Church, State, and Original Intent, by Donald L. Drakeman

This is a good book.  It describes the evolution of Church-State constitutional doctrine including the debates (or lack of them) during the ratification of the Constitution.  He finds that the "Wall of Separation" theory was not intended by the founders. Rather, the founders had a very accommodationist view.  The Establishment Clause was just that; a prohibition on the government establishing a national church much like the United Kingdom had at the time.  On the flip side, it prohibited the federal government from interfering with the free exercise of religion.  How we got to the place we are in today where the federal government every day interferes with the exercise of religion in prohibiting school prayer, religious displays, and even memorial crosses is the story of this book.  It is a dense read and heavily footnoted.  The author did his homework. For anyone interested in Church-State relations, this book is a must read. 

Pro-life advocates help prevent forced abortion in Austin -- CNA

While it is sometimes hard to describe what the difference is between Catholic lawyers and any other lawyer, you can check out this story where attorneys with the Alliance Defense Fund (ADF), saved a baby's life by obtaining a retraining order preventing a parent from forcing her child to have an abortion.  The Alliance is a Christian organization of lawyers who defend religious freedom, the sanctity of life, and family life.  The organization is not Catholic but they are doing God's work and should be applauded. 

As Catholic lawyers we, too, are called to use our talents in God's service.  We can , of course, make our own living practicing law as any other lawyer might but there should always be room in our practice to have God as our client. 

One of the most satisfying things I have done as a lawyer was to do an adoption for a low-income family.  They were hard-working and God-fearing but lacked the money to hire a proper adoption attorney on short notice.  My client's sister was a crack addict and had had a baby.  Child protective services were two-days away from taking the child from the hospital and placing her in foster care where she would have languished.  I knew next to nothing about adoption but asked a lot of people a lot of questions and was able to accomplish the job.  At the final hearing of adoption, the new mother was there with the child who looked beautiful in a fine white dress.  The judge was compassionate and pleased to be a part of the saving of this child. I was near tears as the judge rendered her final order. 

Cynics may say a lot about the practice of law and much of it is true in today's world.  As Catholic lawyers, we are called to be better than that.  And when you are doing God's work, there are rewards greater than those the world can offer.

National Catholic Register’s 2010 COLLEGE GUIDE

The National Catholic Register just released an expanded version of its annual Catholic Identity College List as a convenient, durable, 192-page book titled The National Catholic Register’s 2010 COLLEGE GUIDE.

This is perhaps best addressed to our pre-law followers who are looking for the right school to attend. This book does not specifically cite law schools but does give insight into the Catholic character of the campus of many universities that have law schools.

Our Cherished Right, Our Solemn Duty -- to Vote Pro-Life

The NY Catholic Bishops produced this document setting forth our responsibilities as citizens in a representative democracy and urging us to vote in accordance with a properly formed conscience.  It is, indeed, our duty to vote and to vote with our consciences.  Many people take that to mean that they need not follow all Catholic teaching when pulling exercising our right to vote.  On the contrary, we are called to fully inform our consciences. 

Where we think we disagree with Church teaching we need listen and think again.  Further, many people claim that since neither party supports all Catholic positions we can vote for anyone with whom we generally agree or for the party that our families have supported for generations.  This ignores the fact that some rights are different from others and are distinguished by the principle of subsidiarity.  For example, some might argue that they can vote for a pro-abortion politician because the politician supports other Catholic principles such as helping the poor or opposition to the death penalty.  The principle of subsidiary argues that support for abortion outweighs any other issue because without life all other rights are moot. 

It is not proper for a Catholic to support a pro-abortion politician.  Vote tomorrow but vote as if your soul depended upon it.

     

World Mission Sunday October 24, 2010

This Sunday is World Mission Sunday.  Pope Benedict XVI, in his message proclaiming the day, quoted Sacramentum Caritatis, "The love that we celebrate in the sacrament is not something we can keep to ourselves. By its very nature it demands to be shared with everyone. What the world needs is God's love; it needs to encounter Christ and to believe in him." For this reason the Eucharist is not only the source and summit of the Church's life, but also of her mission: an authentically Eucharistic Church is a missionary Church."

The Pope added that the Church "invites us to become champions of the newness of life made up of authentic relationships in communities founded on the Gospel. In a multiethnic society that is experiencing increasingly disturbing forms of loneliness and indifference, Christians must learn to offer signs of hope and to become universal brethren, cultivating the great ideals that transform history and, without false illusions or useless fears, must strive to make the planet a home for all peoples."

What does this mean for us as lawyers and students.  We have all felt the "call" to be professionals.  The profession of law requires us to be leaders.  Indeed, we are all called to be leaders in our own lives and our professional lives.  The essence of leadership is vision.  The Book of Proverbs says, "Where there is no vision the people perish but he who keeps the law is blessed ." (Proverbs 29:18).  We are to focus on the vision of Christ's sacrifice, the love that it entailed, and the blessings that this love offers mankind. We are called to bring this vision to others through evangelization.

Lawyers are called to ensure that this vision of love is reflected in law by the protection of the least among us; that an unborn child has a right to life, that family life is protected, that children are raised in a culture free from degrading influences, that people are free to express and follow their religious faith in all areas of life.

As Pope Benedict said "Dear friends, on this World Mission Sunday in which the heart's gaze extends to the immense spaces of mission, let us all be protagonists of the Church's commitment to proclaim the Gospel," indeed.

Recent Law Review Articles on Religion -- October 2010

Bertagna, Blake R. The government’s Ten Commandments: Pleasant Grove City v. Summum and the government speech doctrine. 58 Drake L. Rev. 1-65 (2009).

Crist, Terry M. III. Comment. Equally confused: construing RLUIPA’s equal terms provision. 41 Ariz. St. L.J. 1139-1166 (2009).

Luther, Robert III. “Unity through division”: religious liberty and the virtue of pluralism in the context of legislative prayer controversies. 43 Creighton L. Rev. 1-34 (2009).

McCrea, Ronan. Religion as a basis of law in the public order of the European Union. 16 Colum. J. Eur. L. 81-119 (2009/2010).

Ryan, Erin. Federalism at the Cathedral: property rules, liability rules, and inalienability rules in Tenth Amendment infrastructure. 81 U. Colo. L. Rev. 1-95 (2010).

East, Erin N. Comment. I object: the RLUIPA as a model for protecting the conscience rights of religious objectors to same-sex relationships. 59 Emory L.J. 259-309 (2009).

On the Chilean Miners . . . and a 1949 Harvard Law Review Article

Check out this great post by Ashby Jones on the Wall Street Journal Blog.  It relates the Chilean miners (Praise God they have been rescued) to the Harvard Law Review article by Lon Fuller on the differing results obtained when Positive Law and Natural Law are applied to a case of trapped cave explorers (The Case of the Speluncean Explorers).  Fullers article is a classic and repays reading with many a thoughful moment.

NPR engages in battle of words on abortion

This is good article from Jeff Bercovici, media analyst for Finance Daily.  He notes that NPR (that is taxpayer supported National Public Radio) has changed its vocabulary when referring to the opposing sides of the abortion debate.  Previously, NPR called the sides what they call themselves, Pro-Life and Pro-Choice.  NPR has now decided that they will call the opposing sides supporters/opponents of abortion rights.   Of course, this is a charged term that colors Pro-Life voices as being against a right.  No mention of the Child's right to life.  The NPR memo is here.  As mentioned in a previous blog, our opponents often try to control the use of language to win the debate before it has started.  This is another example.  Do not let yourself fall into using their language to describe your position.  It is easy to do because the media will inundate you with "their" terminology.  Never hesitate to correct the language used in debate.  We are Pro-Life because the right to life is fundamental to any other rights.  Without it, there are no other rights.     

Predictions of Humanae Vitae

The Population Research Institute blogged this list of predictions from Pope Paul VI encycical Humanae Vitae:
1. Contraception would lead to conjugal infidelity.
2. Contraceptive practice would lead to a “general lowering of morality.”
3. Contraception would lead men to cease respecting woman in their totality and would cause them to treat women as “mere instruments of selfish enjoyment” rather than as cherished partners.
4. And finally, widespread acceptance of contraception by couples would lead to a massive imposition of contraception by unscrupulous governments.

You might wonder how Pope Paul VI could have been so precient as to predict these things with such accuracy.  It is simple.  He studied natural law.  Our Declaration of Independence speaks of the adherance to the "Law of Nature and of Nature's God."  The laws of nature cannot be violated without adverse consequence to individuals and to society.  The relationships of male and female and the regeneration of society have been ordered by nature in accordance with the natural means of human procreation.  Contraception discards the natural means of procreation and replaces it with an artifice.  The predictable result is the destruction of the normal relations between the sexes and of the bonds of society.  To reorder society we need to understand that liberty exists within law; "freedom" outside law is chaos.

Abortion Language in Health Care Bill

While supporters of health care reform claim that they are working to help the less fortunate, their actions belie their words.  They have steadfastly, and in many ways deceitfully, included language in the bill that would fund abortion and those who would promote abortions.  Health care supporters seek to destroy the most unfortunate of those among us; the unborn child at risk of being killed.  The plan includes a kind of tax on every person's healthcare plan that would then be used to fund abortion. 

Congressional supporters  claim that "federal" funds would not be used for abortion.  This is only partially true in that the accounting gimmick simply uses the insurance companies as a proxy for government support.  This principle that no one should be forced to support that which they find abhorrent is violated whether the funding is through the government directly or a payment forced by law.  The bill also includes funding for "Communty Health Centers" which is simply a code word for abortion providers.  This health care bill must be defeated. 

Potential of Life vid

Check out this vid promoting the March for Life in Spain. The vid is effective in showing the continuity of life from conception on. The vid shows life in the womb and the events that take place at certain weeks such as the heart beats, the hands are formed, and etc... then moves on to show how at 1,100 weeks individuals such as Mother Teresa have changed the world. This vid is beautifully done and includes English subtitles.

My only quibble is that it shows successful people are certain stages of life. It leaves out the potential for those who are almost certainly destined not to make achievements at that level, the severely handicapped, for example. Sarah Palin's son Trig in all likelihood will never achieve greatness or change the world in a spectacular way. However, he, too, deserves life and our support for children such as these are truly the least of us. They, too, change the world by their very presence.

The State is not a Source or Beginning of Ethics

Pope Benedict XVI told the Pontifical Academy for Life "History has shown how dangerous and deleterious a State that proceeds to make legislation on matters that touch the person and society can be, when it tries to be the source and beginning of ethics."

In a talk that addressed current bioethics issues such as embryonic stem cell research, the Pope noted that the human dignity, which is fundamental to all rights, is not "written by the hand of man, but... by God the Creator in the heart of man."


Indeed, natural law as posited by Aquinas shows that all law proceeds from God's law.  The state may create municipal or positive law to better order society but that law must reflect an understanding of God's law.  Positive law that violates God's law is null.  Our own Declaration of Independence sets forth this understanding as the basis for the American Revolution. 

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."

In addition, international law upheld the same conception of law as our Declaration of Independence during the Nazi war crime trials.  German officers argued that they were simply following orders... following positive law.  It was held that this was insufficient to exonerate them.  We are all held to a higher power... to disobey laws that violate natural law.

Those who would tell us that our religious beliefs have no place in the political debate are not only wrong about the content of public discourse but also about the fundamental source of law, ethics, and public policy.  Of course, they know they are wrong and are only trying to win the debate without arguing the merits of their position. 

Pope Benedict and Equality

Check out this article on Pope Benedict and equality from Michael Miller of the Acton Institute.  In it he states "Radical equality now has become praiseworthy as something good in itself, separated from any question of truth, common sense, or even biological realities." 

Radical equality is based upon philosophical nominalism.  Nominalism posits that we can not "know" anything about reality.  Its best expression is Descarte's "I think, therefore I am."  The only thing that can be known is the self, and we can know precious little of that, only that we exist.  The outside world is unknowable.   All categories of "things" out in the world are artificial.  We really do not know what "rocks" are and all attempts to categorizes various similar phenomena (i.e. various types of rocks) as rocks are artifical constructs that we impose upon the world.  Thus we can not know "gender."  The concepts "male" and "female" are simply artifical constructs.  These social constructs are created by those in power.  Language is an instrument of power.  Critical Legal theory goes on to say that these constructs are used by the majority to subjugate and exploit the minority.  Further, since we ourselves have no knowable essence, we are simply the sum total of our experiences.  Since others are in charge of that experience, we are their victims; victims of social pressure and language.  Only by overthrowing the "male, female" constructs can the minority be free.  Fortunately, this is hogwash.

We can and do "know" things about the outside world.  Science has shown that there is a kind of dialog between the perceiving mind and the object being perceived.  Thus, before you thought, you were.  We are not simply the sum of our experiences.   We interact with our experiences, accept some, reject others.  If the nominalists were right, then all change would be impossible as everone would be bound by their experience.  Thus, another nominalist, Karl Marx, had to resort to the "vanguard" to lead his revolution.  The vanguard would be a group of people who had (magically) escaped the bonds of their social position.  When we deny reality, equality can only be enforced by state power.  All will be forced to hold the position of the minority, or, at least, act as though they held that belief.  Radical equality leads to oppression.  True equality requires an understanding of our nature and our standing equally before the state.

Catholicism Object of Distortions at Prop 8 Trial

A news release by the Catholic League for Religious and Civil Rights shows how the plaintiffs in the prop 8 trial are distorting religious views in an attempt to make the facts fit the homosexual agenda.  Lead attorney David Bois, who also represented Al Gore in the 2000 Florida election litigation, called as an expert witness professor Gary Segura of  Stanford University.  Segura's testified that religious groups which supported Prop 8 constituted 34 percent of the nation’s population, while only 2 percent of religions opposed it is a serious distortion of the facts.

What Bois is trying to do is to show the court that homosexuals are a protected class in that their life style is an immutable charcteristic like race rather than at some level a choice.  Once that has been shown he needs to complete the scenario whereby homosexuals are the object of relentless discrimination by the majority which has embeded its discriminatory ideas in law, thereby making homosexuals a "protected class" in Supreme Court parlance and therefore entitled to "equal protection" under the Constitution. 

There are a couple of problems with this line of attack.  First, this is not factually true.  While churches did provide much of the organized support for Proposition 8, the proposition passed with an overwhelming majority of voters of all faiths and non-faith.  Further, Bois distorts the religious position by claiming that Church in rejecting homosexuality wishes homosexuals ill, that the church wishes to keep homosexuals under subjegation, likes blacks under Jim Crow.  This is untrue.  The Church has always distinguished between the sin and the sinner.  As believers, we have no animus against homosexuals, only the activities in which they engage.  But please do not ask us to ratify the homosexual lifestyle in marriage.    

The second and greatest problem is ethical.  Lawyers need to provide the most effective representation to their clients.  Lawyers, though, also have a duty to society.  However, at a certain point excessive zeal in representation may do actual disservice to society.  Bois is casting religion as the villain of the piece.  Through his distortions Bois seeks to make illicit the church's ideas about homosexuality, marriage, and society. 

The lesson he wants society to draw is that you can believe anything you want but you can not vote based upon your deeply held beliefs, you can not act on your deeply held beliefs, and you can not speak publicly about your deeply held beliefs. This is the lesson of totalitarianism.  Under totalitarian systems individuals can believe as they wish but may not act on these beliefs.  Under these systems individuals need to carry two sets of beliefs, one the party line which they must pretend to profess, the other that which they actually believe. 

Does David Bois intend to prohibit bringing our consciences into the voting booth.  If so, his advocacy intends the destruction of democracy.

U.S. Educated Lawyer Imprisoned in Vietnam

Le Cong Dinh, one of Vietnam's most famous lawyers, was sentenced to five years in prison for trying to overthrow the government.  At his brief trial, Dinh, who went to Tulane Law School, admitted he was influenced by Western ideas while studying abroad, admitted being a member of the banned Democratic Party of Vietnam, and admitted attending a meeting of dissidents in Laos.  He denied attempting to overthrow the government seeking only to introduce multiparty democracy.  Dinh could have received the death penalty. 

Le Cong Dinh's courage in speaking the truth to his interrogators provides a model for us all.  None of us faces death but many of us hesitate to tell the truth about the many ills that beset our nation, including abortion, pornography, and the "gay" agenda.  In an earlier time, Alexandre Solzhenitsyn told the truth about the Soviet regime and galvanized resistence to it.  He became so famous that even the Soviets could not simply kill him. 

Le Cong Dinh deserves our support.  Let the Vietnamese government know that the whole world is watching.  Send a letter to: 

Ambassador Le Cong Phung
Vietnamese Embassy
1233 20th Street Northwest

Washington, DC 20036-2364

Vietnamese response to U.S. criticism of trials.

Basilica of the National Shrine of the Immaculate Conception

I'm just back from the National March for Life.  It was the largest March for Life yet.  More on that in a later post. 

I took the opportunity of being in Washington to finally visit the National Shrine of the Immaculate Conception.  I should not have waited so long.  The architecture is breathtaking.  The altars devoted to the various devotions to Our Lady are moving.  The church was crowded with tourists yet they were quieted by awe.  Sincere praying could be done without disturbance.  Masses are being said on the Crypt level at almost every hour.  Confessions were being heard all day.  My visit touched me at a deep emotional level -- Our Lady working in my life, I guess.  This is religious architecture done right; providing awe, inspiration, and reverence. 

If you have not yet made a visit to our National Shrine-- it is America’s Catholic church, make one soon.  You will be rewarded beyond expecations.  I will shortly post pictures of the Basilica and the March; none of which do justice to the place or the event. 

Rhetoric, argumentation, and propaganda

Ever wonder why the good guys always seem to be at the rhetorical disadvantage.  We mean well but find ourselves cast as oppressors.  That is because our opponents use rhetorical and advertizing techniques to change the subject and shade the meanings of words.  For example, pro-abortion groups have taken to calling for the right to fund "women's reproductive health."  Thus those who opposed them are against women and their health.  Pro-life activists are cast as attempting to deny women health coverage.

I saw an good exposition of the techniques used by progressive social activists on The Abundant Life with Johnnette Benkovic, a program seen on EWTN.  The guest, Paul Rondeau, a professor of marketing at Regent University, explained many of these techniques and how the progressive movement uses them to influence opinion and silence opposition.  Another example is the program of "desensitize, jam and convert" whereby we are exposed to certain ideas so often and so ubiquitously that we become desensitized to the idea.  Thus the media present to us many images of "normal" homosexual lifestyles including on such innocuous programs as HGTV's House Hunters.  After a while we see these couples as just another "lifestyle."  "Jamming" refers to linking legitimate points of view with the most extreme negative attitudes.  Thus if you are against hate speech codes you ar a homophobe and in the same class as those who assault and murder homosexuals.  This technique is used to quiet opposition.  No one wants to be cast as a racist or hatemonger.  Conversion comes when they portray people happily living with the ideas that they aimed to put across.

A copy of the program can be purchased at the Living His Life Abundantly web site. Some of these techniques are discussed here on the Christians Thinking site.

Knowing the techniques is the first step to countering and exposing them.  Having the courage to speak the truth unmasks these techniques and will ultimately defeat them.  In the end, reality will defeat them.  The progressive movement believes that words and language have no meaning; that is words do not refer to anything real.  This argument was made clear by Jacques Derrida and Michel Foucault.  Words and language do not refer to anything in the real world they are simply exercises in power.  The world is fully malleable by the manipulation of language.  Thus they can take the position that gender is a "socially constructed" concept.  There is no male and female, only things we call male and female and these concepts have been imposed on us by the existing power structure.  We have the power to create whole different concepts of gender by changing the language.  In the end, though, language refers to actual characteristics of reality.  Those who deny reality are, in the end, going to smash into it.

March for Life

Join us at the March for Life on the Mall in Washington, DC on Friday January 22, 2010.

Few issues define the divide in the culture more starkly than abortion. On one side, we have the the sanctity of human life, on the other, the rejection of "inconvenient" human life. On one side, we have a fundamental human right to life, on the other, we have no right to life beyond that which the state permits. On one side, we desire to protect the least among us, on the other, the desire to see the least among us disposed of. On one side, each life is a unique gift of God, on the other, each life is the curse of a mouth to feed. On one side, we have morality and human rights, on the other, pragmatism and nihilism. On one side, we have life, on the other, we have death.

Lawyers are called to be advocates. Advocate for the least among us this Friday.

You don't have to wait long

It did not take very long for an issue to come up that highlights the critical need for a Catholic organization dedicated to supporting law students and reform in the legal and political arenas.

Item 1. The 9th Circuit Court held that the University of California could reject high school credits given to a student by a Christian high school on the basis that the class content contained religious themes thereby preventing the student from enrolling in the University of California. The decision, Association of Christian Schools International v. Stearns, et al., holds that the University rightly rejected the classes because the they did not teach about religion in a neutral way and that in rejecting the classes "UC does not punish a school for teaching, or a student for taking, an unapproved course."

Item 2. Martha Coakley, Democratic candidate for Senator from Massachusetts, in discussing abortion said ”You can have religious freedom, but you probably shouldn't work in the emergency room.” The context was that physicians need to be able to prescribe the "morning after" pill to rape victims.

The lesson here is that, if you go to a high school that teaches the wrong things, you cannot go to a public university and, if you believe in the wrong things, you cannot be a physician. The "wrong" things being ideas that disagree with the beliefs of the political and legal elites. However, it is modern philosophy that has it all wrong. Classical human rights are based upon our God-given human dignity which requires our acting as moral agents in the exercise of those rights. Thus the only true rights are so-called "negative" rights. The Declaration of Independence states that we have the God given rights to Life, Liberty, and the Pursuit of Happiness.

When we exercise these rights we are expected to do so without imposing ourselves on our fellow citizens. Thus, we have the right to free speech but not the right to force anyone to listen. This leaves everyone else in society free moral agents who may listen or not listen to what you have to say. The rights are "negative" in the sense that no one needs to give up anything for me to exercise my right, they just have to leave me alone.

A positive right is one that others must provide to you if you are unable to provide it for yourself. For example, you have the right to an education until you are 18 years old. If you cannot afford an education, you will be given one for free. Notice that someone else in society will need to pay for your education. They have no choice in the matter, they can not simply just leave you alone. You have imposed your demand for a right to an education upon them. Now the right to a minimal education is pretty uncontroversial and involves no deep moral issues.

Abortion is permitted in the United States. You might agree with abortion or not, you can argue against it. However, the pro-abortion position is that abortion is a "positive" right.

The pro-abortion position is that if you want an abortion someone must provide it. Now you see that this would force others to take part in something with which they deeply disagree. Both parties are acting immorally. The person enforcing the "right" is immorally coercing someone else to do their bidding and the person being forced is no longer an independent moral agent but rather the servant of the holder of the so-called positive "right."

Likewise, we have free speech and freedom of association. The Christian high school has the right to teach as it wishes. In fact, to be a proper moral agent, it must teach as it believes and the student must believe what he understands to be true.

The public university can only review the credentials of students based upon such objective criteria as factual knowledge (i.e. what is the theory of evolution?). The public university may not discriminate against the student based upon what the high school taught or the what student believes about the theory of evolution (i.e. is it true?). In trying to rule on the content of the courses rather than the particular facts conveyed in them the public university is attempting to force them to become agents of the state rather than letting them be free to act as their own moral agents. True freedom is moral.

From these two examples we see that the prevailing political and legal philosophy is set against the Catholic understanding of law and government and aims to marginalized and exile those who hold these beliefs. It didn't take long after the founding of the CLSA and this blog to find prominent examples of how far our society has strayed from its foundations.

Welcome

This is the inaugural post on this blog. We, and I am using the royal we, hope that you will follow discussions here and make use of the resources that will be made available at our home website .

We also hope that you will become members of the organization. The CLSA is in its infancy and we have a lot of work to do. Many hands make light work. Please feel free to e-mail me with ideas and suggestions, or just to raise an issue you would like to see discussed on the blog.

This association was founded to support believing Catholics as they make their way through law school and, more importantly, to enable these students to withstand the attempts by "modern" intellectuals to marginalize Catholic thought and to encourage students to act to retake the culture and the public square.