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."