Wednesday, April 28, 2010

Some one has apparently failed to get Rich Lowry a copy of the catechism.

Now that the semester is over (but for the grading of 122 exams and, to borrow the expression of a friend, that is every bit as special as it sounds), I should have more time for blogging.

I want to deal with the issue at greater length, but I am amused by the controversy over the supposed "epistemic closure" of the conservative movement, encapsuled in the controversy between Jim Manzi and Mark Levin that has played out over on National Review Online.

There is, of course, a meta point in all of this that is overlooked by all the clucking about how sad it is the conservative mind has closed. The controversy is being played out on ... National Review Online. I recall reading, over the weekend, a nice piece on the way in which some conservatives have come to misunderstand supply side economics and the Laffer curve - thinking that tax cuts always pay for themselves. I was interested because I made the same point here. The funny thing is that I read this criticism of a point commonly made by conservative talked in ... the pages of National Review.

I have commended the work of Jim Manzi on this blog on several occasions. But Jim - who things that there is anthropogenic global warming but that its impacts are exaggerated and the most commonly offered solutions are ill advised - was brought to public prominence by ... National Review. They actually gave him a cover.

The idea that conservatives are uniquely close minded while folks on the left walk around enraptured by intellectual curiousity is risible. Rhetoric from the President and folks like Harry Ried on the financial crisis and reform has largely been unreflective demagoguery. (This is not to say that there is no need for financial reform but the framework of a nation of Tiny Tims cheated by the pre-enlightenment Scrooge isn't very helpful.) Ignorance of complexity is just as much a Democratic as a Republican problem.

This is not to say that I don't think that something that can be called epistemic closure is not a problem for us all or that both parties don't have their own forms of magical thinking. But my friends on the left who think that they have identified a uniquely conservative problem are suffering from a certain lack of self awareness.

Friday, April 23, 2010

Look, we sued the Pope !

Lawyers for the Vatican have called the lawsuit against Pope Benedict and the Holy See a "publicity stunt." I wouldn't go so far as to say that - it has a chance of surviving a motion to dismiss and there may be, embedded in its fifty four pages, a theory that might get to the jury. But there is a sense in which that a publicity stunt is precisely what it is and there may be some larger lessons here about the American liability system.

The lawsuit arises from the predations of a pedophile priest in Milwaukee named Father Murphy. It's a nasty case. Murphy abused numerous young boys at a school for the deaf, largely in the fifties and sixties, but perhaps extending to the early seventies when he was (quite improperly) quietly shuffled away to an early retirement. It is clear that the Milwaukee Archdiocese - in particular Archbishop Meier - failed to act in ways - during the 1960s - that would have halted the abuse. There is no evidence that the Vatican, much less the Pope, had any knowledge of or involvement with Father Murphy during this period. By the time the Vatican (and then Cardinal Ratzinger as head of the Office for the Propagation of the Faith) became aware of Murphy's offenses, it was the late 90s. The Milwaukee Archdiocese had brought a belated action to defrock him.

There is a controversy over how that proceeding was conducted and whether it ended prematurely. But it could not have prevented any further abuse and it is almost certain that, however it was handled, Father Murphy would have (as he did) die before it could be completed.

Here is where the publicity stunt begins. What makes this case newsworthy - what puts you in the New York Times and on the networks news - is the defendant in the Apostolic Palace.

There are multiple legal problems with bringing an action against the Pope and Holy See under the Foreign Sovereign Immunities Act. Two circuit courts of appeals have allowed part, but not all, of such cases to go forward. The outcomes are not consistent with each other and, in one, a cert petition is pending before the Supreme Court. Without getting into the details, the reasoning in these cases is far from unassailable.

But the theories that have been permitted - largely negligent supervision and a rather curious notion of respondeat superior - have either been rejected or are unlikely to be recognized by Wisconsin law. The Wisconsin Constitution has been interpreted to confer rather broad protection for church autonomy. Even if these problems are not fatal, the actions complained seem to be almost certainly barred by the statute of limitations.

And, as this is important, the wrongs alleged to have been committed by Pope Benedict himself could not have averted any of the very real harms suffered by the plaintiffs. Father Murphy's predations had ended long ago. They - and the feckless response of the Milwaukee Archdiocese - were well known within the deaf community. (It was pressure from that community that lead to the charges against Murphy.) The Milwaukee District Attorney had, rightly or wrongly, already declined to prosecute him. Unless one buys into the dubious notion that the failure to a religious institution to impose discipline long after the fact is a legally cognizable injury, the naming of Pope Benedict XVI is, notwithstanding the sympathetic nature of the plaintiff and the very real horror to which he was subjected - a publicity stunt.

There are a few larger implications. Litigation, in this instance, is being used as a front in a larger war to affect Vatican policy in the future. Although advocates say that something "must change," the fact is that almost everything about the Church's response to clergy abuse has changed. The gravamen of the complaint is to have outsiders manage that change. Once again, we see an attempt to take traditional common law notions of duty and liability and extend them to form the basis for prospective regulation - something which, I would argue, strains judicial competence and usurps prerogatives of civil society - particularly where the institution to be regulated is a religious institution.

Second, a theme in the complaint is that the Vatican should have acted in a way that would have publicized what it calls, at a least one point, "the practice" of child sex abuse. The harm in its failure to do so, it seems, was not limited to the predations committed by known abusers who were placed in a position to abuse again, but in the failure (or so it seems) to let people know that, in general, "priests abuse kids."

This reminds me of other cases in which the theory of liability has been that the defendant (I think of the lead paint and tobacco cases, although those were stronger examples of the approach than this is) should have fallen on its sword. There are numerous difficulties with this theory in this context, but, once again, it strikes me as a questionable spin on traditional notions of common law duty.

Finally, we have the problem of our repeated inability to discuss these matters rationally. When I wrote an op-ed in the Milwaukee Journal Sentinel a few weeks ago arguing that it might not be a good idea to completely abolish Wisconsin's generous statute of limitations for cases like this, I was accused of siding against "victims" and not appreciating the gravity of Father Murphy's offenses. Neither charge is fair.

Just as lawyers know that being "against crime" does not mean that we ought to do away with constitutional protections for criminal defendants, we also know that empathy for those to whom bad things have happened doesn't mean that all limitations on liability - even for those "deep pockets" whose relationship with the wrong is indirect - ought to be swept aside.

Cross posted at Point of Law

Sunday, April 18, 2010

Judge Crabb's Establishment Clause Ambition

I am not going to go ballistic over Judge Barbara Crabb's decision that the National Day of Prayer - an event that has gone on for 58 years and mirrors, in many respects, actions of our federal government throughout the history of the Republic - violates the Establishment Clause.
She is, I think, wrong and may have been well served to have given more attention to a principle of legal analysis that has served me over the years: The law can be an ass, but it doesn't always have to be. Invalidating the National Day of Prayer seems intrinsically wrong and that sense, while not dispositive, needs to be given attention.

But Judge Crabb's decision rehearses the doctrine and the various arguments for and against the constitutionality of the matter. She did not mail it in. She did not ignore the obvious arguments against her decision, even if I don't think she handled them in the right way.
It would be hard for me to conclude otherwise. I have argued - here and here - that there is a trail in our Establishment Clause jurisprudence (and various trails, rather than structure, is all we have in this area of the law) that is overly ambitious. It seeks to protect against relatively small religious insult and utterly fails to deliver it because, to be consistent, would paralyze the government.

In particular, it is simply not possible to protect everyone from religious insult stemming from a government communication. The government will inevitably do things - teach sex education, values clarification or promote patriotism - that could cause religious dissidents to "feel like outsiders." The only way that you can avoid recognizing this is to declare certain forms of insult nonreligious, even if they are religiously based. This requires a truncated view of what constitutes religion and betrays the neutrality that the whole undertaking was designed to protect. An atheist can feel comfortable that his suppositions will not be accosted in a public school. A fundamentalist Christian may find hers challenged (or minimized) on a regular basis.

My suggested solution is to give up the game and realize that establishment requires something more than mere endorsement.

But there is a trail of cases that prompts my criticism and Judge Crabb follows it to find the National Day of Prayer to be unconstitutional - notwithstanding that it does not establish religion in any intuitive sense of the term. In doing so, she rejects (although she acknowledges and strives to distinguish) another line of cases in which noncoercive and generalized state affirmations of religion have been permitted - particularly if they are have a long pedigree.

The decision is one that almost has to move up to the Supreme Court (unless the Seventh Circuit reverses.) The Supreme Court can hardly let invalidation of the National Day of Prayer to rest with a district judge in Madison. I think Judge Crabb's position gets three votes. Justice Breyer, I think, will reprise his performance in Van Orden and conclude that striking down the National Day of Prayer would result in the complete abandonment of doctrine (the Lemon and endorsement tests -the ambitious Establishment Clause that I have criticized) that he would like to preserve.

Cross posted at the Marquette University Law School Faculty Blog

Friday, April 16, 2010

Shark in San Diego

Earlier this week, I had the pleasure of making a quick visit to the University of San Diego Law School to engage in a debate on the case of Christian Legal Society v. Martinez, set for argument before the United States Supreme Court on Monday. The event was made possible by a grant from the Templeton Foundation and sponsored by the USD chapters of the Federalist Society, Christian Legal Society and PrideLaw.

I was on the ground for less than 24 hours, but San Diego is beautiful (although I think I picked the one day in the last ten years when the weather in Milwaukee in April was just as nice) and the USD campus is exquisite. My opponent (Professor Shaun Martin), the moderator (Dean Michael Kelley) and the student hosts were gracious. The lunch at La Gran Terraza was very good. What about the debate?

The case involves the refusal of Hastings College of Law (a public school that is part of the University of California system) to recognize the Christian Legal Society as a student organization because, although its events are open to everyone, voting members must affirm a statement of creedal Christianity and resolve to strive to live in accordance with certain moral standards, including to refrain from sexual conduct outside of marriage between one man and one woman.

No way, says Hastings. This constitutes discrimination on the basis of religion and sexual orientation and violates the Law School's unwritten policy which requires (or, so Hastings says, although it has heretofore not insisted) that all student organizations take all comers without regard to whether those comers support the organization's beliefs or ideals. The CLS can exist. Hastings might even allow it to use University facilities. (It has said that it will but there is some dispute over whether it has kept that promise.) But it can't be a recognized student organization.

Two things are clear. The CLS has an associational right to exclude those who don't buy into its mission. Hastings has no obligation to subsidize its speech or the exercise of its associational right.

But there is a complication.

In deciding to recognize student organizations who engage in expressive conduct, Hastings has created what has come to be known as a limited purpose public forum. Case law says that, when such a forum is created, participants may not be excluded on the basis of the viewpoint expressed, including, the Supreme Court has made clear, religious viewpoints.

Hastings says that they have not engaged in viewpoint discrimination. No organization can exclude anyone. Cats must live with dogs, Democrats must admit Republicans, the Sierra Club must welcome global warming deniers and the gay & lesbian student organization must allow its message to be voted on by congregants of the Westboro Baptist Church. They say that the educational purpose of their forum requires, not only diversity among groups, but within groups.

I don't believe the latter. Hastings student groups often have charters that require voting members to adhere to the ideals of organizations. (One, La Raza, even had racial requirements.) Although the parties have stipulated that this is Hastings policy, it seems clearly to have been an expedience contrived for litigation, suggesting that it is hardly essential to the law school's educational mission.

The former is belied by the fact that the policy discriminates against groups organized to advance a particular point of view (one might call them "creedal groups"). It seems weak tea to say that Hastings permits student groups to express all manners of views but won't allow them to exercise associational freedom in the task of advancing those viewpoints.

The right of free association has been found to be implicit in, and essential to, the right to speak. The freedom of associate has also been found to include the freedom to exclude those who do not share or, in the judgment of the group, would impair the group's expressive measure. The CLS does not seek to exclude on the basis of status (they will admit gay and lesbian students who affirm their statement of beliefs) but on the basis of belief and in a way which is intended to further its expressive activities.

In the end, it seems to me that Hastings policy will burden the expression of unpopular views whose message can be silenced by the requirement that they admit into their organization those who would silence it. It will, I think, result in a more narrow than broader range of discourse. It tells religious organizations that they must become debating societies - effectively excluding them from the university's forum.

Professor Martin argued ably against this view. The one thing that he and I agreed on is this is likely a 5-4 case. You can guess who the swing vote will be.

Cross posted at the Marquette University Law School Faculty Blog

Sunday, April 11, 2010

Forget about that local democracy bit

One of the insights of Public Choice theory (a way of viewing political actors as self interested agents) is that intensely interested parties may often be able to exercise disproportionate influence over public policy to benefit their own interests at the expense of the common good. This proposal to vest greater control over local school districts and school boards with the state Superintendent of Public Instruction strikes me as a prime example.

I have no idea whether placing MPS under the responsibility of the Mayor would have helped whatever one agrees are completely unacceptable outcomes. The idea was to place responsibility for the schools with a public official to whom more people pay attention and whose election and re-election is more salient, i.e., more people pay attention. School board races attract few voters and tend to be denominated by those who are self interested in the status quo or in particular proposals fro reform. This results in a weaker demand for acountability on the part of the general public. If the mayor had to run for reelection based, in part, on the performance of the schools, it is more likely that something would get done.

One of the arguments against the takeover, however, is that it would diminish the voters' direct control over the schools. Better, the opponents said, to place responsibility for the schools in the hands of officials who must run for relection based on the performance of the schools and nothing else. This, opponents said, would maximize local control - and, in particular, control on the part of the community most affected by MPS - over the schools.

So now the idea is to move a substantial amount of that control - not merely the few miles from Vliet Street to Water Street - but to Madison. And it appears that some who opposed empowering the Mayor support placing ultimate power over the schools with DPI.

This seems inconsistent until you remember the insights of public choice theory. The election of the State Superintendent of Public Instruction is an extremely low salience (spring in the odd years) race that is marked by an extremely low turnout dominated by those who are self interested in public education. DPI has long had a reputation as a wholly owned subsidiary of the teachers' unions because the teachers' union has a disproportionate influence in the election of the Superintendent.

This is not to cast aspersions on Tony Evers or any other state Superintendent. It is just to note that, in an election dominated by WEAC, candidates whose views (presumably sincerely held) are more favorable to WEAC are likely to win. In fact, I am unaware that a candidate not favored by the teachers' union has ever been elected State Superintendent - at least not in my increasingly lengthy adulthood.

When seen in this way, any inconsistency seems explainable.

So, I think that this is a

Saturday, April 03, 2010

The Story Remains the Same

Update: Since writing this post, I have had an opportunity to do a bit more research, heard Father Brundage's comments on Charlie Sykes show and have exchanged e-mails with Father Brundage. I should add the following: Abatement is not equivalent to dismissal and it was unclear in the few days before draft of the letter and Father Murphy's death that, if the matter had been abated, it would not have become active again. (An abated action remains pending.) As a practical matter, nothing was going to happen soon since the situation in August of 1998 was that Father Murphy was too ill for the matter to move forward. Second, whether Father Brundage would or would not have been a hero in this case, he literally has been a hero in other matters of child abuse - to the point of risking his life.

In the first bit of new reporting by the Journal Sentinel,Anyssa Johnson now writes that Father Thomas Brundage actually provided Archbishop Rembert Weakland with a draft of the letter sent several days before Father Murphy's death announcing that the case against him had been abated.

If this is accurate, then it reflects poorly on Father Brundage who said that he would never have agreed to abate the proceedings unless Pope John Paul II ordered him to do so. Not because he did it. As Dad29 points out, he worked for Weakland and had undertaken a vow of obedience.

I am sure that he simply did not recall that he drafted the letter that he now claims not to have seen. But his claim that "he would have" objected to the abatement is simply not true. That may, in one sense, be understandable. Priests don't normally go over the head of their Bishops. It is also true that the matter had not been abated at the time of Father Murphy's death but it apparently was going to be. Perhaps Father Brundage would have objected. It is certainly possible that he would have written a draft of a potential response at the direction of his boss, but objected if he learned that this was actually what the Archbishop decided to do. But, just as it was inappropriate for Archbishop Weakland to attempt to blame his own failures on the Vatican, it was inappropriate for Father Brundage to suggest that he would have been the hero that he was apparently not.

But that does not add a single bit of support to the story line, i.e., idea that the final failure - after many earlier failures - to deal adequately with Father Murphy can somehow be blamed on the Pope. We already knew that Archbishop Weakland, after allowing the case to continue for several months following the meeting in Rome, had decided to end it.

We still have the same story that the documents tell. The Milwaukee archdiocese failed spectacularly in the Murphy case and informed the Vatican only years later - perhaps to avoid bad publicity. The Vatican did suggest alternatives to a criminal trial but that is not the scandal it seems to be because of the difficulty of trying decades old allegations against a someone at death's door. (Indeed, Father Brundage had been unable to depose Murphy due to his poor health.) In any event, the the decision was with the local Bishop - Bishop Fliss had already declined to further consider pastoral alternatives after an inquiry from Archbishop Bertone and Archbishop Weakland himself let the proceeding continue for months after the meeting in Rome. Even the alternative suggested by Archbishop Bertone (declaring Murphy to be unfit for ministry) was based upon Murphy displaying true remorse - something that Brundage says - and the documents indicate - never happened.

Now, in fairness to Weakland, continuing the trial was probably largely symbolic at that point. Murphy's death was imminent. His health did not seem to permit his participation in the case. The real scandal here is the failure of Archbishops Meyer, Cousins and Weakland to act sooner. By the time that the trial was commenced, there was little chance that it ever could have been completed so that Father Murphy would be defrocked before his death.

But symbols matter and Archbishop Weakland made the wrong call - in this and so many other cases.

Father Brundage's failure of memory does, perhaps, contribute to another story line. It will cause more people to believe, as one commenter on this blog says, that "you can't believe anything they say." That is tragic. The story broke on Good Friday. Tomorrow is Easter.

Friday, April 02, 2010

The Story Trumps the Facts

Blogging has been nonexistent as I finished up a law review article. I did have a column in the Milwaukee Journal Sentinel on the clergy abuse scandal in the Catholic Church and whether it justifies elimination of the statute of limitation in civil cases. I don't think and am generally skeptical about the value of large liability awards against the Church for conduct that took place long ago.

The controversy over the handling of the canonical trial against Father Lawrence Murphy by the Congregation for the Doctrine of the Faith, then led by Joseph Cardinal Ratzinger, now Pope Benedict XVI, is an effort to respond to the notion that the Church has reformed and the problem is in the past (albeit with ongoing consequences for many who have been victimized.)

Anyssa Johnson of the Journal Sentinel, for example, begins with this lede:

Top Vatican officials - including the future Pope Benedict XVI - did not defrock a priest who molested as many as 200 deaf boys, even though several American bishops repeatedly warned them that failure to act on the matter could embarrass the church, according to church files newly unearthed as part of a lawsuit.

That sentence is true, but as other have pointed out, highly misleading. The implication is that American bishops behaved responsibly and were frustrated by the recalcitrance of the Vatican, including the future Pope. Precisely the opposite is closer to the truth.

The original story in the New York Times was worse Its headline stated "Vatican Declined to Defrock U.S. Priest Who Abused Boys" and included a claim that the Vatican's "Cardinal Bertone halted the process. Those statements are literally false.

There is no evidence that then-Cardinal Ratzinger was involved, no evidence that it was the Vatican who "did not defrock" Father Murphy and no evidence, in fact, that the proceeding against him ever stopped. He wasn't defrocked because three Milwaukee archbishops failed to act over a period of over 35 years and, when one belatedly began proceedings because he feared a scandal, Father Murphy, now old and infirm, died before they could be completed.

What appears to have happened is that, in July of 1996, Archbishop Weakland - very belatedly - wrote to then Cardinal Ratzinger and asked for advice on how to proceed with allegations of solicitation in the confessional. He did not receive for a response, but that didn't really hold the things up. He began proceedings against Father Murphy in December of 1996. In February of 1997, a problem arose because the Vicar General and judge in the matter, Thomas Brundage, concluded that the solicitation allegations were barred by the statute of limitations. They needed a waiver and couldn't proceed until they got one.

On March 10, 1997, Archbishop Weakland wrote to Gilbeto Cardinal Augustino asking for a waiver. Cardinal Augustino's office did not have the authority to grant that waiver but the CFD did and, on March 24, it did so.

The matter went forward, not in spite of Cardinal Ratzinger's office, but because of it. It became necessary to employ some procedural maneuvering. Canon law apparently required that the case be brought in the Diocese of Superior because that is where Father Murphy was living. A decision was made to dismiss the case in Milwaukee and then reinstate it in Superior under the auspices of the Bishop there, Raphael Fliss.

In early 1998,Father Murphy then wrote to the then Cardinal Ratzinger asking him to stop the proceeding and allowing him to die as a priest. Cardinal Ratzinger did not respond. We have no evidence that he even read the letter. Most importantly, the Vatican never stopped the proceeding.

What did happen is that another official in the CDF wrote to Archbishop Fliss and suggested that he consider a pastoral response. Fliss ultimately responded, saying that pastoral responses had been exhausted.

This apparently led to a meeting in Rome, not with Cardinal Ratzinger, but with Archbishop Bertone. Based upon a summary of the meeting and what seems to be an extremely rough machine translation of the minutes from English into Italian, the Wisconsin clerics were, again, urged to consider alternatives due to the complexities of a canon trial and the age of the allegations, including precluding or restricting his celebration of the Eucharist and having him declared unfit for ministry (although it is unclear that he was any longer engaged in any such activities). This was apparently contingent on Father Murphy's sincere repentance. One Vatican official said that "the priest must give clear signs of repentance [something that everyone who actually spoke to Murphy say that he never did], otherwise he must be applied to trial."

Ms. Johnson, in an article today, writes that "[t]hough none of the records includes a direct order from the Vatican to halt the trial, they suggest Weakland felt he had no choice." I don't see why she thinks so. In fact, it does not appear that the Wisconsin officials had any obligation to follow the suggestions of the CFD officials and that, in fact, those suggestions conditioned abatement of the trial on Father Murphy's repentance - something that never happened.

So, not surprisingly perhaps, the trial was no abated. In fact - after the meeting - the judge in the trial scheduled Father Murphy's deposition, although it was postponed due to Father Murphy's poor health.

Later, in August, Archbishop Weakland wrote to Archbishop Bertone saying that he had instructed his Vicar General to abate the proceedings. This is curious for at least two reasons. First, it is not clear that Weakland had any authority to abate the proceeding because it was taking place under the auspices of Bishop Fless. Second, there is no evidence that the proceeding was abated. The judge in the case has said that he was never told to stop and believed the matter was still pending two days later when Father Murphy died.

There is a scandal here, but it's a local one, involving three Archbishops of Milwaukee - two of whom are dead and one of whom has retired in disgrace. Archbishop Meyer apparently told Father Murphy to repent and sin no more, leaving him in place. Archbishop Cousins removed Father Murphy and did not reassign him but allowed him to remain a priest and go to live with his mother in Boulder Junction on the condition that he have no contact with deaf persons. Archbishop Weakland was informed, in 1980, that Father Murphy was, in fact, having contact with deaf persons and was engaged in ministry in the Diocese of Superior. He did not act on Father Murphy's disobedience nor does it seem that he informed Superior's Bishop Fless of the reason that Father Murphy had been banished from Milwaukee.

This clearly seems to be a case where the reporting has been cast to fit a particular narrative. But that narrative is, at best, extremely incomplete and misleading. There are a number of potential reasons for this. The preferred narrative is a bigger story. The Church's response to allegations of abuse has often been feckless and sometimes dishonest. The scandal is used to fight battles within the Church. It is also used by our increasingly vocal evangelical atheists to ridicule ideas that they do not share. Finally, America has a long tradition of anti-Catholic bias that has been absorbed and continued, in somewhat different form, by certain elements of the secular left.

Cardinal Bertone certainly showed more concern over the difficulty of a trial and, perhaps, more sympathy for Father Murphy's circumstances than he ought to have shown. But even that, in this whole sorry state of affairs, is not the heart of the scandal.