Carson Holloway

Justice Sotomayor and the path to polygamy

Carson Holloway
By Carson Holloway
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April 22, 2013 (PublicDiscourse) - Opponents of same-sex marriage resist it because it amounts to redefining marriage, but also because it will invite future redefinitions. If we embrace same-sex marriage, they argue, society will have surrendered any reasonable grounds on which to continue forbidding polygamy, for example.

In truth, proponents of same-sex marriage have never offered a very good response to this concern. This problem was highlighted at the Supreme Court last month in oral argument over California’s Proposition 8, the state constitutional amendment that defines marriage as a union of a man and a woman.

Surprisingly, the polygamy problem that same-sex marriage presents was raised by an Obama appointee, the liberal Justice Sonia Sotomayor. Sotomayor interrupted the presentation of anti-Prop 8 litigator Theodore Olson to pose the following question: If marriage is a fundamental right in the way proponents of same-sex marriage contend, “what state restrictions could ever exist,” for example, “with respect to the number of people . . . that could get married?”

In response, Olson tried to set up a clear distinction between same-sex marriage and polygamy, suggesting that the kinds of governmental interests that justify a prohibition of polygamy are irrelevant in the case of same-sex marriage.

The Court has said, he contended, that polygamy raises “questions about exploitation, abuse, patriarchy, issues with respect to taxes, inheritance, child custody” and therefore “is an entirely different thing” than same-sex marriage. Moreover, Olson argued, when a “state prohibits polygamy, it’s prohibiting conduct,” but if “it prohibits gay and lesbian citizens from getting married, it is prohibiting their exercise of a right based upon their status.”

Justice Sotomayor’s concerns about the possibility of a path from same-sex marriage to polygamy may arise from the fact that there is already a case in federal court challenging Utah’s anti-bigamy law as unconstitutional.  In any event, she should be just as concerned about this question after oral argument as she was before it, because none of Olson’s distinctions can reasonably justify a prohibition on polygamy if the Court finds a constitutional right to same-sex marriage. To see why, it’s first useful to note a crucial distinction that Olson overlooked, as well as the most famous Supreme Court case regarding polygamy, which he failed to mention.

Olson’s words to the Court suggest that the state somehow “forbids” same-sex marriage today just as it “forbids” polygamy. This is not true, as Adam MacLeod noted on Public Discourse earlier this week. Under current law and Supreme Court precedent, no state has constitutional authority to punish anyone for entering into a same-sex relationship. No state in fact “prohibits” same-sex marriage. If any persons wish to enter into such a relationship and call it a marriage, they are perfectly free to do so.

The real issue, the real complaint in the case that Olson represents, is that the state simply refuses to bestow on same-sex unions the same recognition that it gives to heterosexual marriages. In stark contrast, the law in many American jurisdictions not only refuses to recognize polygamous marriages; it actively punishes them. Enter into a same-sex marriage and the government will simply ignore you. Enter into a polygamous marriage and the law permits the government to prosecute you for a crime.

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Unlike the distinctions Olson raised, this one is real, and it positively undermines his assurance that we can have same-sex marriage while still banning polygamy. Common sense makes it hard to see how this could be done. In Olson’s view, the state may not officially prefer heterosexual marriage by a policy so mild that it does nothing other than to leave same-sex couples alone while declining to formally recognize their unions. By what reasoning, then, could it have a right to prefer some definition of marriage by actually punishing those who choose to disregard it?

Moreover, in his summary of what the Supreme Court has “said” about polygamy, Olson omitted to mention the single most famous case dealing with this question, Reynolds v. United States (1879). In that case the Court upheld the federal law forbidding polygamy in the territories of the United States, and declined to find that the free exercise clause immunizes those who practice it for religious reasons.

Most of the Court’s argument is dedicated to the original meaning of the Constitution’s religion clauses, but also noteworthy is its passing comment on the basis of the law in question, a basis that the Court at that time apparently found unquestionably legitimate: “Polygamy has always been odious among the northern and western nations of Europe . . . and from the earliest history of England polygamy has been treated as an offense against society.”

Reynolds has never been overturned and indeed has been cited as an authority by the modern Supreme Court. In it the Court tells us straightforwardly the basis of laws prohibiting polygamy: moral disapproval of the practice. This raises a serious problem for the defenders of same-sex marriage.

A number of the Court’s precedents defending a “right of privacy” have already strongly undermined the idea that the majority’s moral convictions are a sufficient basis for law. If the Court finds a right to same-sex marriage, it will practically dismantle the whole concept of morals legislation. But if moral preference for heterosexual marriage cannot be a reasonable basis on which to afford it a formal recognition denied to other unions, then how can moral disapproval be a reasonable ground on which to forbid and punish polygamy?

Let us turn now from the distinctions Olson overlooked to the ones he emphasized. In the first place, Olson contended that polygamy raises serious concerns about “exploitation,” “abuse,” and “patriarchy” that aren’t relevant to same-sex marriage. Presumably he was referring to the “abuse” and “exploitation” of the children and perhaps wives of plural marriages. Yet, under the constitutional theory of marriage Olson has tried to sell, none of these considerations would be sufficient to forbid polygamy. Olson insists that marriage is a fundamental right. Standard Supreme Court doctrine holds that fundamental rights can only be infringed to defend a “compelling state interest” and that the regulations made to protect that interest must be drawn as narrowly as possible.

Everyone would concede that prevention of abuse and exploitation of children and wives is a compelling state interest. On the other hand, nobody would contend that such abuse and exploitation is the very essence of polygamy. After all, abuse and exploitation can be found in monogamous marriages, too. The most one could say is that these problems are dangers to which polygamous unions are more or less prone. In any case, under the “fundamental rights” doctrine on which Olson relies, the least restrictive means to remedy such dangers would be to recur to already existing laws punishing such abuse and exploitation, rather than going so far as to ban polygamy altogether.

Olson may also have been hinting that the state could reasonably fear that abuse and exploitation of children is more likely to arise in families where the children are not related by blood to all of their parents. This is a reasonable concern, but it could be raised just as easily in relation to same-sex marriages, where at best, only one parent can be biologically related to each child.

Similar problems arise if we consider Olson’s invocation of “patriarchy” as a justification for forbidding polygamy. We might ask: What’s wrong with patriarchy?

The most straightforward answer to this question that Olson could muster is that patriarchy is morally offensive in a liberal, egalitarian society. But, as we have seen, the case for a right to same-sex marriage depends on the Court’s willingness to expel moral sentiments as a basis for law. Or is the Court to hold that the things that offend traditional moral sensibilities are impermissible as bases for law while the things that offend progressive moral sensibilities are fine? This would be to reduce constitutional jurisprudence to naked partisanship and ideology.

Be that as it may, there is no necessary connection between patriarchy and polygamy, at least under the constitutional and legal regime now prevailing. Under the modern interpretation of the equal protection clause, any “right” to enter plural marriages would be held equally by men and women. It would not be a patriarchal right of some men to have multiple wives, but a right of both men and women to have multiple spouses of their own choosing.

Moreover, given the ease of access to divorce, there would be no serious reason to fear that women who entered plural marriages would be unable to escape from them if they found them unsatisfactory. And again, if the creation of a “right” to polygamy opened a social space in which some patriarchal subordination of women could develop, this problem could be corrected by legal remedies falling far short of banning polygamy entirely.

Olson also suggested that a ban on polygamy is made reasonable by certain technical and legal challenges that it raises, challenges involving “taxes,” “inheritance,” and “child custody.” Again, the distinction here between same-sex marriage and polygamy is underwhelming. Because same-sex marriages are prone, like polygamous marriages, to have children who are not biologically related to all of their parents, they are also prone to complications involving inheritance and child custody.

Perhaps by referring to “taxes” Olson meant to suggest that polygamous unions have a potential to produce enormous families and thus to drain federal revenues by entitling single families to hitherto unheard of numbers of tax deductions and credits. This fear, however, assumes that the standard polygamous union will feature one husband with many wives. This may not turn out to be the case. At any rate, as noted before, if marriage is a fundamental right in the way Olson’s words suggest, such problems would have to be remedied by the least-restrictive means, and mere reform of the tax provisions is far less restrictive than an outright ban on such marriages. (For example, dividing spousal benefits by the number of spouses.)

Finally, Olson argues that laws forbidding polygamy target behavior, while laws refusing to recognize same-sex marriage prohibit the exercise of a right based on people’s status. This distinction is entirely spurious. If laws against polygamy can be understood as targeting behavior, the same can just as easily be said about laws defining marriage as a union of a man and a woman.

Such laws refuse to bestow official recognition on a certain behavior—entering into a same-sex relationship—in which the state believes it has no vital interest. Conversely, if laws defining marriage as a union of a man and a woman can be viewed as singling out a specific class of people—gays—then anti-polygamy laws can equally be presented in the same sinister light: They refuse the right to marry to people of a certain status—polys—those who desire to marry multiple people.

As these reflections suggest, there is very good reason indeed to believe that the declaration of a “right” to same-sex marriage will set us on the path to polygamy. To allay these concerns, the proponents of same-sex marriage sometimes respond that they are only seeking what married heterosexuals already have: access to marriage understood as a union of two people. But this reassurance utterly misses the point: All the arguments by which they seek that end can easily be turned to the purposes of those who might next seek polygamy.

Carson Holloway is a political scientist and the author of The Way of Life: John Paul II and the Challenge of Liberal Modernity (Baylor University Press). This article reprinted with permission from The Public Discourse.

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Federal court says NY allowed to ban ‘Choose Life’ plates as ‘patently offensive’

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By Ben Johnson

ALBANY, NY, May 26, 2015 (LifeSiteNews.com) – The pro-life message can be classified as “patently offensive,” a federal appeals court ruled last week. The new opinion came as a three-judge panel ruled that New York state was right to reject a “Choose Life” license plate on the grounds that it may grate on New Yorkers' political sensibilities.

The judges split on whether New York could deny a pro-adoption group the right to have its own license plate, although the state has in the past allowed plates endorsing political causes associated with the liberal viewpoint, such as environmentalism.

Judge Rosemary Pooler, who was appointed by President Clinton, wrote that the state's denial did not harm anyone's right to freedom of expression, because drivers “may display a ‘Choose Life’ bumper sticker — or even cover every available square inch of their vehicle with such stickers. That message will resonate just as loudly as if vehicle displayed a ‘Choose Life’ license plate.”

Judge Debra Ann Livingston, a President George W. Bush appointee, wrote in her dissent that “a proposed custom plate depicting a sun and two smiling children, and bearing the words, ‘Choose Life’ [thought] to be ‘patently offensive’” was “surprising.”

“Pro-adoption organizations should have the same speech rights as any other organization. While the district court affirmed this basic freedom, the circuit court denied free speech in favor of government censorship,” said Jeremy Tedesco, senior counsel at ADF. “The state doesn’t have the authority to target The Children First Foundation specialty plates for censorship based on its life-affirming viewpoint.”

The ruling is the lastest round in a legal battle that has raged for more than a decade and, pro-lifers say, seen state officials repeatedly suppress their First Amendment rights.

The Children First Foundation applied for the specialty license plate in 2002, but state officials say the message and design was “too controversial.” In 2004, the Alliance Defending Freedom filed a lawsuit on CFF's behalf.

New York's Department of Motor Vehicles repeatedly denied the “Choose Life” license plates on the grounds that the message was “patently offensive.”

The same appeals court rejected an effort to suppress the plates made by then-Attorney General Eliot Spitzer and agreed that Albany officials denied the plates based on viewpoint discrimination.

In 2006, a three-judge panel of the Second Circuit Court of Appeals noted that CFF “specifically alleges that defendants denied the picture-plate application ‘based on their disagreement with [the] life-affirming viewpoint expressed on the plate.’”

“On a motion to dismiss, we must accept this allegation, and all reasonable inferences drawn from it, as true,” the judges ruled.

Spitzer, a Democrat who strongly supported abortion-on-demand and gay “marriage,” served as governor beginning in 2007 but resigned his office in the midst of a prostitution scandal only 15 months later.

In November 2011, a federal court ruled that “New York has run afoul of the First Amendment by giving the Commissioner unbridled discretion to engage in viewpoint discrimination.”

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Yet the case has dragged on through the appeals process.

“The state has wrongly gotten away with speech discrimination against our client for more than 10 years,” Tedesco said after last week's ruling.

He said ADF is considering its next legal move.

As of this writing, “Choose Life” license plates are available in 25 states and the District of Columbia.

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Michael Coren stands outside St. James Anglican Cathedral as he prepares to be received into the Anglican Communion on April 19, 2015. Anglican Diocese of Toronto / Facebook
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‘Official’ Catholic newspaper defends running pro-abortion piece by Michael Coren

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MUENSTER, Saskatchewan, May 26, 2015 (LifeSiteNews.com) -- The Prairie Messenger, described as the "official Catholic newspaper for western Canada," is defending the publication of a piece last week in which ex-Catholic author Michael Coren openly advocates for abortion in the case of rape while saying the notion of “criminalizing abortion” is “repugnant.”

In his piece titled "Seamless garment," Coren — who recently left the Catholic Church to join the Anglican Communion over Catholic teaching on homosexuality — writes that the 10-year-old Paraguayan girl who seized international headlines after becoming pregnant by rape should be legally allowed to abort her baby.

“A terrified little girl victimized by those around her and forced by a government to give birth to the child of her rapist? That is not justice, that is not life, that is not right. God must be weeping,” he writes.

Criminalizing abortion, Coren writes, would “give state legitimization and authority to a minority view and what is to a very large extent a particular religious teaching.”

The Catechism of the Catholic Church takes a different position, however. In paragraph 2273, it states that “as a consequence of the respect and protection which must be ensured for the unborn child from the moment of conception, the law must provide appropriate penal sanctions for every deliberate violation of the child's rights." Catholic teaching holds that every human life is sacred since it comes from God. There is no exception for rape. 

For many years, Coren was one of the most prominently pro-life broadcasters in Canada. Calling himself a “journalist for life,” he wrote a column for The Interim, Canada’s life and family newspaper, and was a frequent paid speaker at pro-life events. The Prairie Messenger column appears to be the first time that he has publicly renounced his pro-life position.

Prairie Messenger: “We live in a diverse society where the challenges of daily living cause people to be confronted with difficult circumstances in a world where nothing is black and white."

Rebecca Kiessling, founder of Save The 1, told LifeSiteNews that she was disgusted to see an article in a Catholic newspaper that supports abortion. Kiessling, who was conceived by rape, is a public advocate for those targeted for abortion because they were conceived in rape.

“We are also told in Deuteronomy not to punish a child for the sins of the father and we are not to shed innocent blood. Doing so goes against every concept of justice. I did not deserve the death penalty for the crimes of my biological father. There is a misplaced compassion when anyone wants to kill the innocent child. Punish rapists, not babies,” she said.

Monica Kelsey, who was also conceived in rape, told LifeSiteNews that she was “deeply saddened to hear about Christians standing for the killing of an innocent child.”

“We all agree that this is a situation that deeply saddens us all, but killing this young woman’s child is not going to unrape her. It will further victimize her and, in the process, kill an innocent child.”

“As a child conceived through a brutal attack and rape where my birth mother almost died, I am deeply saddened that Mr. Coren is making an exception for this precious child's life, simply because his father is a rapist. God can get this 10-year-old child through this tough time, but why compound the issue with an abortion? This girl needs us to walk beside her, loving her and helping her make an adoption or parenting plan,” she said.

"This is a life, this is justice for this child. Saving this pre-born child's life is the right thing to do,” she added.

Dolores Castellanos, the doctor who is monitoring the 10-year-old girl in Paraguay, has confirmed that the pregnancy is developing without affecting the health of the infant or the little girl. Nevertheless, the international abortion lobby has latched onto the case as an opportunity to force the small South American country to change its pro-life constitution which currently protects life from the moment of conception.

Prairie Messenger is a weekly Catholic newspaper published by the Benedictine monastic community at St. Peter’s Abbey in Muenster, Saskatchewan. The Diocese of Saskatoon, the Archdiocese of Saint Boniface, and the Archdiocese of Regina are among those that promote the newspaper.

When LifeSiteNews asked Prairie Messenger News Editor Rev. Peter Novecosky, OSB, why it ran a piece from an ex-Catholic who advocates for positions at extreme odds with clear Catholic teaching, spokesperson Maureen Weber responded: “Because we have much to gain by listening to the voices of others.”

“To carry only Catholic columnists who repeat the catechism would mean never hearing and acknowledging the voices of those who are living the hard realities of life on the peripheries, as Pope Francis puts it. Other columnists present other viewpoints that reflect these difficult life issues. Our readers can address these issues when they are presented and, as thinking adults, they need to do more than repeat rote answers.”

Weber said that the editors of Prairie Messenger “refuse to see abortion as a single issue, but rather, as a seamless garment of protection for all of life, both the unborn and the born, support for women, for work toward alleviating the poverty that leads so many women to make desperate decisions, restorative justice rather than harsh sentences with no possibility of rehabilitation, defence policies, health care, policies on the disabled, the aged, euthanasia and assisted suicide.”

“We live in a diverse society where the challenges of daily living cause people to be confronted with difficult circumstances in a world where nothing is black and white,” she said.

Cardinal Gerhard Müller, prefect for the Congregation for the Doctrine of the Faith, criticized in 2013 those who champion the Church’s moral vision as a “seamless garment” while ignoring actual occasions of real injustice.

“The ‘seamless garment’ image was used to great effect to root the Church’s response to various moral issues — from nuclear proliferation to poverty — within the overarching teaching on the sanctity of human life, from natural conception to natural death,” he said.

“Unfortunately, however, it is also true that the image of the ‘seamless garment’ has been used by some theologians and Catholic politicians, in an intellectually dishonest manner, to allow or at least to justify turning a blind eye to instances of abortion, contraception, or public funding for embryonic stem cell research, as long as these were simultaneously accompanied by opposition to the death penalty or promotion of economic development for the poor - issues which are also part of the fabric of Catholic moral teaching,” he said.

The Prairie Messenger, which acts as the newspaper for a number of dioceses in Western Canada, has faced criticism in the past for opposing Catholic teaching.

In a July 2004 Catholic Insight article titled “A flawed stewardship,” Joe Campbell of Saskatoon, SK, called the Prairie Messenger’s editorial stance “disappointing” for taking what he called a “cafeteria approach to teachings on faith and morals, accepting some while rejecting others.”

Campbell criticized then-editor Rev. Andrew Britz, OSB, for failing to support Church teachings on issues such as the male priesthood, contraception, fornication, and homosexuality.

“Not only has Fr. Britz failed to support certain teachings, but he has repeatedly challenged them. He has managed this in three ways: through his editorials; through regular columnists he has retained; and through unbalanced coverage of certain events and issues,” he wrote at that time.

Jim Hughes, national president of Campaign Life Coalition, told LifeSiteNews that a Catholic publication should publish what the Catholic Church teaches.

“Why they would allow this to be published is certainly beyond me. I think it behooves a Catholic publication to stand-up for what the Church actually teaches. Without some counter argument in defense of Church teaching right along side this piece, I think it's wrong to run something like that,” he said.

Contact info for respectful communcations:

Diocese of Saskatoon (home of Prairie Messenger) 
Bishop Donald Bolen
Ph: 306-659-5824 ext. 824
Email: [email protected]

Prairie Messenger 
Rev. Peter Novecosky, OSB
Ph: 306-682-1772
Email: [email protected]

Archdiocese of Saint Boniface
Most Rev. Albert LeGatt, DTh
Ph: 204-237-9858
Email: [email protected]

Archdiocese of Regina
Archbishop Daniel Bohan
Ph: (306) 352-1651
Director of Communications
Bobbi Yanko - ext 230
Email: [email protected]

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BREAKING: Dutch bishops’ aid group funding Planned Parenthood, Marie Stopes

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By Lisa Bourne

May 26, 2015 (LifeSiteNews.com) – Cordaid, the Dutch arm of the Vatican’s charitable umbrella Caritas Internationalis, is openly promoting contraception and says access to birth control is vital for the good of women in developing countries. The group has also given money to leading international abortion providers Planned Parenthood and Marie Stopes International.

Cordaid defended itself when questioned by LifeSiteNews. Calling itself a “proud member” of Caritas Internationalis, a representative said that “access to affordable and good-quality family planning and sexual and reproductive healthcare are crucial to strengthening the position of women in developing countries and to lowering the rate of unwanted pregnancies.”

A new report by the Lepanto Institute details evidence of numerous violations of Church teaching from Cordaid's own website.

In 2012 Cordaid started a program called “Making sexual and reproductive health services work for the next generation” in Burundi, Rwanda, and the Democratic Republic of Congo.

Cordaid: “Access to affordable and good-quality family planning and sexual and reproductive healthcare are crucial to strengthening the position of women in developing countries and to lowering the rate of unwanted pregnancies.”

“There is a clear need for sex education and contraception in the African Great Lakes region,” Cordaid wrote of the program. “Its aim is to provide a better future for young generations, reduce childbirth mortality among women through more effective family planning and alleviate poverty among families.”

It began another contraception program the following year in Burundi, Congo, and Rwanda. A Cordaid program distributed condoms in the Congo in 2012, and another worked to provide condoms and other contraceptives in Malawi in 2013, while a third provided condoms in Sierra Leone in 2011 and 2012.

The Cordaid website also shows that it gave the Philippines Planned Parenthood affiliate €220,491 in 2013 for a teen sex-ed program, and partnered with another affiliate in Sierra Leone in 2013 and 2014. Cordaid gave a Marie Stopes affiliate over half a million Euros in 2013 to provide birth control, including sterilization.

Cordaid is not only a member but also a co-founder of Caritas Internationalis, the Vatican’s coalition of Catholic relief, development, and social service organizations. There are 165 members in some 200 countries and territories across the world, and Cordaid is Caritas Internationalis’ local affiliate for the Netherlands.

The head of Caritas Internationalis was released from her position in 2011 amidst internal changes requested by the Vatican, prompted by concerns over the development agency’s Catholic identity. The following year Pope Benedict XVI ordered a reform of Caritas Internationalis.

The Lepanto Institute’s Michael Hichborn criticized Cordaid’s open flaunting of its membership in Caritas Internationalis while obviously disobeying Church teaching.

"With Cordaid boasting its proud membership in Caritas Internationalis while simultaneously fully admitting to dispensing contraception and funding Planned Parenthood and Marie Stopes International, Caritas has an obligation to expel Cordaid from its rosters," he told LifeSiteNews.

Responding to LifeSiteNews’ inquiry into the report’s specifics, in addition to stating that women benefit from “family planning” services and expressing importance in reducing “unwanted pregnancies,” Cordaid insisted it is not involved in providing abortion.

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“Cordaid's instruments of family planning and sexual and reproductive healthcare do not include abortion,” the relief group said.

Cordaid also said it had the esteem of those with whom it collaborates. “Our partners, governments and our funding partners respect the way we, as a proud member of Caritas Internationalis, fulfil our role to build bridges between faith based and non-faith based organizations in north and south.”

“The catholic social teachings are the fundament of our identity and work,” the group added. “The fundamental elements of the catholic social teachings, subsidiarity, solidarity, bonum com unum and human dignity, inspire and guide us in our mission to build flourishing communities in the world’s most fragile and conflict affected areas.”  

LifeSiteNews sent inquiries to Caritas Internationalis regarding Cordaid’s activities in conflict with Church teaching, and did not receive a response before press time.

Hichborn decried the thought of Catholics in the Netherlands funding anti-Catholic initiatives. "Are the bishops of the Netherlands aware of what Cordaid is doing?” he asked. “Do Catholic parishes in the Netherlands take up collections for Cordaid? The Catholic faithful need to be made aware of what is happening in our Church."

Cordaid’s full statement to LifeSiteNews:

As a Catholic organization, Cordaid has long experience in healthcare in developing countries, especially sexual and reproductive healthcare.

In our programs one of our aims is to build bridges between citizens and governments, partners in the North and partners in the South, and bring together both religious and non-religious organizations.

Our long experience has taught us that good, complete and timely information and access to affordable and good-quality family planning and sexual and reproductive healthcare are crucial to strengthening the position of women in developing countries and to lowering the rate of unwanted pregnancies. Cordaid's instruments of family planning and sexual and reproductive healthcare do not include abortion.

Our partners, governments and our funding partners respect the way we, as a proud member of Caritas Internationalis, fulfil our role to build bridges between faith based and non-faith based organizations in north and south. The catholic social teachings are the fundament of our identity and work. The fundamental elements of the catholic social teachings, subsidiarity, solidarity, bonum comunum and human dignity, inspire and guide us in our mission to build flourishing communities in world’s most fragile and conflict affected areas.   

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