Saturday, June 28, 2003
A concluding document of a synod of European bishops recognizes that the Church in Europe and America is having trouble finding enough priests, but reightly concluded that relaxing the requirement of priestly celibacy is not the way to recruit more priests.
"A revision of the present discipline in this regard would not help to resolve the crisis of vocations to the priesthood being felt in many parts of Europe," the document said. "A commitment to the service of the Gospel of hope also demands that the Church make every effort to propose celibacy in its full biblical, theological and spiritual richness."
Absolutely correct. To solve our problem, the Church has to become more rigorous, not more malleable. It must stand up for what it preaches, even if for forty years and more, it has preached these things sotto voce, with a wink and a nod from the knowing liberal pastor that he has to say these things, but we all realize they are nonsense and will change sometime soon anyway. Even better, it must stand up and bear witness against the current depravity of our culture.
It ought not to bend to every whim of the zeitgeist. The Church is what it is. Its doctrine comes from Christ Himself, and two thousand years of sacred tradition. Opinion polls have nothing to do with the economy of salvation.
And the Church stood up for another traditon in this document. It urges those considering a draft constitution for the European Union to explicitly recognize that Christianity is what makes Europe Europe. So far, those drafting the proposed constitution have not obliged. But, to echo Hilaire Belloc, Europe is the Faith and the Faith is Europe. The crumbling of Christianity in its bastion over the last 100 years under the multi-pronged assault of moderism/liberalism is highly troubling.
But Europe, and North America is, in all but geographical terms, part of Europe (meaning that it was born of the civilization that barely survived the fall of Rome, matured during the Medieval period, was badly damaged by the Reformation and the so-called Enlightenment, as well as by the rise of the totalitarians, socialists, and atheists in the last 130 years, though it is geographically distant), has survived worse. With prayer, present demographic and cultural trends may change, and Europe may yet civilize and Christianize (the two mean the same thing) those currently flooding into it as the barbarians of the 4th, 5th, and 6th centuries did.
Describing Europe as a Christian entity is a small, but symbolically important, step in reversing those trends. But it is vitally important in giving Christians something to rally behind and build on in the future.
Friday, June 27, 2003
Simon & Garfunkel are doing another reunion tour this fall.
1. This last-cited critic of Bowers actually writes: “[Bowers] is correct nevertheless that the right to engage in homosexual acts is not deeply rooted in America’s history and tradition.” Posner, Sex and Reason, at 343.
2. While the Court does not overrule Bowers’ holding that homosexual sodomy is not a “fundamental right,” it is worth noting that the “societal reliance” upon that aspect of the decision has been substantial as well. See 10 U.S.C. § 654(b)(1) (“A member of the armed forces shall be separated from the armed forces … if … the member has engaged in … a homosexual act or acts”); Marcum v. McWhorter, 308 F.3d 635, 640—642 (CA6 2002) (relying on Bowers in rejecting a claimed fundamental right to commit adultery); Mullins v. Oregon, 57 F.3d 789, 793—794 (CA9 1995) (relying on Bowers in rejecting a grandparent’s claimed “fundamental liberty interes[t]” in the adoption of her grandchildren); Doe v. Wigginton, 21 F.3d 733, 739—740 (CA6 1994) (relying on Bowers in rejecting a prisoner’s claimed “fundamental right” to on-demand HIV testing); Schowengerdt v. United States, 944 F.2d 483, 490 (CA9 1991) (relying on Bowers in upholding a bisexual’s discharge from the armed services); Charles v. Baesler, 910 F.2d 1349, 1353 (CA6 1990) (relying on Bowers in rejecting fire department captain’s claimed “fundamental” interest in a promotion); Henne v. Wright, 904 F.2d 1208, 1214—1215 (CA8 1990) (relying on Bowers in rejecting a claim that state law restricting surnames that could be given to children at birth implicates a “fundamental right”); Walls v. Petersburg, 895 F.2d 188, 193 (CA4 1990) (relying on Bowers in rejecting substantive-due-process challenge to a police department questionnaire that asked prospective employees about homosexual activity); High Tech Gays v. Defense Industrial Security Clearance Office, 895 F.2d 563, 570—571 (CA9 1988) (relying on Bowers’ holding that homosexual activity is not a fundamental right in rejecting–on the basis of the rational-basis standard–an equal-protection challenge to the Defense Department’s policy of conducting expanded investigations into backgrounds of gay and lesbian applicants for secret and top-secret security clearance).
3. The Court is quite right that “history and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry,” ante, at 11. An asserted “fundamental liberty interest” must not only be “deeply rooted in this Nation’s history and tradition,” Washington v. Glucksberg, 521 U.S. 702, 721 (1997), but it must also be “implicit in the concept of ordered liberty,” so that “neither liberty nor justice would exist if [it] were sacrificed,” ibid. Moreover, liberty interests unsupported by history and tradition, though not deserving of “heightened scrutiny,” are still protected from state laws that are not rationally related to any legitimate state interest. Id., at 722. As I proceed to discuss, it is this latter principle that the Court applies in the present case.
Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts–or, for that matter, display any moral disapprobation of them–than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new “constitutional right” by a Court that is impatient of democratic change. It is indeed true that “later generations can see that laws once thought necessary and proper in fact serve only to oppress,” ante, at 18; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best.
One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts–and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). See Halpern v. Toronto, 2003 WL 34950 (Ontario Ct. App.); Cohen, Dozens in Canada Follow Gay Couple’s Lead, Washington Post, June 12, 2003, p. A25. At the end of its opinion–after having laid waste the foundations of our rational-basis jurisprudence–the Court says that the present case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Ante, at 17. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court’s opinion, which notes the constitutional protections afforded to “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,” and then declares that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” Ante, at 13 (emphasis added). Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct, ante, at 18; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,” ibid.? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.
The matters appropriate for this Court’s resolution are only three: Texas’s prohibition of sodomy neither infringes a “fundamental right” (which the Court does not dispute), nor is unsupported by a rational relation to what the Constitution considers a legitimate state interest, nor denies the equal protection of the laws.
* * *
Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct. See Romer, supra, at 653.
One of the most revealing statements in today’s opinion is the Court’s grim warning that the criminalization of homosexual conduct is “an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” Ante, at 14. It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as “discrimination” which it is the function of our judgments to deter. So imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously “mainstream”; that in most States what the Court calls “discrimination” against those who engage in homosexual acts is perfectly legal; that proposals to ban such “discrimination” under Title VII have repeatedly been rejected by Congress, see Employment Non-Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments, H. R. 5452, 94th Cong., 1st Sess. (1975); that in some cases such “discrimination” is mandated by federal statute, see 10 U.S.C. § 654(b)(1) (mandating discharge from the armed forces of any service member who engages in or intends to engage in homosexual acts); and that in some cases such “discrimination” is a constitutional right, see Boy Scouts of America v. Dale, 530 U.S. 640 (2000).
Finally, I turn to petitioners’ equal-protection challenge, which no Member of the Court save Justice O’Connor, ante, at 1 (opinion concurring in judgment), embraces: On its face §21.06(a) applies equally to all persons. Men and women, heterosexuals and homosexuals, are all subject to its prohibition of deviate sexual intercourse with someone of the same sex. To be sure, §21.06 does distinguish between the sexes insofar as concerns the partner with whom the sexual acts are performed: men can violate the law only with other men, and women only with other women. But this cannot itself be a denial of equal protection, since it is precisely the same distinction regarding partner that is drawn in state laws prohibiting marriage with someone of the same sex while permitting marriage with someone of the opposite sex.
The objection is made, however, that the antimiscegenation laws invalidated in Loving v. Virginia, 388 U.S. 1, 8 (1967), similarly were applicable to whites and blacks alike, and only distinguished between the races insofar as the partner was concerned. In Loving, however, we correctly applied heightened scrutiny, rather than the usual rational-basis review, because the Virginia statute was “designed to maintain White Supremacy.” Id., at 6, 11. A racially discriminatory purpose is always sufficient to subject a law to strict scrutiny, even a facially neutral law that makes no mention of race. See Washington v. Davis, 426 U.S. 229, 241—242 (1976). No purpose to discriminate against men or women as a class can be gleaned from the Texas law, so rational-basis review applies. That review is readily satisfied here by the same rational basis that satisfied it in Bowers–society’s belief that certain forms of sexual behavior are “immoral and unacceptable,” 478 U.S., at 196. This is the same justification that supports many other laws regulating sexual behavior that make a distinction based upon the identity of the partner–
for example, laws against adultery, fornication, and adult incest, and laws refusing to recognize homosexual marriage.
Justice O’Connor argues that the discrimination in this law which must be justified is not its discrimination with regard to the sex of the partner but its discrimination with regard to the sexual proclivity of the principal actor.
“While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas’ sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class.” Ante, at 5.
Of course the same could be said of any law. A law against public nudity targets “the conduct that is closely correlated with being a nudist,” and hence “is targeted at more than conduct”; it is “directed toward nudists as a class.” But be that as it may. Even if the Texas law does deny equal protection to “homosexuals as a class,” that denial still does not need to be justified by anything more than a rational basis, which our cases show is satisfied by the enforcement of traditional notions of sexual morality.
Justice O’Connor simply decrees application of “a more searching form of rational basis review” to the Texas statute. Ante, at 2. The cases she cites do not recognize such a standard, and reach their conclusions only after finding, as required by conventional rational-basis analysis, that no conceivable legitimate state interest supports the classification at issue. See Romer v. Evans, 517 U.S., at 635; Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 448—450 (1985); Department of Agriculture v. Moreno, 413 U.S. 528, 534—538 (1973). Nor does Justice O’Connor explain precisely what her “more searching form” of rational-basis review consists of. It must at least mean, however, that laws exhibiting “ ‘a … desire to harm a politically unpopular group,’ ” ante, at 2, are invalid even though there may be a conceivable rational basis to support them.
This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O’Connor seeks to preserve them by the conclusory statement that “preserving the traditional institution of marriage” is a legitimate state interest. Ante, at 7. But “preserving the traditional institution of marriage” is just a kinder way of describing the State’s moral disapproval of same-sex couples. Texas’s interest in §21.06 could be recast in similarly euphemistic terms: “preserving the traditional sexual mores of our society.” In the jurisprudence Justice O’Connor has seemingly created, judges can validate laws by characterizing them as “preserving the traditions of society” (good); or invalidate them by characterizing them as “expressing moral disapproval” (bad).
I turn now to the ground on which the Court squarely rests its holding: the contention that there is no rational basis for the law here under attack. This proposition is so out of accord with our jurisprudence–indeed, with the jurisprudence of any society we know–that it requires little discussion.
The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are “immoral and unacceptable,” Bowers, supra, at 196–the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, “furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual,” ante, at 18 (emphasis addded). The Court embraces instead Justice Stevens’ declaration in his Bowers dissent, that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice,” ante, at 17. This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.
Next the Court makes the claim, again unsupported by any citations, that “[l]aws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private.” Ante, at 8. The key qualifier here is “acting in private”–since the Court admits that sodomy laws were enforced against consenting adults (although the Court contends that prosecutions were “infrequent,” ante, at 9). I do not know what “acting in private” means; surely consensual sodomy, like heterosexual intercourse, is rarely performed on stage. If all the Court means by “acting in private” is “on private premises, with the doors closed and windows covered,” it is entirely unsurprising that evidence of enforcement would be hard to come by. (Imagine the circumstances that would enable a search warrant to be obtained for a residence on the ground that there was probable cause to believe that consensual sodomy was then and there occurring.) Surely that lack of evidence would not sustain the proposition that consensual sodomy on private premises with the doors closed and windows covered was regarded as a “fundamental right,” even though all other consensual sodomy was criminalized. There are 203 prosecutions for consensual, adult homosexual sodomy reported in the West Reporting system and official state reporters from the years 1880—1995. See W. Eskridge, Gaylaw: Challenging the Apartheid of the Closet 375 (1999) (hereinafter Gaylaw). There are also records of 20 sodomy prosecutions and 4 executions during the colonial period. J. Katz, Gay/Lesbian Almanac 29, 58, 663 (1983). Bowers’ conclusion that homosexual sodomy is not a fundamental right “deeply rooted in this Nation’s history and tradition” is utterly unassailable.
Realizing that fact, the Court instead says: “[W]e think that our laws and traditions in the past half century are of most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.” Ante, at 11 (emphasis added). Apart from the fact that such an “emerging awareness” does not establish a “fundamental right,” the statement is factually false. States continue to prosecute all sorts of crimes by adults “in matters pertaining to sex”: prostitution, adult incest, adultery, obscenity, and child pornography. Sodomy laws, too, have been enforced “in the past half century,” in which there have been 134 reported cases involving prosecutions for consensual, adult, homosexual sodomy. Gaylaw 375. In relying, for evidence of an “emerging recognition,” upon the American Law Institute’s 1955 recommendation not to criminalize “ ‘consensual sexual relations conducted in private,’ ” ante, at 11, the Court ignores the fact that this recommendation was “a point of resistance in most of the states that considered adopting the Model Penal Code.” Gaylaw 159.
In any event, an “emerging awareness” is by definition not “deeply rooted in this Nation’s history and tradition[s],” as we have said “fundamental right” status requires. Constitutional entitlements do not spring into existence because some States choose to lessen or eliminate criminal sanctions on certain behavior. Much less do they spring into existence, as the Court seems to believe, because foreign nations decriminalize conduct. The Bowers majority opinion never relied on “values we share with a wider civilization,” ante, at 16, but rather rejected the claimed right to sodomy on the ground that such a right was not “ ‘deeply rooted in this Nation’s history and tradition,’ ” 478 U.S., at 193—194 (emphasis added). Bowers’ rational-basis holding is likewise devoid of any reliance on the views of a “wider civilization,” see id., at 196. The Court’s discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is therefore meaningless dicta. Dangerous dicta, however, since “this Court … should not impose foreign moods, fads, or fashions on Americans.” Foster v. Florida, 537 U.S. 990, n. (2002) (Thomas, J., concurring in denial of certiorari).
The Court’s description of “the state of the law” at the time of Bowers only confirms that Bowers was right. Ante, at 5. The Court points to Griswold v. Connecticut, 381 U.S. 479, 481—482 (1965). But that case expressly disclaimed any reliance on the doctrine of “substantive due process,” and grounded the so-called “right to privacy” in penumbras of constitutional provisions other than the Due Process Clause. Eisenstadt v. Baird, 405 U.S. 438 (1972), likewise had nothing to do with “substantive due process”; it invalidated a Massachusetts law prohibiting the distribution of contraceptives to unmarried persons solely on the basis of the Equal Protection Clause. Of course Eisenstadt contains well known dictum relating to the “right to privacy,” but this referred to the right recognized in Griswold–a right penumbral to the specific guarantees in the Bill of Rights, and not a “substantive due process” right.
Roe v. Wade recognized that the right to abort an unborn child was a “fundamental right” protected by the Due Process Clause. 410 U.S., at 155. The Roe Court, however, made no attempt to establish that this right was “ ‘deeply rooted in this Nation’s history and tradition’ ”; instead, it based its conclusion that “the Fourteenth Amendment’s concept of personal liberty … is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy” on its own normative judgment that anti-abortion laws were undesirable. See id., at 153. We have since rejected Roe’s holding that regulations of abortion must be narrowly tailored to serve a compelling state interest, see Planned Parenthood v. Casey, 505 U.S., at 876 (joint opinion of O’Connor, Kennedy, and Souter, JJ.); id., at 951—953 (Rehnquist, C. J., concurring in judgment in part and dissenting in part)–and thus, by logical implication, Roe’s holding that the right to abort an unborn child is a “fundamental right.” See 505 U.S., at 843—912 (joint opinion of O’Connor, Kennedy, and Souter, JJ.) (not once describing abortion as a “fundamental right” or a “fundamental liberty interest”).
After discussing the history of antisodomy laws, ante, at 7—10, the Court proclaims that, “it should be noted that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter,” ante, at 7. This observation in no way casts into doubt the “definitive [historical] conclusion,” id., on which Bowers relied: that our Nation has a longstanding history of laws prohibiting sodomy in general–regardless of whether it was performed by same-sex or opposite-sex couples:
“It is obvious to us that neither of these formulations would extend a fundamental right to homosexuals to engage in acts of consensual sodomy. Proscriptions against that conduct have ancient roots. Sodomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all 50 States outlawed sodomy, and today, 24 States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults. Against this background, to claim that a right to engage in such conduct is ‘deeply rooted in this Nation’s history and tradition’ or ‘implicit in the concept of ordered liberty’ is, at best, facetious.” 478 U.S., at 192—194 (citations and footnotes omitted; emphasis added).
It is (as Bowers recognized) entirely irrelevant whether the laws in our long national tradition criminalizing homosexual sodomy were “directed at homosexual conduct as a distinct matter.” Ante, at 7. Whether homosexual sodomy was prohibited by a law targeted at same-sex sexual relations or by a more general law prohibiting both homosexual and heterosexual sodomy, the only relevant point is that it was criminalized–which suffices to establish that homosexual sodomy is not a right “deeply rooted in our Nation’s history and tradition.” The Court today agrees that homosexual sodomy was criminalized and thus does not dispute the facts on which Bowers actually relied.
Having decided that it need not adhere to stare decisis, the Court still must establish that Bowers was wrongly decided and that the Texas statute, as applied to petitioners, is unconstitutional.
Texas Penal Code Ann. §21.06(a) (2003) undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery. But there is no right to “liberty” under the Due Process Clause, though today’s opinion repeatedly makes that claim. Ante, at 6 (“The liberty protected by the Constitution allows homosexual persons the right to make this choice”); ante, at 13 (“ ‘ These matters … are central to the liberty protected by the Fourteenth Amendment’ ”); ante, at 17 (“Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government”). The Fourteenth Amendment expressly allows States to deprive their citizens of “liberty,” so long as “due process of law” is provided:
“No state shall … deprive any person of life, liberty, or property, without due process of law.” Amdt. 14 (emphasis added).
Our opinions applying the doctrine known as “substantive due process” hold that the Due Process Clause prohibits States from infringing fundamental liberty interests, unless the infringement is narrowly tailored to serve a compelling state interest. Washington v. Glucksberg, 521 U.S., at 721. We have held repeatedly, in cases the Court today does not overrule, that only fundamental rights qualify for this so-called “heightened scrutiny” protection–that is, rights which are “ ‘deeply rooted in this Nation’s history and tradition,’ ” ibid. See Reno v. Flores, 507 U.S. 292, 303 (1993) (fundamental liberty interests must be “so rooted in the traditions and conscience of our people as to be ranked as fundamental” (internal quotation marks and citations omitted)); United States v. Salerno, 481 U.S. 739, 751 (1987) (same). See also Michael H. v. Gerald D., 491 U.S. 110, 122 (1989) (“[W]e have insisted not merely that the interest denominated as a ‘liberty’ be ‘fundamental’ … but also that it be an interest traditionally protected by our society”); Moore v. East Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (Fourteenth Amendment protects “those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men” (emphasis added)).3 All other liberty interests may be abridged or abrogated pursuant to a validly enacted state law if that law is rationally related to a legitimate state interest.
Bowers held, first, that criminal prohibitions of homosexual sodomy are not subject to heightened scrutiny because they do not implicate a “fundamental right” under the Due Process Clause, 478 U.S., at 191—194. Noting that “[p]roscriptions against that conduct have ancient roots,” id., at 192, that “[s]odomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights,” ibid., and that many States had retained their bans on sodomy, id., at 193, Bowers concluded that a right to engage in homosexual sodomy was not “ ‘deeply rooted in this Nation’s history and tradition,’ ” id., at 192.
The Court today does not overrule this holding. Not once does it describe homosexual sodomy as a “fundamental right” or a “fundamental liberty interest,” nor does it subject the Texas statute to strict scrutiny. Instead, having failed to establish that the right to homosexual sodomy is “ ‘deeply rooted in this Nation’s history and tradition,’ ” the Court concludes that the application of Texas’s statute to petitioners’ conduct fails the rational-basis test, and overrules Bowers’ holding to the contrary, see id., at 196. “The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” Ante, at 18.
I shall address that rational-basis holding presently. First, however, I address some aspersions that the Court casts upon Bowers’ conclusion that homosexual sodomy is not a “fundamental right”–even though, as I have said, the Court does not have the boldness to reverse that conclusion.
What a massive disruption of the current social order, therefore, the overruling of Bowers entails. Not so the overruling of Roe, which would simply have restored the regime that existed for centuries before 1973, in which the permissibility of and restrictions upon abortion were determined legislatively State-by-State. Casey, however, chose to base its stare decisis determination on a different “sort” of reliance. “[P]eople,” it said, “have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail.” 505 U.S., at 856. This falsely assumes that the consequence of overruling Roe would have been to make abortion unlawful. It would not; it would merely have permitted the States to do so. Many States would unquestionably have declined to prohibit abortion, and others would not have prohibited it within six months (after which the most significant reliance interests would have expired). Even for persons in States other than these, the choice would not have been between abortion and childbirth, but between abortion nearby and abortion in a neighboring State.
To tell the truth, it does not surprise me, and should surprise no one, that the Court has chosen today to revise the standards of stare decisis set forth in Casey. It has thereby exposed Casey’s extraordinary deference to precedent for the result-oriented expedient that it is.
(1) A preliminary digressive observation with regard to the first factor: The Court’s claim that Planned Parenthood v. Casey, supra, “casts some doubt” upon the holding in Bowers (or any other case, for that matter) does not withstand analysis. Ante, at 10. As far as its holding is concerned, Casey provided a less expansive right to abortion than did Roe, which was already on the books when Bowers was decided. And if the Court is referring not to the holding of Casey, but to the dictum of its famed sweet-mystery-of-life passage, ante, at 13 (“ ‘At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life’ ”): That “casts some doubt” upon either the totality of our jurisprudence or else (presumably the right answer) nothing at all. I have never heard of a law that attempted to restrict one’s “right to define” certain concepts; and if the passage calls into question the government’s power to regulate actions based on one’s self-defined “concept of existence, etc.,” it is the passage that ate the rule of law.
I do not quarrel with the Court’s claim that Romer v. Evans, 517 U.S. 620 (1996), “eroded” the “foundations” of Bowers’ rational-basis holding. See Romer, supra, at 640—643 (Scalia, J., dissenting).) But Roe and Casey have been equally “eroded” by Washington v. Glucksberg, 521 U.S. 702, 721 (1997), which held that only fundamental rights which are “ ‘deeply rooted in this Nation’s history and tradition’ ” qualify for anything other than rational basis scrutiny under the doctrine of “substantive due process.” Roe and Casey, of course, subjected the restriction of abortion to heightened scrutiny without even attempting to establish that the freedom to abort was rooted in this Nation’s tradition.
(2) Bowers, the Court says, has been subject to “substantial and continuing [criticism], disapproving of its reasoning in all respects, not just as to its historical assumptions.” Ante, at 15. Exactly what those nonhistorical criticisms are, and whether the Court even agrees with them, are left unsaid, although the Court does cite two books. See ibid. (citing C. Fried, Order and Law: Arguing the Reagan Revolution–A Firsthand Account 81—84 (1991); R. Posner, Sex and Reason 341—350 (1992)).1 Of course, Roe too (and by extension Casey) had been (and still is) subject to unrelenting criticism, including criticism from the two commentators cited by the Court today. See Fried, supra, at 75 (“Roe was a prime example of twisted judging”); Posner, supra, at 337 (“[The Court’s] opinion in Roe … fails to measure up to professional expectations regarding judicial opinions”); Posner, Judicial Opinion Writing, 62 U. Chi. L. Rev. 1421, 1434 (1995) (describing the opinion in Roe as an “embarrassing performanc[e]”).
(3) That leaves, to distinguish the rock-solid, unamendable disposition of Roe from the readily overrulable Bowers, only the third factor. “[T]here has been,” the Court says, “no individual or societal reliance on Bowers of the sort that could counsel against overturning its holding … .” Ante, at 16. It seems to me that the “societal reliance” on the principles confirmed in Bowers and discarded today has been overwhelming. Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority’s belief that certain sexual behavior is “immoral and unacceptable” constitutes a rational basis for regulation. See, e.g., Williams v. Pryor, 240 F.3d 944, 949 (CA11 2001) (citing Bowers in upholding Alabama’s prohibition on the sale of sex toys on the ground that “[t]he crafting and safeguarding of public morality … indisputably is a legitimate government interest under rational basis scrutiny”); Milner v. Apfel, 148 F.3d 812, 814 (CA7 1998) (citing Bowers for the proposition that “[l]egislatures are permitted to legislate with regard to morality … rather than confined to preventing demonstrable harms”); Holmes v. California Army National Guard 124 F.3d 1126, 1136 (CA9 1997) (relying on Bowers in upholding the federal statute and regulations banning from military service those who engage in homosexual conduct); Owens v. State, 352 Md. 663, 683, 724 A. 2d 43, 53 (1999) (relying on Bowers in holding that “a person has no constitutional right to engage in sexual intercourse, at least outside of marriage”); Sherman v. Henry, 928 S. W. 2d 464, 469—473 (Tex. 1996) (relying on Bowers in rejecting a claimed constitutional right to commit adultery). We ourselves relied extensively on Bowers when we concluded, in Barnes v. Glen Theatre, Inc., 501 U.S. 560, 569 (1991), that Indiana’s public indecency statute furthered “a substantial government interest in protecting order and morality,” ibid., (plurality opinion); see also id., at 575 (Scalia, J., concurring in judgment). State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. See ante, at 11 (noting “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex” (emphasis added)). The impossibility of distinguishing homosexuality from other traditional “morals” offenses is precisely why Bowers rejected the rational-basis challenge. “The law,” it said, “is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.” 478 U.S., at 196.2
Justice Antonin Scalia offering a withering dissent from the latest of the Supreme Court's unwarranted usurpations of the power of states to control public morality. He was joined in dissent by Chief Justice Rehnquist and Justice Thomas. Because of the importance of this issue, I offer the dissenting opinion in full, including footnotes which appear at the end of the dissent.
Because of the length of the opionion it will appear in several installments (Blogger could not handle the whole thing in one entry, or two). Regrettably, that will mean you will have to read from this post up. Sorry about that.
I also will forgo the usual convention of italicizing the text of quoted material. Italicizing the entire text of the opinion would be both burdensome to me, and hard on your eyes.
Justice Scalia, with whom The Chief Justice and Justice Thomas join, dissenting.
“Liberty finds no refuge in a jurisprudence of doubt.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 844 (1992). That was the Court’s sententious response, barely more than a decade ago, to those seeking to overrule Roe v. Wade, 410 U.S. 113 (1973). The Court’s response today, to those who have engaged in a 17-year crusade to overrule Bowers v. Hardwick, 478 U.S. 186 (1986), is very different. The need for stability and certainty presents no barrier.
Most of the rest of today’s opinion has no relevance to its actual holding–that the Texas statute “furthers no legitimate state interest which can justify” its application to petitioners under rational-basis review. Ante, at 18 (overruling Bowers to the extent it sustained Georgia’s anti-sodomy statute under the rational-basis test). Though there is discussion of “fundamental proposition[s],” ante, at 4, and “fundamental decisions,” ibid. nowhere does the Court’s opinion declare that homosexual sodomy is a “fundamental right” under the Due Process Clause; nor does it subject the Texas law to the standard of review that would be appropriate (strict scrutiny) if homosexual sodomy were a “fundamental right.” Thus, while overruling the outcome of Bowers, the Court leaves strangely untouched its central legal conclusion: “[R]espondent would have us announce … a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do.” 478 U.S., at 191. Instead the Court simply describes petitioners’ conduct as “an exercise of their liberty”–which it undoubtedly is–and proceeds to apply an unheard-of form of rational-basis review that will have far-reaching implications beyond this case. Ante, at 3.
I begin with the Court’s surprising readiness to reconsider a decision rendered a mere 17 years ago in Bowers v. Hardwick. I do not myself believe in rigid adherence to stare decisis in constitutional cases; but I do believe that we should be consistent rather than manipulative in invoking the doctrine. Today’s opinions in support of reversal do not bother to distinguish–or indeed, even bother to mention–the paean to stare decisis coauthored by three Members of today’s majority in Planned Parenthood v. Casey. There, when stare decisis meant preservation of judicially invented abortion rights, the widespread criticism of Roe was strong reason to reaffirm it:
“ Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe[,] … its decision has a dimension that the resolution of the normal case does not carry… . [T]o overrule under fire in the absence of the most compelling reason … would subvert the Court’s legitimacy beyond any serious question.” 505 U.S., at 866—867.
Today, however, the widespread opposition to Bowers, a decision resolving an issue as “intensely divisive” as the issue in Roe, is offered as a reason in favor of overruling it. See ante, at 15—16. Gone, too, is any “enquiry” (of the sort conducted in Casey) into whether the decision sought to be overruled has “proven ‘unworkable,’ ” Casey, supra, at 855.
Today’s approach to stare decisis invites us to overrule an erroneously decided precedent (including an “intensely divisive” decision) if: (1) its foundations have been “eroded” by subsequent decisions, ante, at 15; (2) it has been subject to “substantial and continuing” criticism, ibid.; and (3) it has not induced “individual or societal reliance” that counsels against overturning, ante, at 16. The problem is that Roe itself–which today’s majority surely has no disposition to overrule–satisfies these conditions to at least the same degree as Bowers.
Another great conservative has died. Former US Senator Strom Thurmond, the oldest US Senator ever, died yesterday at the age of 100. He had just retired from the Senate (and thankfully been replaced by a Republican) last year.
His early days as a Democrat and segregationist are not what we celebrate. He made his peace with civil rights, and was, by all reports, unfailingly courteous to black people he came in contact with. His long US Senate career was one of fighting the good fight. From getting President Reagan's & President Bush's judges confirmed, to working for missile defense, to waging the Cold War, to supporting our unfolding response to September 11th, to supporting gun rights, to opposing affirmative action, to fighting against abortion and homosexuality, to working for tax and regulatory relief for American taxpayers and businesses, Strom Thurmond was there in the fight. A stalwart voice for conservative principles and causes has been silenced by age and now death.
Requiescat in pace.
Finished Harry Potter and the Order of the Phoenix last night. I'm more convinced than ever that John Granger's basic thesis is correct. The clues keep piling up that this has nothing to do with Wicca/paganism, and that the entire story will be seen, after the last volume is written, as an affirmation of Christian values, or at least values that are not inimical to Christianity.
I begin to think that so many of the very uptight folks who sputter on about how unsuitable a role model Harry is are really concerned that their own weak authority is what is being spoofed. If you have no better control over things (like your children) than Professor Umbridge, if you hold power just on account of having legal rights to exercise power, no one will respect your authority, except toadies. But if you have genuine moral authority, if you lead by example, like Dumbeldore, your authority is not mocked or ignored or questioned.
These books are getting darker, and Harry is becoming a very different person than he was at the start. We will have to wait a while for it, but the sixth volume should be very interesting.
Thursday, June 26, 2003
Sir Denis Thatcher, husband of Lady Margaret Thatcher, Britain's greatest prime miister since Sir Winston Churchill, died at the age of 88. A full obituary can be found here. I really didn't follow the inside stuff on the Thatcher family. I just knew Prime Minister Thatcher defined the term "staunch ally," and paved the way, in the English-speaking world, for the conservative revolution in policy inaugurated here by President Reagan.
Realizing that it was his wife, not the retired oil executive, whom the Queen, the Tory Party, and the British people had entrusted with governing the country, Sir Denis kept himself in the background. He liked his golf, and seemed to hold rather solid views on politics, which he, unlike, say, Prince Phillip, managed to keep mostly private (conservative orthodoxy and inclination is not necessarily government policy, even when Ronald Reagan and Margaret Thatcher are in charge).
We mourn with America's great friend, Lady Thatcher, for this loss.
Requiescat in pace.
You own a chain of retail outlets that sell maternity clothes. One of your managers gets pregnant, so you ridicule and fire her.
Some cave dwellers have not got the concept that personnel decisions are public relations decisions.
If her story is true, what more could they have done to make customers hostile to their brands?
This time the score was 11-2.
I made substantial progress towards completing Harry Potter and the Order of the Phoenix. Just another 170 pages to go. I should finish this evening, all things being equal.
The Blogger people must have done their thing since I posted that last comment. I woke up this morning to find the "Edit Your Blog" format very different from what I've been using since I started. I'm not sure I like the way it looks. But then again, I don't have much of a choice, do I?
Wednesday, June 25, 2003
I have been getting lots of spam lately. The latest tactic to get around spam filters seems to be to set up the spam with a first and last name, and a subject line that makes it seem like the e-mail is genuine. As they come in, I add the e-mail address to my blocked list. But they are getting around that by changing the suffix of the e-mail addresses they use. You block hotdeal.com, and they start using hotdeals2.com, eventually getting to hotdeals95.com.
Only a limited number of bloggers have my e-mail address, and I know who they are. But if you use an unfamiliar e-mail address to send me a message, please make the subject line very recognizable and specific, so I won't just block it as spam.
A lot of the "criticize no priest or bishop ever," crowd have been justifying the pervert priest crisis by claiming that the media disproportionately covers sex abuse by priests, and that the priesthood has no more perverts in it as a percentage than the population at large. They blame the crisis on the media. I don't buy it.
But something has been recurring in my thoughts for some time. it hasn't completely coalesced into what I consider a cohesive argument yet. Let me try to develop it while I write.
When was the last time you heard about a Roman Catholic priest going postal? When did the last Roman Catholic priest load up with a couple of handguns and an AK-47, and storm into a crowded McDonald's shooting? When did the last Roman Catholic priest murder a half dozen or more people?
I can't recall a single instance. I don't think (I may be forgetting something, if so, please let me know) there has been a priest/mass murderer in the last 50 years.
Why is that? Murder is a sin, just like sodomy. Sodomy by a priest may even be worse (when considered as sin) than random murder, because it involves violating vows, fornication (arguably adultery, as the priest is married to the Church), violating trusts, and the commision of unnatural acts. In this, there is mortal sin on multiple levels. With random murder, there is just the violation of a single commandment, a simple mortal sin. A grave mortal sin, indeed, but just one (multiplied by the number murdered).
But you don't see many priests going out there and murdering people. Or knocking over liquor stores. Or kidnapping people for ransom.
Now you can argue, and there is undoubtably something to it, that people with violent psychopathic tendencies are not terribly inclined to become Catholic priests. As I say, that is probably true. People with murder in their hearts don't have the cluster of interests that would lead them to the priesthood.
But also you can't overlook the fact that the Church, in its seminary formation process also screens out men with violent psychopathic tendencies. There is a great deal of psychological testing that goes on in regard to men entering the seminaries. Violent psychopaths probably don't pop up in the formation process very often. But when they are identified, one can be sure that they are being screened out. No one wants a priest who might start lobbing hand grenades into the congregation in place of a homily.
Well the Church is doing a good job at keeping violent psychopaths out of the priesthood. Why, then, has it not been so succesful at screening out men with same-sex attraction that leads them to bugger any available and vulnerable 15 year-old boys? The psychological tests to find out who is homosexual have been around for some time. Some might lie on the tests, but it would be odd if others at the seminary did not know about the same-sex attraction of some of the individuals there. And if the fellow-students know, the faculty and formation staff must know, too. If they thought a violent psychopath had eluded detection in the testing process, would they hesitate to point it out to anyone who might listen? Of course not.
Why then do they not turn in men with same sex attraction, who are just as unfit for the priesthood? If they turn them in (see some of the discussion in Good-bye, Good Men!), why is action not taken by the proper authorities?
Why is it that the Church recognizes that violent psychopaths do not belong in the priesthood, but has failed so terribly in discerning the equal unsuitability of homosexuals for the priesthood? Is it just because the violent psychopaths don't have a good lobbying effort? Because they have a bad public image? Because they don't already have a substantial foothold within the establishment of the Church?
Violent psychopaths seem to be under-represented in the priesthood. Why then are homosexuals so grossly over-represented? Is it someting about the nature of the job that attracts more homosexuals? Is it just that more homosexuals think they can hide from the inclination to commit unnatural and sinful acts in the priesthood? Recall that 85% of the sex abuse we have all become aware of was done by priests to boys, and that the vast majority of that was done to pubescent and post-pubescent boys.
Remember the surveys that say that about 1/3 current Roman Cathlic priests self-identify as gay, and that something greater than 2/3 younger priests know that there is a homosexual subculture either in the active priesthood or in the seminaries they recetly graduated from. It is when you get to these surveys that you get past the media coverage and the argument that the media is just reporting it because it is out to "get" the Church or force her to change her teachings. When you link these two survey results with the fact that 85% of the abuse of young people was done by priests to young, but not pre-pubescent boys, you see that there is a real problem, and that the problem stems from the mutually-supporting situations of dissent on moral teachings and actual homosexuality in the priesthood.
With great hoola, Krispy Kreme has finally arrived in Greater Boston. Yesterday, a store near Wellington Circle in Medford opened. I know thee are 1-3 Dunkin Donuts nearby. It will be interesting to see how the battle for coffee and donut dollars in that area goes.
KK has a long way to go to challenge the Boston area supremacy of DDs. There is, literally, a DD on every significant corner throughout Greater Boston. And each one has long lines every morning. A DDs franchise is almost a license to print money. I'm told KK has better donuts. I suspect DDs will have to improve its quality to stay ahead. Competition is a good thing.
We bought Harry Potter and the Order of the Phoenix Saturday afternoon. Mrs. F. finished it in under 48 hours (including some 12 hours of sleep time and some other down time amounting to perhaps 5-6 hours). I am reading it at a much more leisurely pace. I've had it for just under 2 days, and am just under half-way through. Neither of us is the sort who would skip ahead to read the ending.
So far, it seems that Rowling's editors were a little too indulgent. Quite a bit could have been chopped out. But when the author sells more copies than the next 9 on the bestseller list combined, you can see that they might be reluctant to pick fights with her.
I'm enjoying it so far. As always the characters seem to come alive, and the development of the plot inspires lots of, "why not...?" and ,"I wonder if...?" questions.
This book is darker than previous ones. The theory that we are seeing recreated the prelude to World War II from a British perspective is in part true, I think. Some of what John Granger said has come to pass, and some not (at least not yet).
For folks who are already through it, no spoilers in the comments boxes, please.
We are not beach people, even when the temperatures soar into the 90s, as they will today. Summer has finally arrived in Greater Boston. It is only in the 80s now, but the bricks, so pervasive on Essex Street's pavement and its buildings (including our building) give the downtown the feel of an oven already. Thank heavens for air conditioning, especially since humidity triggers my asthma.
Tuesday, June 24, 2003
In two distinct incidents in southern Iraq today, six British soldiers were killed, and 8 were injured. the dead were apparently members of the 1st Battalion, the Parachute Regiment. Requiescat in pace.
As I did, Mark Sullivan wanted to make a change in his blog's title. So Ad Orientem is now Irish Elk. The URL is the same. Mark has some interesting items up about baseball coachs' odd body language and Oscar Gamble's really, really big hair.
Navy Captain Seth Michaud, 27 of Hudson, MA died when bombs from a B-52 fell on his position during a training exercise in Djibouti. Eternal rest grant unto him, O Lord, and may perpetual life shine upon him. May his soual, and all the souls of the faithful departed, through the mercy of God, rest in peace. Amen.
National Review On Line's David Frum makes some excellent points about the Supreme Court's missed opportunity to make race less of a factor in American life.
The Church uses Saint John's Day, rather than the pagan Solstice, to mark the high point of the year, the time of greatest sunlight, flowers, and pleasant temperatures. In Europe, it is known as Midsummer Day. European seasonal patterns run about 4-6 weeks ahead of New England patterns. So, in Europe, this is indeed about the midpoint of summer, since it ends with the serious harvesting of Lammas (August 1st). Here, summer starts later (theoretically, we just marked the beginning of summer) and ends later, sometime in September.
Before 1540, John Stow has left an account of what transpired in London around Saint John's Day (spelling and punctuation has been modernized).
There were usually made bonfires in the streets, every man bestowing wood or labour towards them: the wealthier sort also before their doors near to the said bonfires, wopuld set out tabes...furnished with sweet breas and good drink...whereunto they would invite their neighbours...every man's door being shadowed with green birch, long fennel, St. John's Wort,Orphin, white lilies and such like, garnished upon with garlands of beautiful flowers, had also lamps of glass with oil burning in then all the night.
Ronald Hutton, The Rise and Fall of Merry England, Oxford University Press, 1994, p. 37.
There were also parades of armed men, morris dancers, and mock giants.
The bonfires were very widespread, and not only in England. Someone took the time to note three different kinds of fire. The bonfire was kindled with old bones, and was intended to keep away evil with its odor. The wakefire was made of wood and intended to be kept burning all night as the center of revelry (rather like the domestic Yule fire). Saint John's Fire consisted of both wood and bones, and did both.
In some places in Europe, a wheel was set on fire and rolled down the hill to symbolize the sun having reached its high point and, from that point, on declining. The hay harvest usually started after Saint John's Day.
Throughout Europe, it was the custom to begin the celebration of most feasts on the night before, thus we have A Midsummer Night's Eve (meaning the evening of June 23rd). That is also who we have revelry on All Hallow's Eve (Halloween), and Christmas Eve.
In England, Saint John's Day is also a quarter day, like Lady Day (March 25th), Michaelmas (September 29th), and Christmas. Quarterly rents would be due.
This is the feast of Saint John the Baptist, the voice of one crying in the wilderness. Everyone knows the story of John the Baptist, what there is of it. All we really know about are the circumstances of his birth, some sketchy details on his public ministry, and some details about his death. But we also know that he is an important saint. From the Lord's own mouth he is called the greatest born of woman.
Devotion to John the Baptist is universal among Christians, both East and West. He remains one of the most popular and best-known saints in Christendom.
Monday, June 23, 2003
The opinion is long, and analysis has been slow to come in. David Horowitz of FrontPage Magazine had filed an amicus brief against the Michigan policy. He issued a press release on the Court's decison, the most important part of which reads thus:
The Supreme Court split hairs and equivocated today on the issue of racial discrimination by American universities in favor of select racial groups. By a decision of 5-4 the Court decided to uphold the University of Michigan Law School’s discriminatory admissions policy that favors three ethnic groups in a nation which contains hundreds, and by a similar margin to strike down the discriminatory policies at the undergraduate level.
But the numbers of Protestants, Moslems, and Jews have also increased. The Moslem increase was 5-fold, far outstipping the growth in the nuber of Catholics, which did not increase as much as the population as a whole.
But the biggest increase was in the category of those who professed no religion, which more than doubled. Almost 140,000 people-- compared to 66,000 in the last census-- said they had no faith. Another 1,000 claimed to be agnostic, while there were just 500 atheists out of a total population of almost 4 million.
The bishops concluded their meeting in executive session, and apparently did nothing important. Expectations were not particularly high on that front.
The rest of the world seems to be still reading the 800+ pages of the latest Harry Potter (including Mrs. F., who was up 'til about 6:00am; good thing she is on vacation). Every literate on the planet seems to be buying it.
Sunday, June 22, 2003
Reprinted in Frontpage Magazine.
Now if only the insurance companies agreed.
Bishops from across the country see resolution of the crisis in the Boston Church and appointment of a new Archbishop as a necessary step in the healing of the church nationwide. In this they are correct. Boston is the epicenter of the crisis, with a huge percentage of the abuse that has made the headlines in the last 18 months coming from here. Boston set the pattern for the rest of the country in the handling of perverts.
Resolving the Boston litigation and getting new, orthodox, and effective leadership in to the Archdiocese is vitally necessary. Bishop Lennon is a nice guy, but he is clearly not up to the job of leading such a large and important archdiocese into the future. Someone more dynamic, who engages the public imagination with a truly radical call to holiness, that he himself exemplifies in his private life, is needed.
There is no leadership coming from the chancery, and the insurance companies have been controlling the progress of the litigation. Since they will be paying the bills, this is normal. When an insurance company comes in to cover a liability, they call the shots for the defense. But of course, at the same time, they have been denying that they are liable to pay the bill. They are simultaneously trying to walk away from liability, and demanding that the Archdiocese vigorously and completely exhaust every possible defense, stall, strategem, to put the day of financial reckoning further out into the future. The Archdiocese needs to get these cases resolved for its public image, if not for the simple justice of the matter. But the insurance companies would rather pay later, and stall now, as they almost always do when defending against massive liability bills. And because the Archdiocese has some real culpability in the matter, it has to stand out front and take the punches from the press amd public while the insurance companies stall the litigation.
Of course, settling the existing litigation might only mean that plaintiffs' lawyers will come forward with another 100-200 cases they have been waiting to file, as Garabedian did on settlement of the first 85 Geoghan cases (as soon as they were settled, he filed another 15-16). So settling the existing litigation might not be the end. But settling it very, very soon is absolutely vital for the Church.
This morning, at around 7:00, the first people taking part in the annual walk to raise money for cancer research came dribbling by under my windows, despite a light rain. It is an inspiring thing to see so many thousands of people (of all races and creeds) coming together to do what little they can to fight against our common enemy as humans, not so much death as a lingering debilitating death that often cuts people off in the prime of life. I wish their enterprise well.
But starting off at 7:00 am? I don't know about you, but I get up at around 4:30 to start work on weekdays, and like to sleep in until 9-10 on weekends. That didn't happen today. People walking through downtown Salem tend to treat it as if it were Boston's financial district after busines hours: a place where no one lives and no one will be disturbed by noise late at night or early in the morning. However, people live in a fair number of the buildings of downtown Salem, and can hear passersby as they go by talking to the person next to them as if she were a block away (what is it about being outside that makes some people increase their volume?).
And then, at about 8:20, the cheesy music started. If you could sleep through the noise of the walkers, forget about overcoming the rendition of "Honky-Tonk Blues" being performed with far more gusto than talent (and amplified by a PA system a block away).
Living in downtown Salem has a great many advantages. But this one morning a year, those advantages seem to pale somewhat.