Archive for the ‘Law’ Category

Realism about the Supreme Court and Abortion

Saturday, July 7th, 2018

The President is about to announce his nominee to fill the newly vacant seat on the Supreme Court. That will set off a bruising confirmation battle that will stretch into September at least. The rhetoric will be heated and likely ugly, and may even include a large dose of religious intolerance. As this maelstrom kicks off, it’s important that we have realistic expectations about what this will mean for legalized abortion.

It is a clear sign of the debasement of our American political society that so much energy and effort are going to be devoted to a Supreme Court nomination. The loss of a proper understanding of natural law and the dominance of a sense of moral agnosticism have left our government and courts without a moral and legal compass to guide them in interpreting and making civil law. The centralization of power in Washington, which was never envisioned by the Founders of our nation, has given the federal government and especially the courts a disproportionate control over public policy, when compared to the states. One consequence of this has been the constitutionalization of what should be political questions, as we have seen in the issues of abortion and marriage. Another consequence has been the increasing intrusion of politics into areas that are rightly protected personal liberties, such as the freedoms of speech, religion and association.

The worst consequence has been that the Supreme Court — and particularly the “swing vote” that was exercised by the retiring Justice Kennedy — has become our de facto ruler when it comes to essential questions of the separation of powers between the branches of government and crucial social issues relating to life, family and religion. It is truly bizarre that the last few weeks in June is a time of great anticipation, as the Supreme Court’s term comes to an end and we citizens passively wait for rulings that will define our lives. This is why I often derisively refer to the Court as our “Black-Robed Platonic Guardian Rulers” — a role that Washington, Hamilton and Madison would be horrified to see.

These trends are so deeply rooted that we have to have realistic expectations. None of the nominees to the Court will change this sorry situation. None will restore the correct separation of powers or the federalism that were built into our constitutional structure as a defense against the abuse of power. None will stop the trend of constitutionalizing political questions.

We particularly have to be realistic when it comes to the momentous issue of abortion. There is no question that Roe v. Wade decision was wrongly decided as a matter of morality and legal reasoning, and that it has had a corrupting effect on the law, the legal profession and the judicial confirmation process. It is imperative to see it and its progeny overruled (particularly Planned Parenthood v. Casey, which really is the controlling law now, not Roe), and for the constitutional rights of unborn children to be recognized and protected. But that isn’t going to happen any time soon, no matter who the President selects.

Regardless of who the nominee is, it is far from clear that that there would be enough votes on the Court to overrule Roe and Casey. Of the current judges on the Court, four are certainly never going to vote to overrule or even meaningfully limit abortion; only one, Justice Thomas, has ever said that he would vote to overrule; Chief Justice Roberts and Justice Gorsuch both called Roe “settled law” during their own confirmation hearings, and Justice Alito has said that it has added strength as a precedent because it has survived prior challenges and people have come to rely on it. So it’s not as if Roe and Casey are hanging by a thread and just need one more vote to be overruled.

It’s also important to understand that the “conservatism” of some of the Justices would suggest that they may actually shy away from overruling Roe and Casey, even if they believe that it was wrongly decided. Chief Justice Roberts and Justice Alito, and it would already appear Justice Gorsuch, have a strong tendency to minimalism in their rulings — deciding questions on the most narrow grounds available, and choosing, as Justice Alito once wrote, to “leave broader issues for another day.” You can see that trend in some of the major decisions of the last term, for example the Masterpiece Cakesdecision, where the “conservative” justices supported a narrow ruling and completely ducked the critical free speech issue.

This minimalism is particularly important when one realizes how deeply embedded Roe and Caseyare in Supreme Court jurisprudence. Roe didn’t spontaneously emerge fully formed from the brow of Justice Blackmun, nor did the infamous “mystery of life” passage in Casey come out of nowhere. They were the result of decades of prior decisions, reaching back to the 1920’s, in which the Court recognized or invented “privacy” and other rights that are nowhere enumerated in the Constitution, many of which have no basis in history, tradition or natural law. Some of these decisions were actually correct, but many were perverse (like the contraception decisions Griswold and Eisenstadt), and all of them laid the groundwork for Roe and Casey. They also stemmed from a theory of absolute personal autonomy that evolved from the political liberalism on which America was founded and that produced the culture of sexual libertinism and moral relativism that we currently inhabit.

Overruling Roe and Casey would thus mean that the “conservative” Justices would be repudiating an entire body of law and a political and moral philosophy that is so deeply entrenched in our society that most people find any alternative view virtually incomprehensible. They would also set off a political explosion that would undermine the legitimacy of the Court in the eyes of a large number of Americans and many powerful elected officials. Such a momentous decision would be virtually unprecedented in American history, with the only prior examples that I can think of being Brown v. Board of Education and Roe itself.

Even if the Justices mustered the fortitude to overrule Roe and Casey, abortion would not suddenly be made illegal across the United States. The issue would then return to the states for regulation. A number of states already have laws on the books that would essentially permit abortion on demand for some, if not all of pregnancy. New York’s statute, for example, permits abortion on demand prior to 24 weeks of pregnancy. According to one expert on abortion law, if Roe and Casey were overruled, only eleven states have laws that would completely outlaw abortion, and over 80% of Americans would live in states where the situation would be essentially unchanged — abortion would still be legal for all nine months of pregnancy for virtually any reason and with little effective regulation.

It is also likely that state courts would step into the breach and declare a constitutional right to abortion. Iowa’s Supreme Court did so just last week, and as many as twelve other states had previously done so. We would also expect increased pressure in solid liberal states like New York to expand abortion rights through legislation.

This is not to say that we should expect that nothing will change for the better. I fully expect that the new Justice will be a legitimate constitutional originalist, which means that they would interpret the Constitution according to its actual original meaning. I also expect that they will show greater respect for the separation of powers and federalism. And I believe that at least in the short term they will vote to permit states to have greater leeway in regulating abortion, and to protect religious liberty and freedom of expression. Those would all be good developments, and may begin the process of rolling back Roe, Casey, and the terrible decisions that underlie them.

A new nominee to the Supreme Court will not be a magic bullet that will make all things new. Our challenge is to continue to press for social and legislative change that would increase respect for human life. We also have to work harder to create a social infrastructure that would replace the culture of contraception and abortion and promote a vision of women’s health that truly respects her fertility and genuine freedom. We still have a lot of work to do.

Scripture Does Not Justify Injustice

Saturday, June 16th, 2018

In response to criticism of the Administration’s policy of separating parents from their children at the border, the Attorney General has essentially demanded unquestioning obedience, referring to a verse from Paul’s letter to the Romans: “Let every person be subject to the governing authorities.” (Romans 13:1)

This is a dangerous argument, one that implies that Christians and others should give blind obedience to the decrees of our rulers, regardless of whether they are just or not.

First of all, it grossly misreads St. Paul. Let’s look a the context in Romans itself.

In Romans 12, St. Paul exhorts his readers to live their lives purely, according to God’s will. He says, “Do not be conformed to this world but be transformed by the renewal of your mind, that you may prove what is the will of God, what is good and acceptable and perfect” (12:2) and “love one another with brotherly affection” (12:10).

He then passes on to the question of how to live peacefully in his contemporary society. Remember that the government of Rome was a brutal military dictatorship, one that required its subjects to view the Emperor as a god and to make sacrifice to him. Rome had already murdered Jesus based on false testimony that he was claiming to be an earthly king, and had already taken Paul under a false arrest so he could face the likelihood of execution.

So Paul had no illusions about the rulers of the world — in fact, he knew well that the ruler of the world was the Evil One and his minions (see Ephesians 6:12). Paul would be the last man to encourage us to accept blindly the rules set down by earthly kings. What Paul was clearly doing was encouraging Christians to keep their heads down, obey the law as best they can, and avoid any conflicts with their earthly rulers.

But Paul was also doing something even more important, and in fact even more treasonous towards the Roman emperors. He was saying clearly and plainly that earthly rulers were not the real or final authority on earth — God is. He said “For there is no authority except from God, and those that exist have been instituted by God.” (13:1) The Roman emperors would have no authority except that God permits them to exercise it — but not for any purpose, but for the common good of mankind by maintaining order. Our rulers are not God, but are subject to Him and to His law. Christ is the King, not Caesar or anyone else.

And what does God’s law entail? Read on in Romans for the short version:

“Owe no one anything, except to love one another; for he who loves his neighbor has fulfilled the law. The commandments, ‘You shall not commit adultery, You shall not kill, You shall not steal, You shall not covet,’ and any other commandment, are summed up in this sentence, ‘You shall love your neighbor as yourself.’ Love does no wrong to a neighbor; therefore love is the fulfilling of the law.” (13:8-10)

Now Paul is referring there specifically to the Mosaic Law, but his point applies more generally to all human law, and this brings up the Attorney General’s second major error. The only legitimate way to read and understand Sacred Scripture is to read it with the Church, not by my own personal interpretation. The Bible is the Church’s book — she wrote it, preserved it, and teaches it. And that means we need to listen to what the Church has always said about the meaning of Romans 13.

The Church has always taught that earthly rulers and laws must conform to the law of God, as made evident through revelation or the natural law and interpreted by the Church. If human law does not meet that standard, it is an abuse of authority and we are not bound to obey. This was clearly explained by St. Augustine and St. Thomas Aquinas. This was the testimony of thousands of martyrs who disobeyed man so they could obey God — remember St. Thomas’ More’s famous saying, “I die the King’s good servant but God’s first”? Here is how the Catechism summarizes it:

1902 Authority does not derive its moral legitimacy from itself. It must not behave in a despotic manner, but must act for the common good as a “moral force based on freedom and a sense of responsibility”: “A human law has the character of law to the extent that it accords with right reason, and thus derives from the eternal law. Insofar as it falls short of right reason it is said to be an unjust law, and thus has not so much the nature of law as of a kind of violence.”

1903 Authority is exercised legitimately only when it seeks the common good of the group concerned and if it employs morally licit means to attain it. If rulers were to enact unjust laws or take measures contrary to the moral order, such arrangements would not be binding in conscience. In such a case, “authority breaks down completely and results in shameful abuse.”

Our bishops have spoken clearly about the Administration’s policies to separate children from their parents at the border. The President of the US Bishops’ Conference plainly called it “immoral”. Cardinal Dolan, in a very powerful interview on CNN, has said that it is “wrong” and “goes against human dignity”, and stressed that “God’s law trumps man’s law”.

Yes, we are generally obliged to obey the law and legitimate authority. But the Attorney General is way off base when he calls for obedience to the law without regard to its justice. To make that demand is to elevate human law above God’s law, and that way lies disaster.

How Can We Even Be Talking About Legalizing Assisted Suicide

Monday, June 11th, 2018

The recent suicides of celebrities has caused a sensation. One of the valuable side-effects of this is that our nation is being forced to realize that there is a genuine public health crisis that has been happening, mostly below the radar.

According to the National Institute of Mental Health, in 2016, 1 million U.S. adults made plans for death and attempted suicide. Read that again — 1 million adults. The Centers for Disease Control just put out a report highlighting the alarming incidence and increase in suicides. Some of the key conclusions:

  • Suicide rates have risen in every state but one.
  • In 2016, nearly 45,000 Americans age 10 or older died by suicide.
  • Suicide is the 10th leading cause of death and is one of just three leading causes that are on the rise.
  • The suicide rate has increased 25% in the US since 1999.
  • In half the states, the suicide rate increased over 30%. One state, North Dakota, saw a 57% increase.
  • New York’s suicide rate increased 28.8%.
  • 54% of people who died by suicide did not have a known diagnosed mental health condition at the time of death.

So how can we even be talking about legalizing physician assisted suicide?

The message sent by legalizing assisted suicide is precisely the message that is leading more and more people to kill themselves. According to one expert interviewed by the Chicago Tribune, there are “key variables” that make a person more vulnerable to suicide:

  • Perceived burdensomeness, “this idea that my death is more valuable than my life.”
  • Thwarted belongingness, “meaning I try to make meaningful connections, and they just don’t work out.”
  • Hopelessness, “OK, I have this, and it’s never going to get better.”
  • Acquired capability, the ability to set aside normal psychological and physical constraints and perform an act that may be painful or horrifying.

The first three key factors are precisely the messages that assisted suicide sends to people who are terminally ill or disabled. The last factor is what assisted suicide hands to that vulnerable person at their bedside — a deadly prescription from their doctor that will make the act seem easy.

The normalization of suicide is also a major factor here, no doubt fueled by celebrity suicides and prominent examples like Brittany Maynard, who has become the “poster girl” of the assisted suicide movement. Here’s what one expert said to the New York Times about the growing social acceptance of suicide:

“It’s a hard idea to test, but it’s possible that a cultural script may be developing among some segments of our population,” said Julie Phillips, a sociologist at Rutgers. Prohibitions are apparently loosening in some quarters, she said. Particularly among younger people, Dr. Phillips said, “We are seeing somewhat more tolerant attitudes toward suicide.” In surveys, younger respondents are more likely than older ones “to believe we have the right to die under certain circumstances, like incurable disease, bankruptcy, or being tired of living,” she said.

In other words, there is a growing culture of suicide, thanks to the same attitudes that lead to the demand for assisted suicide. Any rational person would realize that the current crisis would only be made worse by legalizing assisted suicide.

Our nation’s current response to the threat of suicide is woefully inadequate. Funding for prevention is stagnant and there is a dire shortage of mental health professionals and facilities, particularly for poor people who depend on Medicaid. The addiction crisis, which is largely the result of the mental health crisis, is also not being addressed adequately. It is also likely that suicides are seriously undercounted because many are seen as accidental overdoses.

There is a relentless push by advocates of assisted suicide to push legislation in the states, including in New York. They are facilitated by a compliant media, who regularly publish puff pieces about terminally ill people who kill themselves, and rarely allow opponents of assisted suicide — particularly people with disabilities — to voice their concerns. The medical profession is under particular pressure, as evidenced by the American Medical Association’s consideration of a resolution to go “neutral” about legalization. There is no such thing as neutrality on this issue — if you don’t oppose it, you’re de facto in favor of it.

The tragic suicides of prominent people have been a wake-up call to our nation about the suicide crisis. This is no time to be talking about legalizing suicide for anyone.

A Limited Victory for Religious Freedom

Monday, June 4th, 2018

The Supreme Court ruled today, by a wide majority of 7 to 2, in one of its most anticipated cases of the session, Masterpiece Cakeshop v. Colorado Civil Rights Commission. The result was a victory for the particular religious liberty claim raised by the owner of the shop, Jack Philips. But this victory was limited by the Court’s very fact-specific ruling, and it’s explicit statement that there is no guarantee that future cases will be handled the same way.

The facts are fairly simple. In 2012, prior to the legalization of same-sex “marriage” in Colorado and the United States in general, two men approached Mr. Phillips and asked him to create a cake for their upcoming “wedding”. Mr. Phillips declined, saying that he did not create cakes for same-sex weddings, even though he would serve same-sex couples for other occasions. It’s important to note that Mr. Phillips views his business not just a profit-making venture. Rather, he says that his “main goal in life is to be obedient to” Jesus Christ and Christ’s “teachings in all aspects of his life” and he seeks to “honor God through his work at Masterpiece Cakeshop.” So his refusal to participate and celebrate the same-sex “wedding” was an expression of his deeply-held religious belief that marriage is the union of one man and one woman.

A complaint was brought against Mr. Phillips, claiming that he was violating the Colorado Anti-Discrimination Act by refusing service on the basis of sexual orientation. The case went before the Colorado Civil Rights Commission for decision. The Commission ruled against Mr. Phillips, as did the Colorado Court of Appeals. That’s what brought the case to the Supreme Court.

The Supreme Court paid very close attention to what happened before the Commission. The Court noted,

As the record shows, some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. No commissioners objected to the comments. Nor were they mentioned in the later state-court ruling or disavowed in the briefs filed here. The comments thus cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case.

In fact, the Commission had also heard three other cases recently that were relevant to Mr. Phillips’ case. In each of those cases, the Commission had ruled that bakers could refuse to create cakes with religious statements against homosexuality and same-sex “marriage” because the bakers found those statements “offensive”. The Court found this disparate treatment to be explicable only by the Commission’s hostility to Mr. Phillips’ religious beliefs. The Court concluded,

The Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion. Phillips was entitled to a neutral decision maker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided.

If there is anything that the First Amendment religion clauses stand for, it’s that government cannot favor certain viewpoints or punish others because the government officials have particular preferences. The Constitution demands that everyone be treated even-handedly, even if certain powerful people find the religious views involved to be “offensive”. The Court found that the Commission had not treated Mr. Phillips fairly because it disapproved of his religious views.

It is also important that, as the Court noted, “the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.” This directly rejected the Colorado courts’ finding that his creation of wedding cakes did not qualify as “speech” because it was “not sufficiently expressive”. In a strong concurrence, Justice Thomas explained this error in detail.

While it is certainly a significant legal victory for Mr. Phillips (and for Alliance Defending Freedom, who represented him), the significance of this case is muted by the Court’s fact-based analysis and their specific caveat that future cases may come out differently. It is unfortunate that the Court did not explicitly adopt Justice Thomas’ broader view of religiously-motivated expressive conduct as a form of protected free speech. And it is also regrettable that the Court did not repudiate the position, taken by some state courts, that whenever there is a conflict between religious freedom and anti-discrimination laws, religion will always lose.

This decision does not mean, as some critics will undoubtedly argue, that religious people have a “license to discriminate”. But it does affirm that religious people are entitled to a fair hearing by a neutral decision-maker, and that overt hostility to religious belief is still forbidden. And that is clearly a victory for religious freedom.

Intolerance in Philadelphia

Friday, May 18th, 2018

The City of Philadelphia plays a central role in the story of American freedom. It was the location of the writing of both the Declaration of Independence and the Constitution, and the colony of Pennsylvania was notable for its religious toleration. It’s too bad that the current city government is now ignoring that legacy by violating the religious liberty of the Catholic Church.

The basic facts are very simple. There is a crisis in the foster care system in the City of Philadelphia. You recall that foster care serves some of the most vulnerable children in our society — victims of abuse or neglect, frequently with very serious medical and psychological challenges. There are approximately 6,000 children in Philadelphia’s foster care system, awaiting placement in a foster home. The City issued a call for new foster families, but then banned one of the oldest and most successful agencies, Catholic Social Services, from placing any children into foster homes.

The reason? The City of Philadelphia disapproves of the Catholic Church’s belief and teaching that the best place for a child to be raised is in a home with a married mother and father, and thus the refusal of Catholic agencies to place foster children with same-sex couples.

There are some important things to note. CCS does not discriminate against any child based on their sexual orientation. CCS will refer same-sex couples to one of the 26 other agencies that place children in foster homes. There are foster families, certified through CCS, who are ready and able to foster right now, but the City won’t allow the placement. Nobody has ever filed a complaint against CCS based on its religious mission, and its religious beliefs have never prevented a child from being placed in a home. And there is a history of bias against the Church — powerful city officials, including the mayor, have made numerous bitterly critical statements against the Church and the Archbishop of Philadelphia because of our religious beliefs about marriage and human sexuality.

The Church’s teaching on this is quite clear:

Homosexual unions are also totally lacking in the conjugal dimension, which represents the human and ordered form of sexuality… As experience has shown, the absence of sexual complementarity in these unions creates obstacles in the normal development of children who would be placed in the care of such persons. They would be deprived of the experience of either fatherhood or motherhood… This is gravely immoral and in open contradiction to the principle, recognized also in the United Nations Convention on the Rights of the Child, that the best interests of the child, as the weaker and more vulnerable party, are to be the paramount consideration in every case. (Congregation for the Doctrine of the Faith, Considerations Regarding Proposals to Give Legal Recognition to Unions Between Homosexual Persons, 7)

And the duty of Catholic organizations not to cooperate with this is also quite clear:

In those situations where homosexual unions have been legally recognized or have been given the legal status and rights belonging to marriage, clear and emphatic opposition is a duty. One must refrain from any kind of formal cooperation in the enactment or application of such gravely unjust laws and, as far as possible, from material cooperation on the level of their application. In this area, everyone can exercise the right to conscientious objection. (5)

Becket, the stalwart defenders of religious liberty, has filed suit against the City of Philadelphia. This should be a fairly easy case, considering that just last year the Supreme Court unanimously ruled that the government cannot deny generally-available public benefits to a religious organization purely because of their religious beliefs. In that case, the Court said plainly, “[A] law targeting religious beliefs as such is never permissible.” This is not a new doctrine. Fifty years ago, the Court said “The State may not adopt programs or practices . . . which ‘aid or oppose’ any religion. . . . This prohibition is absolute.” Apparently these decisions were not read by the government of the City of Philadelphia.

Yet the usual voices from the forces of intolerance are being heard, with all the usual false accusations and incorrect statements of fact, law and principle. Some examples:

  • “This is just bare hatred of gay couples.”
This is a strange argument, since the whole purpose of the foster care system is to consider the best interests of the child, not the interests or desires of prospective foster parents. The Church’s position is based on love of the child, and concern for the best way to assure their welfare and development.
  • “If they don’t want to follow the government’s rules, they should get out of the foster care business.”
As we noted above, there is such a thing as the First Amendment, which guarantees both the free exercise of religion and protection from the establishment of religion. This means that the government cannot reward or penalize a church — no playing favorites based on preferred doctrines. By directly penalizing the Catholic Church for our religious beliefs, the City has, in effect, established a definition of acceptable religious beliefs — and those that they will not tolerate. That’s totally out of bounds under the First Amendment.
  • “The agency isn’t being asked to do anything other than implement the rules set down by the government.”
Private organizations aren’t mindless puppets of the state. A foster care agency has to evaluate individual cases for the suitability of placement of individual children into individual homes. This takes discretion and adherence to particular principles, including the teachings of the Church mentioned above on the best interests of children. If the agency feels it cannot do that, it will refer the children and parents to another agency. Plus, we again have to remember the existence of the First Amendment, which says that churches are not mere instruments of the state. They are independent, and their internal affairs cannot be interfered with by the government.
  • “They’d rather the children suffer in orphanages than allow gay couples to foster them.”
No child is living in an orphanage, a la Oliver Twist, and there are 26 other agencies that are perfectly free to certify gay couples and place children with them. Since there are so many alternatives, why must the City insist on ideological submission by CCS?
  • “Haven’t Christian adoption agencies shut down just to prevent gay people from adopting?”
Catholic adoption agencies have been forced out of business in a number of places (Washington, Boston, San Francisco, Illinois) — state agencies denied them licenses because they disapproved of Catholic beliefs. What Philadelphia is doing is another example of the same kind of intolerance. Catholic Charities wants to conduct its affairs in keeping with our faith, while other agencies can operate according to their principles and place children with same-sex couples.
  • “Isn’t this the same as refusing to place kids in interracial homes?”
Race is completely different from sexual orientation — it has nothing whatsoever to do with the nature and structure of a family and the right of a child to have a mother and father to raise them. It’s interesting that in some states, like New York, agencies are required to give preference to placing children with adoptive parents of the same religion. Some people have argued that race and ethnicity  should also be considered. If it’s okay to consider those factors, why can’t Catholic agencies consider a religion-based factor that we consider important for the well-being of a child?
  • This is just another example of the Church trying to impose their morality on others.
Who’s using political and financial power to push forward an agenda? Who’s doing that based on a moral and political judgment about human sexuality and marriage? Answer — it’s the City of Philadelphia that’s using its political power to impose its morality. They’re the ones who have decided that CCS is morally unfit to place foster children. The Church is just asking to be left alone to operate our foster care agency according to our religious beliefs, which puts a burden on absolutely nobody.

The point here isn’t whether people think that children should be placed in foster homes with same-sex couples. It also isn’t whether people agree with the Church on this issue or not — in fact, I imagine that the vast majority of Americans don’t agree. The point here is that an intolerant government is using its political power to enforce ideological conformity upon a religious organization that dares to dissent from current sexual orthodoxy. All Americans, regardless of what they think about the underlying issues, should be appalled by this abuse of power.

It’s an interesting irony that this is happening in Philadelphia. The man who wrote the Declaration of Independence in that city later became President. While serving in that office, he received a letter from some Catholic nuns in New Orleans who were worried that they would lose title to their property after the United States bought the Louisiana Purchase territory. The letter President Thomas Jefferson wrote to them is worth quoting in full:

I have received, holy sisters, the letter you have written me wherein you express anxiety for the property vested in your institution by the former governments of Louisiana. The principles of the constitution and government of the United States are a sure guarantee to you that it will be preserved to you sacred and inviolate, and that your institution will be permitted to govern itself according to its own voluntary rules, without interference from the civil authority. Whatever diversity of shade may appear in the religious opinions of our fellow citizens, the charitable objects of your institution cannot be indifferent to any; and its furtherance of the wholesome purposes of society, by training up its younger members in the way they should go, cannot fail to ensure it the patronage of the government it is under. Be assured it will meet all the protection which my office can give it.

How far we have come from those days, when the “inalienable right” of freedom of religion was assured by such generous and liberal words – and by a man who was not a religious believer himself. Too bad that the city government of Philadelphia hasn’t learned that lesson.

How the Law Kills

Tuesday, May 1st, 2018

The world was transfixed over the last week by the tragic case of Alfie Evans. This poor young boy, not yet two years old, was the center of a legal dispute in which his life hung in the balance. His case has a greater significance, though, because it is a demonstration of how bad law can kill.

A quick synopsis of the basic facts of Alfie’s case will help put us understand this bigger picture. Not long after he was born, he started showing symptoms of a neurological disorder and had to be hospitalized. The condition was never diagnosed, but it progressed and left Alfie in a coma and dependent on assisted food, hydration and breathing. After over a year of treatment, the doctors decided that further treatment of Alfie was futile and that his recovery was impossible. I am sure that they made that diagnosis in good faith. But his parents disagreed, and searched out other options for continued treatment or, failing that, they wanted to bring Alfie home.

Here is where the bad law makes its appearance. In the UK, the law gives the court authority to overrule parental decisions if there is a dispute between the doctors and parents over life-sustaining treatment for their child, based on his assessment of the “best interests of the child”. And that’s what happened here. The court overruled the parents and gave permission to the doctors to remove Alfie from life support.

So without any proof of abuse or neglect or any other misconduct on the part of Alfie’s parents — in fact, all the evidence was that they were devoted to him — their parental rights were stripped from them simply because they disagreed with the doctors about how to care for their son. The court actually went even further, and forbade Alfie’s parents from choosing any other kind of treatment, and even forbade them from taking him home. This is an astonishing result. Alfie had the right to have his care decided upon by his parents, not by doctors or judges. I can only describe this as judicial kidnapping.

As bad as that law is, the underlying principles are even worse. The initial court that ruled on Alfie’s case gave great authority to a document called “Making Decisions to Limit Treatment in Life-limiting and Life-Threatening Conditions in Children: A Framework for Practice”, issued by the Royal College of Paedriatics and Child Health in 2015. This “guidance” sets out the standards under which medical decisions will be made for critically ill children who are dependent on “life-sustaining treatment”. In that document, there are two fatal errors that inevitably distort the way that doctors will approach the care of children on life support, and that create a significant bias in favor of death.

The first error is this astounding statement: “The principle of the sanctity of life is not absolute.” All the errors in Alfie’s case, and all those like it, stem from this tainted source. If the sanctity of life isn’t absolute, then of course courts and doctors will put conditions on preserving it. When that decision is made in the context of our society’s fear and even disgust for disability and diminished capacity, this guarantees that imperfect lives will be systematically devalued and discarded. And that’s exactly the calculus that the court was making, applying the principle set out elsewhere in the document that life-sustaining treatement can be ended “when life is limited in quality”. Operating from these premises, it makes perfect sense that a misguided court will reach the horrific conclusion that a patient like Alfie is better off dead.

This is the evil doctrine of “lives unworthy of living”, the wicked notion that “It can in no way be doubted that there are living human beings whose death would be a deliverance both for themselves and society, and especially for the state, which would be liberated from a burden that fulfills absolutely no purpose”. This discredited principle from the infamous 1923 book Permitting the Destruction of Life Not Worthy of Life , which led to the involuntary euthanasia program of the Nazis, keeps coming back under different guises. Pope Francis called it by another name: “the throwaway culture”.

Along with this fatal flaw comes the second error, which can be found in this key definition: “Life-Sustaining Treatments (LSTs) are those that have the potential to prolong life. They may include… Clinically Assisted Nutrition and Hydration”. Considering assisted nutrition and hydration as “treatment” is very common in the medical world. But it is utterly misguided.

Food and water are not medical treatments but basic human needs, like shelter, clothing, air and sanitation. They are fundamental human rights, and caregivers have an obligation to provide them if a person can’t do so for themselves. This stems from their inherent dignity as a human person, which is never lost because of condition or prognosis. This is a foundational perspective of sound medical morality. By rejecting this norm, the UK doctors ensured that some of their patients, whose lives are no longer considered worth preserving because of a negative prognosis, will be killed by starvation or dehydration.

These distorted principles produced the regime of law that killed Alfie Evans and betrayed his parents: a law that permitted a judge to substitute himself for Alfie’s parents; an underlying bias against the value of life with a disability; and an erroneous notion that a fundamental human need can be denied if the overall prognosis is bad. All of that adds up to a law that leans in favor of death.

We are dangerously close to following it here. It’s true that our Supreme Court long ago recognized the natural law principle that “the child is not the mere creature of the State” and that parents have the authority to oversee their health and upbringing. But we have already seen courts and laws interfere with that sacred family relationship. For example, children can get contraceptives and even abortions without their parents even being notified. That is a dangerous path, and it is even more treacherous when combined with trends in the medical world like increasing approval of assisted suicide and euthanasia, futile care theory, cost pressures, and the invidious social fear and disdain for disability. It leads inexorably to euthanasia, the fancy word for murder by doctor.

The Alfie Evans case is a test study for how the law can kill. This is why we cannot give an inch in our resistance to assisted suicide and euthanasia, and why we can never surrender to the Culture of Death.

The Obscenity of the Culture of Death on Display

Wednesday, April 25th, 2018

If anyone wonders where the Culture of Death leads, it is there before our eyes — the government of the UK is planning on starving a toddler to death against his parents’ fervent wishes, for no other reason than that he has a disability. The government and the courts have prevented his parents from moving the child to another hospital, and have decided that he is better off dead.

The story is about little Alfie Evans, who will be two years old on May 9 — if he survives. Not long after he was born, he started showing symptoms of a neurological disorder and had to be hospitalized. The condition still hasn’t been diagnosed, but it has progressed and left Alfie in a coma. His parents have been with him the whole way and have not given up hope for him.

In December, the hospital decided to go to court to terminate the parents’ rights to determine Alfie’s health care. The reason was that the hospital considered Alfie’s case to be hopeless and that he would be better off dead. The legal battle over Alfie’s life has engulfed the UK and Europe. Court after court refused to grant his parents the right to continue his treatment or to take him elsewhere.

Others have stepped up to offer help to Alfie. The Holy Father has pleaded for him. The Vatican-related Bambino Gesu Pediatric Hospital in Rome has offered to take him, and another hospital in Munich has done the same. Italy granted Alfie citizenship in hopes that this would convince the UK courts to release him to be transported to the Bambino Gesu.

The courts have remained adamant that Alfie must die.

On Monday evening the hospital took Alfie off life support. To their surprise, he didn’t die, but breathed on his own. Undaunted, the hospital withheld food and water from him for a day. Try to wrap your brain around that. The hospital tried to murder Alfie by starving him to death. Fortunately, they renewed life support and feeding when a new round of court appeals began.

Awaiting the final ruling of the court, the Holy Father arranged for a military helicopter ambulance to transport Alfie. But again, the courts were unmoved. The latest judge ruled that dying was in Alfie’s best interests and that he could not be taken from the country.

It’s difficult to even think about this case without crying and becoming enraged. I’m a parent and I can’t even imagine the pain Alfie’s parents are going through. I’m a lawyer and I can’t comprehend the mind of a lawyer and judge who can be so heartless in his rulings.

This is the product of a culture where every life is not valued for its own worth, regardless of function, capability, and usefulness. This is the product of a “throwaway culture”, as Pope Francis calls it, where the answer seems to be to discard troublesome life. This is the product of a huge structure of sin created by and fed by abortion, assisted suicide, euthanasia, violence, indiscriminate war. This is the product of a society with a very, very deep spiritual sickness.

Alfie is a victim of the Culture of Death at its most obscene.

Tomorrow, April 26, we will be having a Mass and prayer vigil for Alfie. We will start at Holy Family Church on East 47th Street with noontime Mass, and we will walk up the block to the UK Mission to the UN on 2nd Avenue between 47th and 46th Streets, where we will pray. Please join us in prayer if you can’t join us in person.

His Majesty’s Illegal Wars

Thursday, April 12th, 2018

One of the most important stories in Anglo-American constitutional history has been the struggle over what is called the “royal prerogative”. That’s the term for the power of the monarch to act on his own initiative, without accountability to anyone, in such areas as foreign affairs, warfare, law-making, etc. One of the driving principles in the Declaration of Independence and in the Constitution was the need to limit the power of the executive with checks and balances.

We have now come to a place where it seems to be generally accepted that the president has the royal prerogative to take the United States into war without approval from anyone else. The last President and the current one have involved us in wars in Afghanistan, Iraq, Libya, Somalia, Yemen and Syria, all of which were or are being waged without any regard to the law. Now the President is threatening to attack Syria and Russia in response to the illegal use of chemical weapons against civilians. His use of intemperate language in these threats is deeply disturbing.

The war against civilians in Syria is a profound injustice, and the use of chemical weapons can never be justified. The instinctive desire to respond, to punish those responsible, is perfectly understandable. But we cannot respond to illegality with illegality – we need to act according to the law, both human and divine.

Let’s first go back to Constitutional Law 101. Article One, Section Eight of the Constitution gives to Congress the sole authority to declare war, to raise armies and navies and to regulate them. Article Two, Section Two designates the President as the Commander in Chief of the military, which ensured civilian control of the military. But this does not give him unlimited power to make war or take other actions purely at his discretion. That principle has been upheld very clearly by the Supreme Court.The President is not above the law, but is bound under Article 2, Section 3 of the Constitution to “take Care that the Laws be faithfully executed”.

It has always been understood, however, that in emergency situations, the President can act to defend America against attack, even without first getting Congressional approval. But the War Powers Resolution, which has been the law for over forty years, specifically states that “The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” (50 U.S. Code § 1541(c)) None of those conditions exist here.

Add to this is that the United States has signed onto the United Nations Charter, which is thus part of the “supreme law of the land”  according to Article Six of the Constitution. That Charter permits nations to act in self-defense against an armed attack (Article 51). But it also requires that “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state” (Article 2 §4). Under the Charter, and thus under American law, the authority to used armed forces against another state is reserved to the Security Council (Chapter VII). Again, none of these conditions have been met.

In recent years, Congress has completely abdicated its authority over declaring war. With a few exceptions (e.g., the first Iraq War), the United States has consistently ignored the United Nations Charter when deciding to engage in armed conflicts. Even worse, none of the self-described “constitutional conservatives” or other self-proclaimed defenders of the Constitution are raising any objections to the current President’s threats of war.

Now let’s turn to God’s law. It has always been an element of Catholic social teaching that nations may engage in warfare under very limited conditions. This has generally been known as the “just war” doctrine, and can be found in the Catechism of the Catholic Church, section 2307 to 2309. It comes under the Fifth Commandment, which imposes on us the strictest duty to respect all human lives, to avoid war, and to work assiduously for peace. Military force may be used as a last resort and only for defensive purposes, and the decision to engage in war must be made according to the laws of the nation and international law by the competent legal authorities. None of those requirements are even close to being satisfied here.

The Holy Father recently condemned the war in Syria and the use of chemical weapons: ““There is no good war or bad war. There is nothing, nothing, that can justify the use of such instruments of extermination against unarmed people and populations.” The Latin Rite Apostolic Vicar of Aleppo, who is on the ground in Syria, added, “The Pope’s appeal words echo our position and our greatest desire. We want peace.  In front of these attacks and the consequent threats, people are afraid and the escalation of the last days is frightening. I cannot say what has changed in recent weeks, but what we are seeing is the search at all costs for a pretext to destroy our country.”

We cannot accept a regime with unlimited royal prerogative to wage wars on other nations. As Americans, we must insist on the rule of law, both national and international. And as Catholics, we must bring moral principles into the debate.

(Questions or comments? Join the discussion on our Facebook page.)

A Major Victory for Religious Freedom

Friday, October 6th, 2017

After years of regulatory and courtroom battling, the Government has finally recognized that it was a violation of religious liberty to impose what we have long called the “HHS Mandate” on those with religious objections to contraception, abortion-causing drugs and sterilization. That mandate was cooked out of thin air by the previous Administration under the purported authority of the Affordable Care Act. The current Administration has now issued new rules that give relief to religious and other organizations, as well as individuals.

This is a major victory, and we should express our gratitude to the President and his Administration, particularly those in the Department of Health and Human Services.

The sweep of the new rules is very broad. First, the admission that the original (and the many revised) rules violated the religious freedom of institutions and individuals (direct quotations from the new proposed rules are in italics):

  • “We have concluded that requiring certain objecting entities or individuals to choose between the Mandate, the accommodation, or penalties for noncompliance imposes a substantial burden on religious exercise under RFRA.” This corrects the error of the previous Administration, which stubbornly insisted that the Mandate did not impose a burden on religious belief.
  • “Our reconsideration of these issues has also led us to conclude… that the Mandate imposes a substantial burden on the religious beliefs of individual employees who oppose contraceptive coverage and would be able to obtain a plan that omits contraception…” Under the original Mandate, individuals with religious objections had no hope of any relief.
  • “the Departments have concluded that the application of the Mandate to entities with sincerely held religious objections to it does not serve a compelling governmental interest.”This is a huge concession, and reverses the adamant — and hardly credible — insistence by the previous Administration that riding roughshod over the religious objections served a vital public interest.
  • “In the Departments’ view, a broader exemption is a more direct, effective means of satisfying all bona fide religious objectors.” Note the new emphasis here of actually showing respect for religious objectors, instead of brushing them aside, which was the attitude of the previous Administration.

Now, the specifics, which also show a broad desire to protect religious liberty:

  • “With respect to employers that sponsor group health plans, the new language… provides exemptions for employers that object to coverage of all or a subset of contraceptives or sterilization and related patient education and counseling based on sincerely held religious beliefs.” This is the most significant provision, because it allows all employers with religious organizations to opt out of the offensive coverage without going through any bureaucratic process.
  • “Consistent with the restated exemption, exempt entities will not be required to comply with a self-certification process.” This removes one of the most objectionable provisions of the previous Mandate, which essentially required religious organizations to give a permission slip for offensive services to be provided — putting them in direct cooperation with evil.
  • “the Departments do not limit the Guidelines exemption with reference to nonprofit status… the rules extend the exemption to the plans of closely held for-profit entities. This is consistent with the Supreme Court’s ruling in Hobby Lobby… the rules extend the exemption to the plans of for-profit entities that are not closely held.” This is a huge expansion of the exemption, because it will not just be limited to organizations that are non-profit or to those for-profit entities that satisfy standards that vary from state to state to determine if they are “closely held”.
  • “These interim final rules extend the exemption… to health insurance issuers offering group or individual health insurance coverage that sincerely hold their own religious objections to providing coverage for contraceptive services.” This would also allow insurance companies with religious values to operate, providing a potential safe harbor from these and other morally offensive measures.
  • “This individual exemption allows plan sponsors and issuers that do not specifically object to contraceptive coverage to offer religiously acceptable coverage to their participants or subscribers who do object, while offering coverage that includes contraception to participants or subscribers who do not object.” Another major victory, this would permit — but not require — insurers to offer objecting individuals to opt out of the offensive coverage.

This is the result of steadfast opposition and litigation by many organizations and individuals who refused to surrender their religious principles  to over-reaching, ideologically-driven government regulation. Particuarly worthy of mention are the great defenders of religious freedom at Alliance Defending Freedom and Becket.

We can legitimately celebrate this victory, and thank God that our government has shown a new-found respect for our first and most precious freedom.

The Costs of Political Ignorance

Friday, September 15th, 2017

September 17 is the 230th anniversary of the signing of the United States Constitution. That document, in addition to being our governing text, is one of the greatest accomplishment of political and legal thinking and writing. Its endurance through such a long and troubled history, and its significance as a model for other nations that yearn to have ordered liberty, cannot be underestimated. For good reason, it has been called America’s sacred text, a secular Bible of sorts, the centerpiece of our civic religion.

So why are so many Americans so ignorant about the Constitution?

A study recently published by the Annenberg Center yielded appalling results when Americans were asked about the provisions of the Constitution. Some of the findings about constitutional rights:

  • 37% couldn’t name a single one of the rights guaranteed by the First Amendment.
  • Of those who could identify some First Amendment rights, only 15% named freedom of religion, 14% freedom of the press, 10% right to assemble, and 3% right to petition the government.
  • On the slightly brighter side, 48% could identify freedom of speech.

When it came to the structure of our government, things weren’t much better:

  • Only 26% could name all three branches of government.
  • 33% could not name a single one of the three branches.
  • 27% could only name one branch.

These results confirm what political scientists have long known — the great majority of people lack basic knowledge about how our government works and what it does. For example, the Pew Center periodically surveys people about current events, and the results are regularly dismal. Less than half of Americans can identify significant public officials and even fewer know important facts, like the approximate unemployment rate or that the government spends more on Social Security than foreign aid or that only about 13% of Americans are foreign-born.

This is a grave problem. It is true that a great deal of political ignorance is normal and rational — most political issues have little direct relevance to or impact on people’s lives. Yet the health of democracy depends on people knowing a certain amount of basic, common information if we are going to have anything like a rational public discourse.

The dangers of this political ignorance can be seen all around us. The tribalistic nature of modern partisanship is a clear example. More and more, people can be easily manipulated by demagogues or misled by propaganda that appeal to emotion rather than fact-based reason. Studies are showing that people with less political knowledge are easily swayed by changing positions of their party or leaders, instead of holding them accountable for breaking promises or betraying key principles. The scourge of racism and xenophobia is a direct result of political ignorance. In a society that inundates us with information, ignorance prevents us from sifting the wheat from the chaff.

There is a basic civic duty to be an informed citizen. It is bizarre to me that we require all applicants for citizenship to pass a civics test, but anyone can vote regardless of how much they know or care. For goodness sake, we require more knowledge to get a driver’s license than we do from voters. That civics test is really not that hard ( you can try a sample test here). Is it really too much to ask that people pass the test in order to qualify to vote?

Political ignorance is also a very big deal for us Catholics. Ignorance about constitutional rights is dangerous at a time when our religious liberty is under pressure. Anti-Catholic bigotry flares up regularly, fueled by the stereotypes that come from ignorance.

We also have a very grave moral duty as Catholics to become well-informed citizens and voters. The Compendium of the Social Doctrine of the Church puts it very strongly:

414. Information is among the principal instruments of democratic participation. Participation without an understanding of the situation of the political community, the facts and the proposed solutions to problems is unthinkable.

Unfortunately, what is “unthinkable” is all too common in our nation. The cost of this ignorance is the debased politics that is so dispiriting to watch. On this anniversary of our Constitution, it would be a good time to be highly resolved that “we the people” will remedy this and become well-informed, morally-responsible citizens and voters.