An Eye-Opening Visit to Iran

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Category: Human Rights, International Law & Diplomacy, Public, Religion & Law, Uncategorized
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Flag_of_Iran_svgMy work in Restorative Justice provides me with many rewarding travel experiences, and my recent trip to Iran is at the top of the list.

Professor Mohammad Farajahi, who teaches Persian law at Tarbiat Modares University in Tehran, invited me to attend a Restorative Justice (“RJ”) conference at its law school. I was one of seven keynote speakers from around the world, each asked to discuss how our respective country actively uses RJ processes within the criminal justice system. The conference also was an opportunity to discuss my current RJ projects as a panelist with Iranian and Iraqi lawyers and judges as well as to hear 40 scholars from Tehran present their research and findings on a variety of RJ initiatives. Professionally, the ability to interact with lawyers, judges, law students and the general public attending the conference was extremely fulfilling; personally, the cultural experience is unforgettable.

Most Americans do not readily think about traveling to Iran — especially women and, in my case, women who happen to be judges — given that the country’s Muslim laws generally limit females in society and specifically prohibit us from serving on the bench. As the only American invited to the conference, I felt both honored and admittedly apprehensive. While I have many Muslim friends in the U.S. and have been to other Muslim countries, I knew religious rules and overall “do’s and don’ts” would be much stricter in Iran, where I would be without the security of an American embassy since Iran and the U.S. have no formal diplomatic relations. This circumstance meant I could not get a visa directly from Iran, having to work through Pakistan. Receiving my visa only 36 hours before my flight, I worried about what awaited me culturally.

My clothing was a primary concern. From head to ankles, I needed to be covered despite being a foreigner traveling during the heat of summer. I stocked up on scarves for my head and shoulders and bought a montos, a knee-length coat that must be worn even when wearing pants. Only my feet could comfortably breathe as sandals are permitted. With 7,000 morality police patrolling the streets of Tehran to catch dress code violators and the Swiss embassy as my best option in case of trouble, I took no chances, donning my scarf and montos before getting off the plane. Read more »

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When in Rome (Teach Restorative Justice)

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Category: Human Rights, Public, Religion & Law, Uncategorized
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Students and staff join me during my spring 2016 Rome teaching experience.

Students and staff join me during my spring 2016 Rome teaching experience.

Last spring, I again had the privilege to travel abroad to train people in Restorative Justice (“RJ”). Father Hans Zollner, S.J., director of the Pontifical Gregorian University’s Center for Child Protection in Rome, invited me to teach a segment of a diploma course addressing the Catholic sex abuse scandal. Specifically, the training involves safeguarding minors. My students included 19 religious sisters, brothers and priests representing 19 countries. It was an honor to work with such a diverse group of individuals, who are truly eager to repair the harm caused to so many innocent victims. Although I was the teacher, the students provided me with a lesson in hope and perseverance.

They had come to Gregorian University’s Center for Child Protection to learn about dealing with past sexual abuse and preventing further incidents. Originally launched in Munich in 2012, the center began educating seminarians, priests and laypeople by conducting e-learning programs and interdisciplinary research on abuse prevention.  The facility moved to Rome in 2015, spotlighting and advancing the Church’s resolve to address the issue globally. This year marked the first time the center offered an in-class experience, providing participants with a certificate after four months of training.

Such was the context of my week-long experience in Rome, when I met 19 dedicated religious from Africa, India, Belgium, Mexico and South America. I essentially had a day to expose them to RJ principles. In the morning, we watched “The Healing Circle,” an RJ documentary created at Marquette’s Law School a number of years ago that depicts how healing circles involving victims, offenders and clergy have been used effectively to talk candidly about sexual abuse and its devastating impact. Hoping that the students could imagine the value of healing circles in their own communities, I immediately saw the emotional power of the presentation, which visibly hit close to home for many in the class. With the second half of the day focused on discussing other effective RJ practices in dealing with abuse, the students had many questions and stories to share. Read more »

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Trump’s Rhetoric, Proposed Policies, and the Rule of Law

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Category: Constitutional Law, Federalism, First Amendment, Immigration Law, Judges & Judicial Process, Media & Journalism, Political Processes & Rhetoric, Public, Religion & Law
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www.intellectualtakeout.org_

For some, presumptive Republican nominee for president Donald J. Trump’s biggest appeal is his blustery persona and his take-no-prisoners attitude in his quest to “Make America Great Again.” For example, he started his campaign with a bold promise to build a wall on the United States border to keep out Mexican immigrants. More than that, Trump said, he would make Mexico pay for that wall. Mexican President Vincente Fox said Mexico would not and Trump just upped the ante. When Wolf Blitzer asked Trump how he would get the Mexican government to pay for a wall, Trump responded simply, “I will and the wall just got 10 feet taller, believe me.”

And, in the wake of the mass shooting at Pulse, the gay nightclub in Orlando, Trump renewed his call to profile on the basis of race/ethnic origin and religion, in order prevent future terrorist attacks. (The Pulse nightclub shooter was American-born and raised; his parents were refugees from Afghanistan, but his father became a naturalized American citizen.) Though claiming he hates the “concept” of profiling, he says other countries profile, and “it’s not the worst thing to do.” Earlier in his campaign, after the San Bernardino shooting in December 2015, he talked about increasing surveillance of Muslims and mosques and has suggested registering Muslims or mandating that they carry cards that identify them as Muslims.

Trump also doesn’t suffer fools gladly—or more precisely, he doesn’t suffer his version of “fools” gladly. When the Honorable Gonzalo P. Curiel, the federal circuit judge presiding over two class action suits against Trump University, ordered documents in the suit be unsealed—documents that are likely to shed negative light on Trump University, Trump spoke loudly and often about Judge Curiel as a “hater” and biased against Trump because, in Trump’s view, Judge Curiel is Mexican and, presumably, would not like Trump’s wall. (Judge Curiel is an American, born in Indiana.) Trump went even further, seemingly threatening the judge: “They ought to look into Judge Curiel, because what Judge Curiel is doing is a total disgrace. . . . O.K.? But we will come back in November. Wouldn’t that be wild if I am president and come back and do a civil case?”

As well, just over a week ago, Trump revoked The Washington Post’s press credentials to cover his campaign because he did not like how it wrote about some of his comments after the mass shooting at Pulse, calling the publication “phony and dishonest.” Trump seems particularly thorny about The Washington Post’s owner, Jeff Bezos, who founded Amazon. Like Judge Curiel, Bezos has been on the receiving end of what seems very much like a Trump threat. According to The New York Times, Trump said in February about Bezos, “He owns Amazon. . . . He wants political influence so Amazon will benefit from it. That’s not right. And believe me, if I become president, oh do they have problems. They’re going to have such problems.”

These examples and more have a common theme: Trump’s disdain for the rule of law, if not outright ignorance of it. Read more »

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Our Peacebuilding Pope

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elliot-popeThe Pope, a rabbi and an imam…it sounds like the beginning of a very funny joke but last week was a reality.  As you likely know, last Friday the Pope hosted an interfaith prayer gathering at the 9/11 Memorial and Museum.  This was a trailblazing event and I’ve linked to the video here for those you who have not yet seen it.

As a professor at a Jesuit university, I am delighted by this Pope’s Jesuit background and our claim at affiliation.  This service last Friday also was particularly significant for me since the rabbi (the one in the picture above) is my very talented brother in law, Elliot Cosgrove.  You can link to his sermon about this experience here.

Should you watch the video, here are some times noted:  Cardinal Timothy Dolan speaks first; Elliot begins speaking at 2:55 until about 8 minutes in (alternating with the Imam); the Pope speaks after that with representatives of many faiths speaking after him.

And here is our family’s favorite shot of the day–the Pope greeting my nieces and nephew after the ceremony is concluded (the very cute kid in the middle and his sisters are behind him.)

jed-popeAmazingly, this was also caught in the video of the day if you want to see it happening at around 47 minutes in.  As Elliot put it in his sermon:

My warmest memory of all from yesterday relates not directly to the pope, but to my dear friend His Eminence Cardinal Dolan, to whom the city of New York owes a great debt of gratitude for his inspired leadership. The formal part of the program had ended, and as participants were greeting each other, the pope stood for pictures with assorted dignitaries. Off to the side, Cardinal Dolan and I greeted each other warmly, and he said, “Elliot, aren’t your children here?” When I signaled to him where they were sitting, Cardinal Dolan insisted, “Well bring them up here, they should be up here!” I turned around, caught my children’s eye, waved them over, and to make a long story short, was able to give them each the gift of a handshake and smile from the pope that they will never forget.

It is this story, more than any other, to which I have returned in the hours since the event concluded. That in the split second of the chaotic recessional Cardinal Dolan saw me and didn’t see a rabbi, or even necessarily a Jew, but friend and a dad who probably wanted what every dad wants: to make his children happy. It was a gesture of supreme menschlichkeit, and it speaks volumes of Cardinal Dolan and the church he represents. If each one of us had it within ourselves to recognize each other not for our titles, stature, or faith, but for the human beings we are, and then performed acts of friendship and service to validate that common humanity, well then, just think how much better off this world would be. I am grateful to Cardinal Dolan for many things, but it is that one gesture as much as anything, exemplifying the spirit of his ministry, that is worthy of emulation. May we all similarly seek, with humanity and humility, to do so in our own lives, and may the spirit of Pope Francis’s visit continue to inspire our great city for many years to come.

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Israel Reflections 2015–Day Four: Mount of the Beatitudes

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First thing on Tuesday morning, we headed to the Mount of the Beatitudes. While the grounds were among the smallest we visited, the impact the Church of the Beatitudes on the students was among the largest.  Student Natalie Schiferl writes:

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Archbishop Explains the Pope’s Approach to Opposing Abortion

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Milwaukee Archbishop Jerome Listecki says, “Until I die, I will be supportive of pro-life efforts.” But does he understand what Pope Francis meant when he said that the Catholic Church was obsessed with issues such as abortion?

Yes, he said, during an “On the Issues with Mike Gousha” program at Eckstein Hall on Monday. The pope, he said, was not talking about the “rightness of the issue” and the church’s opposition to abortion. He was talking about how you spread the church’s message and bring people in.

Speaking of those who are particularly intent on the church’s fighting abortion, Listecki told Gousha, Marquette Law School’s distinguished fellow in law and public policy, “These are my friends. Do they sometimes give me heartburn? Yes, they do.” The way the church’s position is articulated by some can push people away, and that was what Pope Francis meant, the archbishop said.  Read more »

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Calls for Doing Better Set Tone for Catholic Schools Conference

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Category: Marquette Law School, Marquette Law School Poll, Milwaukee, Public, Religion & Law, Speakers at Marquette
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Perhaps Kathleen Cepelka effectively summed up a half-day conference Wednesday on the future of Catholic kindergarten through twelfth grade schools simply by describing the state of the schools in the Archdiocese of Milwaukee.

Cepelka, the superintendent of schools in the archdiocese, told the full-house audience in the Appellate Courtroom of Eckstein Hall about the strengths of schools in Milwaukee, about positive developments in enrollment, and about the many praiseworthy people and organizations involved in making the schools as good as they are.

But, she said, the quality of some of the schools isn’t what it needs to be and there are weak levels of achievement among students in some schools.  “We are not satisfied,” she said.

That mix — loyalty and pride in Catholic schools with an understanding of the pressing need to improve —  was voiced frequently during the conference, “The Future of Catholic K-12 Education: National and Milwaukee Perspectives,” sponsored by Marquette Law School and the Marquette College of Education.  Maybe “we are not satisfied” could have been the slogan for the event.   Read more »

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Supreme Court Roundup Part Two: Burwell v. Hobby Lobby Stores, Inc.

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Category: Business Regulation, Constitutional Law, Corporate Law, First Amendment, Health Care, Public, Religion & Law, U.S. Supreme Court
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the bosses of senateOn October 30, I participated in a presentation entitled “Supreme Court Roundup” with Ilya Shapiro of the Cato Institute.  The event was sponsored by the Law School chapters of the Federalist Society and the American Constitution Society.  We discussed three significant cases from the 2013-2014 Supreme Court term: McCutcheon v. FEC, Burwell v. Hobby Lobby and Harris v. Quinn.  It was a spirited discussion, in which Mr. Shapiro and I presented opposing views, but I want to thank Mr. Shapiro for taking the time to visit the Law School and sharing his perspective with the students.

This is the second of three blog posts on the presentation.  Readers can find the first post here.  What follows are my prepared remarks on Burwell v. Hobby Lobby.  Readers interested in Mr. Shapiro’s position on the case can refer to the amicus brief that he filed on behalf of the Cato Institute.

The legal issue in Burwell v. Hobby Lobby Stores can be described simply.  Under the provisions of the Affordable Care Act, the Department of Health and Human Services requires employers to provide health insurance plans making contraception available to their female employees at no cost.  In the NFIB v. Sebelius decision in 2012, the Supreme Court upheld Congress’ power to pass the Affordable Care Act as an exercise of its taxing power.  But even if Congress has the power to pass the law, can a for profit corporation nonetheless avoid following the law by arguing that the contraception provisions burden the corporation’s free exercise of religion in violation of the Religious Freedom Restoration Act (RFRA)?

The rights of the individual shareholders that own the corporation were not at issue.  The law does not act on the individuals, and does not require these human beings to do anything.  The only legal requirement imposed by the law is imposed on the corporate entity.

So what did Congress intend to do when it passed RFRA in 1993?  As I will explain, the Hobby Lobby case presents two opposing views as to what Congress attempted to accomplish by passing that law.  The dissent by Justice Ginsburg argues that the intent of RFRA was to create a statutory remedy for burdens on religious expression that adopted the standard for evaluating First Amendment violations prior to the 1990 Employment Division v. Smith case. The majority opinion by Justice Alito argues that by passing RFRA Congress created a statutory remedy that protected more “persons” than the pre-Smith caselaw protected and that granted them greater protections than the pre-Smith caselaw granted. Read more »

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Chevron and the Hobby Lobby Decision

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Hobby Lobby logoThe majority opinion in the Supreme Court’s decision in the Hobby Lobby case is founded on the Religious Freedom Restoration Act (RFRA) and the restrictions it places on the Secretary of Health and Human Services (HHS) when she regulates and enforces the Affordable Care Act (ACA). While the issues raised by Justice Ruth Bader Ginsburg’s dissenting opinion as to the battle of interests protected by the Constitution are significant, an important practical legal issue that was not addressed in the Hobby Lobby case is the power of HHS to interpret the meaning of the ACA. Considering the majority’s reliance on two terms that go undefined by the Court — “sincere religious belief” and “closely held corporation” [see page 29 of the slip opinion and footnote 28] — and the fact that none of the other Hobby Lobby opinions address the meaning of these terms, it is essential that these terms be defined as they fit into the ACA context.

The Court’s failure to address how HHS might interpret the meaning of these terms is reasonable considering that HHS has not acted to interpret the meaning of a “sincere religious belief” or a “closely held corporation” in the context of the ACA. In fact, the majority states explicitly that courts will be able to separate those with “sincere religious beliefs” from those who do not. However, despite the majority’s reference to the ability, and impliedly the power, of courts to interpret the terms “sincere religious beliefs” and “closely held corporations,” terms such as these have been regularly interpreted by federal agencies as they apply to the statutes these agencies enforce. Read more »

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The Sources of Anti-Gay Sentiment in Uganda

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American politicians and journalists have sharply criticized Uganda’s apparent hostility toward gay men and lesbians. When in February Uganda’s President Yoweri Museveni signed into law a bill imposing harsh criminal penalties for homosexual acts, U.S. Secretary of State John Kerry criticized the Ugandan law as a violation of international human rights. When a tabloid in Kampala, the nation’s largest city, published a list of “Uganda’s 200 Top Gays,” American newspapers reported that this mass “outing” led those on the list to fear for their lives and to seek desperately to flee the country.

In response to this criticism, the Ugandan government characterized the political comments and journalistic reports as disturbingly arrogant. Once again, the U.S. seemed to be trying to control Ugandan lawmaking and public opinion, the government said. Museveni himself insisted “outsiders” should leave his nation alone and vowed he would not give in. “If the West does not want to work with us because of homosexuals,” Museveni said, “then we have enough space to ourselves here.”

Is the dispute simply a matter of American support for gay rights colliding with Ugandan homophobia? As is usually the case in an international dispute of this sort, the controversy involves more than the purported enlightenment of the West on the one hand and the narrow-mindedness in the developing world on the other. There is ample evidence that American evangelical Christians heavily influenced Uganda’s political and religious leaders, who as a result of this influence turned on the nation’s gay men and lesbians. Read more »

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Zelinsky: Use of HSAs and HRAs as Compromise to ACA Contraceptive Mandate Dispute

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Category: First Amendment, Health Care, Labor & Employment Law, Public, Religion & Law
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stethoscopeEd Zelinsky (Cardozo) has an interesting post on his OUP blog discussing a possible compromise in the on-going dispute between for-profit religious corporations, like Hobby Lobby, and the Obama administration’s Affordable Care Act’s (ACA’s) contraceptive coverage mandate.

Here’s a taste:

This entire controversy is unnecessary. The tax law contains devices for reconciling the religious concerns of employers like Hobby Lobby with the policy of expanding medical coverage: health savings accounts (HSAs) and health reimbursement arrangements (HRAs). The current regulatory exemption from the contraception mandate should be amended to include for-profit employers and to exempt from the federal contraception mandate employers (both non-profit and profit-making) who maintain HSAs or HRAs for their respective employees. Compromise along these lines would respect the genuinely-held views of religious minorities while implementing the federal policy of broadening access to health care.

An HSA/HRA compromise would eliminate the complicity of religious employers in the provision of contraception methods to which they object while enabling such employers’ employees to obtain on a pre-tax basis any medicines or devices such employees want, including contraception to which their employers object. Employers’ payments into their employees’ HSAs and HRAs would be the equivalent of the cash wages paid to such employees, wages which the employees are free to spend as they choose.

Personally, I do not see a RFRA or free exercise problem with ACA’s mandate because it is not a law that targets religion or otherwise substantially burdens religious rights of individuals. Read more »

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Religious Objections to Autopsies—A Virtual Solution?

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Category: Constitutional Law, Criminal Law & Process, First Amendment, Public, Religion & Law
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“[I]n this world,” wrote Benjamin Franklin famously, “nothing can be said to be certain, except death and taxes.” Were we to add a third certainty to the list, it might be that law will have something to say about the other two. To be sure, the law has quite a bit to say about death, including a mandate, under certain circumstances, to determine the cause of one’s demise.

Often such determinations entail autopsies or postmortem examinations, but sometimes these examinations are offensive to the decedent’s religious beliefs or to those of surviving family members. In such situations, it has frequently been the case that the religious beliefs have had to yield to the interests of the government or the public.

A few years ago, Kelly McAndrews (MU Law 2010) and I gave a presentation on religious objections to autopsies at a conference of the Wisconsin Coroners and Medical Examiners Association. (At the time, Kelly was the Medical Examiner for Washington County, Wisconsin.) We noted that, among other groups in Wisconsin, the Hmong and Orthodox Jews would likely have strong objections to autopsies, while that the Old Order Amish, Hindus, and some Muslims, American Indians, and Christian Scientists may have objections ranging from minor to moderate in their intensity.

Potential bases for objection, varying by religion, include: concerns about delay in the preparation and burial of the body as prescribed by religious law or tradition; concerns about the mutilation, desecration, or disturbance of the body (e.g., the body belongs to God and should not be altered, the body is needed intact for successful passage to the afterlife, or the body is needed intact in the afterlife itself); and concerns about spiritual harm to the surviving relatives for failing to take care of the decedent in a religiously proper manner. Read more »

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