Religion Rogue

Hiatus

2011-05-24T07:59:00.000-05:00

I have many writing projects to complete so this blog is going on hiatus. Thanks for reading the Religion Rogue!

What's missing from this picture?

2011-05-24T07:55:00.000-05:00

A Jewish newspaper removed the women, including Secretary of State Hillary Clinton, from thefamous Bin Laden picture because its views on modesty do not allow it to publish pictures of women.

The End of Abortion Rights?

2011-04-26T17:02:00.000-05:00

Dahlia Lithwick has an interesting essay in Slate about the Death of Roe v. Wade. She shrewdly points out that although numerous unconstitutional abortion regulations are being passed around the country, they remain unchallenged because pro-choice advocates fear that one of these cases will be used to allow Justice Samuel Alito the opportunity to provide the fifth vote that will overturn Roe, the case that recognized a woman's constitutional right to terminate her pregnancy.

What makes Lithwick's essay noteworthy is her guess is still that the Roberts court is as uninterested in overturning the law as its challengers are in forcing the issue. It does not want to be the court that makes abortion illegal, or all-but-illegal, in America. The backlash would be staggering. If pro-choice advocates don't challenge the abortion laws, however, then the Roberts Court gets its way: we have a legal system where Roe is on the books but meaningless because women lack access to abortion. Lithwick suggests that is an unacceptable state of affairs and that it would be better to put abortion laws to the test rather than to let the Court overturn Roe without really overturning Roe.

Muslim Women Talk about Wearing the Veil--or Not

2011-04-26T16:46:00.000-05:00

NPR has this interesting series of interviews of Muslim women discussing their attitudes toward the veil and reasons why they eventually decided not to wear it. It is a great opportunity to hear the voices of actual Muslim women instead of legislators.

Yemeni Women Protest

2011-04-18T08:29:00.000-05:00

The women are protesting their president's comments that it is un-Islamic for women to join men in the demonstrations against his rule. The women went back out into the streets arguing that the president had misinterpreted Islam.

Catching up on Theologians in Trouble

2011-04-18T08:25:00.000-05:00

Dr. Mary Hunt, a feminist theologian who is co-founder and co-director of Women's Alliance for Theology, Ethics and Ritual (WATER) and writer at Religion Dispatches, identifies some Catholic theologians in trouble.

Elizabeth Johnson, a distinguished theology professor at Fordham University, received a lot of media attention after her book, Quest for the Living God: Mapping Frontiers in the Theology of God (Continuum 2007) was condemned by the U.S. Catholic bishops because it “contaminates the traditional Catholic understanding of God.” More interesting than their conclusion was their decision not to tell Professor Johnson that she was under investigation or to ask her questions about her book before issuing their condemnation. This appears to violate the bishops' own norms for dealing with theologians.

Maryknoll Father Roy Bourgeois was excommunicated in 2008 for advocating women's ordination and now is being ousted from his religious order unless he recants his support for women's ordination.

Meanwhile 55 of 188 dioceses risk being out of compliance with the bishops' national policy to prevent sexual abuse of children.

Texas Republicans Reject Supreme Court Ruling

2011-04-18T08:24:00.000-05:00

Mother Jones tells the story of Texas Republicans' continued opposition to Lawrence v. Texas, the 2003 Supreme Court decision that invalidated Texas' statute prohibiting gay sodomy. Despite the Court's ruling, the state law continues to identify "deviate sexual intercourse with another individual of the same sex" as a misdemeanor offense. Republicans are again resisting Democratic efforts to take the unconstitutional law off the books. Houston Democratic Representatives Jessica Ferrar and Garnet Coleman have introduced legislation several times over the last few years updating the penal code, but the Republicans have refused to cooperate. And it doesn't look like they will cooperate this year either.

Governor Rick Perry and the Republican Party's platform oppose Lawrence and want homosexual relations to remain illegal. Just a reminder that supporters of states' rights don't always support individual rights.

Abolish The Ministerial Exception

2011-04-15T14:22:00.001-05:00

My colleague Professor Ronald Turner and I posted our opinion of the important ministerial exception case on the American Constitution's Society's blog. We hope the Supreme Court will decide to allow employees to sue their religious employers instead of sweeping these cases under the First Amendment rug.

Listen to Jimmy Carter

2011-04-15T14:22:00.000-05:00

“The discrimination against women on a global basis is very often attributable to the declaration by religious leaders in Christianity, Islam, and other religions that women are inferior in the eyes of God,” former President Jimmy Carter said last week.

The Carter Center held a big conference last week on human rights, focusing on how the world's religions may contribute to women's inequality. Two years ago President Carter resigned from the Southern Baptist Church to protest its treatment of women. At that time, he said: "The truth is that male religious leaders have had -- and still have -- an option to interpret holy teachings either to exalt or subjugate women. They have, for their own selfish ends, overwhelmingly chosen the latter. Their continuing choice provides the foundation or justification for much of the pervasive persecution and abuse of women throughout the world."

Remembering Geraldine Ferraro

2011-04-10T16:47:00.000-05:00

Geraldine Ferraro is remembered as as the first woman nominated for national office by a major party thus ending the men's club of national politics. She had a more difficult time with the men's club of the Catholic Church. As a Catholic member of the House of Representatives and as a vice-presidential candidate, Ferraro was attacked by New York's John Cardinal O'Connor for her support of abortion rights. Ferraro had signed a then-notorious letter with other Catholics claiming there was a diversity of Catholic opinion about abortion. O'Connor insisted there was no such diversity.

It is hard to believe that the bishops are still fighting this battle and that with Republican help they almost shut the government down to stop Planned Parenthood from providing contraception, even to married women. Fortunately Democratic women Senators stepped into Ferraro's shoes and defended women's rights to health care.

A Strong Dissent from Justice Kagan

2011-04-10T16:39:00.000-05:00

Justice Elena Kagan picked up Justice Stevens' Establishment Clause torch in a powerful dissent in Arizona Christian School Tuition Organization v. Winn. Arizona taxpayers challenged a state tax program that gave tax credits to school tuition organizations that discriminated on the basis of religion when they awarded the tuition benefits. The Court ruled that the taxpayers lacked standing in an obscure decision by Justice Kennedy, who wrote that there is a constitutional difference between tax credits and government expenditures so that taxpayers may claim Establishment Clause violations about the latter but not the former. Justice Kennedy's distinction seems to fly in the face of the normal tax rule that foregone revenue is the same as an expenditure.

Justice Kagan's dissent, joined by Justices Ginsburg, Breyer and Sotomayor, complained about the "novel" and "arbitrary" distinctions made about tax law and charged that the decision "enables the government to end-run Flast's guarantee of access to the Judiciary." The decision, she wrote, would "diminish the Establishment Clause's force and meaning," and "damage[] one of this Nation's defining constitutional commitments."

Justice Stevens was the strongest defender of the Establishment Clause on the Court, so it is good to see that Justice Kagan has take up his mantle. She uses a great analogy to drive home her point that the Establishment Clause requires taxpayer standing if it is to be enforced:

Imagine that the Federal Government decides it should pay hundreds of billions of dollars to insolvent banks in the midst of a financial crisis. Suppose, too, that many millions of taxpayers oppose this bailout on the ground (whether right or wrong is immaterial) that it uses their hard-earned money to reward irresponsible business behavior. In the face of this hostility, some Members of Congress make the following proposal: Rather than give the money to banks via appropriations, the Government will allow banks to subtract the exact same amount from the tax bill they would otherwise have to pay to the U. S. Treasury. Would this proposal calm the furor? Or would most taxpayers respond by saying that a subsidy is a subsidy (or a bailout is a bailout), whether accomplished by the one means or by the other? Surely the latter; indeed, we would think the less of our countrymen if they failed to see through this cynical proposal.

Thus we should think less of Justices Kennedy, Roberts and Alito for failing to see through this cynical proposal.

Protecting Nonbelievers from Believers

2011-04-10T16:37:00.000-05:00

Be sure to read this great article by U. of Miami law professor Caroline Mala Corbin, explaining how nonbelievers, a growing segment of the population, are treated unequally whenever the government uses expressions like "In God We Trust" or places public religious symbols (like crosses) on government property.

Ultrasound Legislation

2011-03-10T12:32:00.000-06:00

The Burnt Orange report illustrates that some sponsors of legislation requiring ultrasounds for all pregnant women considering abortion don't know about the intrusive nature of the transvaginal ultrasound procedure.

Justice Sotomayor Describes Sexism

2011-03-10T12:28:00.000-06:00

In a speech at Northwestern University School of Law, Justice Sonia Sotomayor confirms that women lawyers continue to face a double standard--even when they are nominated to the highest Court in the land. Sotomayor complained about the focus on her private and dating life:

"You know, and I don't mean to be graphic, but one day after I'd been questioned endlessly, for weeks at a time, I was so frustrated by the minutiae of what I was being asked about and said to a friend, 'I think they already know the color of my underwear,'" the justice said.

"There were private questions I was offended by. I was convinced they were not asking those questions of the male applicants," Sotomayor said, alluding to questions about her dating habits. It was unclear if she was referring to private sessions, prior to her formal nomination hearing, with individual senators.

Continuing the conversational thread about dating questions posed to her, she declared, "I wondered if they ever asked those questions of the male candidates. But the society has a double standard."

Sotomayor,who is single, then cited her "many single male colleagues who are judges who date often, bring dates to court affairs and nobody ever talks about them. I knew if I did the same thing, my morals would be questioned. So I'm very careful about whom I date and how public it is." It was unclear but presumably she was harkening to her experiences as a district court, appellate court and, now, Supreme Court judge.

"I don't like people talking about my private life," she said, suggesting that there is a double standard in how single women and men are treated and portrayed. "There are expectations of how men and women should behave." She added, "I'm probably a bit more aggressive than many like in a woman."

Women of Courage

2011-03-10T12:21:00.000-06:00

Secretary of State Hillary Clinton honors women of courage and urges more participation by women in the new Egyptian government here.

A Victory for Justice Brennan and the Westboro Baptist Church

2011-03-08T13:15:00.000-06:00

The Supreme Court ruled 8-1 in favor of the Westboro Baptist Church's right to picket with offensive signs at Matthew Snyder's military funeral. Chief Justice Roberts wrote the opinion for the Court concluding that the church's offensive speech involved a matter of public concern on public property and was protected by the First Amendment. Snyder’s father Albert was thus unable to collect a jury verdict for his emotional distress and privacy invasion.

Although Matthew Snyder’s father sued the church for the torts of intentional infliction of emotional distress and invasion of privacy, it was another tort, the tort of defamation, that provided the legal context for the opinion. Over a series of cases since 1964, the Court developed a law of defamation that involves four categories: matters of public concern, matters of private concern, public figures and private figures. The Court then matched those categories—matters of public concern involving public figures, matters of public concern involving private figures, matters of private concern involving public figures, and matters of private concern involving private figures.

Although the Court never filled in the law for all those categories, in the precedent most relevant to Snyder's case Jerry Falwell was not allowed to sue Hustler Magazine for intentional infliction of emotional distress because he was a public figure. Before Snyder was issued, everyone wondered if the Court would allow Albert Snyder’s lawsuit to proceed because Snyder was a private, not a public, figure.

Instead, Chief Justice Roberts ignored the public/private figure issue completely and focused on public concern, explaining that the church's offensive picket signs definitely involved matters of public concern:

The “content” of Westboro’s signs plainly relates to broad issues of interest to society at large, rather than matters of “purely private concern.” The placards read “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Don’t Pray for the USA,” “Thank God for IEDs,” “Fag Troops,” “Semper Fi Fags,” “God Hates Fags,” “Maryland Taliban,” “Fags Doom Nations,” “Not Blessed Just Cursed,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “You’re Going to Hell,” and “God Hates You.” While these messages may fall short of refined social or political commentary, the issues they highlight—the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy—are matters of public import. The signs certainly convey Westboro’s position on those issues, in a manner designed ... to reach as broad a public audience as possible. And even if a few of the signs—such as “You’re Going to Hell” and “God Hates You”—were viewed as containing messages related to Matthew Snyder or the Snyders specifically, that would not change the fact that the overall thrust and dominant theme of Westboro’s demonstration spoke to broader public issues.

Only the lone dissent by Justice Samuel Alito focused on the private figure analysis and concluded that t he First Amendment permits a private figure to recover for the intentional infliction of emotional distress caused by speech on a matter of private concern.

With its emphasis on matters of public concern and its avoidance of the public/private figure issue, Chief Justice Roberts' opinion is reminiscent of the rejected plurality opinion of Justice William Brennan in Rosenbloom v. Metromedia. George Rosenbloom was an obscure private individual until Metromedia reported his arrest for obscenity. Brennan's plurality on a fractured Court held that the strictest First Amendment standard should apply to "all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous," i.e., public or private figures.

Justice Brennan never got a majority of the Court to support that reasoning, however. Even Justice Thurgood Marshall, who frequently voted with Brennan, worried in Rosenbloom that any decent system of ordered liberty had to protect anonymous persons from unjustified invasion and wrongful hurt and urged Brennan to strike the First Amendment balance differently for private figures. There were concerns among the other justices that the public concern test was too vague to provide an adequate rule for the courts to follow.

Now Chief Justice Roberts appears to adopt Brennan's test, meaning that the First Amendment balance could regularly be struck in favor of protecting speech about public concerns. Roberts avoids the most interesting question, which is anticipated by Justice Stephen Breyer, namely in this Internet era is there any speech left that does not involve a matter of public concern? We will have to wait to learn what the Chief thinks about that question....and to see if his First Amendment standard becomes persuasive in a manner that Brennan's never did.

Too Much Medical Conscience

2011-03-01T12:13:00.000-06:00

Conscience clause laws allow medical professionals to refuse medical care to patients without suffering any employment penalty. The first conscience clauses were enacted in response to Roe v. Wade. Their number increased over the last thirty years as religious opposition to reproductive health care increased.

The Obama administration recently issued new regulations about medical professionals’ consciences that replace the rules hurriedly enacted at the end of the Bush administration. Obama’s rules are an improvement over Bush’s. The Bush rules were read to expand conscience clauses to include more procedures, more medical personnel, and more conscientious reasons not to treat patients. According to HHS Secretary Kathleen Sebelius, the Bush rules upset the balance between patients’ rights to obtain health care and the conscience rights of health care providers.

Obama's regulations are less expansive. Nonetheless, the Obama administration remains deeply committed to conscience clause legislation. Obama's rules authorize a Civil Rights office to hear complaints from medical workers who believe they faced employment discrimination because they followed their conscience. Bush pushed his rules through precisely because he believed that conscience was in danger in the workplace.

Both presidents were mistaken to favor medical conscience over patients’ rights and to support and encourage special rules to allow people to practice medicine only insofar as their religion allows. Women’s medical care is under assault on all fronts. The House of Representatives recently voted to ban Planned Parenthood funding. The South Dakota and Nebraska legislatures considered bills making it a justifiable homicide to kill an abortion provider. Dozens of states are considering new curbs on abortion. Members of the House tried to eliminate all funding for abortion, even supporting a bill to l imit federal dollars available to rape victims to those who have been “forcibly raped.” Another House bill would allow doctors to refuse abortion services even if the pregnancy threatens the woman’s health.

At a Catholic hospital in Phoenix, a 27-year-old woman's life was threatened by a pregnancy. She had life-threatening symptoms at 7 1/2 weeks and was worse at 11 weeks, when the hospital's ethics committee voted to allow an abortion to save her life. The local bishop immediately excommunicated a nun on that ethics committee and then declared that the hospital was no longer Catholic. Catholic teaching does not permit an abortion to save the mother's life.

This is what conscience clauses and the Bush and Obama administrations promote: religious freedom to deny life-saving medical treatment to others. If medicine and religion are inconsistent, then professionals should choose between them rather than practice religion with a medical license.

More Religion from Reagan to Obama

2011-02-21T12:44:00.000-06:00

I love this Huffington Post list of the top ten religious quotations by presidential candidates. The author, Brian T. Kaylor, explains that presidential rhetoric has gotten much more religious since John F. Kennedy promised us in 1960 that he would not govern according to his Catholic faith. Kaylor gives you a sense of this dramatic shift in presidential rhetoric by adding a bonus, non-campaign quotation from 1964 Republican presidential candidate Barry Goldwater, made during the Reagan presidency:

"I'm frankly sick and tired of the political preachers across the country telling me as a citizen that if I want to be a moral person, I must believe in the 'A,' 'B,' 'C,' and 'D.' Just who do they think they are? And from where do they presume to claim the right to dictate their moral belief to me? And I'm even more angry as a legislator who must endure the threats of every religious group who thinks it has some God-granted right to control my vote on every roll call in the Senate. And the religious factions will go on imposing their will on others unless the decent people connected with them recognize that religion has no place in public policy."

It's hard to imagine any elected official getting away with that kind of comment today. It is especially odd that the presidents' rhetoric has gotten so much more religious while the percentage of non-believers has increased considerably during the same era.

The trend continued last week when President Obama attended a National Prayer Breakfast and proclaimed again his Christian faith and described himself as an elected leader whose entry into public service was actually through the church.This is the same president whose administration defended the legality of a National Day of Prayer and determined to celebrate it even if the courts declared it unconstitutional. One of the hopes the president expressed at the prayer meeting was that he might walk closer with God and make that walk [his] first and most important task. Maybe the country would be in better shape if the president's first task were to take Care that the Laws be faithfully executed.

Religious Health Care

2011-01-31T16:40:00.000-06:00

Nicholas Kristof recently commented on the hospital controversy that took place in Phoenix over the last year. A Catholic hospital, St. Joseph's, performed an abortion on a woman to save her life. The local bishop, Thomas Olsted, objected because Catholic teaching, unlike American constitutional law, does not allow abortion to save the life of the mother. The bishop first excommunicated Sr. Margaret McBride, a nun on the hospital's ethics committee who approved the abortion. Then the bishop removed the hospital's Catholic affiliation so that St. Joseph's is no longer Catholic.

Kristof--under the headline Tussling Over Jesus--focused on the theological aspects of the debate, contrasting the bishop's emphasis on dogma and rules with the hospital's espousal of compassion and mercy. He and others cited in the article anticipate a moment of change in the church when rank and file Catholics may finally confront the hierarchy over its rigid dogma.

What Kristof doesn't say is that the American bishops continue to be deeply involved in restricting women's right to abortion in religious and non-religious settings around the country. They opposed the health care bill last year because of concerns that insurance companies would fund abortions. Although the bishops are not supporting Republican calls to repeal the entire health care bill, recently they urged Congress to take up two bills introduced last year that they believe would ensure the new health care bill maintains longstanding prohibitions on federal funding of abortion and bolsters conscience rights for health care workers.

In reality all the Catholic bishops are like Olsted. They are opposed even to a non-Catholic woman's right to have an abortion in a non-Catholic hospital when her life is at stake. By taking on insurance and the health care legislation, they strive to cut back abortion everywhere, not just in Catholic hospitals.

The bishops' commitment to conscience clauses is even more dangerous to women's rights. Conscience clauses mean that a woman whose life was endangered by a pregnancy could show up at a secular hospital and still encounter a doctor who refuses to help her....because he follows his conscience instead of her need and her right.

Unfortunately the whole health care system is tussling over Jesus and using him to block women's rights.

Giant Foam Fingers and Blue Cotton Candy: The New Civil Religion?

2011-01-26T12:41:00.000-06:00

Some commentators have criticized the atmosphere at the memorial service for the victims of the Tucson shooting. Michelle Malkin complained about the blue-and-white "Together We Thrive" banners created for the ceremony and asked Will there be giant foam fingers and blue cotton candy, too? Others have suggested that the event was more like a campaign rally or a pep rally. The Washington Post observed that President Clinton's speech at Oklahoma City was more somber. A writer at the Chronicle of Higher Education argued that University of Arizona officials should teach their students how to behave at a memorial service, which is different from a pep rally.

Presidential spokesman Robert Gibbs was more positive; he diplomatically suggested that the crowd was celebrating the miracle of those who survived.

Presidents are the leading spokesmen for the American civil religion. In times of war, sorrow and tragedy, they are expected to address the nation and find the proper words to unite citizens. The presidents usually turn to the Bible to express their sentiments, as Obama did twice in his speech in Tucson:

Scripture tells us:
There is a river whose streams make glad the city of God,
the holy place where the Most High dwells.
God is within her, she will not fall;
God will help her at break of day.

Scripture tells us that there is evil in the world, and that terrible things happen for reasons that defy human understanding. In the words of Job, "When I looked for light, then came darkness."

As George W. Bush did in his speech responding to the terrorist attacks of September 11:

Tonight, I ask for your prayers for all those who grieve, for the children whose worlds have been shattered, for all whose sense of safety and security has been threatened. And I pray they will be comforted by a Power greater than any of us, spoken through the ages in Psalm 23:

Even though I walk through the valley of the shadow of death, I fear no evil for you are with me.

As Bill Clinton did in his speech responding to the bombing in Oklahoma City:

Let us teach our children that the God of comfort is also the God of righteousness: Those who trouble their own house will inherit the wind.
As St. Paul admonished us, Let us "not be overcome by evil, but overcome evil with good."
It embodies the lesson of the Psalms -- that the life of a good person is like a tree whose leaf does not wither.

Right now, religious services--especially Christian ones--still provide the models and sources for the American civil religion. As the nation, especially the young generation, becomes less religious, however, we need new models for public ceremonies. Today or tomorrow a pep rally may capture the positive spirit of the American people more directly than a traditional church service that appeals to Christian scripture.

If giant foam fingers suggest that America is #1in lending a hand to the victims of the Tucson tragedy then why not encourage the new civil religion to flourish?

Religion and Politics 2010-2011

2011-01-24T16:54:00.000-06:00

David Gibson, the incisive religion reporter for PoliticsDaily, posted an interesting take on the top religion stories of 2010. Everyone who missed the end-of-the-year, top-religion-stories-of-2010 lists can find them linked at the beginning of Gibson's article. As usual, Gibson takes the next step and gives more meaning and context to those stories.

Included on Gibson's analytical list, which anticipates what will happen in the new year, are the following:

The tea party huffs, the religious right puffs. Will there be a truce between religious conservatives and the tea party? Will the economy override the social issues favored by religious believers, right and left?

American exceptionalism is the American religion. Gibson argues that the current American civil religion is the belief that America is a divinely inspired nation of chosen people with a God-given duty to be a light unto the rest of the world. 80% of Americans believe this...but only 58% think President Obama shares that view. This may explain why Obama tried to Christianize his rhetoric over the Christmas holidays.

Islam is not an American religion....yet. Are Muslims the new Catholics? Not yet. Gibson links this conclusion to another point, namely that gay rights are not so wrong....meaning that Americans today are more supportive of gay rights than of Muslim religious freedom. This is a good reminder that it can take a long time for new or unpopular groups to gain full freedoms under the Constitution.

Finally, Sex is easy, economics is hard.... and The Catholic Church never gets rid of scandals.

So expect to see more battles over religious diversity in 2011...always with the possibility that the bad economy will force people to put aside religious differences and find common ground on non-religious issues.

Glamour Woman of the Year

2011-01-17T18:05:00.000-06:00

Glamour Magazine honored as a woman of the year Dr. Hawa Abdi, a Somali ob-gyn who protects women and children by running a camp that gives them food and shelter.

The camp grew up around her clinic and hospital. The camp now houses an estimated 90,000 displaced persons. Dr. Abdi also developed a school, teaches literacy and health classes, and opened a jail for men who beat their wives.

Dr. Abdi has even confronted armed militias in order to protect the women and children in her care. Her opponents in the Party of Islam believe that it is inappropriate for women to be community leaders. But Abdi stood up to the militia members and retained control of her hospital.

Read more details about Dr. Abdi's hospital at her website.

Kudos to Glamour for expanding our understanding of what's glamorous.

The Unaffiliated Gap in Congress

2011-01-17T18:03:00.000-06:00

Unaffiliateds--agnostics, atheists and those who declare no religion--are more underrepresented in Congress than any other group.

According to the Pew Forum, the biggest mismatch between numbers in the Congress and percentage in the general population occurs in the unaffiliated category. Although 16% of Americans say they are unaffiliated with any religion, only 1% of congressional representatives self-identify as unaffiliated.

The new Congress remains a majority (57%) Protestant and 29.2% Catholic. Methodists and Baptists are the largest Protestant groups. Episcopalians, Jews and Presbyterians enjoy greater percentages in the Congress than they do in the general population. Muslim and Buddhist representation in Congress matches their percentage in the general population. No Hindus or Jehovah's Witnesses serve in Congress. There are 2 Muslims and 3 Buddhists.

Instead of worrying about whether the president goes to church or is really Christian or Muslim, we should worry about whether the unaffiliateds' interests are represented in the government.

Religious Freedom Day, 2011

2011-01-17T17:58:00.000-06:00

January 16 is Religious Freedom Day, which honors Virginia's 1786 Statute for Religious Freedom. Thomas Jefferson wrote the statute, which was a precursor to the First Amendment. According to Jefferson's document, no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.

Noteworthy is Jefferson's focus on individual freedom. In the opening section of the document, Jefferson warned against civil as well as ecclesiastical rulers who try to set limits on the free mind, recognizing that the impious presumption of legislators and rulers, civil as well as ecclesiastical, who, being themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavoring to impose them on others, hath established and maintained false religions over the greatest part of the world, and through all time.

In the age of government aid to faith-based organizations, championed by George W. Bush as well as Barack Obama, it is worth reconsidering how we should interpret Jefferson's strong criticism of forcing individuals to support religions that they oppose: to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor whose morals he would make his pattern, and whose powers he feels most persuasive to righteousness.

Atheists' New Year

2011-01-03T16:52:00.000-06:00

On Wednesday (Jan. 5, 2011) an atheist will give the invocation at a Colorado city council meeting for the first time ever. The Western Colorado Atheists & Freethinkers (WCAF) have worked for the last two years to participate in the Grand Junction City Council's meetings. In 2008 WCAF studied the prior invocations and noted that 90 percent of the invocations before the council were Christian with a token Jew about 10 percent of the time.

WCAF first asked the council to ban specific deities names' from the public prayers. The atheists had good reasons for their request. The name of Jesus or Allah or any other deity is not inclusive. A city council is not like a church, synagogue or mosque; it is supposed to include all citizens. When people pray in the name of one deity before a city council meeting, believers in other deities and non-believers are excluded.

The City Council refused WCAF's request but came up with an alternative. They decided to make the process more inclusive by opening the invocation process to more community groups. Finally the atheists will have their turn. This is a good compromise option that should be adopted around the country as long as governments continue to open their meetings with prayers.

Irene Merker Rosenberg, 1939-2010

2010-11-28T14:46:00.000-06:00

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

2010-11-14T13:24:00.000-06:00

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?

2010-11-07T21:35:00.000-06:00

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

2010-11-07T21:33:00.001-06:00

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

2010-11-07T21:33:00.000-06:00

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

2010-11-01T13:53:00.000-05:00

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

2010-10-25T10:37:00.000-05:00

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

2010-10-25T10:27:00.000-05:00

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

2010-10-19T14:52:00.000-05:00

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

2010-10-17T19:10:00.000-05:00

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

2010-10-17T19:02:00.000-05:00

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

2010-10-11T21:22:00.000-05:00

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.

Although proceedings for a restraining order commenced after the November events, the couple reconciled after S.D. discovered she was pregnant. On the first night of their reconciliation, however, and for several days thereafter, S.D. was forced to engage in nonconsensual sex. S.D. testified that M.J.R. always told her, “this is according to our religion. You are my wife, I c[an] do anything to you. The woman, she should submit and do anything I ask her to do.”

S.D. filed for a restraining order and criminal charges were brought against M.J.R. At the hearing the couple’s imam, in response to the judge’s questions, testified that under Islamic law, “a wife must comply with her husband's sexual demands, because the husband is prohibited from obtaining sexual satisfaction elsewhere. However, a husband was forbidden to approach his wife ‘like any animal.’ The Imam did not definitively answer whether, under Islamic law, a husband must stop his advances if his wife said ‘no.’”

The trial judge ruled that criminal restraint, sexual assault and criminal sexual contact were not established under New Jersey’s domestic violence laws because the husband lacked criminal intent. Criminal intent was absent, the judge ruled, because M.J.R. “was operating under his [Muslim] belief that it is, as the husband, his desire to have sex when and whether he wanted to, was something that was consistent with his practices and it was something that was not prohibited.” Because of the husband’s religious beliefs, therefore, the judge “found that defendant did not act with a criminal intent when he repeatedly insisted upon intercourse, despite plaintiff's contrary wishes.”

In this “clash” between religious custom and law, the trial court, twenty years after Smith was decided, favored the husband’s religious freedom over the wife’s legal rights not to be raped or assaulted under criminal law. The judge also denied the request for a temporary restraining order, commenting that November was a “‘bad patch’ in the parties' marriage and plaintiff's injuries were ‘not severe.’”

Fortunately, the law of free exercise is Smith, and an appellate court reversed that ruling. According to the appeals court, criminal intent is established under the domestic violence statutes by “knowing” conduct. “Defendant's conduct in engaging in nonconsensual sexual intercourse was unquestionably knowing, regardless of his view that his religion permitted him to act as he did.”

Women in Religious Institutions Lack Employment Rights

2010-10-11T21:12:00.000-05:00

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?

2010-10-03T09:45:00.000-05:00

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

2010-10-03T09:26:00.000-05:00

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

2010-09-26T19:10:00.000-05:00

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?

2010-09-19T14:11:00.000-05:00

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

2010-09-19T13:16:00.000-05:00

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

2010-09-12T13:51:00.001-05:00

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

2010-09-02T13:20:00.000-05:00

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

2010-09-02T12:52:00.000-05:00

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

2010-08-31T15:09:00.000-05:00

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

2010-08-11T09:39:00.003-05:00

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.

One of the criticized aspects of the decision was one of the judge's findings of fact, #77, Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians. Was it appropriate for the judge to comment about religious beliefs, which enjoy absolute First Amendment protection? Yes, for two reasons.

First, the opinion made clear that religious beliefs about marriage enjoy constitutional protection. The law does not require any religious groups to recognize gay marriages. Religions enjoy the freedom not to be forced to perform gay marriages and to teach their members that homosexuality is sinful. Nothing in Judge Walker's opinion undermines that freedom of religion.

Second, the religious beliefs had to be mentioned because those beliefs were the only basis for Proposition 8 and so demanded analysis. The religion-based argument continued even after Judge Walker's opinion was issued, showing that the proponents do not understand the need for a secular purpose in the law. In critical response to the ruling, for example, the Catholic Cardinal Archbishop of Los Angeles blogged that Judge Walker had missed the one fundamental issue involved in Proposition 8: is marriage of divine or of human origin? According to the Cardinal: Judge Walker assumes that the institution of marriage is of human and civil origin, and therefore, that "marriage" can mean anything any person wishes to ascribe to the institution. Wrong. The union of a man and of a woman in a life-long loving and caring relationship is of divine origin. No human nor civil power can decree or declare otherwise. Judge Walker needed to explain--and did explain--that such religious beliefs harm gays and lesbians by keeping them from the civil rights to due process and equal protection. He was not attacking religious beliefs. He was cogently explaining why they cannot be the basis of civil law. Religious beliefs are not a reason for the state to deprive persons of due process and equal protection.

The state must act with a secular purpose, and its job is not to enforce the religious beliefs of one group of Americans on another group of Americans. The simple sentences at the beginning of the opinion are central to the protection of civil rights.

A Woman's Letter to President Obama

2010-08-10T21:32:00.001-05:00

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?

2010-08-10T21:09:00.000-05:00

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

2010-08-09T21:54:00.000-05:00

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

2010-07-15T20:29:00.000-05:00

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

2010-07-02T15:45:00.000-05:00

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

2010-07-02T13:23:00.001-05:00

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.

Hearings for Supreme Court Justices

2010-07-02T12:47:00.000-05:00

Some interesting findings from Professors Lori A. Ringhand and Paul M. Collins Jr. about Senate Judiciary Committee Hearings of Supreme Court Nominees, 1939-2009:

Senators have engaged minority and female nominees in more substantive questioning than white male nominees.

Senators pressed minority and female nominees much more heavily with regard to their judicial philosophies. As such, it is evident that senators are particularly interested in grilling female and minority nominees regarding their approaches to constitutional interpretation.

Minority nominees were interrogated with respect to criminal justice issues substantially more often than white nominees.

While minority nominees received fewer questions involving court administration and access to courts than did white nominees, female nominees were at the receiving end of more court administration and standing questions than male nominees.

Texas Republicans Oppose Sodomy, U.S. Constitution

2010-07-02T12:28:00.000-05:00

The Texas Republican Party Platform has called for sodomy to become illegal: We oppose the legalization of sodomy. We demand that Congress exercise its authority granted by the U.S. Constitution to withhold jurisdiction from the federal courts from cases involving sodomy.

I guess the Texas Republicans haven't read Lawrence v. Texas, the Supreme Court's 2003 decision invalidating a Texas sodomy law. According to the Texas statute struck down in Lawrence, “A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex.” The statute defines “[d]eviate sexual intercourse” as follows: “(A) any contact between any part of the genitals of one person and the mouth or anus of another person; of “(B) the penetration of the genitals or the anus of another person with an object.”

Justice Anthony Kennedy's important opinion in Lawrence explained that adults enjoy a Fourteenth Amendment Due Process right to engage in intimate sexual relations that was violated by the statute and Lawrence's arrest. Many lawyers had argued that the statute should be invalidated on Equal Protection grounds because it prohibited same-sex, but not different-sex, sodomy. Kennedy, however, warned that were we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants. Then Justice Kennedy explained that the Constitution protects same-sex and different-sex sexual intimacy from government intrusion:

The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.

The Texas Republicans should be more sympathetic to Lawrence, because any anti-sodomy agenda violates one of the Party's core principles -- Limiting the expanse of Government Power--and suggests that the commitment to limited governmental power is not authentic.

In a concurring opinion in Lawrence, Justice Sandra Day O'Connor invalidated the statute on Equal Protection grounds, arguing that Kennedy's broad Due Process holding was unnecessary. Whether a sodomy law that is neutral both in effect and application, she wrote, would violate the substantive component of the Due Process Clause is an issue that need not be decided today. I am confident, however, that so long as the Equal Protection Clause requires a sodomy law to apply equally to the private consensual conduct of homosexuals and heterosexuals alike, such a law would not long stand in our democratic society. I am confident that the people of Texas will be more protective of individual privacy from government intrusion than the Republican Party of Texas.

Hastings and Non-Discrimination Survive

2010-06-28T11:26:00.000-05:00

Despite her husband's death yesterday, Justice Ruth Bader Ginsburg was at the Supreme Court today to announce the decision in Christian Legal Society v. Martinez, the Hastings Law School case in which a Christian student group sought official recognition while denying membership to gay students. Hastings, however, had an all-comers policy that required official student groups to accept all students who wanted to be members. Consistent with her long career defending civil rights and equality, Ginsburg ruled for the law school.

Ginsburg posed the legal question narrowly--May a public law school condition its official recognition of a student group—and the attendant use of school funds and facilities—on the organization’s agreement to open eligibility for membership and leadership to all students?--and answered it yes. In First Amendment terminology, Hastings' policy was a reasonable, viewpoint-neutral condition on access to the student-organization forum. In common-sense language, the Constitution does not require the law school to fund student groups that discriminate against gays in the name of religious freedom. Ginsburg was direct in identifying what the case is really about: CLS, it bears emphasis, seeks not parity with other organizations, but a preferential exemption from Hastings' policy.

CLS remains free, as it always was, to define its membership by excluding gays, non-Christians, and advocates of homosexuality as a student group without official recognition. A free society must tolerate such groups. It need not subsidize them, give them its official imprimatur, or grant them equal access to law school facilities, reminded Justice John Paul Stevens' concurrence.

A factual issue awaits possible future resolution in the district court. Although CLS stipulated to Hastings' all-comers policy before the litigation, on appeal it argued--contrary to its own stipulations--that in practice the policy discriminated against religious groups only. Fortunately Justice Ginsburg reject[ed] CLS's unseemly attempt to escape from the stipulation. The dissenters did not, and wrote an opinion contrary to the stipulations.

CLS remains free to argue in the district court that the all-comers policy was pretextual. They lost by a 5-4 vote. Will someone ask former Harvard Law School Dean Elena Kagan if she would have voted for the school or the students?

Smith in Danger from Kagan

2010-06-27T10:41:00.000-05:00

On the eve of the confirmation hearings, Religion Clause has posted numerous stories concerning Elena Kagan's record on religion. Melissa Rogers of Brookings argues that Elena Kagan's appointment to the Supreme Court could mark the first time a critic of the 1990 Smith decision and its weak reading of the Free Exercise Clause replaces a supporter of that decision. This is good news for Rogers, who wants additional protection for religion, but bad news for defenders of the rule of law. Smith requires churches to follow the laws applicable to everyone else. Religious opponents of Smith pretend that Justice Antonin Scalia, the author of Smith, and Justice Stevens, who joined the opinion, undermined the Free Exercise Clause with their ruling that religious groups must obey the law. What is really happening is that the religious opponents of Smith want special rules for religions--exemptions from the antidiscrimination laws, e.g., or special status in local zonings laws.

According to Rogers, although President Obama admires Justice Stevens, given President Obama’s religious freedom commitments, this is one area where he would be likely to see a break with Stevens as a welcome change. This is the danger posed by Rogers, Obama and now Kagan: they start with their commitment to religion and push that commitment so far that they value religion more than the rule of law. They pretend that this is a defense of religious liberty, but it is really religious tyranny to exempt the country's religious citizens from the law. The Secular Coalition of America has listed all the reasons to be worried about Kagan's nomination. If the Senate were really committed to its constitutional duty, it would ask Kagan if she is ready to defend the Constitution instead of religion.

Ministerial Exception

2010-06-27T10:14:00.000-05:00

The courts have handed religious employers a dangerous exemption from the law. The exemption, known as the ministerial exception, is dangerous because it allows religious employers to avoid their obligations to obey the law and frees them to mistreat their employees. A recent case from Washington State demonstrates the problem. Cesar Rosas and Jesus Alcazar were two Mexican seminarians studying for the priesthood in the Roman Catholic Church. Their church superiors sent them to Washington State to continue their studies for the priesthood. When they got to Seattle, they were hired to do maintenance work at the church. Rosas later sued under Washington's minimum wage act alleging that he worked overtime hours without pay.

If a jury heard the seminarians' case, it could focus on one central question: did the seminarians perform maintenance work without pay? Maintenance work and wages are easy concepts for any jury to understand. The Ninth Circuit Court of Appeals, however, did not allow the case to go to a jury. The court ruled that the church's freedom in choosing its ministers cannot be intruded upon by the courts.

The court's reasoning was too protective of the church. Rosas argued that the district court should not have dismissed the case absent a determination that requiring the Catholic Church to pay Rosas overtime wages would actually burden the Church's beliefs. In other words, if the church believed that paying workers fair wages violated its religious freedom, then there might be a First Amendment problem in holding the church liable. The church, however, has long proclaimed its belief in a just wage for every worker. Rosas also argued that paying the minimum wage is not a religious practice that deserves First Amendment protection.

The court, however, rejected all these arguments on the grounds that courts are not allowed to intrude upon the churches' ministerial decisions. Churches thus remain free to mistreat their employees without legal sanction. In other ministerial exception cases, organists, secretaries and math and language teachers have been held to be ministers who cannot sue their religious employers. The rule has kept disabled employees who are fired for their disabilities, older employes who suffer age discrimination, women who suffer sex discrimination, and African-Americans who face race discrimination from getting their cases before a jury.

A perceived lesson of the sex abuse scandal was that prosecutors and courts had for too many years protected the churches instead of their victims. The courts have not learned the lesson. They continue to protect the freedom of the churches to mistreat their employees and violate the law in the name of the First Amendment.

Jon Stewart Mocks Obama's Prayer

2010-06-18T15:40:00.001-05:00

Watch through to the end!

Mr. President, YOUR hands are supposed to be guiding us.

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Nomad

2010-06-14T16:06:00.000-05:00

Ayaan Hirsi Ali's new book presents a powerful portrayal of how women's equality suffers under Muslim rule and rules. Hirsi Ali travels with personal bodyguards because her life is under constant threat due to her criticism of Islam. Explaining how little Muslim girls are "rendered voiceless"by Islam, she loudly calls for a new alliance of feminists and Christians to combat Islam's opposition to equality.

Among Hirsi Ali's interesting arguments are the following:

It happens here. Honor killings of Muslim girls for perceived sexual misconduct happens in the United States and not only in Muslim countries. So does cutting girls' sexual organs so that their virginity can be assured: Muslim families "will cut off the clitoris and cut the lips of the vagina so that it scars shut, to create a built-in chastity belt."

American Liberals "appear to be more uncomfortable with my condemning the ill treatment of women under Islam than most conservatives are." A wrongheaded multiculturalism has kept American liberals from speaking out against abuses of power by men of color. According to the author, "when well-meaning Westerners, eager to promote respect for minority religions and cultures, ignore practices like forced marriage and confinement in order to 'stop society from stigmatizing Muslims,' they deny countless Muslim girls their right to wrest their freedom from their parents' culture. They fail to live up to the ideals and values of our democratic society, and they harm the very same vulnerable minority whom they seek to protect."

American Feminists receive especially strong criticism for failing to defend the universal value of women's equality. The author says feminists must abandon their "dreary cultural relativism" and recognize that cultures that defend women's rights are superior to those that do not. Hirsi Ali even charges that some American feminists are more concerned about racism than sexism, again emphasizing that men's oppression of women must be criticized in all cultures.

Individual v. Group Rights. The Constitution should protect individual rights, and not be used to give special protection to groups so they can mistreat individuals. "All human beings are equal, but all cultures and religions are not." It is the worst kind of condescension to think immigrant groups deserve lesser legal protection than other groups.

Vive le pope. In a surprise finish the atheist author urges Westerners to join forces with the pope and other Christian leaders to reclaim Western civilization. This "strategic alliance" is necessary to confront the antiegalitarian forces of Islam. Christianity is more "open to criticism" than Islam and should be an ally for enlightenment principles. She concludes: "So long as we atheists and classical liberals have no effective programs of our own to defeat the spread of radical Islam, we should work with enlightened Christians who are willing to devise some. We should bury the hatchet, rearrange our priorities, and fight together against a much more dangerous common enemy.

It is hard for me to believe that Pope Benedict will be much help in defending women's rights. But there is a shrewd point in thinking that it is better to put Christianity at feminism's service than to let Christians and Muslims join to defeat women's rights.

Elena Kagan's RFRA Memo

2010-06-14T14:28:00.000-05:00

Elena Kagan criticized a California Supreme Court decision in a memo she wrote as a White House lawyer during the Clinton administration. The case involved a landlord who refused to rent her rental units in two duplexes to unmarried couples because she was religiously opposed to extramarital sex. The owner, Evelyn Smith, did not live on the property. The units were operated exclusively for business and commercial purposes, with income generated from the rentals reported as business income. The California Supreme Court ruled that Evelyn Smith was required to abide by the fair housing laws, which prohibit discrimination against unmarried couples.

The court first held that the First Amendment did not require a religious exemption for Smith from the fair housing laws. Relying on a famous U.S. Supreme Court opinion also named Smith, the California court ruled that Evelyn Smith was obligated to comply with valid and neutral laws of general applicability such as the housing discrimination laws.

The court also dismissed Smith's claim under RFRA, the Religious Freedom Restoration Act, which Congress passed to protest the U.S. Supreme Court's Smith decision. RFRA encourages religious exemptions to general laws. RFRA may require an exemption from the law when religion is substantially burdened. The California Supreme Court ruled that the housing law did not substantially burden Smith's religion because: Smith's religion does not require her to rent apartments, nor is investment in rental units the only available income-producing use of her capital. Thus, she can avoid the burden on her religious exercise without violating her beliefs or threatening her livelihood.

Kagan was offended by the court's reasoning and disappointed that the Solicitor General's office was not filing a brief on behalf of Evelyn Smith to overturn the California ruling. The court's reasoning seems to me quite outrageous, she wrote, almost as if a court were to hold that a state law does not impose a substantial burden on religion because the complainant is free to move to another state. Taken seriously, this kind of reasoning could strip RFRA of any real meaning.

Taken seriously, Kagan's memo sends the disturbing message that she favors religion over the antidiscrimination laws. As federal Smith explained, a nation of laws needs religious believers to follow the laws as other citizens do. Equality cannot hold if religious citizens are free to discriminate in housing or hiring. Will Justice Kagan rule that religious organizations may receive federal funding even if they discriminate in hiring, an issue that will eventually get to the Supreme Court?

Kagan also missed the real legal issue involved with RFRA; the Supreme Court later declared RFRA unconstitutional as applied to state governments like California. Unfortunately she was too focused on religion to pay attention to the law.

Worse Courts Now

2010-06-07T16:45:00.000-05:00

An organization called Better Courts Now is seeking to unseat four San Diego judges and replace them with a religious slate of Christian judges. They view the current judges as ungodly and unbiblical. The group includes some of the same people who backed Proposition 8, the California initiative that took away the right of marriage from gay couples. According to one spokesman, "if we can take our judiciary, we can take our legislature and our executive branch."
Vote no on judges, legislators and executives who base their official decisions on their religion.

No Establishment Clause Violation in Summum

2010-06-07T16:22:00.000-05:00

The Utah district court ruled that there was no Establishment Clause violation in Pleasant Grove City's decision denying the Summum Religion's request to display its Seven Aphorisms monument alongside the Ten Commandments. Summum had already lost its free speech case in the U.S. Supreme Court on the grounds that the commandments were government speech. Under free speech law, the government was free to control its message and did not have to accept alternative monuments. Because the Supreme Court did not address whether it violates the Establishment Clause for the government to promote the Ten Commandments over the Seven Aphorisms, however, the district court had the opportunity to address the issue.

The district court order's does not withstand critical scrutiny. The court claimed that Summum never explained its religious views when it asked that its monument be displayed alongside the Ten Commandments. The court also decided to believe the city officials who testified that they were completely ignorant of Summum’s religious tenets, teachings, beliefs or practices when they refused the display, and to credit the mayor's testimony that the Ten Commandments monument was installed to remind citizens of their pioneer heritage in the founding of the state. In other words, the court concluded, the Ten Commandments are displayed for historical and not religious reasons. The court also ruled that the City complied with its own policy in rejecting Summum's display--even though that policy was written in response to Summum's request, as a way of keeping the Seven Aphorisms from being displayed.

So, according to the court, no one in Utah knew that Summum was a religion, Utah was founded on the Ten Commandments (instead of, e.g., the Book of Mormon), and the Ten Commandments are not religious.

Really?

Snyder v Phelps

2010-06-07T14:20:00.002-05:00

The case of Snyder v. Phelps offers an array of legal issues in search of clearer legal standards. The original lawsuit by plaintiff Albert Snyder, father of the deceased soldier Matthew Snyder, against defendants Fred W. Phelps, his Westboro Baptist Church, and other church members for their picketing of Matthew’s funeral and their website’s “epic” account of Matthew’s life, pleaded five tort causes of actions under Maryland law for defamation, intrusion upon seclusion, publicity given to private life, intentional infliction of emotional distress and civil conspiracy. The district court dismissed the defamation and publicity claims. The jury found the defendants liable on the other three theories and awarded plaintiff $2.9 million in compensatory damages and $8 million in punitive damages. The district court remitted the punitive damages award to $2.1 million.

On appeal, the Fourth Circuit reversed, ruling that the First Amendment required a judgment for the defendants as a matter of law “[b]ecause the judgment [incorrectly] attaches tort liability to constitutionally protected speech.” Preaching the doctrine of constitutional avoidance, however, a concurrence by Judge Shedd concluded that there was insufficient evidence to establish tort liability under Maryland law. There was no intrusion upon seclusion because the defendants never disrupted the funeral service, confronted the plaintiff, called the websites to his attention or intruded upon Snyder’s privacy in any way. Moreover, Phelps’ conduct was not sufficiently “outrageous” to meet the requirements of the tort of intentional infliction of emotional distress. In Maryland, intentional infliction of emotional distress requires the element of extreme and outrageous conduct. Despite the jury’s finding for Snyder on this tort, Judge Shedd concluded that Phelps’ conduct in protesting the funeral “simply does not satisfy the heavy burden required for the tort of intentional infliction of emotional distress under Maryland law.” Because the defendants had not raised the sufficiency of the evidence claims in their appeal, however, the other judges rejected Shedd’s reasoning, held the appellants had waived the evidence argument, and decided the case on First Amendment grounds.

Snyder’s petition for a writ of certiorari presented three questions for the Supreme Court to decide:

1. Does Hustler Magazine, Inc. v. Falwell apply to a private person versus another private person concerning a private matter?

2. Does the First Amendment's freedom of speech tenet trump the First Amendment's freedom of religion and peaceful assembly?

3. Does an individual attending a family member's funeral constitute a captive audience who is entitled to state protection from unwanted communication?

The three questions presented and the underlying opinions suggest that the case is about religion, tort law and free speech. Snyder v. Phelps concerns tort law and free speech, and offers the Court an opportunity to clarify the constitutional law of defamation and privacy lawsuits involving speech. But it should not be a case about religion.

Question 2 forces us to consider what role religion played in the case and to conclude that religion should be irrelevant to the outcome of Snyder v. Phelps. The district judge rejected defendants’ argument that their conduct could not be subjected to tort liability because the Free Exercise Clause of the First Amendment protects their religion from the jury’s review. The court relied upon the traditional First Amendment doctrine that although the freedom to believe is absolute, the government may regulate religious conduct. Because “this case involves balancing [religious freedom] rights with the rights of other private citizens to avoid being verbally assaulted by outrageous speech and comment during a time of bereavement,” the court rejected a Free Exercise defense.

The defendants reasserted their religious freedom argument in their appeal to the Fourth Circuit, arguing that [t]his case punished defendants' religious belief that they are prophets and God’s elect; their belief in God's hate; and their belief in the doctrines of reprobation, election and predestination. The jury should not have had the opportunity to put the official governmental stamp of disapproval on defendants' religious beliefs. The Fourth Circuit, however, did not address the religious freedom argument, dismissing the case instead under the First Amendment’s Free Speech Clause.

In rejecting defendants’ free exercise defense, the district court quoted Justice Antonin Scalia’s opinion in the leading Free Exercise decision, Employment Division of Oregon v. Smith: We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition.

The district court’s conclusion is unassailable. The case is a reminder of the importance of Smith. The Westboro Baptist Church should be treated like all other picketers. Matthew Snyder’s funeral at a Catholic Church should be treated like all other funerals. Tort law should not be skewed for or against religious plaintiffs and defendants. “Laws . . . are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. . . . Can [Snyder or Phelps] excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

Snyder v. Phelps involves tort law and free speech. Unfortunately, the district court repeatedly referred to defendants’ “religious opinion” in deciding the free speech issues. The word “religious” should be deleted and ignored. The outcome depends purely upon how constitutional free speech rights affect state tort law.

Within the next two weeks Cardozo Law Review will publish essays by me and other First Amendment scholars about how the speech issues in the case should be resolved. For now it is important to insist that the case should not involve any special rights for religions.

Lost Pensions, Lost Faith

2010-05-27T16:54:00.001-05:00

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.

According to NPR, Church plans are exempt because that's the way churches wanted it. Back in the 1970s and 1980s when this was being worked out, religious organizations that offered pensions took the position that they didn't need to be regulated. The groups had always done a good job of paying people what they were owed and they wanted to avoid the additional cost and burden of federal oversight. Plus there was the issue of separation of church and state.

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

2010-05-27T16:17:00.000-05:00

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

2010-05-27T15:22:00.001-05:00

   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

2010-05-27T14:55:00.000-05:00

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.

According to Professor and Dean Shuly Rubin Schwartz, "In terms of timing, this was the period when young women coming of age, who had those kinds of expectations for equality and taking leadership positions in the secular world, began to question: Why can't I do this in the Jewish world?....What is unusual is that [Kagan] asked it in an Orthodox institution where that was an unheard-of question at that point."

As a law clerk to Justice Thurgood Marshall, Kagan wrote a memo suggesting that government funding through the Adolescent Family Life Act for faith-based social service organizations to discourage teen pregnancy was improper because inevitably religious teaching would be injected into the organizations' social services. She denounced that memo as the dumbest thing I've ever read during her confirmation hearings as Solicitor General.

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

In Memoriam: Chaplain Kim McElaney

2010-05-21T15:57:00.000-05:00

Katherine (Kim) McElaney, who was one of the first women to graduate (in 1976) from the College of the Holy Cross in Worcester, Massachusetts, later returned to her alma mater as a college chaplain. McElaney became the first woman and first layperson to direct the Office of College Chaplains at Holy Cross, where she served for 25 years until her untimely death from cancer on May 3. According to the Boston Globe, many were drawn to Ms. McElaney because she made the campus more welcoming to everyone, including gay and lesbian students and those feminists who found themselves at odds with the Catholic Church. "Her vision for the Catholic Church was profoundly inclusive, ... She showed us what we could offer in lay ministry. What she accomplished is extraordinary."

When the Globe interviewed her in 1992 about her appointment to lead the chaplains' office, McElaney explained: "To refuse ordination to half of the human race is to deny their equality and also to deny their full participation in the life of the church, ... Men and women are fully equal in every sense."

May she rest in peace.

The Missing Buddhists

2010-05-02T18:31:00.000-05:00

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.

Belief or Status?

2010-04-25T20:46:00.004-05:00

We have to hope that the Supreme Court, led by Justice Anthony Kennedy, will reject Michael McConnell's oral argument on behalf of his client, the Christian Legal Society. Christian Legal Society believes that it is entitled to be a recognized student group at Hastings Law School even though it refuses to accept Hastings' "all-comers" policy that all official student organizations must be open to all students. Christian Legal Society refuses to admit students who practice a homosexual lifestyle because that lifestyle violates their Christian beliefs.

It is shrewd for McConnell to argue that CLS v. Martinez is a case about belief, because the Supreme Court has held that religious belief enjoys absolute protection. If the case is about belief, then CLS can do absolutely what it wants to. The Supreme Court has always held, however, that religious conduct is not absolutely protected. Therefore a religionist is absolutely free to believe he should sacrifice virgins to an angry god but not actually to sacrifice them. I think the Court should rule that discrimination against gays is not protected free exercise or free speech and rule for Hastings Law School.

In the oral argument at the Court, however, the wording turned on belief and status. McConnell argued that the all-comers policy is wrong because it violates all student groups' beliefs. Thus the Republicans' beliefs are violated if they have to admit Democrats and the Democrats' beliefs are violated if they have to admit Republicans. But what if the Republicans don't want to admit African-American students, and the Democrats don't want to admit women?

McConnell says that such exclusion of African-Americans (and presumably women) is prohibited because that decision to exclude is based on status, not belief. McConnell concludes that a policy that prohibits exclusion on the basis of status is constitutional, but one that excludes on the basis of belief is not. His group, then, is not like the group that excludes African-American students or women, because CLS's action is based on belief.

That argument must be rejected. CLS is no different from the group that excludes African-Americans and women because they believe African-Americans and women are inferior. McConnell's definition of belief would force Hastings to recognize and fund all groups that believe it is right to discriminate. His argument undermines all antidiscrimination laws.

CLS is already free to meet at Hastings. In the lawsuit, it seeks Hastings' official recognition for its beliefs. Justice Anthony Kennedy wisely told McConnell: Your argument at its most fundamental level is that religious organizations are different because religion is all about belief. But at that point don't we also have a tradition of separation? That's the whole reason why church and state for many purposes are kept separate, so that States are not implicated with religious beliefs. McConnell responded that CLS was perfectly private and would be perceived as such even as an official Hastings group.

That is a ridiculous argument in this context. Right now, as a perfectly private group, CLS is free to associate at UCHastings. What it seeks is government support for its absolute beliefs to discriminate against homosexuals. A court ruling for Hastings would open the door to government support for unlimited religious discrimination.

I hope that Justice Kennedy holds on to his insights about the tradition of separation and refuses to provide a fifth vote to sanction religious discrimination masquerading as constitutionally protected religious belief. Twice before he has recognized the evils of antigay discrimination and struck down laws based on animus toward homosexuals. This time he will have to vote that religious bias against gays is no more defensible than any other discrimination.

National Prayer Day

2010-04-25T17:21:00.000-05:00

Billy Graham's son Franklin Graham was disinvited from the Army's celebration of the National Day of Prayer. The reason given is that Graham has described Islam as evil and offensive. He wants Muslims to know that Jesus Christ has died for their sins. Prayer day sponsors hope to find a more inclusive speaker.

Franklin Graham is not known for his inclusive prayers, so it is surprising he was invited in the first place. At George W. Bush's 2001 inauguration, Graham prayed in the name of the Lord Jesus Christ, even though the presidential inauguration should be an event uniting all Americans, and, of course, all Americans are not Christian. Last year, Steven Waldman posted an excellent essay explaining that as the country has become more diverse, the inaugural prayers have become less inclusive and more Protestant in content.

That is the problem with government-sponsored prayer. Prayer is by definition exclusive, not inclusive. Muslims have their prayers (but not to Jesus Christ) and Protestant Christians have theirs (but not to Allah). There is no common prayer that can unite all the nation's believers and nonbelievers. That is why Americans are free to pray in their mosques and churches, where they can practice their own particular faiths without having to worry about including non-members.

The government should not be in the business of inviting or disinviting Franklin Graham to pray. The Army is mistaken to think it must just search harder for a more inclusive prayer. Prayer is never inclusive of all Americans.

Confirm Goodwin Liu

2010-04-24T14:32:00.002-05:00

Goodwin Liu, the brilliant Berkeley law professor, has been nominated by President Obama to become a judge on the Ninth Circuit Court of Appeals. Among his numerous writings, Liu is co-author of a book called Keeping Faith With the Constitution. The book was published by the American Constitution Society, an organization that was formed to counter the influence of the Federalist Society, which was established in 1982 to spread the influence of conservative ideals. The Federalist Society has enjoyed tremendous success in placing its members on the federal courts; Supreme Court Justices John Roberts, Antonin Scalia and Samuel Alito are among its members. Led by Justice Scalia, Federalist judges have proposed the constitutional theory known as originalism and denounced judicial activism by liberal judges.

Liu's book demolishes the conservative theories of constitutional interpretation. As he cogently explains, whether judicial activism is defined as lack of deference to democratic decision-making, failure to adhere to constitutional text or original meaning, lack of deference to judicial precedent, selective provision of access to the courts, or the use of judicial power to achieve partisan objectives (40), the conservative Rehnquist and Roberts Courts are guilty of it. (See, e.g., Bush v. Gore and Citizens United.) Instead of allegiance to the obscure original intent of the Framers, Liu proposes a theory of constitutional fidelity that allows the Constitution to be interpreted in historical context.

At Liu's confirmation hearing, Utah Republican Senator Orrin Hatch mocked Liu's theory of constitutional fidelity, arguing that it sounds more like fidelity to judges and judging rather than the Constitution, and implying that Liu would be a judicial activist. Hatch was especially critical of the idea that constitutional interpretation should be influenced by historical events.

Consider the implications of the two constitutional theories for religion. If originalism is right, then the Religion Clauses protect only those religions known to the Framers and present in the United States at the time of the Constitution's ratification. Justice Scalia suggested as much when he wrote in the Ten Commandments cases that the First Amendment allows the states to disregard polytheists, believers in unconcerned deities, and atheists. Justice Scalia's interpretation appears to put the Asian religions outside the scope of constitutional protection, either because they are not monotheistic or because Asians were not present in sufficient numbers in the original United States to come within the constitutional text. In contrast, although Professor Liu does not write about the Religion Clauses, his theory of fidelity to the First Amendment allows the Clauses to protect all Americans, as they should, and as most Supreme Court decisions have held.
Liu's book does point out that originalism cannot protect women's equality, as neither the Framers of the Constitution nor the Fourteenth Amendment had any commitment to women's equality.

I have no idea what Professor Liu's religion is, if any, but at his confirmation hearings he spoke movingly of his Taiwanese parents, who encouraged their son to get the best education possible after they immigrated to the United States, as well as of his mentor Robert Matsui, the Japanese-American Representative from Northern California, who was interned as a baby during World War II, along with all the Japanese-Americans whose fidelity to the Constitution was questioned after the attacks on Pearl Harbor.

Liu is under attack for espousing a theory of constitutional interpretation that allows the Constitution to include all Americans. He deserves immediate confirmation instead of repeated suggestions by the Senate that he is unfit to be a federal judge.

Obama Flouts Court Decision

2010-04-18T15:11:00.000-05:00

A federal district court judge ruled last week in Freedom From Religion Foundation v. Obama that the statute creating the National Day of Prayer is unconstitutional. The statute passed in 1952 in response to a campaign by evangelist Billy Graham to return the nation to faith in Almighty God. Although the legislators called on Catholics, Jews, and Protestants to participate in the prayers, Graham's clear interest was in returning the nation to Jesus Christ. The statute is unconstitutional, the court concluded, because its sole purpose is to encourage all citizens to engage in prayer, an inherently religious exercise that serves no secular function in this context. In this instance, the government has taken sides on a matter that must be left to individual conscience.

The judge was right; under the Establishment Clause, the government should not promote, encourage or endorse religion or religious practice. Prayer is the quintessential religious practice. Federal legislation promoting a day of prayer sends a message to non-believers that they are outsiders, less than full members of the political community, while the religious insiders are favored. The government is not supposed to favor religion over irreligion but remain neutral.

Anticipating the inevitable political fallout from her legal decision, Judge Barbara Crabb's opinion also observed that individuals remain free to pray. Indeed, it is in order to promote individual religion that the Establishment Clause protects citizens against the government's preferring or encouraging religion.

The White House immediately announced that the president would ignore the ruling, proclaim a National Day of Prayer on the first Thursday in May, as the statute requires, and call upon the nation to pray. Thus the president confirms, as his prior practices and speeches predicted, that he is a champion of his own religion rather than religious freedom, a Defender of the Faith rather than the Constitution.

Judge Crabb's decision documented the exclusionary nature of the Day of Prayer in exquisite detail:

• In 2008, a national Jewish organization complained that the National Day of

Prayer has been “hijacked by Christian conservatives,” who are “excluding and

dividing us on religious lines. Dkt. #93-43;

• In Plano, Texas, a multicultural group and a group of Christians held “dueling

prayer services” on the National Day of Prayer after fighting over the right to

hold their events at the city council building and threatening to file a lawsuit.

Theodore Kim, “After threat of suit, city steps aside in prayer,” Dallas

Morning News, May 2, 2008, at 16B;

• In San Antonio, Texas, a local resident threatened to file a lawsuit over the

mayor’s involvement in National Day of Prayer events. “Day of Prayer

Lawsuit Dropped,” San Antonio Express-News, November 29, 2008, at 5B;

• In Richmond, Virginia, a Jewish organization criticized a National Day of

Prayer event attended by various state officials at the state capitol because the

event’s sponsor excluded non-Christians. Robin Farmer, “Diverse gathering

marks day of prayer: Christian-oriented event leaves some feeling excluded,”

Richmond Times Dispatch, May 2, 2008, at B1;

• In Anniston, Alabama, a church pastor complained that the National Day of

Prayer has been "hijacked by evangelical Christians" because the National Day

of Prayer Task Force has “establish[ed] a policy of excluding not only those of

other faiths but also moderate and mainline Christians." Brett Buckner, “A

Nation Divided?” The Anniston Star, May 1, 2008;

• In Bakersfield California, a Christian group created controversy when its

coordinator stated that “[t]he National Day of Prayer is actually all about the

Lord. So we're representing the Christian community.” A local rabbi stated

that "I think the National Day of Prayer, if it was ever inclusive—which I'm

not sure it ever was entirely—has morphed into something else." Louis

Medina, “Day of Prayer spawns Christian event that some call divisive,” The

Bakersfield Californian, May 1, 2008;

• In Buffalo, New York, Jewish and Muslim groups complained that the local

National Day of Prayer events are “more about politics than prayer” and that

the day is more accurately called the “Christian National Day of Prayer.” Jay

Tokasz, “Prayer Day events spur complaints of co-option by evangelicals,” The

Buffalo News, May 1, 2008;

• In Memphis, Tennessee, local groups complained that the National Day of

Prayer “mak[es] members of minority religions feel that unless they adhere to

Christianity they are unpatriotic” and that "[p]eople of minority faiths are

very alarmed by” the exclusively Christian nature of the events. Lindsay

Melvin, “National Day of Prayer is controversial—Some find it divisive and

unconstitutional,” Memphis Commercial Appeal, May 1, 2008;

• In Victorville, California, local residents complained that "Hindus, Buddhists,

Muslims and Sikhs are being excluded” from the National Day of Prayer event

at the town hall. The organizer responded, “this entire nation was founded on

Christian faith. The reason we are a great county is because we're Christian.

In the Muslim countries, you can get shot if you're Christian." Brooke

Edwards, “Faiths clash over Day of Prayer,” Daily Press, April 27, 2008;

• In Springfield, Illinois, organizers of a National Day of Prayer event at the

state capitol were criticized after saying that event is "only about Jesus and

Jesus the Savior alone"; they had “no problem having [members of other religions]

participate, though not in speaking roles.” Steven Spearie,

“National Day of Prayer returns to Capitol,” Springfield State-Journal

• In Troy, Michigan, a Christian group and an interfaith group fought over

access to city hall to hold an event on the National Day of Prayer, both sides

threatening law suits. When the mayor announced that she would attend the

interfaith event, she was accused of promoting “witches and Satanists.” An

effort to recall the mayor was started later. “Troy prayer day stirs recall

effort,” Detroit News, May 23, 2005, at B1; “Day of Prayer splits Troy,”

Detroit News, May 4, 2005, at K15;

• In 2004, religious leaders and nonprofit groups accused the “White House of

using prayer for political purposes” after the President broadcast National Day

of Prayer remarks “over several Christian and television and radio networks

as part of an evangelical concert.” Dkt. #93-39;

• In Salt Lake City, Utah, Mormons were excluded from National Day of Prayer

of events because they are not “in accordance with the evangelical principles

[of] the task force,” including a belief in the “Holy Trinity” and that the Bible

is the “only written word of God.” Travis Reed, Associated Press, May 4,

2004;

• In Muncie, Indiana, the organizer of National Day of Prayer event denied

requests to speak by Unitarian, Muslim and Jewish leaders, “sharply

divid[ing]” city residents. Stephanie Simon, “Dispatch from Muncie,

Indiana,” Los Angeles Times, May 1, 2003;

• A federal judge ruled that a school district violated the establishment clause

by sponsoring National Day of Prayer events. Doe v. Wilson County School

System, 564 F. Supp. 2d 766, 801-02 (M.D. Tenn. 2008);

Nonetheless, the White House stands with the intolerant majority.

The Constitution protects individuals against the tyranny of the majority. It is time for the president to end the tyranny of the religious majority and to enforce the courts' constitutional rulings. That is the best way for the government to promote the freedom of the individual's conscience.

Discrimination Masquerades as Free Speech

2010-04-11T15:57:00.000-05:00

Christian Legal Society bars gay and lesbian students from becoming members or officers because it regards unrepentant participation in or advocacy of a sexually immoral lifestyle as inconsistent with affirmation of the CLS statement of faith. CLS's members at UC Hastings College of the Law are free to discuss their biblically-based opposition to homosexuality and to use the school's facilities for their group meetings. Their discussions and their meetings enjoy protection under the free speech and freedom of association rights of the First Amendment.

Unfortunately, CLS now has a free speech case before the Supreme Court that is not about free speech. CLS applied to become a recognized student organization [RSO] at Hastings law school in San Francisco. RSOs are allowed to use the Hastings name and logo, can send mass e-mails through the school's e-mail system, receive a listing on the Office of Student Services' website, and use the Student Information center to distribute their information.

Hastings has a nondiscrimination policy for all RSOs that prohibits discrimination on the basis of sexual orientation. When CLS refused to comply with that policy, Hastings denied the organization RSO status. As noted above, unrecognized organizations can use school facilities and generally available bulletin boards. In other words, CLS still enjoys the right to speak about its discriminatory beliefs and practices.

Hastings' policy is appropriate under both California and federal law. The U.S. Constitution protects a right to sexual privacy for gays and lesbians. Racially discriminatory schools can lose their tax-exempt status, even if religion is the basis for their discrimination, without violating the First Amendment. Discriminating in membership on the basis of race or sexual orientation, moreover, is conduct, not speech. The government should not be required to give benefits to groups that refuse to comply with antidiscrimination laws.

Nonetheless, CLS is arguing that its free speech rights were violated when it was denied access to the public forum created by the university. The Christian Right has won numerous religion cases in the Supreme Court by recharacterizing them as free speech cases. There is a good possibility that the Court will back CLS and find its free speech rights were violated. In other words, we have to worry that the Court will favor one religion's view of homosexuality over the neutral antidiscrimination laws.

Most of the briefs filed in the case engage in a free speech analysis. This is a mistake. As the district court ruled, this is not a case about speech. It is a case about the antidiscrimination laws. The government's responsibility is to enforce the antidiscrimination laws in every context. CLS is free to complain about those laws all it wants. But it is not entitled to government approval of its discrimination. The Free Speech Clause should not be interpreted to permit discrimination by student organizations. Discrimination is conduct, not speech.

A Law Unto Himself

2010-04-11T14:51:00.000-05:00

The Supreme Court decided a very important and controversial Free Exercise of religion case in 1990, Employment Division, Department of Human Resources of Oregon v. Smith. Justice Antonin Scalia explained that religious believers are not automatically exempt from state and federal laws, but must, like everybody else, obey neutral laws of general applicability. To suggest that the Free Exercise Clause allowed religious believers to disobey the law, wrote Scalia, misinterpreted the First Amendment. Laws, he wrote, are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. . . . Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.

If Smith were taken seriously, churches would be held to the same legal standards as everyone else. In the sexual abuse crisis that has plagued the Roman Catholic Church, for example, criminal law should have imprisoned the abusers as well as the clerics who hid molesters from the law. Tort law should have found the abusers and their employers--including bishops and popes--liable for malpractice, negligent hiring, negligent retention, infliction of emotional distress and fraud. Bankruptcy law should have focused on distributing the church's assets to victims. The church should have been treated no better--or worse--than any other wrongdoer.

Instead the church repeatedly hid behind the First Amendment, citing pre-Smith law to argue that the church was exempt from legal oversight as a matter of religious freedom.

It argued that its communications with errant priests were privileged by Free Exercise and so could not be released to courts of law. It claimed that its confidential communications about clergy were sacred and did not allow reporting crimes to police. It insisted that its hiring and firing decisions about clergy were absolutely protected from court review by the First Amendment. It argued that its assets could not be claimed in bankruptcy proceedings because only the church could decide the disposition of its own property.

Because of Smith, the courts gradually rejected absolute constitutional protection for the churches and allowed the churches to be held accountable in courts of law. Without Smith, the extent of the abuse crisis would still be unknown as the church would have freely exercised a religion of crime and abuse without accountability.

Amazingly, defenders of organized religion have attacked Smith since the day it was decided and achieved great political success in undermining its holding. Congress, and then many states, passed Religious Freedom Restoration Acts in order to keep religious organizations exempt from the law that governs everyone else. Congress also enacted the Religious Land Use and Institutionalized Persons Act, which gives every religious landowner and prisoner the opportunity to challenge the same laws that apply to everyone else. Religious landowners get special exemptions from the zoning laws, for example, that other citizens do not. Despite Smith, moreover, some courts have held that the church, the bishops and the pope cannot be sued because the courts have no authority to review ministerial decisions by the churches.

The trail of documents implicating church officials in decisions to keep abusive priests near vulnerable children has almost reached the pope, who waited six years until taking any action against an Oakland, California priest because he believed the good of the Universal Church had to be considered in any decision to defrock the priest. The law for everyone else, of course, puts priority on protecting children from abusers.

Justice Scalia was right to warn against religious believers who make the professed doctrines of religious belief superior to the law of the land, as the pope and bishops did when they became a law unto themselves in the sex abuse crisis. Now it is time for courts and politicians to take Smith seriously and end the popular practice of exempting religious believers from the laws. Without Smith, there is no hope to build a nation of law.

What Was Ratzinger Doing Instead of Confronting Sex Abuse?

2010-04-04T19:30:00.000-05:00

News reports have questioned the involvement of Pope Benedict XVI (then Cardinal Joseph Ratzinger) in the decision to allow German priest Peter Hullerman to continue working with children for thirty years after the church knew Hullerman had molested boys. The church said the decision to allow the priest to resume his duties in 1980 was made solely by Cardinal Ratzinger's top aide at the time, but church officials also said the future pope was sent a memo about the reassignment. What kept the cardinal so busy that he was inattentive to the abuse details in Germany, and continued unaware of the crisis when he left Germany to take up duties at the Congregation for the Doctrine of the Faith in 1981? Ratzinger was too busy silencing theologians to worry about sex abuse.

As described in John L. Allen, Jr.'s book, The Rise of Benedict XVI, Pope Paul VI named Ratzinger archbishop of Munich and cardinal of the church in 1977. As archbishop, Ratzinger played a minor role in assisting Pope John Paul II to strip two prominent Catholic theologians, Hans Kung of Tubingen and Johann Baptist Metz of Munich, of their university appointments. As a young theologian, Kung had questioned the theory of papal infallibility and been an active proponent of the liberal reforms of the Second Vatican Council. Metz had advocated political theology, which emphasized the need for Christians to participate in the reform of unjust social systems.

In Rome, Ratzinger engineered the removal of the Reverend Charles Curran from his teaching post at the Catholic University of America. Curran had urged the church to allow married couples to use artificial contraception and to permit some forms of committed homosexual relationships. Seattle Archbishop Raymond Hunthausen was reproached for his tolerance of ministry to homosexuals. An especially notorious Ratzinger document defined homosexuality as a tendency ordered toward an intrinsic moral evil.

Sri Lankan theologian Tissa Balasuriya, who had advocated ecumenical dialogue with Eastern religions, was excommunicated. Criticism of interreligious dialogue also led Ratzinger to attack the work of two Jesuit theologians, Jesuit Fr. Jacques Dupuis of Belgium and Fr. Roger Haight of the United States. Undermining the ecumenical spirit of Vatican II, Ratzinger wrote that non-Christians are in a gravely deficient situation compared to Christians.

Ratzinger led the crackdown against Latin American liberation theology, which sought to disconnect the church's hierarchy from the continent's authoritarian regimes and to commit the church to the poor. Ratzinger moved the ban on women's ordination to the infallible category of church teaching. Allen doesn't even tell the additional stories of American nuns marginalized for their attempts to protect women's rights to contraception, sterilization, and abortion.

In short, for over thirty years, Ratzinger attacked and silenced any Catholic who disagreed with his authoritarian vision of the church. Now, his church's moral credibility has disappeared as the world has realized the pope should have spent time listening to the victims of sexual abuse instead of silencing the proponents of rights within the church.

My Letter to the NYT

2010-04-04T19:25:00.000-05:00

You can read my commentary on the Times' coverage of the abuse crisis here.

It's the Women's Rights, Stupid

2010-03-27T10:14:00.000-05:00

   For some 26 years now, since New York's Cardinal John O'Connor launched a vigorous attack on Geraldine Ferraro's pro-choice stance when she was the Democratic vice presidential candidate in 1984, commentators on Catholic politics have debated the reason for the church's intense political focus on the single issue of abortion. The church, after all, in theory supports a more extensive list of human rights than most contemporary religions and philosophies. The list includes the right to life, food, clothing, shelter, medical care, and the necessary social services for old age and disability. The human person also enjoys a right to religious freedom, to freedom of speech and publication, to marry and raise a family, to earn a just wage, to join a union, and to immigrate and emigrate. The church has long advocated a theory of just war, which restricts not only the wars in which Catholics may fight but the military means that may be employed in any war.
   Nonetheless, communion is denied to Catholic politicians only for their support of abortion rights, and, very occasionally, euthanasia and same-sex marriage.
   The abortion priority was confirmed by the American Catholic bishops' recent decision to oppose health care legislation because it did not adequately limit federal abortion funding. Because the bill already restricted government funding of abortion, it became clear that the bishops' goal was to restrict as much abortion as possible by making it more difficult for women to attain any insurance coverage for abortion, even that paid for with their own money. The bishops abandoned their longstanding commitment to a universal right to health care in favor of abortion limitations. The bishops were very, very, very engaged in drafting Rep. Bart Stupak's anti-abortion legislation. They worked with Stupak's staff. Stupak consulted the bishops to make sure they were on the same page and knew what he was doing. The bishops were really engaged in this battle in a way that is unprecedented in recent history.
   Why would the bishops ignore health care, just wages and aid to the poor during an economic downturn; tolerate presidential policies about just war, torture and detention of enemy combatants; and abandon immigration reform and other issues connected to Catholic social teaching in exchange for a single-minded focus on abortion? Allegedly the bishops emphasize abortion because they see themselves as crusaders for human rights--protectors of the innocent, the voiceless, and the powerless.
   The historical record belies that thesis. In 1985, the Rev. Thomas Doyle alerted the bishops to the overwhelming scope of the sexual abuse crisis. Doyle was fired and ignored, as were the innocent, the voiceless, the powerless and the deaf victims of sexual abuse around the world. The church, including the current pope, repeatedly protected the priests' rights at the expense of innocent children.
   It would be foolish to conclude that the same hierarchy has targeted abortion at the expense of all other human rights because of its concern about fetal life. The real battle is about women's equality, which the church opposed before and since its 1984 attacks on Geraldine Ferraro. That American legislators cooperated with the church to limit women's rights is yet another offensive chapter in a decades-long saga of abuse of the legal system.

Deaf to Civil Justice

2010-03-27T08:31:00.000-05:00

   We learned this week that a Vatican office led by Cardinal Joseph Ratzinger, now Pope Benedict XVI, refused to defrock a Wisconsin priest who molested 200 deaf boys. The information became available due to correspondence unearthed in a lawsuit by the abuse victims against the Archdiocese of Milwaukee.  Although some of the students at St. John's School for the Deaf in St. Francis, Wisconsin, had reported their abuse at the hands of Father Lawrence Murphy to church authorities for years, beginning in 1966, their pleas for justice were ignored by church officials and local prosecutors. Instead, the pope honored Father Murphy's request to live out the time that I have left in the dignity of my priesthood, while local church officials did nothing to stop the abuse at St. John's.
   Throughout the sexual abuse scandal, the Catholic Church has fought the jurisdiction of the civil and criminal courts, arguing that its own tribunals are better suited to handle the problem and that its internal documents--such as the correspondence discovered in the Wisconsin lawsuit--are protected by the First Amendment. Indeed, in January the new Archbishop of Milwaukee, Jerome Listecki, testified against proposed legislation in the Wisconsin Senate that would have expanded the statute of limitations for abuse victims to file lawsuits for their injuries.
   Changing the statute of limitations [SOL] extends the deadline for victims to file civil suits against the church and their abusers. Such change is necessary not only because abuse victims frequently do not recognize or confront their abuse until they become adults, but also because the church long sheltered the abusers from criminal and civil authority. SOL reform in California, for example, allowed the state and victims to identify 300 additional perpetrators of sexual abuse whose identities would have remained buried under the old law.
   Litigation has been the only effective means of holding the church accountable and identifying the full range of the church's misconduct. Nonetheless, Archbishop Listecki accused supporters of the Wisconsin SOL legislation of targeting the Catholic Church, threatening to drive it into bankruptcy, and thus undermining its services for the poor. The poor will suffer--make no mistake, argued one Catholic opponent of the SOL legislation. In a similar manner, Pope Benedict's supporters have argued that the new Wisconsin stories are a despicable attempt to smear the pope.
   Once again, the Vatican is deaf to what is despicable. According to Steven Geier, Fr. Murphy said that God wanted him to teach the boy about sex but that he had to keep it quiet because it was under the sacrament of confession. Only the courts can bring the full extent of the abuse out into the open. It is time for Wisconsin and other states considering SOL reform to listen to the victims and open the courts so that their voices may finally be heard.

Battling Nuns

2010-03-21T10:28:00.002-05:00

One group of Catholic sisters attracted a lot of media attention this week when they sent a letter to Congress affirming their support for the Senate's version of the health care bill. The letter, drafted by leaders of women's congregations with 59,000 members, was promptly denounced by the U.S. bishops and a different group of Catholic sisters. The pro-Senate nuns wrote about the women, children, and poor people who would be harmed if health care legislation failed. The bishops and anti-Senate nuns argued that the bill would increase abortion funding despite good evidence to the contrary. Catholic Representative Bart Stupak, who sponsored stricter anti-abortion funding legislation in the House, pledged to listen to the bishops.
Maureen Dowd poked fun at this story in an op-ed called Eraser Duty for Bart?:

We might have to bang Bart's head into a blackboard a few times before he realizes that in a moral tug-of-war between the sisters and the bishops, you have to go with the gals.

Dowd is obviously sympathetic to the nuns, noting that they have cleaned up after the priests' sexual abuse scandals while remaining publicly silent. More shocking is the news that the same pope and church that refused to pursue allegations of sexual abuse by priests around the world launched investigations of American women's religious orders for their alleged infidelity to church doctrine on homosexuality, women's ordination and interreligious dialogue.
   Like Dowd and unlike Stupak, I side with the liberal nuns instead of the bishops, priests or their nun-supporters on any internal church matter. Legislation, however, should not be based on any church dogma, liberal or conservative. All the nuns and bishops oppose both abortion rights and funding for abortion. They disagree only about the statutory language necessary to enforce the funding bans. The original ban on abortion funding, moreover, the Hyde Amendment, was sponsored by another Catholic legislator, Illinois' Rep. Henry Hyde, who also allowed his Catholic commitments to determine his legislative record.
   As the nuns' status indicates, the Roman Catholic Church opposes women's equality. Women's rights cannot be protected when patriarchal religion is the basis of legislation. It is time for the American people, including Catholic citizens, to battle the nuns, priests and bishops who impose their church dogma through force of law. The fate of health care reform or any other legislation should not rest in the hands of popes, bishops, priests or even nuns.

Honoring The Lioness of Iran

2010-03-21T09:05:00.002-05:00

   The Iranian government seized Simin Behbahani's passport while the celebrated 82-year-old poet was en route to Paris to receive an award for her support of women's freedom at International Women's Day. The famous poet, known as the Lioness of Iran, had planned to read a poem and give a statement about feminism at the conference and then return home. Other women activists have been barred from leaving Iran over the last four years. I honor Behbahani's courage in defending women's rights.
   Behbahani has been critical of Iran's Sharia-based law and its restrictions on fundamental freedoms, including women's ability to work and to travel. In the past she renounced the Iranian government's practice of stoning women who committed adultery. That law even specified the size of the stones used so that maximum punishment could be inflicted. The stones used should "not be large enough to kill the person by one or two strikes, nor should they be so small that they could not be defined as stones." More women than men were stoned because evidence from a man carries twice as much weight as a woman's in Iran's courts.
   Despite the August 2008 suspension of Iran's stoning law, women continue to suffer deprivations of their rights under regimes based on Islamic law, as Professor Kenneth Lasson explains:

Although many Islamic women become victims of gender-based violence simply for having been born female, they are marginalized and discriminated against in a variety of other ways as well. Strict standards are set for how they shall dress and act, including to whom they may speak and whom they must marry. They are often forced into arranged marriages, some at as young an age as nine years old. They are raped, physically abused, and mutilated. Women who work as teachers are given placements at schools that require a daily commute of several hours. Many die while traveling to work as a result of the poor road conditions, traffic jams, heat, and violence. Further, afraid of being forced to marry an undesirable spouse, or simply in fear because she is too young to be married, the suicide rate among Islamic women has increased dramatically over the past five years.

Professor Lasson is most critical of honor killings, in which male family members vindicate ideals of women's sexual purity by killing women perceived guilty of any sexual misconduct. Estimates are that at least 5000 women are killed each year in honor killings, although the actual numbers are widely underreported.

The mistreatment of Behbahani vindicates secular constitutionalism as a better protector of women's rights than systems based upon any patriarchal religion, whether Judaism, Christianity or Islam. Women's rights are the child of secularism, a product of the shift from a religious to a secular state. A great article defending that thesis--Frances Raday, Secular Constitutionalism Vindicate--is well worth reading.

I honor the Lioness of Iran for her lifelong courage in defending women's rights.

The Last Moderate Republican Justice: John Paul Stevens

2010-03-18T22:56:00.000-05:00

Justice John Paul Stevens, who turns 90 in April, is the last moderate Republican on the Supreme Court, and his departure will mark a cultural milestone. In a profile of Justice Stevens in the New Yorker, Jeffrey Toobin reminds readers that Stevens, who was appointed to the Court by President Gerald Ford in 1975, was the last nominee before the Reagan years, when confirmations became contested territory in the culture wars. When Stevens leaves, Toobin concludes, the Supreme Court will be just another place where Democrats and Republicans fight.

The change in the Court is due in large part to the success of the Christian Right in putting religiously-motivated justices on the Court. The religious turn deprived the Court of more justices like Stevens, who decides issues case-by-case, on the merits, and provided it with Justices Scalia, Thomas, Roberts and Alito, who read the Constitution through grand theories that lead to predetermined conclusions. Although Stevens is viewed as a liberal justice, his cautious balancings are much less activist than Scalia's caustic certainties. As Toobin correctly observes, Stevens has also favored gradual change over sudden lurches and precedent over dramatic overrulings, while his new colleagues, especially Chief Justice John Roberts, practice an aggressive, line-drawing conservatism that appears bent on remaking great swaths of Supreme Court precedent.

Oddly enough, the demise of moderate Republican justices began with President Jimmy Carter, who served between Republican Presidents Ford and Reagan. The major organizations of the Religious Right were founded during the Carter Administration. Conservative Christians argued implausibly that the devout Southern Baptist Carter was really a secular humanist who dangerously led the nation away from its religious roots. They stepped up their political participation in order to return the nation to their Christian values, and sent first Ronald Reagan and later George W. Bush to the Oval Office.

Carter is one of the few presidents who never had an opportunity to appoint a justice to the Court. Nonetheless, Carter transformed the federal judiciary by appointing record numbers of women and minorities to the bench. Although only 8 women had been appointed to the courts by all Carter's predecessors, in one term Carter named 40 women to the federal bench, as well as significant numbers of African-, Asian- and Hispanic-American judges. Carter found these new judges through a merit system in which committees around the country identified the names of the most talented local lawyers and sent them to the White House. In 1980, however, the Republicans abandoned merit in favor of ideology. In 1980 the Republican Party's platform called explicitly for the nomination of judges who would overrule Roe v. Wade. From then on the Republicans sought judicial nominees who could reliably provide conservative results instead of judicial independence. Conservative Christians had to wait a long time for success, but they never abandoned the fight. Sandra Day O'Connor, Reagan's first appointee, decided cases based on their distinctive facts and never provided the fifth vote to overturn Roe. Reagan appointee Anthony Kennedy voted with O'Connor on abortion and wrote two opinions supportive of gay rights. The first President Bush appointed David Souter, who turned out to be another conservative disappointment because his vote was independent.

The second President Bush, a man much more openly and publicly religious than either his father or President Reagan, appears to have met the Religious Right's goals with the appointments of Chief Justice Roberts and Justice Samuel Alito. The Roberts Court has chipped away at the Establishment Clause and abortion rights, and can be expected to do more damage in those areas by the end of the summer. The campaign finance case, Citizens United, shows that the Court now likes to overrule precedents. Eventually the Court may get the case that finally allows it to overturn Roe.

Although Stevens is now the fourth-longest serving Justice in Supreme Court history, Toobin questions the durability of his legacy. Many great judicial legacies have a deep theoretical foundation--Oliver Wendell Holmes's skeptical pragmatism, William J. Brennan's aggressive liberalism, Scalia's insistent originalism, writes Toobin, and Stevens lacks that foundation.

The unpleasantly partisan nature of today's Court, however, confirms that Stevens's foundation is as deep and durable as Article III of the Constitution, which created an independent judiciary distinct from the political branches. We can hope that one day his record of judicial independence will persuade Republicans to return more moderates to the Court.

Sue the Pope

2010-03-16T13:10:00.000-05:00

   The news from Germany is grim but unsurprising. As a German archbishop in 1980, Pope Benedict approved the transfer of a child-abusing priest to a new location where the priest enjoyed continued access to vulnerable children. The story is not surprising because it has been retold repeatedly around the world as numerous Catholic priests, bishops and archbishops covered up the sexual abuse of children and accommodated the abusive priests. Across the large Catholic world, only one priest spoke out against the abuse of victims, and he was shunned and marginalized by church authorities. Estimates are that some 9% of American clergy--over 9000 priests--were abusers. Every day's news confirms that the abuse was extensive. The numbers of identified abusers continues to climb in nations across Europe.
   We know many details of the abuse today only because courts of law finally opened their doors to abuse victims and forced the church to stop hiding its wrongdoing behind the First Amendment. For years the church argued that its decisions about the priests' employment were matters of religious freedom and its employment documents were privileged from court review. Church officials argued that the law should not touch them but should focus on the misconduct of the abusive priests (whom they never reported to the police). Church officials actively told the victims to keep their mouths shut out of loyalty to the church, and in some cases even persuaded the victims to sign oaths of silence about their complaints.
   Over time even Catholic judges and prosecutors started to protect the victims. Seven American dioceses faced bankruptcy because the costs of the abuse were so enormous. Tort liability made possible some redress for victims and some accountability by the church.
   One last hurdle remains, however: suing the Holy See itself. Whether the Vatican can be subjected to lawsuit over the sexual abuse may wind up in the hands of the six Catholics who now sit on the U.S. Supreme Court.
   The Holy See is both a foreign government and the head of the Roman Catholic Church. Some American abuse victims sued the Holy See for its participation in the scandal, namely its policies of secrecy that assured that wrongdoers would go undetected and unpunished and kept crimes against children from being reported to the police. The Holy See claimed immunity from lawsuit under the Foreign Sovereign Immunities Act. The Act, however, does not immunize tortious conduct.
   The Sixth Circuit ruled that any conduct that occurred outside the United States was immune from suit but that lawsuits could proceed against Holy See personnel in the U.S. who negligently supervised abusive clergy. The Ninth Circuit ruled that a lawsuit against the Holy See could proceed under a tort theory called respondeat superior, which imputes the abusive priest's negligence to the Holy See. Oregon law allows such liability for employers, and the Ninth Circuit wisely applied that theory to the Holy See. It would be a shame to immunize employers like the Vatican from tort liability. Respondeat superior exists to force employers to become aware of and prevent the tortious conduct of their employees. The abuse cases are a good place to employ respondeat superior.
   Unfortunately, the United States government intervened in the Sixth Circuit case on the side of the Holy See. After the Holy See appealed the Ninth Circuit's ruling, the Supreme Court asked the government to express its opinion about the Holy See's immunity. This week's events in Germany (which disclosed only now the church's cover-ups from thirty years ago even though the church's highest authority was involved) remind me of the important purposes of the civil courts. Tort law and the civil courts compensate victims and deter misconduct. So far lawsuits have been the only force capable of holding the American bishops accountable. It is time for the same accountability to apply to the Bishop of Rome.