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Sunday, July 02, 2006

And Every Knee Shall Bow

This post is not about religious freedom, but about human freedom. Read to the end before you dispute me.

Last week Cardinal Trujillo made some remarks on the Catholic church's legal future:
"I fear that, faced with current legislation, speaking in defense of life, of the rights of the family, is becoming in some societies a crime against the state, a form of disobedience of the government, a discrimination against women.

"The church risks being brought in front of some international court, if the debate gets any more tense, if the most radical opinions are heeded," Lopez Trujillo told Famiglia Cristiana, a Catholic Italian weekly.
He's not imagining things. For example, when the EU Constitution was being voted on last year, groups had already made plans to sue under the human rights provisions to demand that the Catholic church allow women to become priests. As for the "radical opinions" discussed, let's visit DU:
3. this is a basic debate : democracy against theocracy
read further down in the article

"He also criticized what he described as a movement to impose new human rights.

"It's happening for abortion, which is a crime, and instead it's becoming a right," the cardinal said."

sorry father, it's not to you to LEGALLY decide what's an human right or not, it's for the majority of the nationals of a country. You have the right to manifest your disagreement, but if you actively attack and HARASS members of a community that you disagree with (like gays, researchers or women having an abortion) you are commmitting a hate crime. If you put that into a system, even if you live in another country you can be prosecuted at an international court.
Since the church is hardly running around attacking people physically, the obvious presumption is that promulgating an organized body that follows the moral rules of the church instead of the moral rules of society and advocates for those rules in society is what this person considers to be a hate crime. In other words, the Catholic church may not "live" its doctrine. It may not maintain that killing a fetus at eight months is a crime and that those who do so are murderers, and it may not tell its adherents that this should be reflected in the civil laws under which they live. It may not require that members of its own follow these rules, because that is a "hate crime".

We are already seeing the first fruits of these ideas in the US. See Kobayashi Maru's post on Catholic Charities of Boston, which was forced to discontinue adoption and foster services. State law requires that such agencies not discriminate against same-sex couples or homosexuals, and Catholic doctrine now requires that children not be place with same-sex couples. The reasoning is that such people are, ipso facto, in rebellion against Catholic doctrine and so cannot provide the religious upbringing the church considers necessary. You are free to disagree with Catholic doctrine, but this decision is completely self-consistent with the doctrine of the Catholic church.

The impingements of this current legal atmosphere are hardly restricted to the Catholic church. In California, for example, the CA Supreme Court has just permitted a lawsuit filed against a Lutheran religious school to go forward:
The suit filed in Riverside County Superior Court seeks readmission for the students, unspecified damages and an injunction barring the Wildomar school from excluding gays and lesbians.

California Lutheran, which has 142 students, argued that as a religious organization it had a First Amendment right to exclude gay students and that it was not subject to a state law prohibiting businesses from discriminating on the basis of sexual orientation.
The two girls in this case were seen making out a party; considerable gossip ensued at the school, and then the principal interviewed and expelled them.

The CA Supreme Court has previously not been respectful of such claims. And in June, the CA Supreme Court agreed to hear an appeal of a case in which the appellate court ruled that a lesbian could not sue a fertility clinic for their refusal to artificially inseminate her:
An appeals court ruled last year against Benitez, saying that the doctors could use religious freedom as a defense against her lawsuit. The doctors say their refusal was based on the fact that Benitez was unmarried, not because she's a lesbian.

In their appeal to the state Supreme Court, attorneys for the Los Angeles office of the Lambda Legal Defense and Education Fund said there is an "urgent public need to resolve persistent confusion" over whether religious rights can trump protection under state anti-discrimination laws.
This one should be interesting; as scocblog reports in a link, most observers believe that the Court is likely to reverse the appeals court based on their 2003 decision requiring a religious organization to fund birth control prescription coverage regardless of its religious objections to birth control, and based on the way the case is described on its website:
Does a physician have a constitutional right to refuse on religious grounds to perform a medical procedure for a patient because of the patient's sexual orientation, or do the provisions of the Unrah Act (Civ. Code Section 51) preclude such discrimination in the provision of services notwithstanding the physician's religious beliefs?
Framed in that way, the court appears to have already answered the question. SFGate:
Pizer, Benitez's lawyer, said the 2003 ruling involving Catholic Charities and birth control prescriptions, and an earlier ruling on a landlady's refusal to rent to an unmarried couple, stand for the proposition that business proprietors who can't comply with a law for personal reasons should change their practices or go into a different business.
But Tyler, lawyer for the clinic and its doctors, said the physicians' individual liberties should receive more consideration than the religious positions of a commercial entity like Catholic Charities. He also contended sexual orientation is not entitled to the same level of protection against discrimination as gender, the basis of the Catholic Charities ruling.

Because the U.S. Constitution protects the free exercise of religion, Tyler said, the doctors should be allowed to explain why they refused treatment to Benitez, and "the jury would have to decide if their actions were based on sincere religious belief.''
I really don't think Tyler's argument will prevail in CA, since I cannot see why religious belief as codified and practiced by an highly traditional religious entity should be treated less seriously than an individual's statements about their own beliefs. I have also known several completely areligious persons who are adamant in believing that single women should not seek to become pregnant with the intention of raising a child alone; each one of those people felt that doing so was pure selfishness and obvious proof of unfitness to be a parent. Are their deeply held beliefs less worthy of respect than someone's religiously held beliefs?

I would say not. I think it is the right of conscience which should be protected here, and not just the right of religious conscience. Regardless, it is the position and goal of some organizations (NOW, Lambda, etc) that such matters of conscience are not reserved to an individual, but to the state. The essence of this battle is that individual consciences may not be lived out in practice, and that even private religious voluntary associations (such as the Wildomar school) may not act in accordance with their principles if others find those principles offensive.

This is a very broad matter which should be seen for what it is. If a state can enforce non-discrimination in private consensual organizations, a state can also enforce discrimination in private consensual organizations - which is, btw, pretty much the Ninth US District's position.

Furthermore, I reason out the Benitez case as follows:
And so it goes. The type of liberty at stake is here is a very fundamental one; Cardinal Trujillo is enlisted in a humanist battle as a well as a religious one. The real question which is arising all over the United States is whether non-state organizations and private individuals may have moral consciences which do not conform to the official conscience of the state.

Everything that's old is new again; Pliny the Younger to the Emperor Trajan:
It is my practice, my lord, to refer to you all matters concerning which I am in doubt. For who can better give guidance to my hesitation or inform my ignorance?
Meanwhile, in the case of those who were denounced to me as Christians, I have observed the following procedure: I interrogated these as to whether they were Christians; those who confessed I interrogated a second and a third time, threatening them with punishment; those who persisted I ordered executed. For I had no doubt that, whatever the nature of their creed, stubbornness and inflexible obstinacy surely deserve to be punished.
Some of today's "rights" organizations are attempting to place our state in the role of the Emperor Trajan. The Judeo-Christian tradition is associated with the development of the humanistic concept of individual conscience and human freedom. This must be preserved, and if we do not preserve it then we are betraying Jeffersonian liberalism utterly and condemning ourselves to existence under a tyranny which could not possibly conceive any bounds to its rights and thus cannot concede that an individual has any rights of his or her own.

"The real question which is arising all over the United States is whether non-state organizations and private individuals may have moral consciences which do not conform to the official conscience of the state. "

Indeed. This is the Boy Scouts case, all over again.

As for the DUmmy, his remarks are absurd- "it's for the majority of the nationals of a country..."

So the manifest hate, bigotry and racism as expressed by the Arab/Muslim world are expressions of 'Human Rights'?

Yes. Of course we have no-goods in this country, and some expressions of moral conscience by individuals are clearly crimes of CONDUCT. There are people I truly believe deserve a good sock in the face, but I have to acknowledge that I don't have the right to administer that....

Yet our society has managed to walk the line of prohibiting criminal conduct while allowing considerable individual freedom of associational conduct and extreme freedom of speech. Furthermore, our ranting, raving nutcase bigots never seem to draw much support from the general population.

I think it is the freedom to be a jerk which has produced the steady march of liberalism in the US, and I don't think we can afford to step down from those principles now. If anything, we should be reiterating them more strongly.

It is only when those associational freedoms aren't respected that you seem to get violent dissension in a population. I think the humanism of the enlightenment is somehow founded in the idea that the individual is responsible for his or her own conduct as long individuals are protected against actual crimes.

Most people in the west do recognize that the state promulgates laws to protect us from the worst conduct, but that the state really cannot promulgate moral, aspirational laws and guidelines to generate the best conduct. So there must be a place for private organizations and individuals to form and maintain ethical goals for our society.

I think some want to put the state in that position, but if we do, then we, like Pliny the Younger, will find ourselves hanging on the words of an arbitrary authority figure.
"the state promulgates laws to protect us from the worst conduct, but that the state really cannot promulgate moral, aspirational laws and guidelines to generate the best conduct"...it is probably always safer and more useful to generate a rule system which *prohibits* certain things than a rule system which *requires* certain things. For example, most of us would be comfortable with a set of procedures, enforced by hardware and software, that prohibits the firing of nuclear weapons except in certain defined conditions (authenticator codes checked, both launch officers turn key simultaneously, etc)...but few would be comfortable with a completely predefined set of procedures which affirmatively makes the launch decision based on predefined criteria and without further human judgment.
I certainly wouldn't!

Your point is excellent "it is probably always safer and more useful to generate a rule system which *prohibits* certain things than a rule system which *requires* certain things."
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