Tuesday, March 29, 2016

WILL THE CATHOLIC CHURCH IN GEORGIA BE SUED BY THOSE WHO DEMAND THAT THE CATHOLIC CHURCH PERFORM THEIR MARRIAGES? WHO KNOWS?

This is how Reuters is reporting what Governor Nathan Deal said yesterday (My comments follow news article):

Georgia Governor Nathan Deal said on Monday he will veto a so-called religious freedom bill passed by the state legislature that has drawn national criticism for discriminating against same-sex couples.

The measure, which states that no pastor can be forced to perform a same-sex wedding, was recently passed by the Republican-controlled legislature.

Under the bill, faith-based groups could not be forced to hire or retain an employee whose beliefs run counter to the organization's, while churches and religious schools would have the right to reject holding events for people or groups to whom they object.

Deal, a Republican, said he could not support the legislation, which had drawn wide criticism from corporations and had triggered threats of a state boycott by the entertainment industry.

Deal said he was not bullied into his decision but felt a law was not necessary.

"I do not think that we have to discriminate against anyone to protect the faith-based community in Georgia," Deal said at news conference on the legislation, noting his religious faith.

Similar bills in states such as Indiana and Arkansas sparked storms of criticism last year, forcing many lawmakers to retreat, and North Carolina is currently seeing protest over a new law that bars transgender people from choosing bathrooms consistent with their gender identity.

Deal's decision was immediately celebrated by gay rights advocates, including the national Human Rights Campaign.

“Our message to Governor Nathan Deal was loud and clear: this deplorable legislation was bad for his constituents, bad for business, and bad for Georgia’s future,” HRC President Chad Griffin said in a statement.

He added that Deal had "set an example for other elected officials to follow."

Mike Griffin, spokesman for the Georgia Baptist Convention, which lobbied for the bill, said his group's 1.3 million members will continue fighting for it.

"All we wanted was protection from government overreach,” he said, noting his disappointment in Deal, a two-term governor. “We feel that he’s let down the people of faith and all of Georgia by not signing the bill.”

Critics of the legislation included marquee Hollywood stars, such as Anne Hathaway and Julianne Moore, as well as movie and TV studios 21st Century Fox, NBC Universal, Time Warner, Walt Disney, AMC, Viacom and Marvel Entertainment.

More than 300 large corporations and small businesses, including Delta Airlines and Coca Cola also came out against it.

"Georgia is a welcoming state," Deal said.

My comments: I don't think that a Catholic parish or either of the two dioceses in Georgia could be sued by anyone who according to Canon Law has an impediment preventing them from celebrating the Sacrament of Marriage in the Catholic Church.

A few years ago I had a Baptist woman call me because she wanted to be married at St. Joseph Church--in fact I get many calls from brides who want to use St. Joseph Church as a destination wedding.

The local Baptist woman was outraged that she couldn't rent our church building for her wedding and accused me of being narrow minded and unwelcoming of her! Could she sue and force us to allow her to use our church building for weddings. I doubt it, but in today's climate I am not so sure. I do think that Catholic parishes will have to be very careful about ecumenical allowances,  such as allowing a Protestant denomination use our church for weddings. I allowed a Lutheran Wedding at St. Joseph some years ago. Neither the bride or groom were Catholic. Neither had any impediments to being married. The bride was the Lutheran and had attended Catholic school in Macon from Kindergarten through High School. Her Lutheran Church was too small for the number of guests she invited to her wedding. So I allowed her Lutheran pastor to perform a Lutheran wedding at St. Joseph.  It was an ecumenical gesture.

Apart from those who might be opposed to this kind of ecumenism, I think that doing this act of ecumenical charity could open the Catholic Church to being sued if we allow some but not others. I would no longer allow this at St. Joseph given the climate of those who seek to sue if we don't comply with what is happening in our society.

I think the Archdiocese of Atlanta is at a greater risk to face some law suits as the gay lobby there is very powerful and gays with an agenda against what God teaches about sexual morality and chastity would love to rub the Church's face into their excrement.

Time will tell.

I think that the only solution to preventing a demand by a gay couple or any heterosexual couple with an impediment to being married in the Church, Catholic Church, is to make sure we don't rent our facilities out to any  group for anything. 

Then I think we as a Church seriously have to rethink allowing Catholic Clergy to sign civil marriage licenses after the Celebration of Holy Matrimony in the Church--the fact that I sign the civil license and thus act as an agent of the state  could open the door to lawsuits when Catholic clergy act as an agent of the state in signing civil licenses for the civil requirements of a lawful state marriage.

All that would be needed is for the Church to tell those Catholics being married in the Church that they have to have a civil magistrate, such as a justice of the peace or notary public, perform the requirements that legalize their marriage according to state law. Then they present their civil marriage certificate for the pre-nuptial file and the Sacrament of Marriage is celebrated in the Church. Thus the Church is no longer the legal agent for the civil marriage aspects.

The Church requires civil legal recognition for marriage in the Church but we don't have to be the agent for that aspect of what the Church requires. IN FACT I THINK IN THE FUTURE CATHOLIC PRIESTS SHOULD BE FORBIDDEN BY CHURCH LAW TO ACT AS AN AGENT OF THE STATE FOR THE CIVIL LAW ASPECTS OF CIVIL MARRIAGE.

The greater problem for the Catholic Church is her employees. I can see many lawsuits in this regard and we've already had on high profile one at our Catholic high school.

Catholic priests don't hire themselves out to do weddings for money. We don't charge for weddings. Ministers who do hire themselves out for weddings and charge a fee are the ones most vulnerable to lawsuits by those who want to hire them for their wedding. 

Let's face it the Secular Magisterium is more dogmatic and more authoritarian and more dictatorship-like that the Catholic Magisterium ever was. There is a price to pay if a governor or state disobeys them. The price to pay is the ALMIGHTY DOLLAR!

Critics of the legislation included marquee Hollywood stars, such as Anne Hathaway and Julianne Moore, as well as movie and TV studios 21st Century Fox, NBC Universal, Time Warner, Walt Disney, AMC, Viacom and Marvel Entertainment.

More than 300 large corporations and small businesses, including Delta Airlines and Coca Cola also came out against it.

25 comments:

Fr. Michael J. Kavanaugh said...

Have you declined to officiate at a wedding, citing the usual impediments? I have. No one has threatened a lawsuit, let alone filed one.

The hype is overriding the reality here, I think. Since you sign only the Civil marriage licenses for couples at whose wedding you officiate, I don't see any potential for this action giving rise to legal challenges regarding whose wedding we do or do not officiate at.

The facilities rental question is one we should explore. That's a separate matter since there is no doctrine on leasing a building. We would not rent to a KKK group, a local Coven, or a meeting of sexual swingers, so I don't there is much potential for legal action, but the !matter should be considered.

Fr. Allan J. McDonald said...

The door is flung wide open for frivolous lawsuits against the clergy if any religion including our own which is opposed to same sec marriage. Activist lawyers and judges will deem this bigotry and unjust, illegal discrimination. Will they won against the Church in a court of law. It depends on the jury and the judge and it could travel to the Supreme Court where all bets are off.

Anonymous said...

The governor said he would have signed the "Pastor Protection Act"---the portion of the bill that said churches and clergy don't have to perform same-sex marriages or rent their facilities to groups with agendas that are incompatible. That passed the Georgia House without a dissenting vote. The problem was the Senate add-on language, that never got a committee hearing (no "vetting" of the bill). Yes, the liberal media overhyped it, but there are also a lot of people up here who don't think the legislation is necessary---even one lawyer who worked under the Reagan Administration said the pastor protection portion of the bill was unnecessary because of the federal First Amendment. He also brought up issues as to whether one's "sincerely-held religious belief" would allow businesses to discriminate on other grounds, not just the same-sex issue, but also interracial couples, single mothers. Maybe even a man and women "living together" outside of wedlock. That raises the question, under what conditions can a business turn anyone away?

I've never heard a homily about the issue up here in Atlanta, nor has our bishop said anything about the latest version, pro or con. The legislation seems to be the work of the Georgia Baptist Convention, with few other ecumenical partners.

But it is true about the gay lobby up here, and the reality that the city of Atlanta and Fulton County traditionally have been more liberal than the rest of Georgia. The city of Atlanta for instance voted nearly 80 percent for liberal Democrat Michelle Nunn in the 2014 Senate race with David Perdue. Fulton County hasn't voted Republican for president since the 1972 Nixon landslide over George McGovern. Adjoining Clayton and DeKalb Counties are even more heavily Democratic (not so much because of white liberals moving in but because of blacks moving in and whites moving out to more distant counties. Bib cities and metro areas tend to be more liberal than surrounding areas (think Chicago, New York City, Los Angeles, Boston and Washington, DC), and the Atlanta area just fits into that pattern. Not saying that is good, but that is the reality.


TJM said...

Fr. McDonald, unfortunately anyone can sue anyone, because unlike other justice systems, in the US we have a tradition of each party bearing their own legal costs. In some justice systems, the prevailing party's legal fees are paid by the losing party, which helps to minimize nuisance suits. Even though the US Supreme Court has many liberal members, from what I have seen in recent years, even they stand staunchly behind religious freedom, so I don't think these type of lawsuits will get anywhere.

John Nolan said...

Thank you, Fr Kavanaugh, for that injection of sanity. Although same-sex (civil) marriage is allowed in England, this does not apply to the Church of England, whose authority to solemnize marriages predates civil marriage and is not affected by it. Ironically, other denominations (including the Catholic Church) may legally perform same-sex marriages if their own interpretation of matrimony permits it.

Fr. Michael J. Kavanaugh said...

Jay Bookman wrote in the AJC, 17 March 2016: "Take the provision that states that no faith leader can be required to conduct gay weddings. I have no problem with that goal; of course they shouldn’t. But the truth is that even absent the bill, there is no mechanism by which religious clerics in Georgia could ever be forced to perform marriages against their faith. The odds of state or local government forcing such a thing are the same odds of a unicorn mating with a dragon and giving birth to a brontosaurus. They have invented this problem in their own minds, elevated it to the level of some major threat and now demand that the government come and rescue them from it."

Further: "Under HB 757, “All individuals shall be free to attend or not attend, at their discretion, the solemnization of any marriage, performance of any rite, or administration of any sacrament in the exercise of their rights to free exercise of religion …” Do we really need a law stating that you can’t be forced to attend a gay wedding? Under what plausible circumstances could such compulsion occur in the first place?"

And, it seems to me, an "activist judge" is any judge whose decisions I may disagree with. I will believe in the "activist judge" epithet only when I hear, "This judge has decided in my favor, in favor of my values and the behavior I engage in regularly. HOWEVER, he/she is an activist judge and his/her decision must be overturned!"

Anonymous said...

Father K (is that really you?), the requirement that someone can't be forced to attend a gay wedding I also thought was absurd, but then I thought, what about a florist asked to provide flowers for such an event?

Jay Bookman of the Atlanta paper is reliably liberal---very liberal. Pro-abortion, pro-same-sex marriage, pro-Obama. Views which fit for the city of Atlanta and pretty much anywhere inside Interstate 285, but not in Georgia overall.

Fr. Michael J. Kavanaugh said...

If the florist serves the public, then public accommodation laws apply.

Civil Rights Act of 1964. "SEC. 201. (a) All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, and privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin."

From Wiki: "Within U.S. law, public accommodations are generally defined as facilities, both public and private, that are used by the public. Examples include retail stores, rental establishments and service establishments, as well as educational institutions, recreational facilities and service centers."


Fr. Allan J. McDonald said...

I never thought that the Church would be required to cover birth control and abortion services under our private insurance companies, but...

I never thought that same sex marriage had a snow ball's chance of becoming a reality in 2015, but...

So who knows what will happen in the future, liberalism is the most dogmatic and rigid ideology out there, but...

Where I am conflicted is with business owners who cater to the public choosing to serve some and not others. From the secular point of view we know that restaurants post signs (at least in the south) no shoes, no shirt, no service. This seems to be their right to limit who they will serve based upon apparel or lack there of.

It seems that the liberal establishment would condone a business owner, such as a florist or catering company not allowing the KKK or some other hate group from using their business.

But someone with a public business like a florist, jeweler or caterer, if they choose not to sell or serve gays who are getting married, these owners will be brought to court.

If the issue of not serving someone is backed by the liberal establishment, then they can get away with it, but if the liberal establishment is offended, then the owner is brought to court. Double standard?

Anonymous said...

If you never thought that same sex marriage has a snow ball's chance (in hell) of becoming a reality, then you simply haven't been paying attention to the trajectory of civil rights in the USA.

I can see pro-slavery Catholic bishops in the Confederacy saying "I never thought negroes would be allowed to vote."

I can see pro-segregation Catholic pastors in Montgomery, Alabama, in 1955 saying, "I never thought coloreds and whites would go to the same public schools."

I think you are confusing "what you hoped for" with "what you could have seen coming."

James said...

It's easy to blame it all on liberalism, but what we're dealing with here is a particularly reductive and individualistic derivative of it: a dogmatic, simplistic set of postures which seems to infect those on the right of politics as well as the left.

Some call it libertarianism, but for my money it's too half-baked to be an "-ism". It has four symptoms:
--ultra-individualism and self-obsession
--insistence on freedom at all costs
--suspicion of any kind of authority
--worship of the ultimate non-value, tolerance

There's something fundamentally childish about this set of attitudes, since they're not developed or reflected on: just insisted on at every opportunity, regardless of the circumstances. Liberalism, at its best, was a positive, constructive force, but this set of attitudes (whatever you call it) seems purely negative and regressive.

Anonymous said...

As a follow-up from this morning (Mr. Numbers Cruncher up here in the state's capital city). every member of the Atlanta City Council---even the long members from the city's only solid GOP district in Buckhead---signed a petition opposing passage of HB 757, the religious liberty legislation. Some years ago, voters elected a lesbian as city council president (Kathy Woolard, who may run for mayor next year). So yes, powerful gay and lesbian lobby up here, A candidate running for mayor like a Ted Cruz or Rick Santorum would be lucky to get 25 percent in the city---what Republicans there are in Atlanta tend to be the country-club type, many of whom go to the more liberal Protestant churches---Episcopal, Presbyterian and Methodist---with a large number as well of Jews (who tend to be liberal) and Catholics of varying political persuasions. They are fiscally conservative and hardline on crime, but "live and let live" on other issues.

Archbishop Gregory, up here for 11 years, is seen more as with the moderate wing (after all he hails from Chicago and was ordained a bishop under the liberal-leaning late Cardinal Bernadin.) He's not liberal (well, perhaps he is by the standards of some of the bloggers here), but he is not a "fire-eater" either. I think he has fairly good relations with Atlanta's very liberal Episcopal bishop, Robert Wright (the two have participated before in ecumenical Good Friday processions, and Bishop Wright has allowed for use of All Saints Episcopal Church in Midtown Atlanta for Masses of the nearby Christo Rey High School.) Gregory seems to emphasize abortion issue more than gay marriage.

That is just the reality up here---Atlanta area is never going to be a bastion of social conservatism. Not that it ever was---ol Gene Talmadge liked to bash the capital city back when he was governor in the 1930s and 1940s---and he could get away with that under the old (long since dead) county unit system.

Anonymous said...

The Civil Rights Act quoted above contains no language regarding sexual orientation. It isn't a protected class under the Act.

Regarding marriages, under the last summer's Obergefell decision, a same-sex couple stands in the same legal position as a heterosexual couple. If the priest acts as the agent of the state and refuses to treat both couples the same--i.e., if he refuses to solemnize the legal marriage of the same-sex couple--then he is acting under color of law to discriminate in violation of the Equal Protection Clause, opening himself to an action under 42 U.S.S. sec. 1983. Such, at least, is the argument I'd make were I trying to force the issue. Obergefell doesn't speak squarely to this point, but Kennedy's couple of paragraphs (very) vaguely promising sensitivity towards religious belief by no means rules it out, and the trend of recent court decisions strongly suggests that the courts would be sympathetic to a 1983 claim.

Given that the Church is a huge organization with deep pockets and an ancient and strong prohibition against homosexuality--and add to that a generation of Catholics who are almost completely lacking in catechesis--the likelihood that a same-sex couple whose members hold themselves out to be Catholic will seek to be married in the church, be turned down, and sue. With tens of millions of self-identifying Catholics in America and a the LGBT lobby on an aggressive and generally successful legal offensive these past few years, the scenario is inevitable. Anyone who believes otherwise is deluding himself.

Charles G said...

With Republicans like these, who needs Democrats? Freedom of religion and conscience is only at the core of our Constitutional liberties. And people wonder why people vote Trump. Not sure he'd be any better on religious liberty, but the party establishments sure aren't doing a darn thing to help Christian believers here.

George said...

It is held by the Catholic Church in her teachings, and likewise in some denominations outside of her, that where there exists a conflict, Divine law takes precedence over the law of the state. This is easy enough to acknowledge at face value, but the Church, having very little influence in the secular realm today, cannot effectuate the overturning of laws which legalize abortion or same -sex marriage. Actions which egregiously impose on the free exercise of religion however, should not be forced on sectarian bodies and their ministers. I have not read or heard where a homosexual was prevented entrance to a church or to a denominational worship service. This kind of thing may happen in some fringe religious group. Certainly, if a person in a homosexual lifestyle chooses to becomes a member of the Catholic church, he or she will eventually encounter teaching and preaching which is hostile to that lifestyle.
I think that it should be within the right of priests, ministers or rabbis to refuse to officiate or preside at a same-sex wedding if their religious beliefs and convictions prevent them in good conscience from doing so. Moreover, in the Catholic church, a priest functions at the discretion of the local ordinary, the bishop, and so he cannot do something on his own which goes against Church teaching without incurring some canonical penalty and disciplinary action. Really, anything which gives the appearance of the Church sanctioning or advocating for anything which opposes God's law should not be imposed on her by the state or the courts. This includes renting out Church owned facilities. Religious bodies should be free to operate without imposing on others and without being imposed upon. The governing and legal authority in this country should ever exist to be preferred to those atheistic authoritarian states which exist in some parts of the world and which impose their will in the absence of legally guaranteed freedom.

Paul said...

It has been foretold as to how bad things will become. Friends and family may succumb to the desires of the world. It is sad to witness these things, however, it is no excuse to jump into the cesspool.

Hold fast to The Truth and help someone who may be slipping.

Fr. Michael J. Kavanaugh said...

Anonymous 8:06 pm. You are correct; "The Civil Rights Act . . . contains no language regarding sexual orientation." The Act also does not contain language regarding one-legged pirates, women who stain their grey hair puce, or priests who wear birettas. But these groups of individuals are, nonetheless, protected by the Act.

HOWEVER....The Act does, however, contain the words, "All persons shall be entitled to the full and equal enjoyment of the goods,..."

All persons means all persons.

The Act does not create protected classes. It does eliminate privileged classes.

The argument has been made that HB757 and other similar legislation creates privileged classes. These classes include those who, for religious reasons, are "privileged" to exclude some people from the, "goods, services, facilities, and privileges, advantages, and accommodations" they provide to the public in their businesses.

rcg said...

I saw this on a news feed. The governor's announcement was pretty pathetic. His protestations about not giving in to pressure testified differently. He never addressed the quality of the law as to whether it protected the choice of someone to not participate in a homosexual marriage or how it violated the rights of sodomists to publicize their activities.

The commenter predicting that the goal is to force Catholics to recognize and participate in homosexual activity is exalt right. In this country the courts are a game to create situations where a ruling creates common law for a particular objective. That is what is happening here. Those who are not resisting it are supporting it.

Anonymous said...

rcq, right now there is no requirement for you or anyone to attend any wedding---same sex or hetero---for that matter. I think a lot of people here in the Atlanta area view this whole thing as a "made-up" issue. There has never been a groundswell of support for this legislation---or at least a diverse ecumenical backing. It has basically been the work of the Georgia Baptist Convention, the Georgia Baptist Convention, and the Georgia Baptist Convention. One Republican lawyer who worked for Reagan even wrote that the "pastor protection" provision of the bill is unnecessary because of the federal First Amendment; the state can no more force the Catholic Church to ordain women than it can force a Baptist church to use real wine during their infrequent communion services. Hardly ever has the topic come up at after-Mass coffee at my parish.

Perhaps there should have been a "study committee" to look at this issue, instead of passing it on the haste with little time to evaluate the measure (the House voted on the bill little more than an hour after the "compromise" version had been released.)

But at the same time, the issue would not be coming up if we did not have "activist" judges up at the U.S. Supreme Court. They could have allowed the states to settle marriage on their own instead of by judicial fiat; same with Roe v Wade years ago, made up out of thin air.






Anonymous said...

Fr. Kavanagh,

Where did you get your law degree? The section of the act you quote only prevents public accommodation "discrimination or segregation on the ground of race, color, religion, or national origin" as you yourself quoted (but conveniently omitted in your next post). It doesn't prevent discrimination on any other basis. Under the act a public accommodation is indeed perfectly free to discriminate against "one-legged pirates, women who stain their grey hair puce, or priests who wear birettas" when the discrimination is indeed for those reasons and not just a cover for discrimination against one of the protected classes discussed by the statute (e.g., "I didn't serve him because he was a priest who was wearing a biretta.") Your brush-off of the phrase "protected class" further hows your ignorance of the subject--google the phrase and see what you get. If you think I'm wrong, I invite you to cite a court case to that effect.

The EEOC has held that Title VII--a different section then the one you cited--does protect against discrimination based on sexual orientation--i.e., that LGBT status is indeed a protected class--on the basis that it is a variation of sex-based/gender-based discrimination, but that has holding has yet to be tested in the Supreme Court.

Fr. Michael J. Kavanaugh said...

Anon - I don't have a law degree.

But since the section says ""All persons shall be entitled to the full and equal enjoyment of the goods,...", then, in my law-degreeless state, it seems to mean "All people."

Please show me the court case that says "All people" doesn't mean "all people."

Anonymous said...

Fr. Kavanagh,

"All people" does indeed mean "all people." You're right about that. No argument. Every single person has the right not to be refused public accommodation, or accommodated in a separate facility or at a different level of service. _IF_ that refusal or different treatment is because of (or, as the statute says, “on the grounds of” that person's "race, color, religion, or national origin.")

To put this another way, the second part of the sentence isn't some empty verbiage or some expansive way of elaborating on or emphasizing the expansive meaning of "all people" (i.e., "When we here in Congress say all people, we MEAN all people."). Instead, the second part of the sentence _qualifies_ the meaning of the first part.

Further, the characteristics listed there were not pulled randomly out of a hat. The 1964 act is part of a long chain of civil rights legislation and constitutional amendments aimed specifically at, in essence, race-based discrimination, i.e., a particular type of discrimination that has long been recognized as a major element of American society beginning with slavery as well as northern discrimination against free blacks (See, e.g., Civil Rights Act of 1866; Fourteenth Amendment sec. 1; Fifteenth Amendment; Ku Klux Klan Act of 1871; Civil Rights Act of 1875; Civil Rights Act of 1957. Most of these have phrases very similar or even identical to that of Section 201. Section 201 doesn’t mention sex as one of the grounds of discrimination, since the modern feminist movement was in its infancy in 1964. It doesn’t mention discrimination based on sexual preference, since Stonewall was still five years in the future. (Those sorts of discrimination were simply of no interest to lawmakers or in fact to the mainstream of American society, if they thought about them at all.) It does mention religion partly because free exercise cases had been surfacing in increasing numbers since the early 1940s (e.g., Gobitis, Barnett, Sherbert). It mentions national origin because the tensions between ethnic groups and discrimination by WASPS against recent non-WASP arrivals had been of increasing concern since the mid-1800s (approximately when Congress started passing the first civil rights legislation) and was conceptually closely related to discrimination against African-Americans.

This is not just me talking. I'm honestly not trying to engage in a battle of readings/theories with you. Legislative history and court cases by the dozen--by the hundred--are shot through with the basic assumptions I describe above. Maybe your reading of section 201 really is correct, but if so, then the courts and the civil rights lawyers and parties have all been reading it and the other acts totally wrong for a century and a half.

I could send you to any number of sources to elaborate upon all this, but the quickest and clearest might be the text of the proposed Equality Act of 2015, which would modify Section 201 to include the banning of discrimination on the grounds of sex/sexual orientation. By comparing the current wording of section 201 with the proposed version of section 201, you’ll see what the current law does and does not permit.

Fr. Michael J. Kavanaugh said...

Anon - I would agree that the Civil Rights Act of 1964 is part of a "long chain of civil rights legislation and constitutional amendments." But I would suggest that that chain is not limited to matters of racial discrimination. While it dealt with a specific form of discrimination, one based on race, there is a larger, more encompassing trajectory into which the 1964 Act fits.

Dare I suggest that, in terms of written law, it stretches back to Magna Carta? Lord Judge, Chief Justice of England and Wales, wrote in 2014, "Whatever we may find in the written text, Magna Carta has come down to us through the centuries as the most important single document in the development of constitutional and legal freedom and adherence to the rule of law in the common law world, eventually followed in and hugely influencing the Universal Declaration of Human Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms."

I know that I may be straying far afield from the intentions of those who wrote the text of the Civil Rights Act, but I do not believe I am far from their intentions. (Yes, this is the Scalia Question - Is the Constitution Dead or Alive? Surely the writers of the Constitution did not have in mind automatic rifles with high capacity magazines, but that does not mean that we cannot consider the Second Amendment when discussing the legality of banning/allowing such magazines.)

I don't think that "the courts and the civil rights lawyers and parties have all been reading it and the other acts totally wrong for a century and a half." I don't think that the Church's teaching on the sanctity of human life was "read wrong" in the days before our current life-sustaining medical technologies were developed and implemented. Doctrine, legal or otherwise, is written in a particular place and time, in answer to questions of a particular place and time. But the principles that underlie the doctrine are not so bound.

Summing up, the principles that gave rise to the 1964 wording of the Civil Rights act are applicable beyond that one Act.

Fr. Michael J. Kavanaugh said...

Should be "straying far from the WORDS of those who wrote..."

Anonymous said...

Fr. Kavanaugh,

You took issue with my points by making an argument about what the law is, not what it might or should evolve, through interpretation, into becoming. Now you have attempted to shift the discussion from the former to the latter. I shall address these two issues separately.

Re the latter, you may well be right, and judges have certainly applied the principle of going beyond the words in many contexts. I have written and published on the subject of interpretive theory and I know a good bit about the debate and its contours. Examples of going beyond the words include Aumeye v. Anon. (which dates from the same era as Magna Carta); Church of the Holy Trinity v. United States (which famously declared the United States to be a Christian nation and because of that ignored the words of the law in question so as to allow the church to win the case) and Cabell v. Markham (which contains Judge Learned Hand’s famous comment about not making a fortress out of the dictionary).

But I am arguing the point that you originally made (and which you have now shifted away from). And regarding that point, in the case of the Civil Rights Act of 1964 the courts have simply never accepted your theory and show no sign that they plan to. Keep in mind also that the Civil Rights Act is a statute, not a constitutional clause, and so less open to the broad brush theories of interpretation than the constitutional language to which you allude re your Scalia reference.

Many people (including some sitting justices, no doubt) would dearly love for the courts to apply your rule in interpreting the Act. Maybe it will happen at some point, though I wouldn't bet on it for reasons too long and involved to go into here. But I'm telling you what the law is today, and what it will be tomorrow and next week and next year, not what it might evolve into some day. (Some day it might evolve into anything. Or nothing.) And the law today is that under the Act as it is currently written, understood, and applied, I am perfectly free to discriminate against "one-legged pirates, women who stain their grey hair puce," and even "priests who wear birettas" as long as that's seen as discrimination based on headwear and not religion. I'm also free, under section 201, to discriminate on the basis of sex and sexual orientation.

There are other federal statutes, constitutional clauses, and state statutes that in many situations would provide the sort of remedies you originally claimed to be provided by section 201. But they aren't provided by section 201.