ReligiousLeftLaw.com

A RFRA-Based Defense in a Criminal Prosecution?

I received an email two days ago announcing that five professors of law and religion had

filed an amicus brief in support of Dr. Scott Warren, a humanitarian aid worker who faces up to twenty years in prison for providing food and shelter to migrants crossing the Arizona desert. The amicus was filed in an Arizona federal court, and contends that Dr. Warren is entitled to an accommodation from being criminally prosecuted for acting on his sincerely held religious beliefs. Dr. Warren, is a member of No More Deaths/No Mas Muertes, a humanitarian aid organization that works to reduce deaths and suffering along the US-Mexico border by providing water, food and clothing to migrants crossing the Arizona desert. When doing this work, humanitarian workers routinely discover the bodies of migrants who have died due to lack of water, food or shelter in the rugged and remote desert terrain.

Last January, Warren was arrested and charged with three felonies for “harboring migrants” after Border Patrol agents allegedly witnessed him giving food and water to two migrants in the desert near Cabeza Prieta national wildlife refuge in Southern Arizona. Warren was arrested shortly after No More Deaths released a report documenting the systematic destruction by Border Patrol of water and food supplies left in the desert for migrants. Over a nearly four-year period, 3,856 gallons of water had been destroyed by federal officials. The report linked to video showing border patrol agents kicking over gallons and pouring them out onto the ground.

Warren has filed a motion to dismiss the indictment in his case under the Religious Freedom Restoration Act (RFRA), arguing that his sincerely held religious beliefs compel him to provide aid to people who are suffering — and dying — in the desert. Warren testified at the evidentiary hearing on his RFRA motion that for him “providing humanitarian aid is a sacred act.” He also described how spiritually devastated he has been when he has come upon human remains in the desert: “The work that we do in discovering, working to identify and recover the people who have died is one of the most sacred things that we can do as humanitarian aid workers in Southern Arizona and in the desert … we witness and we are present for people and for their families, the people who have died and who have perished.” When asked why he risked violating the law by providing water, food and clothing to migrants in the desert, he testified “Based on my spiritual beliefs, I am compelled to act. I’m drawn to act. I have to act when someone is in need.”

Katherine Franke, Sulzbacher Professor of Law at Columbia Law School, authored the brief on behalf of herself and Caroline Mala Corbin, Professor of Law at the University of Miami School of Law, Micah J. Schwartzman, Joseph W. Dorn Research Professor of Law at the University of Virginia School of Law, Elizabeth Sepper, Professor of Law at Washington University School of Law, and Nelson Tebbe, Professor of Law at Cornell Law School.

“Given that this is the first case in which a RFRA claim has been raised as a defense in a federal criminal prosecution under immigration law we felt it was important that we provide the judge guidance on how to structure his consideration of a religious liberty claim in this context,” said Professor Franke. “The relation of religion to immigration law enforcement is all the more compelling given that Attorney General Jeff Sessions has quoted biblical text to justify the federal government’s aggressive immigration policies,” she continued. The law professors’ amicus brief is available here.

A copy of the brief is here.  Is the argument presented in the brief plausible … or not?

Transformational Marriage: How to End the Culture Wars Over Same-Sex Marriage

That's the title of a new paper by Rob Kar, Professor of Law and Philosophy at the University of Illinois.  The paper is Rob's contribution to a volume edited by Robin Fretwell Wilson:   The Contested Place of Religion in Family Life (Cambridge University Press 2018).  Rob is eager for critical feedback on the paper:   [email protected].   The paper is available here.

The abstract:

Recent developments toward the legalization of same-sex marriage in the West are often viewed as a triumph for secularism in a religious-secular culture war. That assumption foments ongoing division and hostility between some committed religious observers and some LGBT persons and their supporters.

The assumption is also wrong. The recent legalization of same-sex marriage in the West has underappreciated religious and spiritual causes and potential. It is the partial result of the historical emergence of a love-based social institution of marriage in the West. These developments, which began in the 17th to 18th centuries, further allowed for the emergence of what this article calls "transformational marriage". Given the development of transformational marriage, there are now weighty reasons -- both religious and secular -- to support these marriages among anyone who chooses to enter into them. Debates over same-sex marriage should be removed from the contemporary religious-secular culture wars.

To show this, this chapter offers a blend of religious, scriptural, moral, secular and psychological arguments, which provide a basis for previously opposing camps to reach an "overlapping consensus" on the value of transformative marriage for all people. An overlapping consensus is the polar opposite of a religious-secular culture war: it is a consensus that can be affirmed, for different reasons, by the opposing religious, philosophical and moral doctrines likely to thrive over generations in a more or less just constitutional democracy. Hence, there are good reasons for people of good faith on all sides of this conflict to support the development of this overlapping consensus and remove the issue of same-sex marriage from the culture wars.

Conscience v. Access

A new paper I've just posted to SSRN may be of interest to RLL readers.  The paper--my contribution to a volume edited by William Eskridge and Robin Fretwell Wilson, Religious Freedom, LGBT Rights, and the Prospects for Common Ground (Cambridge University Press 2018)--is titled:

Conscience v. Access and the Morality of Human Rights,
With Particular Reference to Same-Sex Marriage

The paper is available here.  The abstract:

Little remains to be said about “conscience v. access” that has not already been said — and often well said. Or so it seems to me. (Not that a consensus has been achieved. Far from it.) But “little” is not “nothing”. My aim in this chapter: to bring the morality of human rights to bear, and to do so with particular reference to conscience-based opposition to same-sex marriage. In particular, my aim is to bring to bear two rights that are fundamental parts of the morality of human rights: the human right to religious and moral freedom and the human right to moral equality. On "the morality of human rights", see Perry, Michael J., A Global Political Morality: Human Rights, Democracy, and Constitutionalism (April 25, 2017) available at: http://ssrn.com/abstract=2956843.

The intuition of many persons — an intuition I share — is that the conscience-based claim for an exemption from an antidiscrimination law pressed by the florist (baker, photographer, etc.) who is morally opposed to same-sex marriage presents us with a more complex and difficult issue than the conscience-based claim for an exemption pressed by the florist who is morally opposed to interracial marriage. My argument in this chapter serves to provide a rational vindication of that intuition; it serves to explain why as a matter of principle — specifically, as a matter of the human right to moral equality — the two conscience-based claims merit different responses, even if it is not unreasonable for lawmakers, in legislating, or for judges, in adjudicating, to reach the conclusion that, all things considered, the former claim too should be rejected.

A Global Political Morality: Human Rights, Democracy, and Constitutionalism

Yesterday I posted to SSRN the introduction to my new book.  Several issues I address in the book are issues that may be of special interest to RLL readers--for example:  the religious v. secular grounds of human rights (chapter 2); the human right to religious/moral freedom (chapter 4); the proper role of the judiciary in resolving constitutional controversies that are also moral controversies, such as the constitutional controversies over capital punishment, same-sex marriage, and abortion (chapters 5-6); and human rights of the socioeconomic sort—such as the human right to adequate healthcare—which are the sort of human rights with which Catholic social teaching has long been concerned (chapter 7).  Here is a link to the introduction.  The abstract:

This SSRN posting consists mainly of the introduction to my new book: A GLOBAL POLITICAL MORALITY: HUMAN RIGHTS, DEMOCRACY, AND CONSTITUTIONALISM (Cambridge University Press 2017). The “global political morality” to which the title refers is what I call “the morality of human rights”. In the book, as I explain more fully in the introduction, I pursue several related inquiries that lie at the interface of human rights theory, political theory, and constitutional theory.

The first two inquiries concern the morality of human rights: 1. What are “human rights”? 2. What reason (or reasons) do we have--if indeed we have any — to take human rights seriously?

The next two inquiries concern the relationship of the morality of human rights to democratic governance: 3. How does the morality of human rights support democratic governance? 4. How does the morality of human rights limit democratic governance? I address the latter question with particular reference to the human right to religious and moral freedom.

The final three inquiries concern the relationship of the morality of human rights to certain constitutionalism-related questions: 5. In the context of the Constitution of the United States, what theory of judicial review takes seriously both the human right to democratic governance and the other human rights that are limits on democratic governance? 6. What are the implications of that theory of judicial review — a theory that comprises a (limited) affirmation of an originalist understanding of constitutional interpretation — for the constitutional controversies over, respectively, capital punishment, race-based affirmative action, same-sex marriage, physician-assisted suicide, and abortion? 7. Should human rights of the socioeconomic sort, such as the human right to adequate healthcare, be constitutionalized — and if so, should they also be judicialized?

Prophecy Without Contempt: Religious Discourse in the Public Square

That's the title of the book by Cathleen Kaveny that was published one year ago this month (Harvard University Press).  Professor Kaveny is the Darald and Juliet Libby Professor at Boston College, where she holds a joint appointment (School of Law, Department of Theology).

On Friday, April 7, 1:30-5:00 PM, at the McMullen Museum of Art, 201 Commonwealth Avenue, Boston, there will be a program, focused on Professor Kaveny's book, entitled "Prophecy Without Contempt:  A Conversation About Religion, Identity, and Exclusion in Our New Political Era".  The three speakers are an extraordinarily impressive group:  Jonathan Lear, John U. Nef Distinguished Service Professor, Committee on Social Thought and Department of Philosophy, University of Chicago; Charles Taylor, Professor Emeritus, Department of Philosophy, McGill University; and Rowan Williams, 104th Archbishop of Cantebury and Master of Magdalene College, University of Cambridge.  Professor Kaveny will respond.  The program is presented by The Clough Center for the Study of Constitutional Democracy, Boston College.

Statement by Father John I. Jenkins, C.S.C., president, University of Notre Dame ...

... on "[t]he sweeping, indiscriminate and abrupt character of President Trump’s recent Executive Order ...", here.

Same Sex Unions and the Catholic Church: How Law and Doctrine Evolve

That's the title of a paper that Charles Reid, Professor of Law at the University of St. Thomas, has just posted to SSRN.  Given the subject matter of the paper, some information about Professor Reid's academic background is relevant.  Professor Reid attended the Catholic University of America, where he earned J.D. and J.C.L. (license in canon law) degrees.   Reid later attended Cornell University, where he earned a Ph.D. in the history of medieval law under the supervision of Brian Tierney.  His thesis at Cornell was on the Christian, medieval origins of the western concept of individual rights.  Over the last ten years, he has published a number of articles on the history of western rights thought, and is currently completing work on a book manuscript addressing this question.  In 1991, Reid was appointed research associate in law and history at the Emory University School of Law, where he has worked closely with Harold Berman on the history of western law.

Reid's article on same-sex unions and the Catholic Church is downloadable for free here.  This is the abstract:

This Article makes the case for reforming the Catholic Church’s law and teaching on the topic of same-sex unions. It is divided into two large parts. Part I surveys the present state of the Church’s rules governing same-sex relations. It is further subdivided into three subsections: the first examining the formation and reinforcement of the anti-sodomy norm in the nineteenth and twentieth centuries; the second reviewing the jurisprudence of the Roman Rota (one of the Vatican’s two supreme appellate tribunals) on homosexuality; the third glancing briefly at more affirming recent statements of Pope Francis and leading Cardinals and bishops. The second part then states the case for reform. It begins by recapitulating the natural-law case against same-sex unions, especially as articulated by Pope John Paul II; it then focuses on personalist philosophy to build a case grounded in human dignity and human rights; it looks to see how arguments grounded on dignity, respect, and human rights were used in legislative and constitutional reform in the United States and in three Catholic countries; and it returns again to natural law. Building on the premise that natural law requires an understanding of nature, the Article reviews the state of the science on same-sex attraction. It closes with a reflection on the many ways the Church has dynamically reinterpreted its normative structure and proposes that reform of the law on same-sex unions would be in keeping with other large historical shifts in the Church’s law and doctrine.

How Did We Get Here?

That's the title of a discerning essay, on our present political situation, over at Commonweal (here).  The subtitle of the essay:  "The Decline of the Common Good, the Rise of Trump".  An excerpt:

Neither party, then, offers a compelling vision of human well-being. The Republicans stand up for the unborn and families, but they refuse to address the economic and social roots of abortion and the precariousness material conditions that threaten so many families. The Democrats support basic economic fairness and stand against racism, but they are most animated by the right of each individual to choose their own conception of the good. They are more interested in tolerance and diversity than in true solidarity. Neither party espouses a conception of freedom oriented toward the common good. Libertarians dismiss the very idea of a common good, seeing only a collection of individual people with individual interests. Latter-day progressives start from a slightly different point of view but reach a very similar conclusion; they argue that a commitment to pluralism precludes any notion of a common good. Missing from both views is the deep sense that “we are all really responsible for all.”

On the Constitutionality and Political Morality of Granting Conscience-Protecting Exemptions Only to Religious Believers

In his post yesterday, Steve Shiffrin addressed the question "Is Religion Special?"  I address the question (and related issues) in this piece, which will appear next year as a chapter in a multi-authored collection to be published by Oxford University Press: "On the Constitutionality and Political Morality of Granting Conscience-Protecting Exemptions Only to Religious Believers".

A Question about the Preceding Post

The preceding post, about Azadeh Shahshahani, is terrific.  Who posted it?  (I would have asked this question in a comment, but the comments are closed.)  Thanks.

"Remembering Daniel Berrigan: A Penniless, Powerful Voice for Peace"

That's the headline on a front-page story in today's New York Times, here.  Two excerpts:

"Deeds, not things, made Father Berrigan one of the best-known Roman Catholic priests of the 20th century:  His physical possessions barely filled the modest room in the Jesuit infirmary at Fordham University in the Bronx where he spent his final years.  He departed indifferently penniless from a world that often seems to keep score in gilded ink."

"Father Berrigan drew inspiration from Dorothy Day, who helped found the Catholic Worker Movement in 1933 to bring fresh, radical life to the church’s teachings on social justice. Among other things, Catholic Worker communities across the country feed, clothe and shelter those in need."

"Zen Poem," by Daniel Berrigan

How I long for supernatural powers!
said the novice mournfully to the holy one.
I see a dead child
and I long to say, Arise!
I see a sick man
I long to say, Be healed!
I see a bent old woman
I long to say, Walk straight!
Alas, I feel like a dead stick in paradise.
Master, can you confer on me
supernatural powers?

The old man shook his head fretfully
How long have I been with you
and you know nothing?
How long have you known me
and learned nothing?
Listen; I have walked the earth for 80 years
I have never raised a dead child
I have never healed a sick man
I have never straightened an old woman's spine

Children die
men grow sick
the aged fall
under a stigma of frost

And what is that to you or me
but the turn of the wheel
but the way of the world
but the gateway to paradise?

Supernatural powers!
Then you would play God
would spin the thread of life and measure the thread
5 years, 50 years, 80 years
and cut the thread?

Supernatural powers!
I have wandered the earth for 80 years
I confess to you,
sprout without root
root without flower
I know nothing of supernatural powers
I have yet to perfect my natural powers!

to see and not be seduced
to hear and not be deafened
to taste and not be eaten
to touch and not be bought

But you-
would you walk on water
would you master the air
would you swallow fire?

Go talk with the dolphins
they will teach you glibly
how to grow gills

Go listen to eagles
they will hatch you, nest you
eaglet and airman

Go join the circus
those tricksters will train you
in deception for dimes-

Bird man, bag man, poor fish
spouting fire, moon crawling
at sea forever-
supernatural powers!

Do you seek miracles?
listen- go
draw water, hew wood
break stones-
how miraculous!

Listen; blessed is the one
who walks the earth 5 year, 50 years, 80 years
and deceives no one
and curses no one
and kills no one

On such a one
the angels whisper in wonder,
behold the irresistible power
of natural powers-
of height, of joy, of soul, of non belittling!

You dry stick-
in the crude soil of this world
spring, root, leaf, flower!

trace
around and around
and around-
an inch, a mile, the world's green extent,-
a liberated zone
of paradise!

Five Constitutional Controversies, Five Judicial Opinions

The five constitutional controversies addressed by Justice Nemo in a paper just posted to SSRN (here) concern matters of interest to some RLL readers, including capital punishment, same-sex marriage, physician-assisted suicide, and abortion.  Here's the abstract:

In this paper, I address five controversies — controversies concerning constitutional rights — that have arisen under the constitutional law of the United States: the controversies concerning, respectively, capital punishment, race-based affirmative action, same-sex marriage, physician-assisted suicide, and abortion. My discussion of each controversy takes the form of an opinion drafted by an imaginary justice of the Supreme Court of the United States, Justice Nemo. The five opinions by Justice Nemo serve to illustrate the implications, for the five controversies, of the theory of judicial review elaborated and defended in a paper I posted to SSRN last month: Michael J. Perry, "A Theory of Judicial Review" (2016), http://ssrn.com/abstract=2624978.

That is, Justice Nemo’s five opinions serve that illustrative function if they are truly faithful to that theory of judicial review, to which Justice Nemo professes to be committed. Are they? Justice Nemo is not always explicit in her opinions about her judicial philosophy; she nonetheless wants to draft opinions that align with her philosophy. A question to ask, then, about each of her five opinions: Has Justice Nemo succeeded in drafting an opinion faithful to the theory of judicial review to which she professes to be committed?

This paper is drawn from my new book, which will be published early next year by Cambridge University Press:  A Global Political Morality:  Human Rights, Democracy, and Constitutionalism.

"The Case of the Little Sisters of the Poor"

Cathleen Kaveny, the Darald and Juliet Libby Professor at Boston College--holding appointments both in the School of Law and in the Department of Theology--has just posted to SSRN an excellent paper:  Law, Religion, and Conscience in a Pluralistic Society:  The Case of the Little Sisters of the Poor.  You can download the paper here.

"Push Within Religions for Gay Marriage Gets Little Attention"

That's the title of an article in the "On Religion" column that appears every Saturday in the New York Times.  The article, by Samuel G. Freedman, will be of great interest to RLL readers.  Here.

Obergefell v. Hodges: An Imagined Opinion, Concurring in the Judgment

In Obergefell v. Hodges, decided on June 26, 2015, the Supreme Court of the United States ruled that excluding same-sex couples from civil marriage is unconstitutional. Sometimes the appropriate response to a judicial decision is: “Right ruling, but wrong — or, at least, problematic — reasoning.” Is that the appropriate response — or an appropriate response — to the Court’s decision in Obergefell?

This brief paper (here) is an imagined opinion — an opinion by an imaginary justice of the Supreme Court, Justice Nemo — concurring in the Court’s judgment in Obergefell. In the opinion, Justice Nemo articulates a basis for the Court’s judgment that she believes to be preferable, on a number of grounds, to the somewhat diffuse mix of rationales on which the majority relies. Justice Nemo begins her opinion by explaining why one of the rationales included in the mix on which the majority relies — an “equal protection” rationale — is, in her view, a problematic basis for the Court’s judgment.

In her opinion, Justice Nemo relies on an insight of the celebrated Jesuit theologian John Courtney Murray, who is no doubt familiar to the five Catholic justices of the Supreme Court.

Religion and Same-Sex Marriage

To quote Mr. Zimmerman:  The times, they are a-changin'.

Many RLL readers will be interested, I think, in this report.  Note that the report links to a transcript of the proceedings.

Civil Same-Sex Marriage: A Catholic Affirmation

That's the title of a new article by Lisa Fullam, D.V.M., Th.D., who teaches moral theology at the Jesuit School of Theology at Berkeley.  Fullam's research interests include virtue ethics, medical and sexual ethics, the intersection of ethics and spirituality, and Ignatian spirituality.

Here's the abstract of Fullam's article:

Many Catholic contributions to the debate over civil same-sex marriage are too broad or too narrow. Too broad:  civil same-sex marriage is sometimes described as parallel to same-sex marriage in the Church.  Too narrow:  some Catholic contributions to the discussion have centered on reproductive capacity, ignoring Catholicism’s rich tradition which values marriage beyond procreation.  Here, I consider Catholic moral tradition on civil law:  civil law is approached in light of the common good, expressed in contemporary societies in terms of equal civil rights.  Second, I examine magisterial contributions to the public debate, which are framed in terms of a reading of natural law based in the Scriptural interpretation of Pope John Paul II.  Such religious arguments may serve as normative for marriage within the Church, but do not reflect Catholic norms for civil law.  Finally, I offer reasons Catholics might advocate civil same-sex marriage.

Paul Griffiths on Richard Rodriguez

Paul J. Griffiths is the Warren Chair of Catholic Theology at Duke University.  He has a wonderful review, here, of Richard Rodriguez's new book, Darling:  A Spiritual Autobiography.  An excerpt from Griffith's review:

_________________________

Among the impurities the Church might want to cleanse herself of is people like Rodriguez, he thinks, because he prefers to share his love and his bed and his life with a man rather than a woman.  He takes the Church to be wrong doctrinally about homosexual acts, and often wrong, too, in what it teaches about women.  He would like the Church to take instruction on these matters, as Jesus also did, from Mary, another darling in these pages.  And he thinks that if it did, the Church’s self-shrouding fear might grow less and its loving embrace of pain might show itself more clearly.

I don’t agree with every position taken in Darling, or with every argument offered.  On Islam, I suspect that what’s needed at the moment isn’t emphasis on the similarities among the three so-called Abrahamic religions as desert faiths, real though these are, but rather on difference and complementarity.  The recent work of Rémi Brague on this, especially On the God of the Christians (and on one or two others), is especially instructive.  On homosexuality and homosexual acts, by contrast, I think Rodriguez much closer to being right than not.  Insofar as such acts are motivated by and evoke love, they are good and to be loved; insofar as they do not, not. In this, they are no ­different from ­heterosexual acts.

There are other interesting differences between the two kinds of act.  But if you think, as Rodriguez seems to, and I do, and all Catholics should, that we live in a devastated world in which no sexual acts are undamaged, free from the taint of sin and death and the concomitant need for lament, then the fact that ­homosexual acts have their own characteristic disorder is no ground for blindness to the goods they enshrine.  Gay men should, of course, darling one ­another; those of us whose darlings are of the opposite sex should be glad that they do, and glad of instruction in love by the ways in which they do.  Love is hard enough to come by in a devastated world without encouraging blindness to its presence.

_________________________

Again, the entire review is here.

The Abortion Cases, Revisited

I just posted a paper to SSRN that will be of interest, I think, to some RLL readers.  The paper is available here.  The abstract:

In this paper, I discuss the criminalization of abortion both as a human rights issue and, especially, as a constitutional issue.

Governments are free, insofar as internationally recognized human rights are concerned, not to ban abortion. The serious question, which I address in this paper, is whether governments are also free, insofar as international human rights are concerned, to ban abortion. In particular: Is it a violation of a woman’s human rights for a country to ban abortion? One of the world’s most important human rights NGOs—Human Rights Watch—has answered in the affirmative.

Whatever the answer to the preceding question, a different question remains, and it is one of the most perennially contested questions in American constitutional studies: Were the Abortion Cases correctly decided?

Of all the constitutional rulings by the Supreme Court since the end of the Second World War, none have been more persistently controversial than the Court’s rulings, in 1973, in the Abortion Cases: Roe v. Wade and Doe v. Bolton. In Roe, the Court invalidated a Texas law that banned all abortions except those necessary to save the life of the mother. The Georgia law at issue in Doe was more permissive; it exempted abortions necessary “because (1) a continuation of the pregnancy would endanger the life of the pregnant woman or would seriously and permanently injure her health; or (2) the fetus would very likely be born with a grave, permanent, and irremediable mental or physical defect; or (3) the pregnancy resulted from forcible or statutory rape.” Nonetheless, the Court invalidated the Georgia law. In 1992, four Supreme Court justices voted to overrule the Abortion Cases; a bare majority of the Court—five justices—refused to go along. In 2014, over forty years after the Court’s rulings in the Abortion Cases, four justices, given the opportunity, would almost certainly vote to overrule the Abortion Cases: Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito.

The conclusion I reach in this paper—that the Supreme Court’s ruling against the Texas law, but not its ruling against the Georgia law, was warranted—is, of course, controversial: Many insist that both rulings were warranted; many others, that neither ruling was warranted. Although controversial, the position at which I have arrived brings me into alignment—for me, comfortable alignment—with the position espoused by Justice Ruth Bader Ginsburg in 1985, when she was a judge of the United States Court of Appeals for the District of Columbia Circuit: In the Abortion Cases, then-Judge Ginsburg wrote, the Supreme Court should not have “gone beyond a ruling on the extreme [Texas] statute before the Court. . . . Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.”

This paper is one of a several connected papers that I have posted to SSRN in the last nine months, discussing “human rights in the constitutional law of the United States”—discussing, in particular, the implications of one or more constitutionally entrenched human rights for the divisive controversies over capital punishment, same-sex marriage, and, in this paper, abortion. A list of the papers is available here.

Capital Punishment, Same-Sex Marriage, and the Constitution: What Role for the Courts?

As RLL readers know, the magisterium of the Roman Catholic Church is morally opposed both to capital punishment and to granting access to civil marriage to same-sex couples.  I have recently argued, in my new book and elsewhere, that the two practices—capital punishment and excluding same-sex couples from civil marriage—violate the constitutional law of the United States (here, here, and here).  Of course, any argument about the constitutionality of capital punishment or of excluding same-sex couples from civil marriage (or of any other law or public policy) necessarily relies on a particular understanding of how the judiciary should go about determining (1) whether a right claimed to be a constitutional right has constitutional status and, if so, (2) whether the challenged government action violates the right.  What understanding do my arguments rely on—my arguments about capital punishment and same-sex marriage?  I address that question in a new paper—a “working paper”—that I have just posted to SSRN.  Some RLL readers may be interested.  The abstract of and a link to the paper are available here.

Brief of Amici Curiae Church-State Scholars in Support of the Government in Sebelius v. Hobby Lobby Stores, Inc. & Conestoga Wood Specialties Corp. v. Sebelius

The brief is available here.

Amici on the brief--some of whom post here at RLL--are Frederick Mark Gedicks (Brigham Young University Law School), Vincent Blasi (Columbia Law School); Caitlin Borgmann (CUNY School of Law), Caroline Mala Corbin (University of Miami School of Law), Sarah Barringer Gordon (University of Pennsylvania Law School & Dept. of History), Steven K. Green (Willamette University College of Law), Leslie C. Griffin (William S. Boyd School of Law, University of Nevada, Las Vegas), B. Jessie Hill (Case Western Reserve University School of Law), Andrew M. Koppelman (Northwestern University Law School & Dept. of Political Science), Martha C. Nussbaum (The University of Chicago Law School & Dept. of Philosophy); Eduardo Peñalver (The University of Chicago Law School); Michael J. Perry (Emory University School of Law); Frank S. Ravitch (Michigan State University College of Law), Zoë Robinson (DePaul University College of Law), Lawrence Sager (University of Texas at Austin School of Law), Richard Schragger (University of Virginia School of Law), Micah Schwartzman (University of Virginia School of Law), Elizabeth Sepper (Washington University School of Law), Steven H. Shiffrin (Cornell University Law School), Nelson Tebbe (Brooklyn Law School) & Laura Underkuffler (Cornell University Law School).

This brief argues that permissive religious accommodations violate the Establishment Clause and conflict with Free Exercise Clause and Title VII accommodation decisions when they impose significant costs of practicing the accommodated religion on those who do not believe or participate in it. For-profit employer exemptions from the Affordable Care Act contraception mandate under the Religious Freedom Restoration Act would constitute congressional and federal judicial action that violates the Establishment Clause, by shifting significant costs of observing religious beliefs against contraception from the employers who hold them to employees who don't. The brief concludes that keeping federal government action within the structural limits set by the Establishment Clause is a compelling interest that justifies denial of for-profit employer exemptions from the mandate under RFRA.

Exemptions from the ‘contraception mandate’ threaten religious liberty

That's the title of an op-ed by BYU law professor Frederick Mark Gedicks.  You can read Professor Gedicks' s op-ed, which appears in the Washington Post, here.

Why Excluding Same-Sex Couples from Civil Marriage Violates the Constitutional Law of the United States

That's the title of a lecture I delivered--the David C. Baum Memorial Lecture--at the University of Illinois on November 6, 2013.  Some RLL readers may be interested in the lecture, which is downloadable here.

Why Capital Punishment Violates the Constitutional Law of the United States

That's the title of a paper I just posted to SSRN, here.  This is the abstract:

I explain in this paper why we are warranted in concluding that capital punishment—punishing a criminal by killing him—is both “cruel” and “unusual” within the meaning of the Eighth Amendment’s ban on “cruel and unusual punishments” and therefore violates the constitutional law of the United States. In setting the stage for that explanation, I discuss the internationally recognized human right not to be subjected to any punishment (or other treatment) that is “cruel, inhuman or degrading”. When I turn to the question of the original understanding of the Cruel and Unusual Punishments Clause of the Eighth Amendment, I discuss the important work of John Stinneford, explaining why I concur in Stinneford’s conclusion about the original understanding of “cruel” but dissent from his conclusion about the original understanding of “unusual”.

 

 

RFRA Exemptions from the Contraception Mandate: An Unconstitutional Accommodation of Religion

That's the title of a very interesting, thoughtful, and provocative piece recently posted to SSRN by BYU law prof Fred Gedicks and co-author Rebecca Van Tassel.  Downloadable here.  The abstract:

Litigation surrounding use of the Religious Freedom Restoration Act to exempt employers from the Affordable Care Act’s “contraception mandate” is moving steadily towards eventual resolution in the U.S. Supreme Court. Both opponents and supporters of the mandate, however, have overlooked the Establishment Clause limits on RFRA exemptions,

The fiery religious-liberty rhetoric surrounding the mandate has obscured that RFRA is a “permissive” rather than “mandatory” accommodation of religion — that is, a voluntary government concession to religious belief and practice that is not required by the Free Exercise Clause. Permissive accommodations must satisfy Establishment Clause constraints, notably the requirement that accommodation not impose material burdens on third parties who do not believe or participate in the accommodated practice.

While there is little doubt that RFRA facially complies with the Establishment Clause, there is also little doubt that it violates the Clause’s limits on permissive accommodation as applied to the mandate. RFRA exemptions from the mandate would deny the employees of an exempted employer their ACA entitlement to contraceptives without cost-sharing, forcing employees to purchase with their own money contraceptives and related services that would otherwise be available to them at no cost beyond their healthcare insurance premium.

Neither courts nor commentators seem aware that RFRA exemptions from the mandate violate settled permissive accommodation doctrine, by shifting material costs of accommodating anti-contraception beliefs from the employers who hold them to employees who do not. One federal appellate court has already mistakenly dismissed this cost-shifting as irrelevant to the permissibility of RFRA exemptions from the mandate.

The impermissibility of cost-shifting under the Establishment Clause is a threshold doctrine whose application is logically prior to all of the RFRA issues on which the courts are now focused: If RFRA exemptions from the mandate violate the Establishment Clause, then that is the end of RFRA exemptions, regardless of whether for-profit corporations are persons exercising religion, the mandate is a substantial burden on employers’ anti-contraception beliefs, or the mandate is not the least restrictive means of protecting a compelling government interest.

A Second, and Equally Remarkable, Interview with Pope Francis ...

... on "how the Church will change."  This interview is in In the Italian publication La Repubblica.  Read the enitre interview here.

Torture as a Human Rights Issue

As many RLL readers know, the position of Christians on torture--the position, that is, of those self-identified Christians who have declared a position on torture--has been quite mixed.  It is not the case that religious believers are generally unconditionally opposed to interrogational torture.  Evangelical Christian scholar David Gushee has lamented “the formation of a sizable and apparently permanent American Christian constituency for torture.”  David P. Gushee, “The Contemporary U.S. Torture Debate in Christian Historical Perspective,” 39 Journal of Religious Ethics 589, 595-96 (2011).  On the implications of Christian teaching for torture, see, in addition to the article by Gushee, Jeremy Waldron, “What Can Christian Teaching Add to the Debate about Torture?,” 63 Theology Today 330 (2006); Jean Porter, “Torture and Christian Conscience:  A Response to Jeremy Waldron,” 61 Scottish Journal of Theology 340 (2008).

I have just posted to SSRN a paper that may be of interest to some RLL readers:  "Interrogational Torture as a Human Rights Issue:  A Brief Further Reflection on the Morality of Human Rights".  The paper is available for download here.  This is the abstract of the paper:

The morality of human rights consists not only of various rights recognized by the great majority of the countries of the world as human rights, but also of a fundamental imperative that directs “all human beings” to “act towards one another in a spirit of brotherhood.” The imperative — articulated in the very first article of the foundational human rights document of our time, the Universal Declaration of Human Rights (UDHR) — is fundamental in the sense that it serves, in the morality of human rights, as the normative ground of human rights. I have explained all this at length in an earlier paper, “The Morality of Human Rights” (2013), which I have posted to SSRN: http://ssrn.com/abstract=2274381.

In the earlier paper, I addressed (inter alia) this question: Why should one take seriously the normative ground of human rights; that is, what reason or reasons does one have, if any, to live one’s life in accord with the imperative to “act towards all human beings in a spirit of brotherhood”? In this brief paper — which serves as a kind of addendum to the earlier paper — I address a version of a related, followup question: Should we want governments always to “act towards all human beings in a spirit of brotherhood”, no matter what the consequences? Specifically, I address this question: Should we want governments never to subject a human being to torture, no matter what the likely consequences of not subjecting him (or her) to torture?

In the earlier paper, I explained that as the concept “human right” is understood both in the UDHR and in all the various international human rights treaties that have followed in the UDHR’s wake, a right is a human right if the rationale for establishing and protecting the right — for example, as a treaty-based right — is, in part, that conduct that violates the right violates the imperative to “act towards all human beings in a spirit of brotherhood”. Each of the human rights articulated in the UDHR and/or in one or more international human rights treaties is a specification of what, in conjunction with other considerations, the imperative is thought to forbid or to require. The right at issue in this paper — the right not to be tortured — is a specification of what governments must refrain from doing lest they violate the “in a spirit of brotherhood” imperative — lest they, in short, treat a human being inhumanely. Torturing a human being is an instance — indeed, a paradigmatic instance — of treating a human being inhumanely. The question-in-chief in this paper: Should we want governments never to subject a human being to torture, no matter what the likely consequences of not subjecting him (or her) to torture?

The conclusion I reach: Even if we assume that in some imaginable and sufficiently extreme circumstances it would be morally permissible — even, perhaps, morally obligatory — for government officials to subject a human being to interrogational torture, there are nonetheless conclusive reasons for lawmakers and treaty-drafters to make bans on torture exceptionless. It is optimal, all things considered, that laws and treaties do just what both the International Covenant on Civil and Political Rights and the Convention against Torture do: make the right against torture, even interrogational torture, nonderogable. There are conclusive reasons, that is, for laws and treaties to require that governments never violate the normative ground of human rights — that governments never violate the "in a spirit of brotherhood" imperative, that they never treat any human being inhumanely — even if we assume that it is not the case, as a moral matter, that governments should never violate the normative ground of human rights.

Capital Punishment, Same-Sex Marriage, and Abortion

The title of my new book, Human Rights in the Constitutional Law of the United States, references the subject matter that has been my principal scholarly obsession since the beginning of my academic career.  In the book--the introduction to which is available here for download--I elaborate three internationally recognized human rights, each of which, as I explain, is entrenched in the constitutional law of the United States: the right not to be subjected to “cruel and unusual” punishment, the right to moral equality, and the right to religious and moral freedom.  I then pursue three inquiries that are of special concern to RLL readers:

• Does punishing a criminal by killing him violate the right not to be subjected to “cruel and unusual” punishment?

• Does excluding same-sex couples from civil marriage violate the right to moral equality or the right to religious and moral freedom?

• Does criminalizing abortion violate the right to moral equality or the right to religious and moral freedom?

I also pursue a fourth inquiry: In exercising judicial review of a certain sort--judicial review to determine whether a law (or other public policy) claimed to violate a constitutionally entrenched human right does in fact violate the right--should the Supreme Court of the United States inquire whether in its own judgment the law violates the right? Or, instead, should the Court proceed deferentially, inquiring only whether the lawmakers’ judgment that the law does not violate the right is a reasonable one?  In short, how large/small a role should the Court play in protecting (enforcing) constitutionally entrenched human rights?

I have long been engaged by, and have before written about, questions such as those I address in this book:  questions about the implications of constitutionally entrenched human rights--and the question about the proper role of the Supreme Court in adjudicating such questions.  (The title of my first book, published in 1982:  The Constitution, the Courts, and Human Rights.)  Indeed, I have before written about each of the three constitutional controversies at the heart of this book: capital punishment, same-sex marriage, and abortion.  Because I was not satisfied with my earlier efforts, I decided to revisit the controversies.

Freedom of Conscience as Religious and Moral Freedom

Some RLL readers may be interested in this paper, which I just posted to SSRN (here).  The abstract:

In a paper I posted to SSRN last month — “The Morality of Human Rights” (June 2013) — I explained that as the concept “human right” is understood both in the Universal Declaration of Human Rights and in all the various international human rights treaties that have followed in the Universal Declaration’s wake, a right is a human right if the rationale for establishing and protecting the right — for example, as a treaty-based right — is, in part, that conduct that violates the right violates the imperative, articulated in Article 1 of the Universal Declaration, to “act towards all human beings in a spirit of brotherhood”. Each of the human rights articulated in the Universal Declaration and/or in one or more international human rights treaties — for example, the right, articulated in Article 5 of the Universal Declaration and elsewhere, not to be subjected to “cruel, inhuman or degrading treatment or punishment”—is a specification of what, in conjunction with other considerations, the imperative — which functions in the morality of human rights as the normative ground of human rights — is thought to forbid (or to require).

A particular specification is controversial if and to the extent the supporting claim — a claim to the effect that the “act towards all human beings in a spirit of brotherhood” imperative forbids (or requires) X — is controversial. My aim in this essay is to elaborate and defend a particular specification: the right, internationally recognized as a human right, to freedom of conscience — to freedom, that is, to live one’s life in accord with the deliverances of one’s conscience.

A more focused name for the right is the right to religious and moral freedom. Jocelyn Maclure and Charles Taylor begin their book Secularism and Freedom of Conscience (2011) by stating that “[o]ne of the most important challenges facing contemporary societies is how to manage moral and religious diversity.” One indispensable strategy for managing religious and moral diversity is, as I explain in this essay, the right to religious and moral freedom — to freedom to live one’s life in accord with one’s religious and/or moral convictions and commitments.

In the final part of the essay, I explain why we are warranted in concluding that the internationally recognized human right to freedom of conscience — to religious and moral freedom — is part of, is entrenched in, the constitutional law of the United States.

The Morality of Human Rights

Some RLL readers may be interested in a paper I just posted to SSRN (here):  "The Morality of Human Rights".  This is the abstract:

In the period since the end of the Second World War, there has emerged what never before existed: a truly global morality. That morality — which I call “the morality of human rights” — consists not only of various rights recognized by the great majority of the countries of the world as human rights, but also of a fundamental imperative that directs “all human beings” to “act towards one another in a spirit of brotherhood.” The imperative — articulated in the very first article of the foundational human rights document of our time, the Universal Declaration of Human Rights — is fundamental in the sense that it serves, in the morality of human rights, as the normative ground of human rights.

I begin, in the first section of this essay, by explaining what the term “human right” means in the context of the internationalization of human rights. I also explain both the sense in which some human rights are, in some legal systems, “legal” rights and the sense in which all human rights are “moral” rights.

Then, in the longer second section, I turn to the inquiry that is my principal concern in this essay: Why should one take seriously the imperative that serves, in the morality of human rights, as the normative ground of human rights? That is, what reason or reasons does one have, if any, to live one’s life in accord with the imperative to “act towards all human beings in a spirit of brotherhood”?

This essay, the final draft of which will be published in a symposium issue of the San Diego Law Review, was my contribution to the conference on “The Status of International Law and International Human Rights” that was held at the University of San Diego School of Law on May 3-4, 2013, under the auspices of the School’s Institute of Law and Philosophy. Some of the material in this essay is drawn from my new book, Human Rights in the Constitutional Law of the United States (2013). Most of the material here that is not drawn from my book was first presented in a lecture I was honored to deliver at Santa Clara University in March 2013, under the auspices of the Bannon Institute of the Ignatian Center for Jesuit Education.

Camus to the Dominicans

“When I think about the Church’s social teaching,  I love to recall some words that Albert Camus ... addressed to a group of Dominicans who invited him to come and speak to them at the end of the Second World War.  Camus said he would discuss the problem of evil in life, as he understood it as an agnostic.  He closed his talk, as I recall the story, with this thought:  ‘It may not be possible for us to create a world in which no innocent children suffer, but it is possible to create a world in which fewer innocent children suffer.  If we try to do that, if we look to the Christians and do not find help, where else will we go?’”  --Bryan Hehir, "Wanted:  A New Global Order," The Tablet, Dec. 1, 2001, at 1700, 1702.

Teresa Forcades, the radical Catalan nun on a mission ...

"Sister Teresa Forcades is one of Catalonia's foremost political figures, but uniquely for a faith-led figure in Spain, her ideology is feminist and left-wing. Against a backdrop of continued economic contraction and austerity, she spoke to the Guardian about the need for an alternative to capitalism and criticised the misogyny of the Catholic church."

You can watch the six-minute video about Sister Forcades here.

Congratulations to our friends at Mirror of Justice!

Our friends at Mirror of Justice are now--a little belatedly--celebrating the 9th Anniversary of MOJ.  A hearty congratulations!

"If the Church Is Serious About Welcoming Gays..."

That's the title of an op-ed in this morning's Times.  Here.

Andrew Koppelman, "More Intuition Than Argument"

Northwestern law prof Andy Koppelman reviews, in the new issue of Commonweal, the book What Is Marriage?  Man and Woman:  A Defense, by Sherif Girgis, Ryan Anderson, and Robert P. George.  The book is the basis of an amicus curiae brief that Robert George et al. have submitted to SCOTUS in the two "gay marriage" cases being argued before SCOTUS this week.  Andy's review ends with this:

"That claim’s most fundamental difficulty is the short distance from premise to conclusion. The union of the married heterosexual couple is uniquely good because...well, because the union of the married heterosexual couple is uniquely good. This raw intuition comes decorated with a complex theoretical apparatus, but that apparatus does no work. It’s like one of those old trick math problems, which at first glance seems to require complex computations:

7 + 8,398.14 × B ÷ √55 - 8,398.14 × √55 ÷ B = ?

Look again, and it’s clear that all the complexity cancels itself out, and that you end up right back where you began.

The publication of What Is Marriage? is a public service. It advances understanding of a perspective that many (though fewer and fewer) Americans share, but it is unlikely to persuade anyone who doesn’t already agree with its claims. It is a lucid window into a disappearing worldview."

The entire review is here.

An Amicus Brief in the "Gay Marriage" Cases

Thomas Berg (University of St. Thomas School of Law), Douglas Laycock (University of Virginia School of Law), and Marc Stern (American Jewish Committee), on behalf of the American Jewish Committee, have submitted an amicus brief to SCOTUS in Hollingsworth v. Perry (the Prop 9 case) and USA v. Windsor (the DOMA case).  The brief makes a strong plea for protecting religious liberty in the context of the legalization of same-sex marriage.  The brief also argues:

"In Perry, wholly excluding same-sex couples from civil marriage deprives them of a fundamental right.  And as implausible as it is to explain civil marriage in terms of protecting children, it is even more implausible to use children to explain the difference between civil marriage and a civil union that would — if it were sufficiently well understood to be enforceable as a practical matter — confer all the same rights as civil marriage.  If the Court prefers to proceed cautiously, deciding one case at a time, it should affirm the judgment in Perry on the narrow ground stated by the Court of Appeals.  The Court should not reverse on the merits.  To do so would be wrong, for the reasons we have stated; it would also be unstable.  In the area of same-sex relationships, where public understanding of the underlying facts is rapidly changing, the Court cannot reach a stable constitutional resolution by broadly rejecting constitutional claims.  The last time it attempted to do so, in Bowers v. Hardwick, 478 U.S. 186 (1986), it overruled the decision just seventeen years later, and parts of the Bowers opinions are now a permanent embarrassment in the United States Reports.  The Court should not repeat its Bowers mistake in these cases."

The brief is available here:  Download Marriage Cases AJC Brief Final.

File under "Interesting Developments"

It is reported in the NYT this morning (here) that "Republicans Sign Brief in Support of Gay Marriage".  One of those Republicans is former Utah governor--and also former, and possibly future, presidential candidate--Jon Huntsman.  In an article published just last week in The American Conservative (here), Governor Huntsman wrote: 

"While serving as governor of Utah, I pushed for civil unions and expanded reciprocal benefits for gay citizens. I did so not because of political pressure—indeed, at the time 70 percent of Utahns were opposed—but because as governor my role was to work for everybody, even those who didn’t have access to a powerful lobby. Civil unions, I believed, were a practical step that would bring all citizens more fully into the fabric of a state they already were—and always had been—a part of.

That was four years ago. Today we have an opportunity to do more: conservatives should start to lead again and push their states to join the nine others that allow all their citizens to marry. I’ve been married for 29 years. My marriage has been the greatest joy of my life. There is nothing conservative about denying other Americans the ability to forge that same relationship with the person they love.

All Americans should be treated equally by the law, whether they marry in a church, another religious institution, or a town hall. This does not mean that any religious group would be forced by the state to recognize relationships that run counter to their conscience. Civil equality is compatible with, and indeed promotes, freedom of conscience.

Marriage is not an issue that people rationalize through the abstract lens of the law; rather it is something understood emotionally through one’s own experience with family, neighbors, and friends. The party of Lincoln should stand with our best tradition of equality and support full civil marriage for all Americans."

First E.J. Dionne, Now Elmore Leonard: A Nun for Pope!

Elmore Leonard weighs in here.  (E.J. Dionne, here.)

The best choice for pope? A nun.

So writes E.J. Dionne, columnist for The Washington Post who is himself Catholic, here.

"A Reply to My Critics" -- Chuck Reid

[University of St. Thomas law prof Chuck Reid asked me to post this statement at Mirror of Justice, which I was happy to do.  I thought that because some RLL readers will be interested in the statement, I should post it here too.]

          In my abortion columns written over the last five months, I have made it clear that I do not disagree in principle with the propositions that life begins at conception and that it is deserving of legal protection.  My quarrels have been, rather, with the political strategies of the pro-life movement, as it has evolved over the last four decades.

          Many readers have noticed this.  A commenter on one my Huffington Post columns observed (I paraphrase):  Reid's proposal to cooperate on a shared agenda with the left to reduce the rate of abortion is probably the only way forward for the pro-life movement.  But this observer, who acknowledged that he/she was pro-choice, continued by noting that the pro-life movement would never follow.  And then there were the editors at the Italian newspaper, La Stampa, who profiled my work in an article entitled "Changing Strategy on the Culture of Life."  The editors certainly understood my work to speak to strategy, not principle.  So, let's be clear upfront, my concern is centered in the world of prudential judgment, it is a matter of how to succeed given today's political realities.  It is not an argument over first principles.  As I have made very clear, the pro-life movement should be about saving lives in the here and now.

          I have known women who have experienced the tragedy of abortion.  There was the Jewish woman who received the grim news early in her pregnancy that her child was anacephalic -- developing without a head.  The child could be expected to survive no more than a few hours post partum, if that.  She was devastated and looked to the teachings of her faith which made it clear to her lights that abortion was recommended in such extreme cases to limit needless suffering.  And then there were the Catholic women, several of them, I became acquainted with during my service as a matrimonial judge.  None of them wanted to have an abortion.  But they were lonely, desperate, their spirits crushed by boyfriends and families who abandoned them.  Alone, lacking financial and emotional resources, they chose a solution for which they were truly sorry but which seemed inevitable at the time.

          These vivid life experiences have taught me that the common denominator to the choice to have an abortion is desperation.  I have yet to meet a woman who chose abortion to satisfy some desire for greater material resources.  I am sure there are some who decide that they will never get that Mercedes Benz if they have a hungry mouth to feed, but those women are few in number.  Desperation, hopelessness, a fear of being left alone in the world without means of assuming the responsibilities of childcare -- these are the great causes of abortion.  Individual pro-lifers, and organizations such as pro-life pregnancy centers to which individuals devote their time, have recognized this, to their great credit.  But the political strategy of the pro-life movement has failed to recognize it, and indeed increasingly stands in the way of it.

The Contraception Mandate and Religious Liberty

INTERVIEW February 1, 2013

On Feb. 1, 2013, the Department of Health and Human Services (HHS) proposed new rules that would exempt certain religious organizations, including houses of worship, schools and hospitals, from a new mandate to offer free contraception services to women employees. The new regulations would instead require the nonprofits’ health-insurance providers to offer and pay for contraceptive services. The new proposal is the latest step in a controversy that first arose in 2010, with the enactment of the Patient Protection and Affordable Care Act. The contraception mandate has been the subject of much debate and the object of many lawsuits (read more about public opinion on the birth control insurance mandate). To help explain what today’s announcement might mean for the debate, the Pew Forum asked Professors Ira C. Lupu and Robert Tuttle of The George Washington University Law School to discuss the new rules and the possible outcome of the legal challenges to them.

[Here is the interview.]

"The Pro-Life Movement at a Crossroads"

University of St. Thomas law prof Chuck Reid on where to from here for the pro-life movement.  An interesting piece, here.

"Traditional Marriage Activist’s New Allies: Gays"

[from the NYT, 1/29/13]

David Blankenhorn, a traditional-marriage advocate and star witness in the Proposition 8 trial in California in 2010, shocked his allies with an Op-Ed article in The New York Times last June announcing that he was quitting the fight against same-sex marriage. “Instead of fighting gay marriage,” Mr. Blankenhorn wrote, “I’d like to help build new coalitions bringing together gays who want to strengthen marriage with straight people who want to do the same.”

He is about to find out how much support such a coalition can get.

On Thursday, Mr. Blankenhorn’s research group, the Institute for American Values in New York, plans to issue “A Call for a New Conversation on Marriage,” a tract renouncing the culture war that he was once part of, in favor of an unorthodox pro-marriage agenda. The proposed conversation will try to bring together gay men and lesbians who want to strengthen marriage with heterosexuals who want to do the same.

The document is signed by 74 well-known activists, writers and scholars, on the left and the right, including the conservative John Podhoretz, editor of Commentary magazine; John Corvino, a gay philosopher; Robert N. Bellah, a sociologist; Caitlin Flanagan, a feminism skeptic; and Glenn C. Loury, an economist — once conservative, now less so.

[The rest of the article is here.]

The American Catholic Church and Roe. v. Wade

A post by University of St. Thomas law prof Charles Reid, here.

"The Catholic voice against the death penalty is growing stronger"

by Sister Helen Prejean

Can it possibly be happening? After years of relentless dialogue on the death penalty among Catholics in the United States, are we at last beginning to see signs that Catholics are becoming a significant moral force in efforts to abolish state-sanctioned death? Yes! I see it and rejoice.

For the last 34 years I have been engaged in this dialogue—ever since I walked out of Louisiana’s killing chamber in the early morning hours of April 5, 1984, after seeing a man strapped down and killed in front of my eyes.

Now, at last, there are signs of hope. As support for the death penalty has steadily declined in the United States in recent years, Catholic support has dropped even more significantly. According to the Pew Research Center, 78 percent of Americans—and a higher proportion of Catholics, 80 percent—supported the death penalty in 1996. By 2011, however, those numbers had fallen to 62 percent and 59 percent, respectively. Now Catholics support the death penalty at a lower rate than the general population.

[Read the rest here.]

 

"Courts, Backlash, and the Struggle for Same-Sex Marriage" [link has been fixed]

That's the subtitle of a new book by Harvard legal historian Michael Klarman.  The title:  From the Closet to the Altar.  Georgetown law prof David Cole has an interesting review of the book in the current issue of The New York Review of Books, here.

Recommended Reading: The Filibuster Controversy

Great piece on the filibuster controversy by University of St. Thomas law prof Charles Reid:  very informative--and, to me, persuasive.  At The Huffington Post, here.

Apex Predators Eat Hostess Twinkies

by Charles Reid, University of St. Thomas School of Law

"Parasites," we are told, "parasites" have consumed their hostess -- to be exact, Hostess Brands, the company that chose bankruptcy last Friday over dealing with its union. And who are these dangerous parasites? The workers who labored hard and long, in the face of steadily declining wages and benefits. See Robert Tracinski, "The Parasite That Kills Its Hostess," Real Clear Markets, November 19, 2012.

Tracinski is merely parroting the company line in his blame-the-victim column. He has allies, of course, in the right-wing commentariat. Take Rush Limbaugh. He may be a tired-out brand name that has long outlived its shelf life, but he was on the air Friday seeing a dark conspiracy in all of this: "The Democrats are taking the long view here, they're playing the long game. The long game is wiping out the Republican Party, not saving 18,000 measly jobs."

Haven't we had enough of the class hatred? Isn't it time to stop with the takers versus the makers? This right-wing fantasy tale of rapacious unions swamping an honest, struggling corporation is as tiresome as it is untrue.

Let's consider some history.

[The rest of this informative post is here.]

Charles Reid's Post-Election Reflection

Before the presidential election, I posted links to University of St. Thomas law professor Charles Reid's statement of reasons for supporting President Obama in the election, despite Professor Reid's pro-life position on abortion.  Some RLL readers may be interested in Reid's post-election reflection (here), which is focused on philosopher John Dewey.  A brief excerpt:

"Properly qualified, we might do well to reflect on Dewey this November.  He is the philosopher of the common good.  One hopes that the racist dog-whistles and the naked appeals to class hatred (the 'takers' vs. the 'makers') that marked our ugly campaign season can be replaced with the understanding that we are 'in some metaphorical sense all brothers, [that] we are ... all in the same boat, traversing the same ocean.'  (John Dewey, 'A Common Faith,' reprinted in John Dewey, 'The Later Works,' vol. IX, p. 56).

It was John Dewey's optimism that drove the 'can-do period of America's greatest public works, the 1950s and 1960s.  It was his faith in democratic government and an engaged citizenry that breathed life into the great programs for social improvement represented by the New Deal and the Great Society. Following an election that feels much like a bitterly fought, hard-won vindication of those earlier transformative contests of 1932 and 1964, we might do well to reacquaint ourselves with this great American mind."