Thursday, June 28, 2012

The Earthly Power of a Philadelphia Jury

After months of testimony and deliberations the Philadelphia jurors who found Msgr. William Lynn guilty of child endangerment did more than any Vatican official has ever done to address the problem of sexual abuse of children in the Catholic Church. This was made possible by the simple fact that the men and women of the jury confronted him as a peer, in a system that confers equal rights and responsibilities upon all.

Those who wonder why the Church has been unable to halt the rolling catastrophe of sexual abuse claims need only consider the difference between the American system of law and Catholic justice. Within the Church, ordained men are regarded a special creatures with extra-human powers. They alone conduct the sacraments, such as communion and reconciliation (confession) and they alone can ascend through the clerical ranks to become bishops, cardinals and popes. Their superior status culminates in the pope's claim of infallibility, which places certain of his statements on a par with the voice of God.

Inside the institutional Church, ordination opens the doors to a brotherhood of men who have officially forsworn sex, marriage and children, and embrace the Church as their main source of emotional, spiritual and even financial support. This sacrifice makes many feel entitled to special treatment, and while they may not always get it from laypeople they generally receive it from each other. To put it crudely: priests give priests a lot of breaks. This is why complaints about sexual abuse were so often covered-up and resolved by sending "father" to another post. None of the men in charge wanted to discipline a brother.

Beyond this brotherly privilege, the clerical culture is also a setting for a kind of mutual blackmail that has made the idea that the Church could police itself almost ridiculous on its face.

 As many insiders report, the number of priests who actually keep to their vows of celibacy is very small. The rest break their vows -- by having all different kinds of sex -- and typically confess and seek absolution from another member of the clergy. Under these conditions, everyone knows what everyone else is doing, and crimes are ignored or hidden by superiors who don't want to be exposed themselves.

Self preservation can impose a powerful influence on a bishop who has broken his own vows and must deal with complaints against a brother priest. Bishops are also affected by their duty to protect the Church from harm. Many actually swear a formal oath that requires them to keep secret anything that might dishonor the institution. They also pledge their loyalty, not to the people they are supposed to serve or to God, but to the pope. If all this reminds you of the loyalty pledges taken by army recruits, it may be because the Church is not just a religion but a state. The pope is the monarch who governs this state, and he is guided by a system of rules -- called canon law -- that is ill equipped to punish abusing priests. Indeed, the most severe punishment the Church can impose on an abusing cleric is to take away his priestly status, and this is rarely done.

In Monsignor Lynn's case, prosecutors presented evidence that he helped to move priests who had abused minors from parish to parish without informing the public of the danger these men posed to young people. His defense lawyer called Lynn "a yes man at the bottom of the totem pole ... holding the bag for the collective sins of an organization that allowed dozens of pedophiles to harm hundreds of children." Considering the evidence that Lynn's superiors set the policy he followed, this argument was probably factually correct. But it did not absolve him.

The jury's historic verdict marks the first time a higher Church official has been convicted a child endangerment for following procedures that were employed by dioceses across the country as they protected thousands of priest abusers. In exercising their early powers, 12 men and women have put ordained men on notice. They must now known that they are burdened by a duty, higher than any loyalty they feel for brother priests and more powerful than any pledge they make to the pope.

They bear a basic human obligation to protect and not endanger children. And if they fail, at least in America, they may be held accountable by laypeople who, while sitting in a jury box, are most definitely their peers.



analyst said...

There may be signs of a double dip even before the election.

Abercrombie & Fitch is closing hundreds of stores

Swiss pharma giant Roche is closing their NJ operations

Best Buy is at risk or going under even after their biggest competitor Circuit City and smaller regional chains liquidated

There's more

Stupido said...

How do you like the snide remark by Chief Justice Roberts that amounts to the government has a right to tax even in odd ways but it doesn't doesn't it was not a stupid governmental decision to force people to buy health insurance or that the electorate was not stupid to elect stupid officials like Obama who have the power to make such stupid decisions?

Ho Ho Holder said...

UOJ meddling again on Capitol Hill? Contempt of Congress is a felony.


House Near Vote on Contempt Citation for Attorney General


36 minutes ago

In the House, a citation for Eric H. Holder Jr. over documents relating to a gun trafficking investigation seemed certain.


4:51 pm

US House of Representatives votes to convict Obama's Marxist-leaning Attorney General of Contempt of Congress

Mitt Romney said...

We can't get too excited over Holder's conviction. The executive branch has the ability to stop the chaloiss of the criminal charge if it is the Attorney General instead of a regular citizen that Congress voted on. Obama is of course expected to interfere which would make it only a symbolic citation, but it is fort the first time in history that an AG was convicted.

What's significant is that despite all the theatrics of Democrats storming out of the chamber before the vote, 17 Democrats still joined Republicans to vote for conviction.

Anonymous said...

Notice how the NY Times already called it a "citation" BEFORE the vote, predicting their desired outcome that Obama should not allow it to go into effect. The article is also one of the worst examples in recent memory how the NYT weaves slanted editorial into the news reporting. If you only read that article you would think the big bad Republicans were holding an illegal vote.

Free lunch for Shmarya and his favorite people said...

Einer Elhauge, professor at Harvard Law School:

Republicans will get to campaign on the fact that Obamacare was only upheld because it was a tax. This was a reality that the Democrats liked to minimize, but it will be hard to deny after the Supreme Court decision.

Ryan Young deserves a UOJ cap said...

Columnist Dan Fastenberg

Safeway has reinstated a clerk who was suspended without pay after he defended a pregnant woman last month in the grocery chain's Del Ray Oaks, Calif., market.

Safeway gave Ryan Young, a meat clerk, his job back, along with back pay and benefits. He will join the staff at a different Safeway store that's no farther from his home in Marina, Calif., according to the San Jose Mercury News.

Young's story sparked a national outcry and motivated 180,000 people to sign a petition calling for his reinstatement. Upon hearing Safeway's decision, Young credited the public's support.

"Knowing that I had all these people standing behind me and that I wasn't alone really helped me through this difficult time," he was quoted by a news release from Change.org, which organized the petition.

On April 21, Young was at work when he saw a male customer, Quyen Van Tran, hitting a pregnant woman -- Tran's girlfriend. Young intervened and reportedly struck Tran, who was subsequently arrested. (Tran, who pleaded no contest to a misdemeanor in the incident, has since been sentenced to three years probation.) Despite what Young says were assurances that his job was not at risk, Safeway notified Young that he was suspended without pay

Archie Bunker said...

Don't you see the geoinus of what Chief Justice Roberts did? It was several brilliant moves rolled into one.

He galvanized the public to vote Obama out of office.

He showed the Supreme Court can rise above partisan politics.

He gutted the Commerce clause.

And he saved his ammunition for much more important decisons.


It will be very interesting to see what he does with "Affirmative" Action.

Paul Mendlowitz said...

The Tax Issue is Not Just a Technicality

Posted: 28 Jun 2012 03:09 PM

Ilya Somin/Volokh Conspiracy

Some, including co-blogger Orin Kerr, have argued that today’s ruling that the individual mandate is a tax rests on a mere technicality. The mandate could have been a tax if only Congress had labeled it as such or structured it slightly differently, and so it makes sense for the Court to assume that it is a tax rather than invalidate an important law.

But the argument that this is not a tax has never been just about labeling or technicalities. The mandate is substantively a penalty rather than a tax, for reasons I explained here:

As recently as 1996, the Supreme Court reiterated the crucial distinction between a penalty and a tax. It ruled that “[a] tax is a pecuniary burden laid upon individuals or property for the purpose of supporting the Government,” while a penalty is “an exaction imposed by statute as punishment for an unlawful act” or – as in the case of the individual mandate – an unlawful omission. The individual mandate is a clear example of a penalty, where Congress requires people to purchase health insurance, and then punishes them with a fine if they fail to comply.

In September 2009, President Obama himself noted that “for us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase.” He was right….

Even if the individual mandate does somehow qualify as a tax, it is not one of the types of taxes that Congress is authorized to impose. The Constitution gives Congress the power to enact several types of taxes: Excise taxes, duties and imposts, income taxes, and “direct taxes” that must be apportioned among the states in proportion to population.

No one, including the federal government, claims that the individual mandate is a duty or an impost. The individual mandate is not an income tax because an income tax must target some “accession to wealth,” in the words of Commissioner of Internal Revenue v. Glenshaw Glass Co., the leading Supreme Court case on the subject. The fine imposed by the mandate does not target any accession to wealth or flow of income. It simply forces individuals to pay a penalty if they disobey the federal government’s regulatory requirement. The fact that low-income individuals are exempted does not change this analysis. A fine for jaywalking would not become an income tax if low-income individuals were exempted from it….

It is even more implausible to suggest that the mandate is an excise tax. Excise taxes apply to economic transactions or the use of property of some kind. For example, a tax on the sale of alcoholic beverages qualifies as an excise. The individual mandate does not tax any kind of activity, use of property or economic transaction….

Paul Mendlowitz said...

If the mandate is not a tariff, impost, income tax, or excise tax, it is either a direct tax or no tax at all. And if it is a direct tax, it would be an unconstitutional one, because it is not apportioned among the states in proportion to population as the Constitution requires.

Even if Congress had called the mandate a a tax, that still would not have made it constitutional. But to the extent that labeling does matter, it’s not just a pure legal technicality. Those who argue that Congress has a virtually unlimited power to impose taxes claim that the main constraint on this power is political accountability. But that accountability is undermined if the federal government can pretend that a bill is not a tax in order to get it enacted, and then turn around and claim it is a tax when it comes time to defend the law in Court. Had President Obama and the Democratic leaders in Congress announced this was a tax from the start, it likely would not have passed in the first place.

Ultimately, the constitutionality of this law doesn’t turn on labels. Labeling this penalty a tax would not have made it so. But for those who believe that political accountability is the sole constraint on the tax power, labels are not mere legal tecnicalities either.

UPDATE: It’s worth noting that Chief Justice Roberts’ opinion only briefly discusses the crucial question of whether the mandate – if it is a tax at all – turns out to be an unconstitutional “direct tax.” The four justice dissent by Alito, Kennedy, Scalia and Thomas properly takes him to task for this:

[W]e must observe that rewriting §5000A as a tax in order to sustain its constitutionality would force us to confront a difficult constitutional question: whether this is a direct tax that must be apportioned among the States according to their population. Art. I, §9, cl. 4. Perhaps itis not (we have no need to address the point); but the meaning of the Direct Tax Clause is famously unclear, and its application here is a question of first impression thatdeserves more thoughtful consideration than the lick-anda-promise accorded by the Government and its supporters. The Government’s opening brief did not even address the question—perhaps because, until today, no federal court has accepted the implausible argument that §5000A isan exercise of the tax power. And once respondents raisedthe issue, the Government devoted a mere 21 lines of its reply brief to the issue….

Jesse Jerkson said...

Keep hope alive!