Catholic Legal Perspectives

Catholic Legal Perspectives

Catholic Legal Perspectives second edition Bill Piatt Professor of Law and Former Dean St. Mary s University School of Law Carolina Academic Press Durham, North Carolina

Copyright 2012, 2015 Bill Piatt All Rights Reserved Library of Congress Cataloging-in-Publication Data Piatt, Bill, author. Catholic legal perspectives / Robert William Piatt, Jr. -- Second edition. pages cm Includes bibliographical references and index. ISBN 978-1-61163-664-2 (alk. paper) 1. Religion and law--united States. 2. Catholic Church--United States. 3. Church and social problems--catholic Church. I. Title. KF4869.C2P53 2014 349.73088'282--dc23 2014037523 Carolina Academic Press 700 Kent Street Durham, NC 27701 Telephone (919) 489-7486 Fax (919) 493-5668 www.cap-press.com Printed in the United States of America

To my grandchildren: Fallyn, Max, Rory, William, Julia, Noah, Caroline, and Eva To my children: Seana, Bob, and Alicia To my mom, Betty And to my wife, Chris

Contents Acknowledgments xi Chapter 1 Introduction to the Sources of Law and Catholic Perspectives 3 A. Our Approach 3 B. For Further Thought 7 Chapter 2 Family Issues 9 A. Marriage 9 1. Marriage and the Legal System 9 2. The Catholic Church Views Marriage 13 B. Same-Sex Marriage 19 1. State Approaches and the Federal Response 19 2. The Catholic Church Opposes Same-Sex Marriage 23 3. Constitutional Issues 31 a. DOMA declared unconstitutional 31 United States v. Schlain Windsor, et al. 31 b. Full Faith and Credit 39 In the Matter of the Marriage of J.B. and H.B. 40 State v. Naylor 48 c. Equal Protection 52 Loving v. Commonwealth of Virginia 53 Varnum v. Brien 56 4. Children of Same-Sex Couples 63 a. Child Custody Suits 63 b. Gay and Lesbian People as Adoptive Parents 66 (1) Individual Adoptions 66 (2) Second-Parent and Joint Adoptions 67 c. The Catholic Church Opposes Adoptions by Same-Sex Couples 68 C. Divorce, Annulment, and Separation 71 1. The Legal System 71 2. Teachings of the Church Regarding Divorce, Separation, and Annulment 74 3. The Dilemma, and the Solutions, for Catholics Who Face the Breakdown of a Marriage 77 vii

viii CONTENTS 4. The Role of the Catholic Lawyer or Judge in Divorce Proceedings 78 D. For Further Thought 81 Chapter 3 Life and Death 83 A. Abortion 83 1. Catholic Church Position 84 2. Historical Perspectives 89 3. Roe v. Wade 93 Roe v. Wade 93 4. Upholding Some Abortion Restrictions 106 Casey v. Planned Parenthood of Southeastern Pennsylvania 107 Gonzales v. Carhart 114 5. Judicial Bypass 128 6. Abortion, Demographics, and Race 130 7. Harm to Women 132 B. Stem Cell Research 135 Sherley v. Sebelius 138 C. Miscellaneous Life Issues 146 D. Eugenics and Sterilization 155 Buck v. Bell 158 Skinner v. Oklahoma 160 E. Euthanasia 163 Washington v. Glucksberg 166 Gonzales v. Oregon 174 Bush v. Schiavo 178 F. Death Penalty 185 Gregg v. Georgia 190 G. For Further Thought 207 Chapter 4 Who Is Allowed to Live and Work in the U.S.A.? Immigration Issues 209 A. The Catholic Church Views on Immigration 209 B. United States Immigration Law and Policy 210 1. Who Are We? 211 2. Extreme Positions: Bill Piatt, Immigration Reform from the Outside In 212 a. Historical Extremes 212 b. Contemporary Extremes 214 (1) Closed border approaches 214 (2) Open border plus amnesty 216 3. Formal Legal Structure 216 a. Citizenship 216 b. Permanent Residents 220 (1) Family Relationships 220 (2) Employment-Based Immigrants 222 (3) Diversity Immigrants 223 (4) Refugees & Asylees 223 c. Non-Immigrant Categories 223 d. Exclusions & Removals 223 C. The American Bishops Respond 224 1. USCCB: Welcoming the Stranger Among Us: Unity in Diversity 224

CONTENTS ix A Statement of the U.S. Catholic Bishops 224 2. USCCB: Frequently Asked Questions About the Catholic Church s Position on Immigration 227 D. Toward Reform 228 1. USCCB Views Reform 228 2. Bill Piatt: Immigration Reform from the Outside In 231 a. Moving Inward 231 b. Hope for Resolution 233 c. Conclusion 234 3. Voices From the Bishops of the Border Region 234 E. For Further Thought 235 Chapter 5 Feeding the Hungry, Sheltering the Homeless, Treating the Sick 239 A. Feeding the Hungry 239 B. Housing 242 C. Health Care 243 National Federation of Independent Business v. Sebelius 251 Burwell v. Hobby Lobby Stores, Inc. 271 D. Education 285 Goss v. Lopez 285 Plyler v. Doe 286 Texas v. Certain Named and Unnamed Undocumented Alien Children 286 Zelman v. Simmons-Harris 289 E. Public Assistance 296 Fuentes v. White 297 F. For Further Thought 300 Chapter 6 Applications 301 A. The Role of Education and Educators 301 1. Law Schools 301 a. Bill Piatt: Catholicism and Constitutional Law: More Than Privacy in the Penumbras 304 2. Undergraduate Institutions 318 3. Student Involvement 318 Hastings Christian Fellowship v. Martinez 319 B. The Role of Bench and Bar 327 1. Lawyers 327 Town of Greece, New York v. Galloway 331 2. Judges 336 C. The Role of the Church 337 D. Next Steps 339 E. For Further Thought 341 Selected Bibliography 343 Books 343 Articles 343 Reports 346 Statements & Press Releases 348 Roman Catholic Church Publications & Documents 348

x CONTENTS Statutes & Acts 352 Cases 353 Blogs & Opinions 354 Websites Generally 354 Index 357

Acknowledgments I am grateful to my research assistant, Jonathan Torres, and to my secretary, Maria Vega, for their assistance. The following entities and publications granted permission to reprint portions of previously-published material included in this book. I wish to thank them for the permission, and for their cooperation and assistance: - Archdiocese of San Antonio, Texas - The Journal of Catholic Social Thought - The Scholar: St. Mary s Law Review on Minority Issues - United States Conference of Catholic Bishops xi