in the country he spoke about his own religion at his recent press conference:

And I will do everything that I can as long as I am President of the United States to remind the American people that we are one nation under God, and we may call that God different names but we remain one nation.  And as somebody who relies heavily on my Christian faith in my job, I understand the passions that religious faith can raise.  But I’m also respectful that people of different faiths can practice their religion, even if they don't subscribe to the exact same notions that I do, and that they are still good people, and they are my neighbors and they are my friends, and they are fighting alongside us in our battles.

Everybody battling side by side in defense of his own religious values. That is not what President Kennedy had in mind.

Stoning

          Stoning as a penalty for sex crimes is back in the news after an Iranian woman was sentenced to death by stoning for adultery and an Afghanistani couple was stoned to death for eloping. The debates are complicated by fears of offending Muslims by appearing to blame Islam for such barbaric practices. Some Muslims complain that stoning — along with other traditional penalties like whipping and the amputation of hands — is too often sensationalized in the West to smear the reputation of Islam generally. Most of these severe punishments are carried out by the Taliban and other radicals who, many Islamic scholars say, have little real knowledge of Islamic law.  

          There is no reason to blame Islam alone for stoning. Human rights groups say a young girl was stoned to death in 2007 in Iraqi Kurdistan’s Yazidi community, which practices an ancient Kurdish religion. The Old Testament includes an episode in which Moses arranges for a man who violated the Sabbath to be stoned, and stoning probably took place among Jewish communities in the ancient Near East. Rabbinic law, which was composed starting in the first century A.D., specifies stoning as the penalty for a variety of crimes, with elaborate instructions for how it should be carried out. 

          The world's religions are rooted in ancient ideas and traditions much older than modern notions of equality. Stoning for sex crimes, for example, was originally intended to preserve the purity of male tribal bloodlines. Stoning is another reminder why religion should not be the basis of any of our laws. 

          

Hamilton Debates/Defeats Friedman

          Professors Marci Hamilton and Howard Friedman recently engaged in an online debate about the merits of the Religious Freedom Restoration Act (RFRA). Congress passed RFRA after the Supreme Court ruled that religious individuals must obey the law in the same manner as the non-religious. This idea was so offensive to religious believers that they successfully lobbied Congress to exempt them from many laws. Many states have followed Congress' lead and passed state RFRAs. Under the federal and state RFRAs, religious believers can challenge any law that places a substantial burden on their religion. The courts then rule that religious believers do not have to follow the law. 

          While Friedman thinks these statutes are a great idea that protects religious freedom, Hamilton is more persuasive in pointing out their folly. Hamilton discusses three cases:

In Potter v. District of Columbia, the U.S. Court of Appeals for the District of Columbia held that the District was required to permit firefighters with facial hair to keep it, even though there was evidence on the record indicating that it is dangerous for firefighters to have facial hair.
In Barr v. Sinton, the Texas Supreme Court held that a small Texas town could not zone out halfway houses for ex-convicts from residential zones.
In Merced v. Euless, the Fifth Circuit interpreted the Texas RFRA to permit a Santerian priest to slaughter at least seven goats and sixteen chickens in his home, feed them to those in attendance, and discard the carcasses in plastic bags—with no regard for dangers such as cholera and E. coli.

          In all three cases, a non-religious person would have to follow the law. The non-believer could not wear a beard, build a secular halfway house, or sacrifice animals in the home. 

          Religious exceptions to the law are a bad idea. They undermine the equality that is essential to democracy. The folly of RFRAs is undebatable.

In Memoriam: Professor Steven Goldberg

          I was sorry to read that Georgetown Law Professor Steven Goldberg died unexpectedly of a heart attack last week. Goldberg was a brilliant scholar of law, religion and science and a good and generous man with a fine sense of humor. I was fortunate that he wrote the chapter about the famous evolution case, Edwards v. Aguillard, for one of my books. The chapter was vintage Goldberg: He was the first author to submit, way ahead of deadline. The chapter was meticulously researched and written in his fine clear prose. He had insights about the case that no one else had expressed, even though the case was decided in 1987. And he kept his good humor and patience while waiting for all the other chapters to show up and for the final product to appear on his desk.

         I am a big fan of Goldberg's other writings about law and religion. One of his recent books, Bleached Faith: The Tragic Cost When Religion is Forced into the Public Square, sounded Goldberg's repeated but too-frequently-ignored warning that religion is corrupted when it forces its way into the public square, politics and science. 

          Goldberg was also a scholar of Baruch Spinoza, the seventeenth-century Dutch and Jewish philosopher whom we remember today for his vigorous defense of toleration and religious freedom. According to the Stanford Encyclopedia of Philosophy, it is hard to imagine a more passionate and reasoned defense of freedom and toleration than that offered by Spinoza. For me it is hard to imagine a more passionate and reasonable defender of freedom and toleration than Steven Goldberg. I am sorry that his family, colleagues, former students and students now face this loss. Their remembrances of him are posted on the Georgetown website.

Religion and Proposition 8

          There are two simple sentences at the beginning of Judge Vaughn Walker's opinion in Perry v. Schwarzenegger invaliding Proposition 8, which banned gay marriage in California: A state’s interest in an enactment must of course be secular in nature.  The state does not have an interest in enforcing private moral or religious beliefs without an accompanying secular purpose. These sentences are crucial for understanding the appropriate role of religion in government and in the passage of legislation.

          Plaintiffs challenged Proposition 8 as a violation of their Due Process and Equal Protection rights under the Fourteenth Amendment to the U.S. Constitution. A simple way to word these challenges is to say that the government must have a rational basis--some reason--whenever it passes legislation. Under Due Process, if the government denies a person the fundamental right to marry, it must have a compelling reason to do so. Under Equal Protection, if the government grants one person a marriage license but refuses a license to another, it must have some good reason for the distinction. A government allowed to act without reasons would be all-powerful and constantly violate individual rights. 

          Judge Walker's opinion was detailed and persuasive in explaining that the reasons favoring Proposition 8 were private moral and religious beliefs that were not the appropriate basis of civil law. He first described how Proposition 8 proponents abandoned previous arguments from the campaign that had asserted the moral superiority of opposite-sex couples. The rest of the opinion demonstrated the inadequacy of such moral arguments about gay marriage as the basis of legislation. The facts established at trial--demonstrated through the testimony of experts who had studied the history of marriage, compared gay marriage to heterosexual marriage and gay parents to heterosexual parents--demonstrated beyond serious reckoning that Proposition 8 finds support only in such [moral] disapproval. The idea that gay marriage was inferior to heterosexual marriage were not supported by any evidence offered by Proposition 8's proponents other than their religious and moral beliefs. As the opinion said at the beginning, however, personal moral and religious disapproval is not a secular purpose that can provide the basis for legislation. It is not a legitimate reason for the government to act. 

A Woman's Letter to President Obama

          Read the letter from Wajeha Al-Huwaider to President Obama, asking him to raise women's rights on his trip to Saudi Arabia. She complains of a legal system of male guardianship in which women cannot take any actions without male oversight. Women, e.g., cannot travel or receive medical care without male authorization--sometimes even an adult is required to have authorization from a sixteen-year-old son.

          Al-Huwaider compares her experience to the birds in the Gulf of Mexico who are so covered with oil that they have difficulty flying. These birds can hardly move: they have no control over their lives, and they cannot fly freely to go to a place where they can feel safe. So too with Saudi women who are not free to exercise control over their lives and are treated like children requiring guardians even though they are mature adults. 

          David Keyes criticized Obama's conduct in Saudi Arabia, adding to Al-Huwaider's letter the story of Um Hasan, a Saudi mother of six, [who]  is not being allowed to divorce her abusive and drug-addicted husband. The reason? She appeared in court without a male guardian, so the judge refused to see her. “I have medical certificates from Makkah’s King Abdulaziz Hospital proving I have been physically abused,” Um Hasan said, “but the judge has refused to even look at them because I had no male guardian with me.” Meanwhile Obama negotiated a big arms deal with the Saudis while remaining silent on women's rights.

       Robert L. Bernstein, the founding chairman emeritus of Human Rights Watch makes a great point: “It is almost ludicrous that with our own secretary of State being a woman, the rights of women are not center stage on any meeting between the United States and Saudi Arabia.”

        

Excommunicate or Walk Away?

          Illinois Appellate Court Judge Sheila O'Brien wrote this interesting essay, Excommunicate me, please, in the Chicago Tribune. O'Brien explains that she was raised Catholic, the product of grandparents who left Ireland with nothing but their vibrant faith and 22 years of Catholic education. She loves the church she was brought up in, but is tired of its support for pedophiles and its opposition to women's rights. She can write one time bequest on her church contributions to make sure the money stays in the local parish instead of supporting the hierarchy, but wonders if that action is enough to bring about reform in the church. She explains her dilemma: 

          So, each person must decide: Stay and fight (cutting off the money but with little hope for change)        or leave. Both options are spiritually and emotionally exhausting.

         That's why, silly as it sounds, formal excommunication by the hierarchy would be a welcome relief. If they would just make the decision for me, give me a piece of paper that says, "you're out," it would free my conscience of all of this. 

          Catholic Professor Cathleen Kaveny observes that essays like O'Brien's demonstrate that the church has reached a tipping point that the Catholic hierarchy should take seriously (by, e.g., having Chicago's bishop invite the judge to lunch). But it is more interesting to observe what the tipping point is for each individual woman. For author Anne Rice, who left the church last week, it was gay marriage. For O'Brien, it could be pedophilia along with the fact that the church recently grouped ordaining women with pedophilia in identifying crimes against church law.

             What would happen if all the Catholic women who felt this way walked away? Would it be smart for the church to excommunicate them before they did? 

Three Cheers for Anne Rice

          Anne Rice gave a great interview on NPR last week. Quoting Rice, NPR called it "Today I Quit Being a Christian," but they both should have said "Today I Quit Being a Catholic." Rice, who was raised Catholic, left the church when she was 16 and then re-joined the church in 1998. Rice made some general comments about the quarrelsome nature of Christianity, but it was the Catholic Church's role in public policy that provided the final straw that convinced her to leave organized religion while retaining her faith in God.  Specifically, she complained, 

          

          "I didn't anticipate at the beginning that the U.S. bishops were going to come out against same-sex       marriage," she says. "That they were actually going to donate money to defeat the civil rights of homosexuals in the secular society.

          "... When that broke in the news, I felt an intense pressure. And I am a person who grew up with the saying that all that is needed for evil to prevail is for good people to do nothing, and I believe that statement."

          Rice's interview occurred just two days before Judge Vaughn Walker invalidated California's ban on gay marriage as a violation of the Fourteenth Amendment's Due Process and Equal Protection Clauses. The opinion is cause for celebration because it extends constitutional rights to gay Americans that other Americans have long enjoyed, which is what the Fourteenth Amendment is supposed to do. The California Catholic Conference promptly announced its opposition to the decision and pledged to continue the fight against gay marriage. 

          "You know, I don't really like disappointing all my Catholic friends," [Rice] says. "I don't really like disappointing all my Christian friends and contacts. I really don't like it. It's painful. But I did what I felt I had to do." 

          

Ordaining Women and Sex Abuse

          The new revisions to the Catholic Church's canon law have appeared. The guidelines identify new procedures for handling sex abuse cases by clergy. For example, they extend the statute of limitations from 10 to 20 years and make it easier to remove priests from the priesthood. 

          The new law also creates two new grave crimes. One is the acquisition, possession or distribution of child pornography by clergy. The second is the attempted ordination of women. 

          The penalty for both the person who tries to ordain a woman and the woman is automatic excommunication from the church. Both persons are excommunicated without any church hearing or proceeding because the excommunication happens automatically at the moment of the attempted ordination. In contrast,  a cleric who commits sexual abuse or uses child pornography is to be punished according to the gravity of his crime after a church trial conducted according to new procedures outlined in the document. 

         Church officials in Rome may still believe that the priesthood is more threatened by women than by abusive priests. That is the mindset that kept the church from prosecuting abusive priests over the last 50 years. The new rules give us no reason to believe that anything has changed. The church is still protecting the priesthood rather than the people. 

    

Church Autonomy: A Bad Idea

         In describing Pope Benedict's reaction to a Belgian police raid on a cathedral in search of documents about sex abuse, The New York Times wrote that the pope stressed the church’s “autonomy” to conduct its own investigations and criticized the “deplorable methods” of the Belgian police. As in other countries throughout the world, Belgian church officials had long resisted any state investigation of sexual abuse by Catholic clergy. The pope's complaint appears as it becomes more apparent every day that when he was charged with investigating sex abuse, he ignored the problem.

          The Belgian church and state had worked out a tacit compromise that allowed the church to investigate the wrongdoing through an internal truth commission. When the commission failed to complete its mission, Belgian authorities raided church property in search of evidence about the abuse.

           The government should be the agency that investigates violations of the law. Instead, the churches and their defenders have identified a constitutional theory that places church autonomy at the core of the First Amendment. According to the leading proponent of this theory, Professor Douglas Laycock, churches have a constitutionally protected interest in managing their own institutions free of government interference.  Laycock strikes an odd balance between religious individuals and institutions, claiming that alleged state interests in regulating internal church affairs--e.g., protection of church members and church workers from exploitation--are usually illegitimate and should not count at all. This theory that religious institutions should be free to control their members is  growing in popularity. 

          The sex abuse crisis demonstrates the dangers of that theory. Churches should not enjoy autonomy from the law. Like corporations and governments, they should be subject to the rule of law and penalized when they break it. It is implausible that the Framers of the U.S. Constitution, who questioned tyranny wherever they found it, drafted a Constitution that protected institutional churches from government oversight, leaving the churches free to violate the rights of individuals. 

          Founding and succeeding generations of Americans have come to these shores in order to avoid the tyranny of religious institutions. It is essential that they not be above the law as the pope suggests. 

Holy See v. Doe

          This week the Supreme Court denied cert. in Holy See v. Doe, a case in which the Vatican appealed the Ninth Circuit's decision to allow a torts lawsuit against the Holy See to proceed. John Doe sued the Holy See, which is both a foreign state and the central government of the Roman Catholic Church, arguing that the Holy See was liable for the sexual abuse of Doe by Catholic priest Father Andrew Ronan. Although the Ninth Circuit dismissed Doe's claims against the Holy See for negligent retention and supervision of  Ronan and failure to warn Doe, it allowed Doe's lawsuit to proceed under a legal theory called respondeat superior, which holds employers strictly liable for the negligence of their employees. 

          Respondeat superior usually allows employers to be held liable only when the employee's conduct is within the scope of his employment. For that reason, most respondeat superior lawsuits against the church for sexual abuse have been dismissed because sexual abuse is not supposed to be part of the job. Oregon law, however, where Doe's suit was brought, holds that when the priestly and pastoral duties are the necessary precursor to the abuse, the lawsuit can proceed. In other words, because Doe met Ronan in church and other ecclesial settings where Ronan was acting as a priest, the scope of employment requirement was met.

          Now we await the trial. The Vatican's lawyer will defend the suit by arguing that Ronan was not an employee and that the Vatican was not even aware of Ronan's "very existence" until after the suit was filed. It would be great if that defense allowed the plaintiff the opportunity to demonstrate that the Holy See was too busy pursuing other problems--namely denying requests by divorced Catholics to remarry, publicly disciplining priests in Brazil and Peru for preaching that the church should work to empower the poor and oppressed, rein[ing] in a Dutch theologian who thought lay people should be able to perform priestly functions, and an American who taught that Catholics could dissent from church teachings about abortion, birth control, divorce and homosexuality--to pay attention to its abusive priest-employees.
          Most interesting is a recent report that Pope Benedict (then Cardinal Ratzinger) did not take action against abusive priests because he thought that the huge drop in the number of priests looked bad for the church and needed to be stopped.  “Look at it from the perspective of priestly commitment,” said the Rev. Joseph Fessio, a former student of Cardinal Ratzinger’s and founder of the conservative publishing house Ignatius Press. “You want to get married? You’re still a priest. You’re a sex offender? Well, you’re still a priest. Rome is looking at it from the objective reality of the priesthood.”  The objective reality was that the church wanted to keep as many Father Ronans in the priesthood as it could. For that it deserves tort liability.