On Same-Sex Marriage and Polygamy

The law should be principled. That is, it should rest on reason, a reason that reaches similar answers for similar cases. The passions should be left to politics. Much that’s wrong with American constitutional law these days is that it’s result-driven, and the results the justices want are driven by the passions in the guise of this vague, warm-fuzzy thing called “justice.”

Oliver Wendell Holmes, Jr. had this to say about justice: “I hate justice, which means that I know if a man begins to talk about that, for one reason or another he is shirking thinking in legal terms.” In other words, justice, in this sense, is about what we want, not about reason.

The Court’s downfall can be dated from the 1965 case of Griswold v. Connecticut, when it created a new, hitherto unheard-of right to privacy, because the justices didn’t like the idea that states could regulate contraception. Since then, things have gone rather predictably. In the recent case of United States v. Windsor, the Court, in the person of “Catholic” Justice Anthony Kennedy, reached a principled decision in striking down section 3 of the Defense of Marriage Act. Except that he didn’t. True—and this is where the principle comes in—the Federal government probably overreached by trying to define marriage. Traditionally that’s a state concern. But Kennedy didn’t leave it at that. Instead, he took the opportunity to lecture us on how bigoted the lawgivers were for discriminating against gay couple like that. Maybe and maybe not, but the lecture was gratuitous.

Second, and more seriously, Kennedy essentially ignored Article III’s “case or controversy” requirement in order to render this decision. As Justice Scalia notes, quite correctly, by the time this case got o the Supreme Court, the parties—Ms. Windsor and, effectively, Mr. Obama—were in collusion, both asking for the judgment below to be affirmed. For more than 200 years, that would have been enough for the Court to decline jurisdiction. But Kennedy was so hot to tell us how we’re homophobes that he pretty much ignored that precedent. Thus, his opinion is driven by passion, by what he wants to do, not by what the law commands.

Thus, I’m looking forward to the day when polygamists seek to overturn legal bans on polygamy. The Court, heavily influenced by Kennedy in cases such as Windsor and Lawrence v. Texas, is spouting off a whole bunch of stuff about the “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Marriage is no longer about the basic socio-relational building-block of society that’s geared largely, though not entirely, towards producing children. Instead, it’s based “on defining one’s own family and consecrating a union based on love,” in the words of law professor Kent Greenfield. If we’re going to be principled about this, then, we should allow polygamous, and even incestuous marriages.

I’m not kidding about this, and I’m not saying this in order to march out a parade of horribles, which is what most of the Right does when it comes to this issue. If we’re to have same-sex marriage, I genuinely, really do want us to have polygamous and polyandrous marriages.

Why?

Well, putting on my historian’s hat, I could say it’s because historically there’s a lot more basis for polygamy then there is for same-sex marriage. So, a fortiori, if same-sex marriage is OK then polygamy must be OK.

But I don’t want to do that. Instead, I want this simply because I want the law to be principled. It shows that the justices are at least trying to be reasonable and that the courts, supposedly the last bastion of reason, isn’t really governed by the passions. I don’t want the Court to say in one breath that marriage is about “defining one’s own family and consecrating a union based on love,” and then in the next breath start hemming and hawing and pretending that there are legal reasons not to allow polygamy, when it refused to even consider that possibility when it was looking at same-sex marriage,

If the Court is truly principled, then if it allows same-sex marriage, it must allow polygamy. If it does that I’ll breathe a bit more easily.

If the Court just wants to play politics based on a perverse sense of fairness—perverse because it’s based on an absurd mix of what the justices personally think is fair mixed in with a bit of who, on the left, can scream the loudest (them Mormon polygamists tend to be right-wingers, after all, which shouldn’t make a difference but which I’m betting will), and if the Court is willing to be as blatant as this, then all hope for the law and reason are lost.

If you think there really should be a difference between same-sex marriage and polygamy, I invite you to read Greenfield’s article, in which he pretty much shoots down the supposed distinctions.

Coming out of retirement

No, I haven't been on a permanent picnic in the cemetery. I've just had a lot of RL work to deal with. (For you non-gamers out there, RL="real life.")


I've had a better outlook by largely avoiding the news this past year, but I've strayed once or twice. (A shame that as a civic-minded person with a civic-minded upbringing has to quit following current events in this day and age to maintain his equilibrium.) Today I strayed into this article. I was taken by the following exchange between a Florida state legislator and a Planned Parenthood lobbyist:

The committee was considering a proposed bill to protect infants born alive during an abortion. A state legislator asked Snow what Planned Parenthood would want to happen to a baby born as a result of a botched abortion.

“We believe that any decision that's made should be left up to the woman, her family, and the physician,” she replied. 

Read her statement again. She apparently believes that a baby who has concededly been born may be killed, with no due process whatsoever, merely on the say-so of the woman, her family, and her physician. The government, in her view, apparently has no authority to say that such an execution would be a crime, such as--oh, I don't know--murder.

I like that. Her statement is either in utter ignorance of the Fourteenth Amendment, which I would have thought is required reading for anyone working in the area of abortion law, or in blatant disregard and utter contempt of said amendment. (Note that bit about all people who are "born" in the US being citizens, presumably citizens with rights to things such as--oh, I don't know--life.) I suppose that a competent lawyer could have countered that since the baby wasn't intended to be born or to survive, this is an impediment to the baby's personhood and that equal protection doesn't apply, but that would simply be making the worse appear the better cause. As for citizenship--well, if the Obama administration can kill American citizens in the U.S. with drone strikes, then I suppose doctors can kill American citizens in the abortion mills.

Of course, the lobbyist's statement may just have been made in ignorance, like the civics teacher in North Carolina who has apparently never heard of the First Amendment. She censored her students and screamed at them if they criticized President Obama they could be arrested. (But of course she thought it was OK to criticize Romney).

Bottom line: When you're dealing people like these, you're dealing with people who are either ignorant, or subversive, or both. And they're out to be in charge. And they elect your president.

No--She SAYS She's Catholic

( N.B. Fonts are messed up today. My apologies.)

I don't know if anyone here knows anything about journalism, but if so, I could use some help. It involves how the media misidentifies Catholics, and in so doing misrepresents that Catholic faith. Case in point: a quotation from this article, which is headlined "Catholic Melinda Gates defies the Vatican over Birth Control Funds":

Melinda Gates, billionaire philanthropist and practising Catholic, yesterday laid down the gauntlet to the Vatican by vowing to dedicate her life to improving access to contraception for women in the developing world.

My question here is how the article simply assumes that Gates is Catholic. It seems to me in many other articles the reporters hedge. For instance, “A marksman stopped the van, driven by a man who says he is a member of the English DefenceLeague,” or “Thourot,who says he is a member of the National Rifle Association, continues his support of guns,” or “The Taliban said it seized a doctor, three nurses and their driver on March 27 in Kandahar province” (my italics in all cases).

            I will here give reporters the benefit a very serious doubt (since I don’t believe that all, or even most, reporters are consciously anti-Catholic, although some most certainly are) and assume that their constant identification of Melinda Gates, Nancy Pelosi, Kathleen Sebelius, etc. as Catholic is not designed to damage or scandalize the faith. In that case, why don’t they hedge about this? Do they take Gates’s (or Pelosi’s, or whoever’s) word for it? Do they call and check to see if they’re registered at a parish? Do they at least attempt to verify it?

            The point is that, intentional or not, every time one of these dissidents (probably heretics) is unequivocally described by a third and ostensibly unbiased party as Catholic, it does damage the Catholic Church. (For the definition of Catholic, I’ll refer you to an earlier post, but the short version is that you have to be baptized, and you have to accept both the Catholic Faith and the authority of the hierarchy.  As Ludwig Ott puts it in his Fundamentals of Catholic Dogma, a reference work that should be on the shelf of every theologian and canonist, “Public heretics, even those who err in good faith (material heretics), do not belong to the body of the Church, that is to the legal commonwealth of the Church” (p. 311). Of course, this refers to membership in the Church, not the label Catholic, so there may be some wiggle room here.

            So if I’m correct and Melinda Gates isn’t Catholic, yet she’s described as a Catholic, who’s at fault? If not the reporters, the only other candidates are 1) Gates herself and 2) her pastors (i.e., her parish priest, or his bishop, or the pope), since they refuse to publicly correct the record in light of the proper, doctrinally-defined understanding of membership in the Church. Three highly suspect entities: the heretic herself, or the media that does have an anti-Catholic bias, or members of a Church hierarchy infected with modernism. Take your pick, but whoever is to blame, every time this happens the Church takes another body blow because the following truth is once again obscured: You cannot be Catholic and at the same time dissent from Catholic doctrine.

Religious Liberty vs. Religious Tolerance

I have posted this in the comments over at Southern Orders, but I want to expound a bit on the last point.

Since we have all been praying for it these past few weeks... Here is the Catholic teaching on "religious liberty":

Fr. Reginald Garrigou-Lagrange:

"Liberty of religions allows us to frame an argument ad hominem, against those, that is to say, who profess liberty of religions yet harass the true Church and directly or indirectly forbid its worship. That argument ad hominem is correct, and the Catholic Church does not disdain it but rather urges it in defense of her rightful liberty. But from that it does not follow that liberty of religions, considered in itself, can be defended unconditionally by Catholics, for in itself it is absurd and wicked: truth and error cannot have the same rights."

Pope Pius XII:

"The annual celebration of this feast (of Christ the King) will remind States that magistrates and rulers are bound, just like citizens, to offer public worship to Christ and to obey Him.... For His royalty requires that the whole State be governed by the commandments of God and by Christian principles in its legislation, in the way it does justice, and also in training youth with sound doctrine and good moral discipline."

"We shall not delay here to repeat that it is a serious error to affirm that this separation [of Church and State] is licit and good in itself."

Pope St. Pius X:

"That the State must be separated from the Church is a thesis absolutely false, a most pernicious error. Based as it is, on the principle that the State must not recognize any religious cult, it is in the first place guilty of a great injustice to God..."

Pope Leo XIII:

"Justice forbids and reason itself forbids the State to be godless, or to adopt aline of action which would end in godlessness -- namely, to treat the various religions (as they call them) alike, and to bestow on them promiscuously equal rights and privileges. Since, then, the profession of one religion is necessary in the State, that religion must be professed which alone is true [that is, the Catholic religion]."

"And since the people is declared to contain within itself the spring-head of all right and of all power, it follows that the State does not consider itself bound by any kind of duty towards God. Moreover, it believes that it is not obliged to make public profession of any religion; or to inquire which of the very many religions is the true one; or to prefer one religion to all the rest... but, on the contrary, is bound to grant equal right to every creed, so that public order may not be disturbed by any particular form of religious belief.... [T]his most clearly leads in the end to the rejection of all religion in both theory and practice, and this in the same thing as Atheism, however it may differ from it in name."

Condemned by Pope Pius IX in his Syllabus of Errors:

CONDEMNED - Every man is free to embrace and profess that religion which, guided by the light of reason, he shall consider true.

CONDEMNED - The Church ought to be separated from the State, and the State from the Church. 

CONDEMNED - In our day it is no longer expedient that the Catholic religion be acknowledged as the one State religion to the exclusion of other forms of worship.

CONDEMNED - Praise is due to certain nominally Catholic countries where the law has provided that strangers coming to live there shall enjoy the public exercise of their particular religions.

In Dignitatis Humanae, the Second Vatican Council explicitly states, "[This Council] leaves untouched traditional Catholic doctrine on the moral duty of men and societies toward the true religion and toward the one Church of Christ." Therefore, we know that everyone I cited above, which is taken entirely from the ordinary Magisterium of the Church (except for the bit from Fr. Garrigou-Lagrange) is binding upon Catholics.

Summary: Non-Catholic "religions" are merely tolerated where the civil consequences and potential difficulties of stamping out false religions might create a greater evil.  

Actually, say what you will, but Abp. Lefebvre makes an excellent point on this in his Open Letter to Confused Catholics while explaining why we should maintain this teaching in modernity: 

And yet in practice the Church does not prescribe blindly and intransigently regarding the expression of false religions in public. She has always said that they could be tolerated by the authorities in order to avoid a greater evil.  That is why Cardinal Ottaviani preferred the term 'religious tolerance.'

If we put ourselves in the position of a Catholic state where the religion of Christ is officially recognized, we see that this tolerance can avoid troubles which may be harmful to the whole. But in a secular society professing neutrality, the law of the Church will surely not be observed. Why, you will then ask, maintain it?

First of all, it is not a question of a human law that can be abrogated or altered. Secondly, abandoning that very principle has its consequences.

So, what are those consequences? Take a look at what Abp. Lefebvre says:

We cannot insist upon the freedom of all religious societies, within human society, without at the same time granting them moral liberty. Islam allows polygamy; Protestants--depending on the particular sect--have more or less lax positions on the indissolubility of marriage and on contraception. The criterion of good and evil is disappearing. Abortion is no longer illegal in Europe, except in Catholic Ireland. It is impossible for the Church of God to condone these abuses by affirming religious liberty.

Precisely! Is this not precisely what we have seen - an increase of abortion and contraception, divorce rates increased, indifferentism toward religion and a society tending toward Atheism. This is what the American Bishops are up against - they did it to themselves by promoting false religious liberty for the last 60 years and now they are trying to solve the problem by appealing to the very "liberty" they themselves have espoused!

Kyrie eleison

There is no slippery slope...?

According to this article in the Huffington Post (shared with me courtesy of my wife, who presumably likes to see me disgruntled), California (where else?) lawmakers are considering a law that would allow children to have multiple legal parents.

I can see a possible good aspect to that law for those who are divorced and remarried, who live in situations where a child might have parents and step-parents.  That seems legitimate, although we could debate whether that sort of situation requires any additional legislation than that already provided.

The more interesting and subversive element to this potential law is that it might allow people to "create" any sort of "family" design they like.  And, obviously, this is a law that tends toward polygamy.

This is the result of the slippery slope we have seen in the rapid process of redefining the meaning of terms in modern society.  It is also the product of overly active legislators who no longer see their job as creating the boundaries within which society must operate, but as setting aside all boundaries via legislation. 

As Anonymous 5 points out in reference to the Catholic Church, the Church (acting as God's lawgiver on earth) sets out the guardrails in which we must conform our conduct.  That is generally true for legislation in the civil realm as well.  You may not drive more the 70 miles per hour, you may not drive after drinking, you may not shoot at other people. 

This sort of "activist" legislation is not prescribing a boundary -- it is redefining terms that are already defined in a manner heretofore considered ridiculous.  So, you may not drive more than 70 miles per hour, but 70 does not necessarily, in all cases, mean what you think 70 means, it means what we say it means.  And the same goes for miles and hours. 

You see, this is the slippery slope of relativity... and all this has happened in our lifetimes.  Where are we headed?

An Analysis of the Supreme Court Obamacare Decision

For those of you who are scratching your heads regarding the Obamacare decision, I’ll write this overview for you. 

First, some proper names. While commonly called Obamacare, the name you’ll normally see in the opinion is the Affordable Care Act. And the case that the Supreme Court decided today is National Federation of Independent Business v. Sebelius. You can read the opinion here. Interestingly, at the time of this writing, the Supreme Court website still hasn’t put a formal link to the opinion up. I just happened upon it. (Makes me look forward to the efficiency of government health care.)

Next, the lineup. Four justices--Ginsberg, Sotomayor, Breyer, and Kagan—voted to uphold the entire act, and would have done so on Commerce Clause grounds. I.E., in their view, the federal government can force individuals to engage in commerce, and then impose any regulations it wanted, and thus the individual mandate is OK. (The dissenters pretty accurately claimed that had this come to fruition, federalism would be dead, and I agree with them. If there’s any bright spot in this ruling, it’s that the Supremes (narrowly, by a single vote) failed to expand the commerce power in this fashion. In fact, quite the opposite: The Roberts/Scalia opinions together constitute the third major limitation on the Commerce Power in the past 70 years. As Scalia wrote:

The striking case of Wickard v. Filburn, 317 U.S. 111 (1942), which held that the economic activity of growing wheat, even for one’s own consumption, affected commerce sufficiently that it could be regulated, always has been regarded as the ne plus ultra of expansive Commerce Clause jurisprudence. To go beyond that, and say the failure to grow wheat (which is not an economic activity, or any activity at all) nonetheless affects commerce and therefore can be federally regulated, is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity. (Scalia, dissenting, slip opinion at 2-3.)

On the other side of the lineup were Scalia, Kennedy (surprisingly), Alito, and Thomas, who in the dissent uncategorically stated that the ACA is unconstitutional in its entirety. (That’s the surprising thing about Kennedy’s vote. Nothing swingy about that at all. Of course, dissenters have the liberty to be expansive in their denunciations.) 

Then there’s Chief Justice John Roberts. Let’s review for a minute. Nominated by one of the most conservative presidents we’ve had in living memory (George W. Bush), and one of the few judges in living memory to come to the Supreme Court with a proven conservative track record, heartily approved of by the Right. (Of course, we may define conservative in many ways, including not only political positions but matters of judicial activism versus judicial self-restraint.) Roberts wrote a separate opinion. In that opinion he agreed with Scalia et al. on Commerce Clause grounds. But in the key to the whole case, he found the individual mandate to pass constitutional muster on the grounds that it was an Article I Section 8 tax. Since the four justices of Ginsberg et al. also thought the act constitutional (though largely on different grounds, i.e. the Commerce Power), they joined Roberts on the Tax Power ruling, giving the ACA the magic five votes it needed to survive, in its entirety. 

I read in a couple of places immediately after this lineup became clear that several people had foreseen this Roberts decision. Interesting that I heard no hint of that prior to that instant. I think that this came as a shock to everyone, friend and foe of ACA alike. It certainly shocked me, and so I read Roberts’s opinion as soon as I got my hands on it. 

So what’s my analysis of that opinion? Well, if you grant the premise that this is a tax, then Roberts is on pretty solid ground that under the Tax Power, Congress can do this. But that’s a big, and very problematical “if,” and here's where Roberts’s opinion really falls apart. Badly. It reads like something that Rehnquist would have written. I have read some Rehnquist opinions in which a single crucial sentence would have me almost literally banging my head against the wall trying to figure out what it means. There comes a point when someone has to go out of his way to make a meaning obscure, and Rehnquist was good at that. 

Robert’s opinion isn’t quite like that. Instead, it’s just self-contradictory. This is a big problem when you’re attempting to give rational reasons (is that redundant? Apparently not for Roberts) for a decision, which judges are supposed to do. 

I’ll explain. There’s a law on the books from the 1860s called the Anti-Injunction Act. In short, it says that a taxpayer can’t challenge the constitutionality of a tax prospectively. He must wait until he actually has to pay it. Thus, if the individual mandate is mandating a tax for non-insurance buyers, but not for another couple of years, it cannot be challenged yet and the Court can’t give relief in this case. So to hear and rule on this case, Roberts HAD to find that the mandate doesn’t impose a tax. 

The easiest way to do that is to find that what the individual mandate does is to impose not a TAX, but a PENALTY, for failing to buy insurance. That would mean that the Anti-Injunction Act isn’t applicable, because that act speaks only to TAXES. So far so good. 

The problem with finding that the  individual mandate imposes a PENALTY is that Congress has no constitutional power to impose PENALTIES. It may only impose TAXES. So if Roberts declares the mandate to impose a PENALTY, the mandate clears the hurdle of the Anti-Injunction Act only to die as an unconstitutional law that Congress had no power to pass. 

So what did Roberts do? He played word games, plain and simple (if word games can be said to be plain and simple). He said that Congress’s use of the term PENALTY to describe the mandate showed that it didn’t intend the Anti-Injunction Act to apply, even though the so-called PENALTY is actually a TAX. (I’ll call this the “What’s in a Name?” rationale.) I'm not sure where he got the idea that by using the term "penalty," Congress meant to avoid applying the Anti-Injunction Act to the ACA. He just states in a throwaway line "It is up to Congress whether to apply the Anti-Injunction Act to any particular statute, so it makes sense [WHY?] to be guided by Congress's choice of label on that question." (Slip opinion at 33). (Waitaminute! I thought that you were ignoring labels, Chief! Now all of a sudden a mere label is dispositive of the Anti-Injunction Act issue?!)

Then Roberts went on to cite and discuss (slip opinion at 33-35) the 1922 case of Bailey v. Drexel Furniture Co., 259 U.S. 20 (1922). In that case, Congress imposed a what it called a TAX of 10% of a company’s income if the government discovered that company to be employing children. In that case, the Court said it doesn’t matter what you call it (and in that sense it, too, uses the “What’s in a name?” rationale, which is why Roberts cited it. So far so good for Roberts.). If it forces people to either do something or pay money, it’s a PENALTY. In the Drexel Court’s words: 

Does this law impose a tax with only that incidental restraint and regulation which a tax must inevitably involve? Or does it regulate by the use of the so-called tax as a penalty? … If it were an excise on a commodity or other thing of value, we might not be permitted under previous decisions of this court to infer solely from its heavy burden that the act intends a prohibition, instead of a tax. But this act is more. It provides a heavy exaction for a departure from a detailed and specified course of conduct in business. …Taxes are occasionally imposed in the discretion of the legislature on proper subjects with the primary motive of obtaining revenue from them and with the incidental motive of discouraging them by making their continuance onerous. They do not lose their character as taxes because of the incidental motive. But there comes a time in the extension of the penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment. Such is the case in the law before us.

(259 U.S. at 37.) The place where Roberts screws up is that the Drexel Court, which he quotes with approval for his “What’s in a name?” approach, finds that the TAX is really a PENALTY. BUT the ACA meets the Drexel Court’s definition of PENALTY. And Congress can’t impose PENALTIES. So under Drexel, the individual mandate should be ruled unconstitutional.
Thus Roberts distorts, and cheats with, the Drexel decision by refusing to note that it compels exactly the opposite conclusion that he reaches. (Of course, that's not so. The Drexel case means exactly what Roberts says it means, since his is the rationale that counts. As Warren Burger once told my father, "We're (i.e., the Supremes) always right.")

So of course Roberts disagrees with my characterization. He notes that the Drexel Court cited three things that convinced it that the Drexel TAX was actually a PENALTY. 1) It involved a bigger tax (or is it penalty?) than the mandate does. 2) It required actual knowledge of violation. 3) The Department of Labor, and not the Treasury, was in charge of enforcement, so it obviously couldn’t be a tax. But there are tons of problems here. The biggest is that under Drexel, these things didn’t make the TAX a PENALTY: they were only evidence that the TAX was a PENALTY. (Again, Roberts would and does disagree with that statement.) The crucial thing for the Drexel Court was that the tax/penalty’s purpose was to make companies do something, just like in the mandate. To quote the Drexel Court (my italics): “In the light of these features of the act, a court must be blind not to see that the so-called tax is imposed to stop the employment of children within the age limits prescribed.” 

Scalia et al. pick up on this, and are far more logical than Roberts. (Scalia always writes good logical opinions, in my view, even when I don’t like the outcome.) In answer to Robert’s “It’s only a little penalty and so it’s OK” rationale, Scalia blows him away. “[W]e have never held—never—that a penalty imposed for violation of the law was so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power—even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty.” (Slip opinion at 19.) The dissent also notes that strict knowledge isn’t a requirement for a PENALTY, and that PENALTIES are often imposed for strict-liability offenses. (Slip opinion at 24.) (Frankly, Scalia should have provided some examples here, but he provides none at all.) As for the Drexel Court’s observation that the penalty/tax was collected by Labor and not Treasury, Scalia hoists Roberts with his own structural petard. The individual mandate’s PENALTY, Scalia points out, isn’t found in the ACA’s revenue provisions (Title IX), but in the core section of Title I. 

In short, Roberts has engaged in a self-serving interpretation and mischaracterization of Drexel, talking too much about the Drexel trees and ignoring the Drexel forest. My guess is that he wanted to go down in history as the man who gave us national health care, and he was willing to engage in sloppy reasoning to do it. In doing so, he’s done a disservice to both the Court and the Constitution; he’s also chosen a path that is certain to enrage conservatives to the point of apoplexy. 

This is not a good decision. This law was a perversion of the democratic process from the beginning. The Democrats shut the Republicans completely out of the process; there was no bipartisan support at all, which makes it unique among major social welfare legislation in this country, and perhaps all major legislation. In the end it passed only through the operations of rules mechanics, when the election of Scott Brown restored the filibuster to the Republicans. It’s being used as the basis for an HHS regulation that is blatantly unconstitutionalunder the First Amendment and RFRA, and it will redistribute health care in this country to a uniformly low level. It’s a tragedy that the final chapter to this lamentable path to passage would consist of such bad legal reasoning. Upholding it on Commerce Clause grounds would have been more constitutionally damaging, but more coherent. And, given Obama’s blatant refusal to order the enforcement of federal laws he doesn’t like, such as DOMA and immigrant deportation laws, Democrats will have no room for objection when a Republican President simply refuses to enforce Obamacare.

Cool.

Vampires.

The Battle of Midway: 70 Years Ago Today

 Today is the 70th anniversary of the Battle of Midway and Admiral (then Rear Admiral) Raymond A. Spruance's celebrated victory and finest hour. Relatively junior and untested in carrier warfare, he went up against the Japanese varsity, in the persons of Admiral Isoroku Yamamoto and Vice Admiral Chūichi Nagumo, and (figuratively) handed them their heads. One of the most important moments in American military and naval history.  I personally rank it as one of the five most important battles in American history (the others being Saratoga, New Orleans, Vicksburg, and Gettysburg).  Let's remember Spruance, a largely unsung hero, along with all those who fought and died at Midway, especially the brave pilots of VT-6 and VT-8. 

UPDATE: The Purpose of the Law

UPDATE: According to Rorate Caeli, the letter from PCED is discussing a chapel not affiliated with the SSPX, which would explain the PCED's position today vis-a-vis the previous position.  It would appear that this is a case that is distinguishable from the prior PCED ruling - that is, as we stand today, the SSPX Masses do indeed fulfill the Sunday obligation according to the PCED's opinion.  Anyway... I will leave my original post because I think it is still pertinent and, quite frankly, it took me a bit of time to write it, so I do not want to delete it!

If you keep up with news on Traditionalist Catholic blogs, you are probably aware that a private letter from the Pontifical Commission Ecclesia Dei to a particular person was released publicly (not by PCED) today.  One possible reading of that letter is that the faithful do not fulfill their Sunday Mass obligation by assisting at Masses of the Fraternity of St. Pius X.  If today's letter says that, it is a reversal of an earlier letter from the PCED that said precisely the opposite.

At any rate, in addition to all the other comments one could make about that, I would like to focus on the logical conundrum into which today's letter leads (which I think is pretty funny, by the way).  Bear with me while I throw down some logic...

1. Under Canon Law § 1247, the faithful may fulfill their Sunday Mass obligation "by assistance at a Mass which is celebrated anywhere in a Catholic Rite...."
2. The PCED has determined the faithful do not meet their Sunday Mass obligation by assisting at an SSPX Mass.
3. The PCED has therefore determined the SSPX do not celebrate the Mass according to a Catholic Rite.
4. Therefore, the SSPX is not Catholic. 

1. Normally, in order for absolution to be valid during the Sacrament of Penance, the absolving priest must have jurisdiction from the local bishop.
2. However, under Canon Law § 844.2, the faithful may receive the Sacraments, including the Sacrament of Penance, from a non-Catholic minister whose Sacraments are valid (that is, a schismatic). 
3. Therefore, schismatic priests require no jurisdiction from the local bishop to validly absolve. 

1. The SSPX has valid Sacraments, but according to the PCED are not Catholic.  Therefore, they are schismatic.
2. Since the SSPX priests are schismatic, they need not have jurisdiction from the local bishop to validly absolve.
3. Therefore, confession to an SSPX priest is valid and the priest validly absolves.

Of course, I am saying this somewhat in jest to point out that the law loses meaning when the ultimate purpose is forgotten.  In this case, the purpose of the law is the salvation of souls.  Does it not behoove the PCED to say that SSPX Masses fulfill the obligation because then more people are meeting their obligation and avoiding sin?  Does it not make sense for SSPX priests to validly absolve so that more people have their sins forgiven?

Anyway, some pointed out that the PCED is not even the proper authority to make determinations about the intricacs of Canon Law.  That right belongs to the Pontifical Council for Legislative Texts.  Frankly, I have not looked deeply into the issue and I do not really care to do so. 

One thing is certain: the Holy Father is the earthly lawgiver, so he has the final say on this and every other Canon Law issue.  He has said nothing either way.  Since the law is construed for the benefit of souls... well, I think the SSPX Masses meet the obligation.  But, I am not going to bet my eternal salvation on my logic skills!

Let us pray that His Holiness Benedict XVI will step in to clarify whether the faithful fulfill their Sunday Mass obligation by assisting at SSPX Masses. 

Islam: The Religion of Peace

I'm so glad the political Left has got the number of those crazy religious fundamentalists.
Wait a minute--they're Muslims? Oh, that makes it OK. (I thought they were Catholics.) Disregard.