Russell Shaw on Gen. Kagan and natural rights

Without an evidence at all, Russell Shaw, in this week's Arlington Catholic Herald, concludes that Supreme Court nominee, Solicitor General Elena Kagan, has no acquaintance with natural law. Indeed, his article borders on calumny. You can read them here: http://www.catholicherald.com/detail.html?sub_id=13066

I would disagree with his comments. The essence of equal protection jurisprudence, which is responsible for most precedent on both gay rights and abortion, resides in the natural rights tradition, which, as you say, has its source in natural law. You might not agree with how it has been argued of late, and it certainly does not agree with how the CDF sees it, but that does not mean the concepts are not in play.

The concerns you cite are both examples of rights being balanced - albeit not in a way that Shaw would agree with. It is definitely the case that the rights of the unborn are given short shrift in comparison with those of the mother - however it would take a particularly egregious act of judicial activism to change this in the name of natural law. Indeed, a natural law argument could be made for disregarding the rights of the unborn before assisted viability. Conferring rights any earlier than the time most natural miscarriages has occurred confers impossible responsibilities on doctors to preserve the lives of unborn individuals with fatal defects that probably should be left to die. Such a requirement would lead medical professionals to avoid, if at all possible, caring for mothers until that time has passed. This puts all pregnancies at risk and that risk is not justified. Of course, this is a prudential judgment, as is the debate over how best to preserve life. There is nothing in natural law that indicates the criminal power of the state - exercised solely against abortion providers - is a necessary conclusion to a finding that the unborn have rights from the point of gastrulation (natural science proves that nothing earlier is justified).

On gay rights, it seems that society at large could benefit from natural law reasoning. Fagothy's Right and Reason (the ethics text used when I took a minor seminary ethics course as a pre-law student) could not, based on the merits, could not justify not granting full rights to homosexuals without resorting to the teaching authority of the Church. In a natural rights construction of the issue without such an option, the natural law position is to grant full rights to gays and lesbians. The entire body of law against gay marriage is about to be overturned based on the natural rights of such people not to have laws made against them which are based solely on malice. If Miss Kagan agrees to such a construction when it comes before her, I will be satisfied that she does indeed consider the role of both natural rights and natural law.

The Bishops letter to Congress on ENDA

America Magazine reports that the US Conference of Catholic Bishops sent a letter to Congress on May 19, on the Employment Nondiscrimination Act (ENDA) , focusing on same-sex marriage. the letter is quite a read and quite a disappointment. One of its authors was Washington Archbishop Wuerl. You can read the letter here http://www.americamagazine.org/blog/entry.cfm?blog_id=2&entry_id=2923#comments

The Church's teaching on homosexuality need not impact how it behaves as an employer. It must be respectful toward its employees rights - it need not celebrate their unions or affirm their sexual practices.There should be no more an exception here than for race. While Catholics may not seek a religious exemption for race, many evangelical churches are divided upon racial lines and such division should not be affirmed by religious exemptions to ENDA. The Church should not more discriminate against gay marriages, which actually affirm marriage as a concept, the same way it should not discriminate on race.

The function of marriage in civil society (and indeed in religion as well) is to make official the separation of a person from their family of origin and to recognize their freely chosen union with a spouse. As such, it dissolves rights for some and creates rights for others. There is no rational basis for denying such ability to rearrange one's family affairs for gay family members when it is automatic for straight family members. It has nothing to do with sexuality and everything to do with the right of association at the most intimate level. It is also why objections to redefining marriage to include a brother or mother carry no weight, as such relations are already existent in the law. Marriage severs the primacy of these relations and gives them to the spouse.

The Federal case on Proposition 8 actually shows that ENDA will not be necessary, since Prop 8 will be overturned without ENDA (the Bishops think ENDA will be part of the legal argument for overturning it). Prop. 8 will be overturned because it was motivated by animus for a class worthy of protection. It is interesting that the Bishops mention Roe. The letter shows that whoever drafted it does not understand Roe and why it was decided - or that the primacy of individual rights over state majorities actually protects the Church in places where Catholics are rare - Alabama and Mississippi come to mind (places where pluralities believe the Pope is the Antichrist).

As for the associational rights of others, there is no right to discriminate from moral scorn, nor should there be, within the freedoms of either religion or association. My feeling is that the people in the pews are way out in front of the Bishops on this. If they had consulted us, we would have said to recognize gay marriages and those of us with gay family members would demand that they also be celebrated sacramentally. This demand is what truly scares the Bishops.

America as a Christian Nation

I have been surfing this morning and came upon an entry on how America is a Christian nation in heritage by a former Michigan Supreme Court Justice (who I believe is Catholic). I had to respond and to share this with all of you.

The nation was founded on a particular brand of Christianity which was decidedly anti-Catholic. Indeed, there are still some quarters where this is still the case. Of course, Catholicism is now the plurality religion, with Catholics as Speaker of the House, Chief Justice of the Supreme Court (and a majority of its members) and President of the Senate - with a former Catholic Charities employee as President of the United States.

The original settlers, including my and the President's Plymouth Colony ancestors would be aghast at this development - so lets not have any more of this Christian nation talk. They would also be aghast that Boston is a hub of Catholic voters, especially Irish Catholic voters and that many of the Plymouth Colony descendents, including your humble servant, are Catholic.

The Fatima Secret and St. Malachy

Two weeks ago, the Arlington Catholic Herald included coverage on the Pope's recent trip to Fatima, Portugal from the Catholic News Service, which is sponsored by the D.C. based U.S. Conference of Catholic Bishops. What was most news worthy was the Holy Father's comments on the sexual abuse "crisis." What was buried a bit were analyses over the debate on the Third Secret of Fatima. Of course, because the Herald covers CNS stories, they do not stay on their web page, so they are impossible to go back to via that route, making it harder to use as a reference in today's commentary. Because this is a "local" column, I don't like to go to "national" sources - even when they are, in fact, local too. Anyway, your intrepid commentator used Google to find the CNS story, which you can find here: http://www.catholicnews.com/data/stories/cns/1001924.htm The key point of the story is that the current Pope believes that, when he supervised its release in June 2006, stated:

that there was nothing apocalyptic. "No great mystery is revealed; nor is the future unveiled," he said. He went on to give a theological framework to the apparitions and messages of Fatima, he insisting that in the church's tradition, "prophecy" is not like a "film preview," but more like offering signs that can be useful for Christians.Cardinal Ratzinger said that was how to understand the third secret's vision of a "bishop in white" who struggles up a hill amid corpses of slain martyrs, and then falls dead after being shot by soldiers. Whether this bishop symbolized Pope John Paul II, who was shot and wounded on May 13, 1981, or a "convergence" of several 20th-century pontiffs who helped the church ward off the dangers, it doesn't mean someone must be killed, the cardinal said.

I disagree with his Holiness on this point. It does not apply to John Paul II, since John Paul survived. St. John Boscoe has a similar prophesy about the assassination of a Pope. Further, St. Malachy talks of the destruction of Rome in his last prophesy, so the Secret should not be written off too quickly. Here is what Malachy says (as quoted from wiki here http://en.wikipedia.org/wiki/Prophecy_of_the_Popes):

"During the final persecution of the Holy Roman Church, the seat will be occupied by Peter the Roman, who will feed his sheep in many tribulations: and when these things are finished, the city of seven hills will be destroyed, and the formidable Judge will judge His people.The End."

This is Malachy's last prophesy, which foretells either the end of the world or the end of the Papacy. Given the current Pope's prophesy (Gloria Olivae) and his desire for Christian unity with the Eastern Church, I suspect that the latter is true, not the former. It may even be that Peter the Roman is an anti-pope, elected in protest against unity and that he will be killed as part of some general disorder in Italy rather than a deliberate persecution.

I'd say the jury is still out on the Fatima Secret.

The Kagan Question (is she or isn't she?)

The President has nominated a new Supreme Court Justice. This summer, I am sure this town will be full of activists on both sides. In religious circles, questions abound about about two areas on which she will spend the least amount of time: abortion and gay marriage. Ms. Kagan's nomination is complicated by the fact that she recommended to President Clinton that he sign the Partial Birth Abortion Bill (which Bush signed and the Court upheld) and by suspicions that she may be a lesbian due to her marital status. Indeed, my better read competitor, America Magazine, contains a story today in its online issue, which you can read at http://www.americamagazine.org/blog/entry.cfm?blog_id=2&entry_id=2901. I also received an email today from one of Liberty U.'s lawyers, Matt Barber, but I won't discuss it since it was, frankly, reasoned badly (as one would expect from Barber).

As I wrote on the comment page, elections matter. Indeed, if the GOP would stop demagoging abortion for their electoral agenda and really address how to get beyond Roe in reducing abortion (by using Congressional action instead of attempting to overturn most equal protection doctrine by overturning Roe), they might have gotten more Catholic votesin the last election and be nominating someone else - although considering who they put on the ticket (an abortion demagogue who was not even familiar with the arguments on her own side) - that was unlikely to happen anyway. In other words, in a world of sane anti-abortion policy, Sarah Palin would not be where she was (or is).I don't expect abortion to come up again judicially for the foreseeable future - accept around the edges. Indeed, partial birth is already decided, although Congress could change the law and there would be no court case for Kagan to hear, since the law was upheld because of Congressional power.

There are seven votes against overturning Roe - three of whom no counting Stevens - who were GOP appointees. When O'Connor retired, she was replaced origionally with Roberts - which replaced a pro-Roe centrists with one of the same. Roberts than replaced Rehnquist, which was an anti-Roe loss, since the former CJ voted with Scalia and Thomas. Souter was replaced by Sotomayor - a moderate for a moderate and now Stevens is being replaced by Kagan. This is a loss for the pro-choice side, since Stevens was in that camp while Kagan, who told Clinton to sign the Partial Birth Abortion Act, is probably moderate on the issue. We are left with two pro-choicers (Breyer and Ginsburg), two pro-lifers (Thomas and Scalia) and five in the middle (Roberts, Alito, Kennedy, Sotomayor and Kagan). Maybe I am wrong on elections mattering. They do matter on who gets to chose - however the choser appears not to be the most pro-abortion President in history.I do expect economic issues to come up more. I hope that Kagan votes like a liberal - although given her mainstream career path, it is a hope, not an expectation.

Her sexuality matters not, although even if she were a lesbian, I would hope she sides with Kennedy on the issue of gay marriage - against a body of state passed constitutional amendments which are motivated by malice towards a minority group and which, therefore, cannot be constitutional. It would be no more inappropriate to put Kagan on to agree with such basic justice as it was to put a prior Solictor General on the Court (Marshall) in order to vote correctly on civil rights matters. Even if the left puts up a hue and cry about her moderation on abortion, I doubt Obama will dump his long time friend (unlike Bush, who dumped Meyers and did not even come close to appointing Gonzales). Unless there is a total GOP fillibuster against her (and I doubt Bennett would follow it), she is in.

White Racial Superiority Disproven - Our Neanderthal Past

In the past few weeks, it has been revealed that non-African humans have a common genetic heritage with Neanderthals that is not present among those who have never left Africa (where Homo Sapiens evolved). Neanderthal man is a lesser species of Human - of lower intelligence, possibly pre-linguistic and of lesser emotional control with a less developed frontal lobe. This kind of blows the theory of white superiority out of the water. The hybrid is not as strong (watch sports lately?), more prone to violence and uncontrolled emotion, has unsightly body hair and is more prone to skin cancer. Indeed, the whole moral concept of Original Sin may describe the flaws in the character of hybrid humans rather than an endemic part of human nature - although Africa seems to have been infected with it by white colonization.

This should upset the whole basis for white priviledge - or rather should it into the perspective of a permanent inferiority complex which the white race can never live down - but only interbreed itself out of. This would only pollute the master species, of course, with lesser DNA - but it is a better alternative to true homo sapiens engaging in genocide against the rest of the planet (including African Americans, who are also polluted genetically by interbreeding with white slave owners).

What amazes me most is that no one else seems to have raised this point in reaction to the latest scientific news. I say most of this with tongue firmly in cheek - though not entirely. There are still people who regard the white race as God's gift to the planet. The new genetic analysis should prove that this is not the case - that there is no justification by white racists for any such claims when we are, in fact, the product of intermarriage with an inferior species.

Response to Richard Doerflinger and the Bishops

Richard Doerflinger, associate director for pro-life activities of US Conference of Catholic Bishops, published an opinion piece in the Arlington Catholic Herald this week on how the "Bishops refused to choose between wrongs." This essay seems to be part of a systematic apologia by and on behalf of the bishops for their position against the recently passed health care reform law. Other actions include what appears to be a pattern of retaliation by some bishops against religious orders which supported the law, in opposition to the bishops' position - hence the need to play defense. You can read the article at http://www.catholicherald.com/opinions/detail.html?sub_id=12893

I will assume, for argument's sake, that each of the policy issues raised by Deorflinger is valid. It does not follow from this that opposition was the best policy. Indeed, both opposition and the need to justify it is probably counter-productive. Why is this? Because to amend the law to take correct these perceived flaws will require winning back progressive Catholics, not alienating them. Given that fact, the current effort can only be described as an exercise in sour grapes.

Luckily for the bishops and Doerflinger, liberal Catholics can afford to be magnanimous in victory. If any of the problems he identified actually appear, we will join with the bishops to fix them, just as we keep the pressure on to keep passing the Hyde Amendment - although retaliation by some bishops against the Sisters threatens that willingness and should stop. The internal Catholic coalition for Hyde should not be sacrificed for the right to life (read Republican) coalition, which is becoming problematic for the Church.

The sad fact of the matter is, if Doerflinger could have gotten just one Republican Senator to commit to voting for cloture, there could have been a conference committee on Health Care Reform and the issues could have been dealt with immediately. Indeed, it is a mark of the weakness of the bishop's position and influence that the USCCB could not get the National Right to Life Committee (NRLC) to support the House bill as amended by the original Stupak Amendment. I suspect that it might have even passed the Senate if doing so would have led to bipartisan support for passage. The bishops had no business backing the Republican defeat-the-bill at any cost strategy while expecting Democratic Catholics to back their play. Without the ability to move both sides or the willingness to condemn obstructionism for its own sake, I submit that the USCCB has gotten more out of the debate than it deserved.

For the future, it would be good for the bishops to re-examine its relationship with the NRLC - especially its key strategy of seeking the judicial overturning of Roe v. Wade. This strategy works well for electoral politics, but it has absolutely no chance of success - nor should it since doing so would overturn much in the way of equal protection jurisprudence.

While I can understand how the bishops dislike some aspects of this part of the law, since it protects both contraception and gay rights as well, doing so is short sighted. Equal protection jurisprudence protects the Church in areas where there are few Catholics and many Evangelicals who still believe the Pope is the antichrist. It will also be instrumental in eventually revoking Blaine Amendments, which ban the direct funding of Catholic Schools in some states, including Virginia.

Minority rights in the face of majority power is the essential feature of a natural rights democracy. Altering 14th Amendment jurisprudence by buying the NRLC (and Federalist Society) position on abortion would seriously alter the nature of our democracy and can be opposed by Catholics on good grounds, regardless of its effect on the unborn. There are other (and better) ways to extend rights to the unborn. As long as the USCCB and the NRLC persist in their current strategy, however, doing so is impossible.