Religion and Proposition 8

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

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

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

A Woman's Letter to President Obama

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

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

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

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

        

Excommunicate or Walk Away?

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

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

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

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

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

Three Cheers for Anne Rice

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

          

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

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

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

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

          

Ordaining Women and Sex Abuse

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

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

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

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

    

Church Autonomy: A Bad Idea

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

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

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

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

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

Holy See v. Doe

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

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

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