Archive for the ‘Law’ Category

A Religious Liberty Failure

Wednesday, May 10th, 2017

It is often difficult to know what to make of this very strange Administration. Every day seems to bring a new self-generated controversy and it is often difficult to discern what is going on and why.

Sometimes, though, it is very clear what has happened — or more accurately, what has not happened. The case in point is the alleged religious liberty executive order issued last week to great fanfare. It was a splendid photo op, with the President surrounded by Catholic prelates, the Little Sisters of the Poor, and other religious leaders. The President spoke wonderful words about how committed our government is to defending religious liberty. There were smiles all around and much applause.

The problem is that the executive order is virtually useless, it accomplishes nothing, it misses an opportunity to implement important reforms, and it delivers nothing more than vague promises of possible future actions at undefined times.

The order contains six paragraphs. The first contains hortatory language about the importance of religious liberty, which is virtually indistinguishable from proclamations issued by the prior Administration. The last two paragraphs deal with legal procedure that has no particular importance. The middle three paragraphs is where the substance is supposed to be, but isn’t.

Paragraph 2 purports to grant legal protection to the free speech of religious non-profits and churchs that are incorporated under section 501(c)(3) of the Internal Revenue Code. It directs the Treasury Department not to enforce a legal provision known as the Johnson Amendment, which prohibits those organizations from engaging in partisan political activity such as open endorsement of candidates. Opinions differ about the Johnson Amendment. I happen to think it’s a good idea but many others disagree. The problem is, though, that the government has virtually never enforced that provision and the President can’t do anything to change the law itself — it can only be repealed by an act of Congress. Future administrations could easily begin enforcing the rule at any time — which would be particularly dangerous for any organization that foolishly relies on this executive order and begins engaging in partisan politics.

So this part of the executive order is actually completely devoid of any real content. It’s merely a promise not to do something that isn’t being done, without preventing it from being done in the future. Hold your applause.

Paragraph 3 is a particularly frustrating diappointment to those of us who have been battling over religious liberty the past few years, especially over the HHS contraception and abortion mandate. That is the cause of voluminous litigation that culminated in a directive from the Supreme Court that the government find some way to accommodate the religious liberty concerns of religious non-profits who object to the mandate. This executive order directs the relevant agencies to “consider issuing amended regulations, consistent with applicable law, to address conscience-based objections”.

“Consider”? That’s all? Remember, you can’t overturn statutes or regulations with a mere executive order, so the HHS mandate and its offensive non-exemption continues to be the law of the land. But the President, with the stroke of a pen or even with a mere oral order, could easily have directed the Justice Department to immediately settle all the litigation by granting the religious non-profits the same full exemption that is enjoyed by churches, and further directing the relevant agencies to develop regulations that would formalize that settlement into law. That would have resolved the HHS mandate controversy completely and it would have established a strong precedent for further conscience protection laws and regulations.

This is a tragic missed opportunity, and it directly calls into question the Administration’s competence and/or its sincerity about protecting religious freedom. It is a complete and absolute failure to follow through on explicit campaign promises — somehave even called it a betrayal.

Paragraph 4 is hardly worth mentioning. It directs the Attorney General to “issue guidance interpreting religious liberty protections”. This won’t come any time soon, since virtually no sub-cabinet Justice Department officials have been confirmed by the Senate and there isn’t even a nominee for the head of the crucial Civil Rights Division. And in any event, “guidance” does not have the same force of law as regulations or statutes, it does not have to be accepted by the courts and it can be overturned at any time by this or any future Administration. So this is another post-dated check for something that may be delivered someday by someone. Yawn.

This much bally-hooed executive order is a major failure. It provides no actual protection for religious freedom. It does nothing to change the law. It does nothing to reverse the hostility of the prior Administration towards those with traditional religious beliefs. It does nothing to protect religious contractors from discrimination by government agencies that disapprove of their beliefs. It is such a non-starter that even the ACLU has decided that it’s not worth challenging in court.

Many people, particularly religious conservatives, supported the President because they rightly feared the consequences for religious liberty if Hillary Clinton had been elected. But the President’s executive order uttely fails to deliver on expectations for imporoved protection of religious liberty. All we can hope is that the Administration will eventually get its act together, appoint good people to crucial executive positions, and implement concrete reforms to statutes and regulations that will give genuine and lasting protection to people and organizations of faith. Meanwhile, despite all the fanfare in the Rose Garden, the very real threats to religious freedom remain.

Failing the Dred Scott Question

Friday, March 24th, 2017

As I have already written, I have great concerns about some of the answers given by Judge Neil Gorsuch during his confirmation hearings. I consider his originalist legal philosophy to be perfectly sound and likely to produce decisions that are favorable to the cause of human life. But when asked the most important question, his answer was an utter failure.

One of the Democratic Senators, Richard Durbin, was questioning Judge Gorsuch about a book he had written about assisted suicide and euthanasia. In the book, Judge Gorscuh proposed a principle that could be used to justify laws against suicide and euthanasia, which he called the “inviolability-of-life principle”:  “All human beings are intrinsically valuable, and the intentional taking of human life by private persons is always wrong.”

Senator Durbin then asked the judge how he could square that principle with legalized abortion. This exchange then took place:

Gorsuch: Senator, as the book explains, the Supreme Court of the United States has held in Roe v. Wade that a fetus is not a person for purposes of the Fourteenth Amendment—and that book explains that..

Durbin: Do you accept that?

Gorsuch: That’s the law of the land. I accept the law of the land, Senator, yes.

I appreciate Judge Gorsuch’s respect for precedent and the original meaning of the Constitution. But I wonder if he realizes that in his answer, he was echoing one of the worst possible Supreme Court precedents — the infamous case of Dred Scott v. Sandford. In that decision, the Court held that, based on their reading of the original meaning of the Constitution, African-Americans were not “persons” within the meaning of the Constitution:

They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect…. [and the provisions of the Constitution] show clearly that they were not regarded as a portion of the people or citizens of the Government then formed.

In a concurring opinion, one of the Justices said this:

The correct conclusions upon the question here considered would seem to be these: That, in the establishment of the several communities now the States of this Union, and in the formation of the Federal Government, the African was not deemed politically a person.

Is that really the kind of precedent that we want Supreme Court justices to respect?

What’s especially disheartening about Judge Gorsuch’s answer is that he didn’t have to say that at all. He could have easily deflected the question — as he did with pretty much every other substantive question — by saying that the issue of the personhood of unborn humans was likely to be litigated before the Court and that it was thus inappropriate for him to comment. The fact that he did give a substantive answer means that he considered the non-person status of unborn humans to be so clearly and finally settled that it is uncontroversial.

I still think that Judge Gorsuch should be confirmed, and that he will likely rule positively on incremental pro-life regulations of abortion. But any hope that he would overrule Roe v. Wadeappears to be a mirage.

The most important threshold legal question in any case is whether someone can count on the protection of the law to defend their basic human rights. Judge Gorsuch failed that question.

Our Government is the Enemy of Religious Freedom

Wednesday, August 24th, 2016

Throughout American history, people have depended on our government to protect our basic liberties — our “unalienable rights”. Our Declaration of Independence was based on the premise that the purpose of government was to secure these rights, and that any government that sought to extinguish them was unjust and should be replaced. Our Constitution likewise contains numerous provisions that are specifically designed to protect individual liberties — especially the First and Fourteenth Amendments.

In recent years, it has become more and more clear that the current Administration harbors a settled hostility to religious liberty and freedom of speech, and a deep commitment to coercing compliance with their ideology of sexual liberation and gender theory. The history of the HHS contraception mandate shows the relentless commitment of the Administration to coerce all employers, including religious organizations, to offer insurance coverage for procedures and medications that are offensive to their religious beliefs, like abortifacient drugs and devices.

Earlier this year, the Supreme Court sent a very clear message to the Administration that they wanted them to come to some kind of compromise over the HHS contraception mandate. But rather than heeding that suggestion, the Administration has instead intensified its assault on religious liberty.

In May, the Department of Health and Human Services issued new regulations that are astonishing in their breadth and daring. The regulations rely on an interpretation of the term “sex” in current anti-discrimination laws, and stretch that clear term to encompass “gender identity” — which the regulation defines as a person’s “internal sense of gender, which may be male, female, neither, or a combination of male and female”, which would even include people with “non-binary gender identities”. A definition that includes so much is no definition at all — it is hopelessly broad and vague, and ultimately incoherent. But that is gender ideology at its heart.

The regs go on to require every doctor, hospital and other health care entity that receives federal funds (e.g., Medicare) — in effect, virtually every single health provider in the US —  to cover all procedures and interventions related to a person’s “gender transition”. Just to be clear, that means medical procedures like massive doses of hormones and the removal or mutilation of health body parts (i.e., hysterectomies, castration, penectomies, mastectomies, plastic surgery to create fake sex organs, etc.) — all so that a man can pretend he is a woman, and vice versa. This coercive mandate will override the medical judgment of a doctor that such acts are not medically necessary or appropriate, and they permit no exceptions based on religious or moral values.

It gets even worse. The regs also interpret the notion of “sex discrimination” to mean that a health provider cannot refuse to perform abortions, and must cover abortions and all those “gender transitioning” procedures in their health insurance plans.

All of this was done through the administrative law process, which is an arcane and undemocratic way to make law. Instead of having a bill passed by both Houses of Congress, all this requires is a regulatory agency plublishing proposed rules, allowing people to comment for a short time, and then promulgating whatever rules they wish. No public hearings are needed, so the entire process is hidden deep in the pages of a massive publication called the “Federal Register”, which no normal person can read and understand (even lawyers, who are far from normal, have a hard time). It is extremely difficult to overturn regulations, because our courts have abandoned their duty of constitutional oversight and give extreme deference to the agencies putting forth the regs.

Our government has been increasingly using this undemocratic process to impose their ideology on the nation. In fact, they go even further by issuing “guidances”, which are purportedly not binding but which in fact are just as coercive as regulations and statutes.

A lawsuit has been filed by the Becket Fund for Religious Liberty, representing a number of states, religious health institutions, and health professionals. If the government follows its previous practice, they will fight tooth and nail against any compromises, and will never concede any ground. No religious objection is ever enough for them, and no demand by gender ideologues is too much. That is the regime under which we live.

In the Declaration of Independence, the Founders stated clearly that when a government no longer secures basic rights, and instead seeks to usurp or repress them, it can only be described as a tyranny. Our government may not be comparable to the wicked despotisms around the world, but it has clearly crossed a line with its relentless attacks religious freedom.

Opposing Assisted Suicide in the Courts

Tuesday, January 5th, 2016

The battle to defend life against the Culture of Death has many fronts.  The most prominent, of course, is the defense of the unborn child in the womb.  But increasingly, we must turn our attention to the end of life, where the weak and vulnerable are the targets of attack.

The movement to legalize assisted suicide has been growing in strength here in the United States.  It has already advanced in Europe, and even in Canada.  But its message of despair is getting more traction here as well.  Only a handful of states have bought the serpent’s message so far, but last year California fell, and that gives the movement considerable momentum.  They are turning their attention — and sending their extremely well-funded lobbyists — into a number of other states, including New York.

The battle over assisted suicide will soon be joined in our State Legislature.  Two bills are pending there, and we expect this legislative session to be the opening round of a long struggle.  I laid out the basic arguments in an earlier blog post.

But the enemies of life are also seeking to obtain their goal in the cheap and easy way — by going to court.  Last year, a group of advocates and patients filed a lawsuit in New York State court in Manhattan, seeking to have our laws against assisted suicide overturned.  Their argument is based on a spurious constitutional argument.  The Attorney General of New York has the duty to defend our law, which gave us some trepidation at the start of the case — the AG is staunchly pro-abortion, and no friend of the cause of life.  But his office did a good job defending the law in the lower court, and were victorious.  But the case is now before an appellate panel, and will eventually be decided by our Court of Appeals.

The time had come for the Church to enter the field.  So, the New York State Catholic Conference has filed an amicus curiae brief, explaining the compelling state interest in banning assisted suicide, and pointing out the dangers to religious liberty if the courts were to overturn the ban.  I was the principal author of the brief, assisted by my colleague Alexis Carra.  If you’re interested in reading the whole brief, you can download it here.

The argument in the brief focuses primarily on the reasons that we have laws against assisted suicide.  This is an important part of defending the current law — depending on the legal standard that the court applies, there must be either a “rational basis” for the law, or it must advance a “compelling government interest”.  I have found that in many cases, there haven’t been sufficient explanations of the moral and religious reasons for a law, or for a request for an exemption from a law.  I’ve seen this in litigation involving abortion, suicide, and religious liberty.  All too often, the argument is presented in a conclusory or perfunctory way.  This has always struck me as a terrible missed opportunity to explain to judges (many of whom have no understanding or sympathy for religious institutions) why these issues matter so much to us, and why we feel so strongly about them.

Another reason for making these arguments is so that they are out there in the public square.  Defenders of traditional moral standards are typically put on the defensive, which allows our adversaries to set the agenda.  It’s also a problem that we frequently make our arguments purely in secular terms, which misses the chance to do some indirect evangelization.  Even though I often like to say that all I care about is winning, in reality all I really care about is spreading the Gospel of Jesus Christ by whatever means available.

So, the battle is joined in yet another forum.  No rest for the defenders of life.

Lawless and Arrogant Judges

Wednesday, December 2nd, 2015

I frequently refer to judges as our “Black-Robed Platonic Guardian Rulers on the Courts” because of the consistent record of the modern judiciary to invent new laws based on their own policy preferences.  They often run roughshod over the proper role of courts in a constitutional republic, and particularly over traditional moral values that have been enshrined in law and culture since time immemorial.

They have arrogated to themselves the ultimate authority to decide the laws of our nation, and are unaccountable to anyone for the decisions that they make.  All one needs to do is look at the arrogant and imperious decisions in abortion cases (particularly Planned Parenthood v. Casey) and the redefinition of marriage (Obergefell v. Hodges) for all the evidence you need to see what I’m referring to.

Usually, judges are careful not to let on about what they’re up to.  Very few will actually admit to making momentous decisions based on their own preferences, or to disregarding the plain text and meaning of the Constitution when it stands in the way.  This is part of an implicit social contract in our legal and political establishment — everyone knows what is going on, but few will pull back the curtain.

But every so often, the mask slips.  Take the case of Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit.  Judge Posner is one of the most respected jurists of our generation, a brilliant scholar of law and economics and a public intellectual who has written on a wide range of issues.

He is also an astonishingly arrogant Black-Robed Platonic Guardian Ruler on the Courts.  In two recent public statements (on in the Yale Journal and the other in a speech at Loyola Law School), Judge Posner made some breathtaking statements about his view of the Constitution, the role of judges, and how he makes judicial decisions.  Consider:

I’m not particularly interested in the 18th Century, nor am I particularly interested in the text of the Constitution. I don’t believe that any document drafted in the 18th century can guide our behavior today. Because the people in the 18th century could not foresee any of the problems of the 21st century.

And again,

Federal constitutional law is the most amorphous body of American law because most of the Constitution is very old, cryptic, or vague. The notion that the twenty-first century can be ruled by documents authored in the eighteenth and mid-nineteenth centuries is nonsense.

This, from a judge whose position was created in that very same Constitution in order to decide cases and controversies that arise pursuant to that very same Constitution, and who swore to faithfully discharge his duties under the very same Constitution.

Not that this seems to matter much to Judge Posner.  When asked about his oath of office, this is what he had to say:

The oath is not really to the original constitution, or to the constitution as amended. It is to some body of law created by the Supreme Court. You can forget about the oath. That is not of significance.

When solemn oaths are deemed insignificant, one can only wonder what kind of justice is meted out in his courtroom.  Actually, we don’t have to guess, because Judge Posner has made it clear:

My approach with judging cases is not to worry initially about doctrine, precedent, and all that stuff, but instead, try to figure out, what is a sensible solution to this problem, and then having found what I think is a sensible solution, without worrying about doctrinal details, I ask “is this blocked by some kind of authoritative precedent of the Supreme Court”? If it is not blocked, I say fine, let’s go with the common sense, sensical solution.

In other words, law with the law left out, nothing more than ad hoc seat-of-the-pants rulings based on his idiosyncratic view of what is common sense on any particular day.  Of course, this should really come as no surprise from a man who has expressed his great admiration for the Friedrich Nietzsche, the moral nihilist and apologist for the powerful dominating the weak.

This kind of cynicism, unfortunately, is the mindset of far too many lawyers and judges in the United States.  When I was at Harvard Law School, the professors openly told us that there was no objective moral content to the law, but that it was just a vehicle for powerful people enacting their political preferences.

A nation ruled by such people is no longer a functioning democracy or republic.   It is a despotic judicial oligarchy.

Love for Animals, Danger for Humans

Friday, October 9th, 2015

I had the pleasure of attending a very interesting lecture at Fordham Law School, entitled “The Law, Science, and Ethics Behind the Nonhuman Rights Project and Its Struggle to Achieve Fundamental Legal Rights for Nonhuman Animals”. The principal presenter was an attorney, the leader of that project, who deeply loves animals.  He has brought numerous lawsuits attempting to persuade courts to declare chimpanzees to be legal persons, and thus entitled to rights and protection under the law.

This subject is particularly interesting to me, and I am completely in support of the argument that we have a moral obligation to love and treat animals humanely.  I am a vegetarian, and I have very serious moral objections to the way that industrial farming treats animals.  Pope Francis, in Laudato Si’, was very firm in insisting on the immorality of animal cruelty and the duty to treat animals humanely.

But even more important to me is the issue of legal personhood.  In the law, only those entities that are deemed “persons” possess the ability to assert rights, duties, freedoms and immunities that are legally enforceable.  In essence, the law will only recognize you and defend your rights if it considers you to be a “person”.

Under current American law, legal personhood is recognized for human beings (with an important exception I’ll discuss in a second) and entities that are created under the law and called “juridical persons” (e.g., governments, corporations, partnerships, and other associations).  No American law has ever recognized legal personhood in non-human animals.

Unfortunately, the two most notorious Supreme Court decisions in history both specifically denied personhood to a class of human beings.  The Dred Scott decision held that blacks were not persons under the law and thus “they had no rights which the white man was bound to respect” — so they could be held as chattel slaves.  The Roe v. Wade decision similarly held that “the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn” — and thus they could be killed with impunity.  An equally appalling New York State Court of Appeals decision, Byrn v. New York City Health and Hospitals Corporation, also specifically denied that unborn human beings are legal persons and thus have no rights that are bound to be respected by those lucky enough to be already born.   

That brings us to the lawsuits that seek to have chimps defined as legal “persons”.  It would be easy to view these actions as ludicrous, and I imagine that most people would dismiss them as such.  As a legal matter, I believe that the cases are meritless.  Their theory rests on the inconsistency of the law recognizing some humans as persons, while denying that status to others — which is true, but irrelevant when it comes to animals, which are, by definition, non-human.  And it relies heavily on an eighteenth-century English case that decided that slavery was not recognized under English common law.  But if you cite the common law as authority, you have to accept it whenever it’s contrary to your position too.  And English and American common law — as well as statutory and constitutional law — have never treated animals as persons, and always considered them to be property.  Wishful thinking and good intentions can’t make the law into something that it has never been.

But an unconvincing legal theory is not the most dangerous thing about these lawsuits, and the entire effort to have animals recognized as legal persons.  The animal personhood effort is premised on the fundamentally flawed idea that there is no relevant moral difference between humans and other animals — a rejection of “human exceptionalism”, which has been an axiom of law and society throughout history.  Instead, they seek to define personhood by reference to characteristics such as whether the animal is “autonomous and self-determining”, or whether they “possess the complex cognitive abilities sufficient for personhood” (to quote from the chimp’s court filings).

But these are inherently arbitrary.  Who decides what is sufficient, and what is not, and by what standard?  Do we draw the line at the “complex cognitive abilities” of chimps, or at dolphins, cats, dogs, chickens, insects, etc.?  Who is to say what degree of  “autonomous and self-determining” is enough to grant rights, and when it is not?  How an anyone tell, without any bright line standard — such as the obvious difference between the human species and an animal species?

Even aside from the legal chaos and arbitrariness that would result, there’s an even greater danger — if that’s the standard for determining personhood for animals, what if the same standard is applied to humans?

We know that the courts have no problem deciding that unborn children aren’t persons.  But what about newborn babies, who clearly are not “autonomous and self-determining” yet, and haven’t developed to the point where they “possess complex cognitive abilities”?  How about those who are in a permanent vegetative state?  Or advanced Alzheimers patients?  Will they be defined as non-persons, so that they have no protection under the law — and they can be treated as property to be mined for their organs,  or killed if they become too expensive to maintain?

This is not an idle set of questions, or a speculative “slippery slope”.  There are people, like the Princeton philosopher Peter Singer, who would gladly exclude from legal personhood those humans who lack sufficient “complex cognitive abilities” to satisfy his personal standards.

When law is made, laudable motives are not sufficient.  It’s wonderful that the Nonhuman Rights Project loves animals, and we absolutely need to grant greater legal protection to our fellow creatures. But the unintended consequences of legal changes must also be considered.  And the inevitable result of the animal personhood legal theories would be dangerous — and deadly — to humans.

Hard Cases, Small Steps

Thursday, August 23rd, 2012

The political world has been abuzz lately over comments made by a candidate for the U.S. Senate in Missouri.  When asked about whether pro-lifers would accept a ban on abortion that permitted an exception for rape or incest, the candidate made some ill-conceived remarks that seemed to minimize the horror of rape.  This incident has now been used by the forces of the Culture of Death (including their allies in the media) to flog pro-lifers as being radical or anti-woman.

Some clarification and explanation is in order.

The unquestioned goal of the pro-life movement is a conversion of the hearts of individuals, and thus of our culture, so that every innocent life is protected from conception until natural death.  This protection will involve changes in the law so that the practice — and even the concept — of abortion would be completely eradicated from our land.  Given our presumption that every human life has inestimable value, and that innocent life cannot be taken, we work towards the ultimate goal of enacting laws to prohibit abortion with no exceptions.  One vehicle for this would be a Human Life Amendment.

In short, we aim to build a Culture of Life, in which all lives are valued.  To get a glimpse of this goal, and how we can get there, I suggest that people read the great statement by the United States Bishops, Living the Gospel of Life.

Unfortunately, our culture is not yet ready to accept the changes in attitude and in law that we are seeking.  While there have been shifts in public opinion over the years in favor of the pro-life position, there are still a large number of individuals who either approve of abortion, or who are willing to tolerate it for a perceived “greater good”.  We must redouble our efforts to reach out to our brothers and sisters who believe this, to convert their hearts.

One way that we seek to achieve this conversion of heart is by taking  incremental steps towards our ultimate goal — in short, building a Culture of Life, brick by brick.  This is why we support measures that limit and restrict abortion in various ways, such as parental notification laws, bans on late-term abortions, and such.  By supporting these initiatives, we are not accepting the morality of abortion — we are seeking to mitigate the damage, and to use these bills as a vehicle to educate people about abortion, as a way of calling them to conversion.  This approach to legislation was specifically approved by Pope John Paul II in his encyclical The Gospel of Life (see paragraph 73).

This is where the “rape exception” comes into play.  Pro-lifers hold steadfastly to the fundamental truth that a baby conceived in a rape is an innocent human being whose life may never be directly terminated.  We see rape as a horrific act, an inexcusable violation of the dignity of a woman, a depraved crime that should be severely punished by law.  We believe that a woman victimized by rape must receive our support as she strives for healing.  But we do not accept that the path to healing passes through the abortion clinic.  We firmly believe that one cannot heal a victim of violence, by taking the life of another innocent person.

Unfortunately, many people disagree with us — people who either consider themselves pro-life, or who are willing to support some of our goals.  These people are potential allies as we try to pass common-sense laws to restrict abortion.  We wish to build alliances and coalitions with these potential supporters, not alienate them.  So, many pro-lifers in the political and policy arena are willing to tolerate a “rape exception” to a ban on abortion.   That is not to say that we consider such an exception as a final goal — but we take what we can get, when we can get it, and press on from there, always moving forwards.

There’s an old adage that “hard cases make bad law”.  They also make unsatisfactory compromises, and disappointment.  But they sometimes can produce small steps towards our ultimate goal.

 

The Catholic Lawyers’ Moment

Friday, October 7th, 2011

Last night, I was honored to receive a very nice award — the Charles Carroll Award from the New York Guild of Catholic Lawyers.  Many of my friends and colleagues were able to attend the Red Mass and the reception afterwards, and it was a very humbling experience.  Here is the talk I gave at the award ceremony:

All Glory and Honor to God, and thanks to Him for the opportunity He has given me to serve Him.  “I can do all things in Him who strengthens me.”

I don’t like speaking about myself, but fortunately I don’t have to, because this award is really not about me.  It’s about a cause.

I have been involved in public policy work for the Archdiocese for many years.  It’s a tough job, especially here in New York. Back in June, the Legislature voted to re-define marriage, a bill we worked very, very hard to hold off.  Afterwards, I was asked how I can keep doing this, how I avoid getting discouraged.  Part of it is because I’m Irish, and I love a cause that’s worth fighting for, even if it is against all odds.

But it’s also because I see a big picture, one that — by the grace of God — gives me great hope  and determination.

In 1987, Pastor (later Father)  Richard John Neuhaus wrote a book called “The Catholic Moment”.  He argued that a unique opportunity had arisen for the Church to offer moral guidance for the development of public policy, particularly in promoting a culture of life.

I believe that we are still in that Catholic Moment, and what’s more, I think there is a particularly important role for Catholic lawyers.  I believe that we are in a “Catholic Lawyer’s Moment”.

We all know the challenges.  Our world is deeply in the grips of a culture of death.  Attacks on human life from conception to natural death.  Genetic manipulation that threatens the integrity of humanity itself.  Hostility to fertility that is becoming more and more a hallmark of health care policy and practice.  A redefinition of marriage, overturning the foundation of society.  And increasing threats to the religious freedom of churches and individuals, threats that come from a secularist mindset that would exclude religion entirely from the public square.

In our profession, this secularism finds a partner in a soul-free legal positivism.  I recall my first year of law school, where we were taught from the beginning that there are no objective or transcendent values in the law.  Natural law was derided as outdated and sectarian.  Instead, we were told over and over that law is whatever the legislator or judge decides it is, based on their own values.  It is entirely an act of political will.  As one of my law professors liked to say, “It’s all up for grabs”.  I once gave a talk to a group of lawyers and when I mentioned natural law one of them said to me “I thought we got rid of that years ago.”  Really?  I’d like to see the bill that did that.

We see this alliance of secularism and legal positivism in many places.  Just yesterday, it was before the United States Supreme Court, in the most important religious liberty case in decades.  At stake is the ability of churches to operate without interference and control by the government in the selection of clergy and other staff members who have religious functions.  A key question for the Court is the nature of religious freedom — is it something inherent that requires special protection in the law, or is it something that the government can grant or withdraw, as it pleases?   The Administration filed a brief that took such a narrow view of religious freedom that both Justice Scalia and Justice Kagan expressed their surprise during oral argument.

It is ironic that, even as the secularists try to push religious belief out of public affairs and the positivists deny objective moral truth, there is a strong desire for guidance from the Church and from Catholics.  In debate after debate over tough moral issues, the media and public officials and regular people want to know where the Church stands.  They expect us to play a major role, and they look to Catholics for direction, even when they are sure to disagree.

In 2008, when the Holy See issued a major statement on bioethics, it was a major news story.  The media gave it extensive coverage — even in the New York Times.  Leading secular bioethicists and policy makers paid very close attention.  The same thing has happened in many other major debates — over the health care bill, the redefinition of marriage, cloning, assisted suicide and so on.

Why?  Because there is a hunger for truth and clarity, and Catholics can provide it.  We have a rigorously reasoned approach to difficult topics that is the result of careful analysis and has been developing for centuries.

We also have an understanding of the human person that is attractive and compelling — because it is true.  The secularist and positivist view of human nature is materialistic, morally relative, and utilitarian.  It is pessimistic and hopeless and dehumanizing — and false.  And people know that in their hearts.

Our view of the human person is Incarnational.  We believe that every human person is made in the image and likeness of God, and we believe that Jesus Christ, true God, became a true man.  We know that people aren’t just objects to be discarded when they are no longer useful or have become a burden.  We recognize that we are meant to be a gift to others, and not exploit them for our own benefit. We understand that our spirituality is central to who we are, and it can’t be ignored or relegated to the sidelines.  I cannot be a religious person in private, and a secularist in the public square — I am not two people, but one.  We are realistic about humanity, with all our flaws and problems, but in the end we are positive and hopeful.

We also know that there is objective truth, and there is a law of good and evil that has been written by God into the human heart — the natural law.    It appeals to people because it is true, because it speaks to the truth in their hearts.   And it gives us a common language for debate with others in the public square.

Two weeks ago, Pope Benedict spoke to the German Parliament about the foundations of law.  The Holy Father stressed that politics and law cannot be based solely on a drive for success or power — but that is the inevitable tendency of legal positivism.  Instead, he said that all law must be rooted in reason and natural law — only then will it respect the dignity of every human person.

This understanding of law is the antidote to the pessimism and nihilism of the secularists and positivists.  It gives us the foundation to uphold what is right and good and most human — polices that embody justice, charity, and the common good, and laws that protect the most vulnerable, and defend freedom and human rights.

We are called to do this in the public square, in our work, in our law practices, and in our everyday lives.  I look around the room and see people who are doing this, and I am in awe of them.  Supporting  organizations and political candidates who defend human life.  Filing briefs to defend crisis pregnancy centers or to oppose exploiting women by buying their eggs for cloning.  Giving practical assistance to mothers in crisis.  Representing doctors and nurses who are facing enormous pressure to sacrifice their religious values and participate in abortions.

And getting into the arena as advocates for justice and truth — that is what we are trained to do, and nobody does it better.

At the end of the fight over marriage in Albany this Spring, the day before the final vote, it was crazy in the Legislature.  A key Senator was called off the floor to meet with some constituents.  He walked through the corridors — filled with shouting protestors with their anti-religious signs and slogans.  There in the hallway, he met with a Catholic family — a husband and wife and their small children.  And there, amidst all the chaos and madness, they spoke quietly to him about the nature of marriage, family, and conjugal love.  It was a powerful and beautiful moment.

Our society is yearning for that kind of moral leadership.  We as Catholics and especially those of us who are Catholic lawyers can respond to that need.

It is very humbling to receive this award, named after Charles Carroll.  Two hundred and thirty five years ago, in 1776, he recognized that a special moment had come, and he responded — and signed the Declaration of Independence.  That document appealed to the natural law, and proclaimed the inalienable rights given to us by God, including the rights to life, liberty and the pursuit of happiness.  Charles Carroll and the other signers pledged to defend those rights with their lives, their fortunes, and their sacred honor.

I hope that none of us will have to risk our lives or fortunes, as Charles Carroll did.  But I believe that we now stand at another special time in history, and we too have a cause.  We have an opportunity to build a culture of life, to defend the dignity of every human person, to protect families and the vulnerable, to stand up for the liberty of religious people, and to safeguard the freedom of our beloved Church.

We are Catholics, we are Catholic lawyers, and this is our moment.  This is a cause for which we can pledge our sacred honor.  This is a cause worth fighting for.

Secularism in Action — In the Supreme Court

Friday, September 30th, 2011

On October 5, the most important religious liberty case in decades will be argued before the United States Supreme Court.  It is yet another instance of the influence of secularism in America, and it may result in a substantial reduction in religious liberty.  At stake here is the ability of churches to operate without interference and control by the government, or whether churches will be treated as if they were mere secular organizations.

The case is entitled Hosanna-Tabor Evangelical Lutheran Church and School vs. Equal Employment Opportunity Commission.  To understand why it is so important, I have to take a step back and explain a bit of constitutional law on religious freedom.

The phrase “separation of church and state” does not appear in the United States Constitution, but the basic concept is embodied in two clauses of the First Amendment, as interpreted by the Supreme Court.  In a nutshell, the Free Exercise Clause guarantees that the government cannot intervene in the internal affairs of religous organizations, and the Establishment Clause prohibits the government from any “excessive entanglement” in religious matters.

These principles are essential to the guarantee of religious liberty — they protect churches from becoming mere creations of the state, subject to interference by the government.  So, for example, under current law it would clearly violate both the Free Exercise Clause and the Establishment Clause if the government were to interfere in a church’s selection of clergy, over how doctrine is taught, or how a church resolves internal ecclesiastical disputes.  The First Amendment thus requires that religious organizations enjoy a considerable amount of freedom — a zone of privacy, if you will.

These basic principles have a direct impact on the ability of religous organizations to select their key staff members.  The courts have long understood that religious organizations must have considerable autonomy in the selection of clergy and other staff members who have religious missions.  They have also recognized that this autonomy occasionally conflicts with the provisions of anti-discrimination laws.

To address this tension, the courts long ago recognized what is called “the ministerial exception” to the anti-discrimination laws.  This exception permits churches to select their spiritual leaders — even if that decision would have violated anti-dicrimination statutes had it been done by a business.  So, for example, the Catholic Church’s cannot  be sued for sex discrimintion based on her all-male clergy.  The courts also recognize that this should not be limited to formally-ordained clergy, since many lay staff members play crucial roles in the religious mission of churches — just think of the central role of parochial school teachers, directors of religious education, pastoral associates in parishes, etc. in spiritual life of the Church.  Of course, not all employees of a religious organization are “ministers” .  For instance, one could not justify classifying a school janitor as a “minister”, since his job is clearly not spiritual in nature.

This brings us to the case before the Supreme Court.  The facts of the case are fairly straight-forward.  It involves a dispute between the Hosanna-Tabor School and one of their former teachers.  The teacher alleged that she was fired in retaliation for threatening to file a disability claim, in violation of federal anti-discrimination laws.  The school responded that she was a ministerial employee, whose job entailed a specifically religous mission for which she was commissioned by the church, and that as a result, the school’s decision to terminate her was an internal matter and was not subject to the anti-discrimination laws.

The Supreme Court will be wrestling with those facts, and also with larger questions — whether to recognize the ministerial exception, determining what part of the Constitution it rests upon, and giving guidance on how it is to be defined.  The biggest challenge is how to do all this without infringing upon the religious liberty of churches, and without getting the government entangled in internal religious matters.

Virtually every major religious organization — including the U.S. Bishops — has filed a brief in support of the Lutheran school, arguing for a broad definition for the ministerial exception rooted in the Free Exercise Clause of the First Amendment.

The Administration, however, has filed a brief that advocates for the virtual elimination of the ministerial exception.  In the Administration’s view, the exception — if it exists at all — is so narrow that it would only apply to clergy and disputes about doctrine.  Moreover, the brief denies that the exception is rooted in the Establishment or Free Exercise clauses, but is instead supported only by a much weaker constitutional principle that is subject to being overridden by any neutral, generally-applicable law.

In short, the Administration is advancing a position that would treat religious organizations as if they were merely secular groups, subject to virtually any government oversight and control — no different from banks, oil companies, or airlines.   If the Administration’s position prevails, churches will be subject to endless litigation and regulation, aimed at influencing and changing their internal doctrines and practices. This is a radical and dangerous argument.

Religious liberty is one of the founding principles of our Republic.  It is the reason that many of our ancestors came here, and the reason that many immigrants still long for our shores.  We must all pray for wisdom on the Supreme Court — and await with trepidation the decision in this momentous case.

Contempt for the Law

Thursday, July 21st, 2011

We already knew that they had no regard for the natural or divine law.  Now we have even more evidence that they have contempt for human law too.

New York City’s government is spending a great deal of time and energy (and taxpayer money) to hold same-sex “weddings” on Sunday, the same day that the new law takes effect.  To allow “weddings” to take place that day, a number of New York State Supreme Court justices have agreed to come to work and grant waivers from the ordinary 24-hour waiting period that our state law requires between the issuance of a marriage license and the solemnization of the marriage.

On what grounds will they grant those waivers?

Therein lies the story of the utter contempt with which our public officials hold the law.

The Speaker of the New York City Council, who takes an oath of office to uphold the laws of our state, was reported to have said this about the waivers:

The only reason a judge would deny a waiver…  would be if one of the grooms or brides was intoxicated.

Actually not.

According to Domestic Relations Law Section 13-b, the following circumstances must exist in order to grant a valid waiver of the 24-hour period (I’ve inserted numbering to make better sense of the long run-on sentence in the law):

It shall appear from an examination of the license and any other proofs submitted by the parties that one of the parties is (a) in danger of imminent death, or (b) by reason of other emergency public interest will be promoted thereby, or (c) that such delay will work irreparable injury or great hardship upon the contracting parties, or one of them.

It is absurd to suggest that any of these criteria are present in the carnival-like atmosphere surrounding the “wedding lottery” being conducted to determine who will be allowed to get “married” on Sunday.  One can only wonder what “proofs” — if any — are being submitted.  Remember, petitions for judicial relief are usually made under oath.  Will any judge deny a petition, for an insufficient factual basis?

It would be nice if some intrepid District Attorney were to warn people not to make any false statements in these petitions, which would be a crime under state law.  The perfect candidate would be the Nassau Count District Attorney, who recently threatened county clerks with criminal charges if they refused to sign same-sex marriage licenses (a threat that itself shows ignorance or contempt of a state law that requires employers to reasonably accommodate the religious beliefs of their employees). It would also be nice if the board that oversees judicial conduct were to examine the orders granted by these eager weekend justices, to see if they were faithful to their own oath of office to uphold the law — especially since Domestic Relations Law Section 13-b makes it a crime to solemnize a marriage without complying with its requirements.

I’m not holding my breath for any of this to happen. I realize that the law will be ignored, that waivers will be granted on an absurdly pro-forma basis, and that nobody will ever do anything about it. I also understand that this instance of running rough-shod over the law bodes very ill for the coming persecution of religious people and organizations who dissent from the new brand of “marriage”.

Our public officials hold the law in contempt. Is it any wonder why many people feel the same way about them?