Thursday, May 27, 2010

Lost Pensions, Lost Faith

          NPR ran an interesting story yesterday about the pensions of employees of churches and other religious organizations. The pensions of church-affiliated workers and retirees are not protected because of a little-known loophole in federal pension protections. Church pension plans are not covered by the federal law, and employees of church-affiliated hospitals, publishers, and schools are at risk. 
          NPR told the story of 500 employees and retirees  of the publishing house of the Evangelical Lutheran Church in America who received a lump sum much less than their expected pension payments. Maria Carpitella worked for the Catholic Diocese of Wilmington for 20 years and expected a pension of $400 per month. The diocese, however, was bankrupted by the sex abuse scandal and with its pension account underfunded Carpitella is worried she may not receive her check.
          Today there is no way of knowing how many church groups are at financial risk because they have no obligation to report or disclose the status of their pension funding.
          Carpitella's husband had a pension with TWA that was insured when the airline ran out of money. She assumed her pension would be treated the same way. That is one of the problems of having separate laws for church organizations. Often employees don't know that their pensions are unprotected, or that they may not enjoy the same legal rights at their jobs that other employees enjoy. 
          In 2006, the New York Times ran a brilliant series explaining how religious organizations are exempted from numerous laws and regulations. We live in an era of courts and legislatures who are more and more willing to create special rules for religion. The religions' idea seems to be that they should  be free from the law because they answer to a higher law; the lawmakers accommodate them. Perhaps the pension lesson from the 70s and 80s will put a brake on the constant religious exemptions from the law.
          Carpitella said you trust on blind faith the church will take care of you. But like TWA or Enron, churches fail. The law should be there to protect citizens from the churches' mistakes.

Sister Margaret's Excommunication: No Surprise

          Nicholas Kristof at the New York Times and other commentators seem surprised that Sister Margaret McBride was excommunicated for her participation in an abortion at St. Joseph's Hospital in Phoenix. The only surprising thing about the episode is that major news media remain unaware of the church's harsh teaching on abortion even after 37 years of vigorous Catholic attempts to overturn Roe v. Wade and to deny the right to choose to all Americans, regardless of their faith. The church has never allowed abortion to save the life of the mother. The church's absolute opposition to abortion, and its efforts to make the law consistent with its views, should be criticized on its own terms, not only because the punishment of Sister Margaret is worse than the treatment accorded to sexually abusive priests, which is what seems to upset Mr. Kristof.
          According to Kristof, a 27-year-old mother of four who was three months pregnant arrived at St. Joseph's suffering from pulmonary hypertension, a condition that could have killed her. Sister Margaret, an administrator at the hospital, participated in the decision of the patient, her family, her doctors and the hospital's Ethics Committee to approve an abortion.  The local Catholic bishop was correct that Sister Margaret was automatically excommunicated (under canon law) for her participation in an abortion and that the mother's life cannot be preferred over the child.
          Catholic teaching on abortion is very technical and rigid. Direct killing of the innocent is never permitted. A fetus is always innocent. The fetus may not be killed to save the mother's life. In theological language, it is never permissible to do evil (kill the fetus) to achieve good (save the mother's life). 
          Only indirect abortion is permitted. The old Catholic moral manuals told stories of doctors whose pregnant patients had cancer of the uterus. The good Catholic doctor would come out of surgery and announce his joy that he was able to save the uterus but not the child. But what he had done was excommunicable. It is acceptable to take out the whole uterus (therefore killing the child) but not to kill the child and save the uterus. The first abortion is indirect, and the second is direct. It is a very rare abortion that falls into the indirect category, and having an abortion because the mother would otherwise die from pulmonary hypertension is clearly direct. 
          The same rules apply to sterilization. Direct sterilization is always forbidden. For over 30 years the bishops have fought Catholic hospital administrators in order to enforce the strict sterilization teachings as well. 
         It is terrible that Sister Margaret was excommunicated and then lost her job. But not at all surprising. Where was the criticism of church teaching on abortion when Catholic hospitals took over leadership of public hospitals in mergers? when government financial aid was given to religious hospitals? when Presidents Bush and Obama extended conscience clause protection to medical personnel and gave more aid to faith-based organizations? when six Catholics were named to the U.S. Supreme Court? 
          The church's goal has long been to ensure that no woman has access to contraception, sterilization or abortion and other rights of equality. What happened to Sister Margaret is no surprise.   

Welcome Justice Sotomayor

          The Supreme Court decided Salazar v. Buono, the Mojave Desert cross case, by a 5-4 fractured vote. As background, after the Ninth Circuit declared the presence of the cross on government property unconstitutional, Congress transferred the land under the cross to private parties so the cross would remain standing. Because the district court had issued an injunction forbidding the government to display the cross, Frank Buono sued to have his injunction enforced.
          The Supreme Court remanded the case to the district court for further consideration of Congress's purpose in enacting the statute that transferred the land under the cross.  The justices were divided, with opinions by Justices Kennedy, Alito, Scalia, and dissents by Justices Stevens and Breyer.  The justices disagreed about the procedural issues connected with the case, spending many pages discussing standing (whether the proper litigant brought the case) and the meaning of an injunction. Justice Kennedy strongly urged the district court to consider Congress's valid purposes in transferring the land. Justice Breyer's dissent dodged the Establishment Clause issue and focused on the meaning of injunctions.
             Justice Sotomayor joined Justice Stevens' dissent.
          Justice Stevens's dissent cut through much of the confusion created by the majority with his usual clarity and legal insight. Stevens explained straightforwardly why the district court was correct to block the land transfer: The 2002 injunction barred the Government from "permitting the display of the Latin cross in the area of Sunrise Rock in the Mojave National Preserve." [Congress's] land-transfer statute mandated transfer of the land to an organization that has announced its intention to maintain the cross on Sunrise Rock. That action surely "permit[s] the display of the cross." Therefore Buono should have won his case.
          Stevens was most powerful in explaining that the Mojave Desert cross is the only national monument to the veterans of World War I, an incredible fact long forgotten in the extensive discussion of the case. According to Stevens, most judges would find it to be a clear Establishment Clause violation if Congress had simply directed that a solitary Latin cross be erected on the Mall in the Nation's Capital to serve as a World War I Memorial. The analysis should not be any different because the cross stood in a California desert.
          It is surprising that Congress wasn't embarrassed that it has never created a World War I monument. (The Mojave Desert cross was originally placed by private parties.) It would be easier to believe that Congress had a legitimate secular purpose in mind if it had focused on building a proper WWI display instead of going to great effort to keep one cross intact.
          The Establishment Clause will lose a great defender with Justice Stevens's retirement from the Court. The good news from Buono is that Justice Sotomayor joined Stevens' strong dissent in favor of the Establishment Clause. It would have been safer to join Justice Breyer's tepid analysis of the injunction. This sends a positive signal that Sotomayor will enforce the Establishment Clause as well as her predecessor, Justice David Souter, did.
          Update: After the Court issued its opinion, the cross was stolen from its desert site and a legal battle is brewing over whether a replacement cross can be installed.

Elena Kagan's Religion

Supreme Court nominee and Solicitor General Elena Kagan was the first girl in her Orthodox synagogue to request a bat mitzvah even though the rabbi, Shlomo Riskin, had never performed one. "Elena Kagan felt very strongly that there should be ritual bat mitzvah in the synagogue, no less important than the ritual bar mitzvah," Rabbi Riskin said, referring to the rite of passage for 13-year-old boys. "This was really the first formal bat mitzvah we had." Kagan's ceremony, however, was not held on Saturday (as she wanted, consistent with the service for the boys) but instead on Friday night. "We crafted a lovely service, but I don't think I satisfied her completely," said the rabbi.

I hope it is the young Elena Kagan who takes a seat on the Supreme Court. 

Sunday, May 2, 2010

The Missing Buddhists

          The Buddhists disappeared from the Supreme Court's recent case, Salazar v. Buono, about a government-sponsored cross in California's Mojave Desert. The Buddhists received more attention from the Ninth Circuit when it ruled in 2004 that the display of the cross on government property was an unconstitutional establishment of religion. In 1999, the court noted, the National Park Service had declined a request by a Buddhist group to build a stupa near the cross. A stupa is a "hemispherical or cylindrical mound or tower, artificially constructed of earth, brick, or stone, containing a relic chamber and surmounted by a spire or umbrella; esp., a Buddhist mound forming a memorial shrine of the Buddha." 
          The Ninth Circuit recognized correctly that, at a minimum, the Establishment Clause forbids the government from preferring one religion over another. Starting with that principle, the conclusion in the cross case was easy. If the government funds the Christian cross while refusing a request from a Buddhist group to share the public space, then it has favored Christianity over Buddhism, a preference for one religion over another that is clearly unconstitutional.
          In the Supreme Court, only Justice Stevens' dissent mentioned the Buddhists, and they did not play a prominent role in his decision. 
          Justice Kennedy never mentioned them in his opinion for the Court. Instead, Kennedy spent most of the opinion explaining why Congress was justified in transferring the land under the cross to private parties after the Ninth Circuit ruled that the cross could not stand on public land. To remove the cross, argued Kennedy, would show disrespect for the war dead. He therefore ordered the district court to reconsider Congress's legitimate motives for transferring the land to the private group.
          Justice Samuel Alito went much farther than Kennedy in concluding that the transfer was constitutional. Although the cross is of course the preeminent symbol of Christianity, he explained, the Mojave Desert cross is also a memorial to the American war dead of World War I, a plain unadorned white cross evoking the unforgettable image of the white crosses, row on row, that marked the final resting places of so many American soldiers who fell in that conflict. Its war memorial status, Alito argued, gave the Congress sufficient reason to preserve the cross by transferring it to private ownership.
          Alito acknowledged that the World War I cemeteries overseas included white Stars of David as well as white crosses because 3500 Jewish soldiers died in that war. Congress might have chosen to place a Star of David on Sunrise Rock so that the monument would duplicate those two types of headstones. But Congress may well have thought--not without reason--that the addition of yet another religious symbol would have been unlikely to satisfy the plaintiff, his attorneys, or the lower courts. Or the Buddhists? With that reasoning Alito justified the exclusion of Jews from the memorial as well. 
          Speaking of Jews, at the oral argument, when Buono's lawyer stated that the cross is a Christian symbol, and that there is never a cross on a tombstone of a Jew, Justice Scalia indignantly replied: I don't think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead. I think that's an outrageous conclusion
          It's more outrageous that the Court issued an opinion that did not even consider that the stupa and the Star of David should share equal space with the cross.