“Catholic Midwives Must Supervise Abortions, Supreme Court Decides”

That’s the title of this report, though I would welcome more information from readers who may have it. The Supreme Court is that of the United Kingdom, and the case involves the issue of accommodation for objection to performing abortions on the basis of religious conscience. The statute interpreted by the Court is the Abortion Act of 1967, which provides that “no person shall be under any duty … to participate in any treatment authorised by this Act to which he has a conscientious objection.” The issue before the Court was the scope of the statute: it is clear that the objecting midwives would be under no obligation to participate in abortions themselves, but it was not clear whether they could be compelled to supervise other staff who did participate in abortions. “Participate,” ruled the Court, demands a “hands on” role in the abortion, and any supervisory role was insufficiently “direct” to come within the statutory definition.

The midwives claimed that it would have been very easy to accommodate them, because the number of abortions on their ward was only a very small fraction of the work, supervision of which could readily have been assigned to others with no risk that anyone desiring an abortion would go without care. But that sort of compromise was unavailing to Ann Furedi, chief executive of the British Pregnancy Advisory Service: “[E]xtending this protection to tasks not directly related to the abortion would be to the detriment of women needing to end a pregnancy and the health care staff committed to providing that care. There are enough barriers in the way of women who need an abortion without further obstacles being thrown in their way.”

UPDATE: More information on the case may be found at Religion Clause Blog.

FURTHER UPDATE: A thorough statement of the case and arguments at Frank Cranmer’s blog.

The Proctor: A Legal Note from David Copperfield

The more substantial novels of Charles Dickens represent a regrettably sizable hole in my reading, one which with time I hope to plug up. I’ve started with David Copperfield and am enjoying it greatly. The writing, as much or more than the story itself, is truly magnificent.

Unlike with some of Dickens’s other work in which it is generally portrayed unflatteringly, the law and legal practice is not an absolutely central theme in David Copperfield, though it does show up from time to time. The ingratiatingly servile Uriah Heep has already been described poring over some legal treatises, and this detail is sure to resurface by and by. But the law does make something of an appearance when David, now a young man of 17 and at the urging of his aunt, selects the profession of “proctor.”

I had not before known what a proctor was. Apparently the proctor was a special kind of solicitor who dealt with both ecclesiastical and admiralty matters, an unusual combination! The position of proctor was merged with solicitor in the late 19th century. Here is a charming bit from Chapter XXIII about proctors and their practice (as relayed only slightly in jest by David’s prepossessing friend, Steerforth):

“What is a proctor, Steerforth?” said I.

“Why, he is a sort of monkish attorney,” replied Steerforth. “He is, to some faded courts held in Doctors’ Commons–a lazy old nook near St. Paul’s Churchyard–what solicitors are to the courts of law and equity. He is a functionary whose existence, in the natural course of things, would have terminated about two hundred years ago. I can tell you best what he is, by telling you what Doctors’ Commons is. It’s a little out-of-the-way place, where they administer what is called ecclesiastical law, and play all kinds of tricks with obsolete old monsters of acts of Parliament, which three-fourths of the world know nothing about, and the other fourth supposes to have been dug up, in a fossil state, in the days of the Edwards. It’s a place that has an ancient monopoly in suits about people’s wills and people’s marriages, and disputes among ships and boats.”

“Nonsense, Steerforth!” I exclaimed. “You don’t mean to say that there is any affinity between nautical matters and ecclesiastical matters?”

“I don’t, indeed, my dear boy,” he returned; “but I mean to say that they are managed and decided by the same set of people, down in that same Doctors’ Commons. You shall go there one day, and find them blundering through half the nautical terms in Young’s Dictionary, apropos of the ‘Nancy’ having run down the ‘Sarah Jane,’ or Mr. Peggotty and the Yarmouth boatmen having put off in a gale of wind with an anchor and cable to the ‘Nelson’ Indiaman in distress; and you shall go there another day, and find them deep in evidence, pro and con, respecting a clergyman who has misbehaved himself; and you shall find the judge in the nautical case, the advocate in the clergyman’s case, or contrariwise. They are like actors: now a man’s a judge, and now he is not a judge; now he’s one thing, now he’s another; now he’s something else, change and change about; but it’s always a very pleasant profitable little affair of private theatricals, presented to an uncommonly select audience.”

What is an Advertisement Without “Moral” or “Political Content”?

In respect of Mark’s post below on the endorsement test and the NYC subway, our friend, frequent reader, and sometime guest here at the Forum, Professor Perry Dane, rightly notes that the MTA’s disclaimer policy purports to include only those advertisements with “religious,” “moral,” or “political content.” In response, Mark makes the factual observation that he has not seen similar disclaimers on other advertisements with such distinctively “moral” or “political content.”

But he need not work from memory. Isn’t the delivery.com ad one with “moral content”? Is it not endorsing a certain viewpoint with attendant moral underpinnings? Aren’t ads advocating “doubtful cosmetic treatments” and “consumer fantasies” also promoting various moral outlooks and perspectives?

Perhaps one could elaborate a well-worked out theory of the distinction between the “moral,” the “political,” the “religious,” and…everything else that really doesn’t fall into these categories, though I’d like to see just where the lines are drawn. But I suspect that the MTA doesn’t have such a theory at all. Instead, it probably believes that doubtful cosmetic treatments and liquor delivery services aren’t “moral” in the way that counts for endorsement purposes. And it’s probably correct about that. One more reason to dislike the endorsement test.

Disapproving Religion in the NYC Subway

Here’s a post about two advertisements I happened to see while riding the New York City subway this past weekend. The ads reveal much about the subtle disparagement churches and other religious organizations sometimes experience from government agencies in the Big Apple.

subwayTake a look at the photo on the left. It shows an ad for Marble Collegiate Church in Manhattan. As far as I can tell from its website, Marble is a mainline, Protestant congregation, committed to progressive causes like diversity and same-sex marriage. Marble, the ad proclaims, is “church the way you always hoped it would be.”

Pay particular attention to the bottom of the ad, which contains a disclaimer added by the MTA, the government agency that runs the subway. The disclaimer is in bold type and takes up about 25% of the ad space. It is unsightly, in a different font and format from the rest of the ad, and definitely distracts the reader. It says: “This is a paid advertisement sponsored by Marble Collegiate Church. The display of this advertisement does not imply MTA’s endorsement of any views expressed.”

This is very odd. True, the Supreme Court’s “endorsement test” provides that government may not take actions a reasonable observer could understand, in the circumstances, as an endorsement of religion. (This explains why local governments are so careful about Christmas decorations on public property). The MTA presumably insisted on the disclaimer to make clear to subway riders that, by posting Marble’s ad, it did not endorse the church’s underlying religious message.

But the endorsement test does not require a disclaimer here. No reasonable observer could think the MTA had endorsed Marble’s message by posting its ad. There are ads in subway cars for a variety of businesses and nonprofit organizations. Nobody thinks the MTA vouches for the truth of those ads, or even the good faith of the sponsors. Will cosmetic surgery “change your life?” Will Foursquare “lead you to places you’ll love?” Who knows? But the MTA doesn’t think it necessary to attach disclaimers. No one would expect it to do so.

For example, here’s an ad my brother pointed out to me, for a company boozecalled delivery.com. The ad says the company will deliver beer, wine and liquor on demand, thereby allowing customers to “Booze Wisely.” There’s no MTA disclaimer in this ad. But why not? If reasonable people could think the MTA had endorsed Christianity by posting Marble’s ad, why couldn’t they think the MTA had endorsed drinking by posting delivery.com’s? If anything, the danger of misunderstanding is higher. The delivery.com ad offers a 30% discount to people who include the word “SUBWAY” with their orders. Marble didn’t trade on the name “subway” or offer special treatment for straphangers.

Now, supporters of the MTA’s disclaimer policy might argue there’s no real harm here. The disclaimer merely reminds people of an important constitutional principle, namely, that civil government does not take positions on the truth of religious propositions–like whether Marble really is, as its ad claims, what people would hope from a church. At worst, the disclaimer is a bit unnecessary. What’s the cause for complaint?

It’s this: Requiring church ads–and only church ads–to include disclaimers is a kind of disparagement that places churches at an unfair disadvantage in the marketplace of ideas. The inescapable implication is that there is something uniquely impolite and dangerous about religion–more than doubtful cosmetic treatments, consumer fantasies, and boozing it up at home–and that government must keep its distance. The MTA’s policy doesn’t suggest state neutrality respecting religion, but disapproval. For the record, the endorsement test prohibits that as well.

UPDATE: Perry Dane points me to the MTA policy, which actually extends to ads with “political” and “moral” content as well as “religious.” I’m surprised, because I’ve seen plenty of ads with political and moral messages that don’t carry disclaimers, but maybe the MTA just hasn’t gotten around to labeling everything. Still, the differential impact on religious messages has implications under the endorsement test.

Piatt, “Catholic Legal Perspectives”

This month, Carolina Academic Press releases a new edition of “Catholic Legal 9781611636642Perspectives,” by Robert William Piatt, Jr. (St. Mary’s). The publisher’s description follows:

This second edition updates the examination of contemporary issues, identifying in critical areas, how Catholic principles and legal principles overlap and diverge. While it is not expected or required that the reader agree, in every instance, with either the law or the Catholic perspectives, the reader of this work will come away with an understanding of both. Critiques and responses are included throughout. Topics include family issues (marriage, same sex marriage, divorce, annulment), immigration, public assistance, religious freedom, and matters of life and death, including abortion, euthanasia, and the death penalty.

The book is aimed at law students, lawyers, those in Catholic undergraduate and graduate schools, and others who are interested in examining Catholic views regarding our system of justice. The book includes updated excerpts from cases and statutes, law review articles, and commentaries. It contains important Church documents including selections from papal encyclicals, communications from the U.S. Council of Catholic Bishops, theologians, and others. Each chapter concludes with a “For Further Thought” section, asking the reader to consider, apply, and examine the principles discussed in that chapter. It asks law students and lawyers to reflect on whether these principles will or should affect their representation of clients or the way judges should approach cases brought before them. The book contains a bibliography at the end of each chapter for further reading and study.

Allitt on Europe and Cultural Difference

In reading this old review in the University Bookman by the historian Patrick Allitt of a rather grim book by Thomas Molnar, I came across the following lines about European unity (circa the late 1990s) and the relationship of aspirations to unity and the realities of historical and cultural difference. They reminded me of a few of the themes that emerged in our conference on international religious freedom this summer:

The idea of a united Europe, [Molnar] believes, is itself an American notion, even though it has fired the imagination of “Europeans” like Jacques Delors with all-but-evangelical intensity. Although I have my differences with him, this is a point where I find Molnar convincing: the idea of a united Europe is no more than an idle fantasy, contradicted at every point by history, and advocated at present only by businessmen and their political cronies who anticipate large profits. The European Community has homogenized, standardized, and centralized its affairs, chipping away at local traditions, undermining regional authorities, always advancing with its soothing rhetoric about peace, goodwill, and efficiency, and favoring the mild curiosity of tourism over the heroic self-discipline of cultural creation. But “Europe” has never been able to still ancient animosities, many of which still smolder beneath the civil surface. What’s more, it has only to glance a degree or two eastwards to remember some hard truths. Eastern Europe, though also prey to “Atlantic” delusions, is both literally and figuratively further from the great waters and a standing denial of “European” dreams. Swept first by the barbarian invasions, later by the Ottoman Empire, and more recently by the Nazis and the Soviet Union, fraught with fanatical hatreds of the sort which exploded the idea of Yugoslavia, let alone European unity, it promises to act the part of Banquo’s ghost at all Atlantic feasts.

Dawson, “The Gods of Revolution”

This is a new edition of a work by the brilliant historian, Christopher Dawson,Dawson final sketch.indd first published in 1972. The book (Dawson’s last monograph, a short work published posthumously with an introduction by Arnold Toynbee) is The Gods of Revolution, reissued by CUA Press and with a new introduction by Joseph Stuart. In a college course in the intellectual history of western civilization many years ago, one of the required readings was the last chapter of Dawson’s book. I went back and looked at it, and have the following line highlighted: “And a free society requires a higher degree of spiritual unity than a totalitarian one, hence the spiritual integration of western culture is essential to its temporal survival.” The publisher’s description follows.

In The Gods of Revolution, Christopher Dawson brought to bear, as Glanmor Williams said, “his brilliantly perceptive powers of analysis on the French Revolution. . . . In so doing he reversed the trends of recent historiography which has concentrated primarily on examining the social and economic context of that great upheaval.”

Dawson underlines the fact that the Revolution was not animated by democratic ideals but rather reflected an authoritarian liberalism often marked by a fundamental contempt for the populace, described by Voltaire as “the ‘canaille’ that is not worthy of enlightenment and which deserves its yoke.” The old Christian order had stressed a common faith and common service shared by nobles and peasants alike but Rousseau “pleads the cause of the individual against society, the poor against the rich, and the people against the privileged classes.” It is Rousseau whom Dawson describes as the spiritual father of the new age in disclosing a new spirit of revolutionary idealism expressed in liberalism, socialism and anarchism. But the old unity was not replaced by a new form. Dawson insists the whole period following the Revolution is “characterized by a continual struggle between conflicting ideologies,” and the periods of relative stabilization such as the Napoleonic restoration, Victorian liberalism in England, and capitalist imperialism in the second German empire “have been compromises or temporary truces between two periods of conquest.” This leads to his assertion that “the survival of western culture demands unity as well as freedom, and the great problem of our time is how these two essentials are to be reconciled.”

This reconciliation will require more than technological efficiency for “a free society requires a higher degree of spiritual unity than a totalitarian one. Hence the spiritual integration of western culture is essential to its temporal survival.” It is to Christianity alone that western culture “must look for leadership and help in restoring the moral and spiritual unity of our civilization,” for it alone has the influence, “in ethics, in education, in literature, and in social action” sufficiently strong to achieve this end.

Lumen Christi Conference: “The Vocation of a Christian Law Professor,” January 2, 2015

I’m pleased to announce the annual conference co-sponsored by the Lumen Christi Institute and the Law Professors’ Christian Fellowship this year is titled, “The Vocation of a Christian Law Professor.” The conference speakers are Professor Barbara Armacost of the University of Virginia School of Law and Dean Robert Vischer of the University of St. Thomas School of Law. The conference will occur on Friday, January 2, from 4:00-5:45 pm at the University Club of Washington, D.C., with a reception to follow.

More details can be found here.

Fried, “The Middle Ages” (Lewis trans.)

Out this month from Harvard University Press is a new English translation of The Middle Agesthe eminent German medievalist Johannes Fried’s monumental work, The Middle Ages. The publisher’s description follows.

Since the fifteenth century, when humanist writers began to speak of a “middle” period in history linking their time to the ancient world, the nature of the Middle Ages has been widely debated. Across the millennium from 500 to 1500, distinguished historian Johannes Fried describes a dynamic confluence of political, social, religious, economic, and scientific developments that draws a guiding thread through the era: the growth of a culture of reason.

Beginning with the rise of the Franks, Fried uses individuals to introduce key themes, bringing to life those who have too often been reduced to abstractions of the medieval “monk” or “knight.” Milestones encountered in this thousand-year traversal include Europe’s political, cultural, and religious renovation under Charlemagne; the Holy Roman Empire under Charles IV, whose court in Prague was patron to crowning cultural achievements; and the series of conflicts between England and France that made up the Hundred Years’ War and gave to history the enduringly fascinating Joan of Arc. Broader political and intellectual currents are examined, from the authority of the papacy and impact of the Great Schism, to new theories of monarchy and jurisprudence, to the rise of scholarship and science.

The Middle Ages is full of people encountering the unfamiliar, grappling with new ideas, redefining power, and interacting with different societies. Fried gives readers an era of innovation and turbulence, of continuities and discontinuities, but one above all characterized by the vibrant expansion of knowledge and an understanding of the growing complexity of the world.

Ryback, “Hitler’s First Victims”

In October, Random House released “Hitler’s First Victims: The Quest for ryJustice,” by Timothy W. Ryback. The publisher’s description follows:

The remarkable story of Josef Hartinger, the German prosecutor who risked everything to bring to justice the first killers of the Holocaust and whose efforts would play a key role in the Nuremberg tribunal.

Before Germany was engulfed by Nazi dictatorship, it was a constitutional republic. And just before Dachau Concentration Camp became a site of Nazi genocide, it was a state detention center for political prisoners, subject to police authority and due process. The camp began its irrevocable transformation from one to the other following the execution of four Jewish detainees in the spring of 1933. Timothy W. Ryback’s gripping and poignant historical narrative focuses on those first victims of the Holocaust and the investigation that followed, as Hartinger sought to expose these earliest cases of state-condoned atrocity.

In documenting the circumstances surrounding these first murders and Hartinger’s unrelenting pursuit of the SS perpetrators, Ryback indelibly evokes a society on the brink—one in which civil liberties are sacrificed to national security, in which citizens increasingly turn a blind eye to injustice, in which the bedrock of judicial accountability chillingly dissolves into the martial caprice of the Third Reich.

We see Hartinger, holding on to his unassailable sense of justice, doggedly resisting the rising dominance of Nazism. His efforts were only a temporary roadblock to the Nazis, but Ryback makes clear that Hartinger struck a lasting blow for justice. The forensic evidence and testimony gathered by Hartinger provided crucial evidence in the postwar trials.

Hitler’s First Victims exposes the chaos and fragility of the Nazis’ early grip on power and dramatically suggests how different history could have been had other Germans followed Hartinger’s example of personal courage in that time of collective human failure.