Today's newspapers are reporting that the United Kingdom is about to register gay and lesbian partnerships under a new Civil Partnerships Act. Moreover, the Associated Press reports:
Britain's navy, which until five years ago banned gays from its
workforce, said Monday it is joining a campaign to ensure homosexual
employees are fairly treated.
The military also announced gay
servicemen and women will be able to live in married quarters with
their partners starting later this year.
The Royal Navy said it
was entering a program organized by gay rights group Stonewall which
advises employers on dealing with gay, lesbian and bisexual staff.
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The
government lifted a ban on gays serving in Britain's armed forces in
2000 after a lengthy campaign spearheaded by Stonewall. The Ministry of
Defense had said lifting the ban would undermine morale and fighting
capability, but the European Court of Human Rights ruled in 1999 that
the restriction was a violation of human rights.
``The armed
forces regard sexual orientation as a private matter,'' a Defense
Ministry spokesman said Monday. The Royal Navy's decision to join the
Stonewall Diversity Champions program was ``part of our equal
opportunities and diversity policy anyway,'' he added.
During the first year of the program, seminars, pamphlets and specific advice will be on offer for servicemen, Stonewall said.
Lt.
Cmdr. Craig Jones, who has served with the Royal Navy for 16 years but
has only been openly gay for the last five, described the move as
``superbly positive.''
Navy spokesman Anton Hanney said gay and
lesbian couples would be able to live together as long as their
relationship was registered under the new Civil Partnerships Act. The
Ministry of Defense said the move applied to the army and air force as
well as the navy.
Civil partnership legislation, which gives gay
couples some of the same legal rights as married heterosexuals, has
been passed by Parliament and is expected to take effect later this
year.
``We will be complying with the law. We are obliged to give
equal treatment to gay and lesbian partnerships under these terms,''
Hanney said.
All this is to the good, in my judgment. Why? Some of the discussion in chapter 4 (pp. 55-80) of my book Under God? Religious Faith and Liberal Democracy (2003) is relevant.
I received recently, and am working through, a book by Professor Samuel J.M. Donnelly, of the Syracuse University College of Law, called "A Personalist Jurisprudence, The Next Step: A Person-Centered Philosophy of Law for the Twenty-First Century." Here is the publisher's blurb:
In 1880, Oliver Wendell Holmes, Jr., defined law as the predictions of what courts would do. Others, particularly his intellectual opponent Christopher Columbus Langdell, perceived law as a system of language and rules. This book offers an interpretation of American law and a method for judicial decision making. Donnelly offers a vision of American law “as an activity engaged in by a variety of players including judges, advocates for the plaintiff and defendants, law reformers, scholars and perhaps all of us.” A central argument is that law is concerned with persons and their relations. Arguably, during the 20th century there was, in jurisprudential thought, a step-by-step, piecemeal recovery of a role for the person in the law. The next logical step in the 21st century is an explicitly person-centered jurisprudence as interpretation of American law.
Here is a link to the book's introduction. I have not read enough to have an informed opinion about the book, but it certainly looks like the kind of thing that would be of interest to MOJ readers. If any of my colleagues have read it fully, I'd welcome their views.
Rick
From this morning's online Chronicle of Higher Education:
* IN A SHARPLY DIVIDED VOTE, a United Nations committee passed
a nonbinding declaration on Friday prohibiting all types of
human cloning that are incompatible with "human dignity" and
the protection of "human life." The United States praised the
measure, but other nations criticized it for failing to
distinguish between types of cloning.
For the UN Press Release, with all the details, click here.
Sunday, February 20, 2005
A couple of quick points in response to Rick's defense of Justice Thomas's administration of the judicial oath to Justice Parker: First, do most judges today conceive of their oath as being sworn to God? The dictionary definition of an oath is that of a "solemn, formal declaration or promise to fulfill a pledge, often calling upon God or a god as witness." I think that's quite different than Justice Thomas's understanding that judges are somehow making the promise to God directly. (I'm sure many today would go further and insist that "so help me God" is akin to "under God" in the pledge.)
Second, I don't think we can disconnect the import of Justice Thomas's statement from the context in which it was offered. To borrow from Stanley Fish, this seems an obvious instance where meaning is created by the audience. Just as we can't understand Reagan's famous speech on states' rights without acknowledging the audience to whom it was delivered (in Philadelphia, Mississippi), Justice Parker's past looms large here. If Justice Thomas was presenting a public lecture on his understanding of judicial oaths, no problem. But he was administering the oath to an individual who has repeatedly shown an inclination to equate his judicial responsibilities with his religious responsibilities. Just to cite one example from his campaign, Justice Parker dismisses the case for gay marriage with the less-than-helpful reasoning that "the rule book on marriage has been around since the Garden of Eden." I'm sure that Justice Thomas could have provided much valuable insight and wisdom to Justice Parker; an instruction that his judicial promise is to God, not to the people or the law, is not something that Parker really needs to hear. I have no idea how frequently Justice Thomas performs these private inaugurations for state court judges; if it's somewhat routine, perhaps he just recycled a talk without being cognizant of Parker's background. I agree with Rick that the event should not be blown out of proportion, but Justice Thomas can't escape culpability altogether for an episode that displays either a lack of due diligence or a lack of judgment.
Rob
With all due respect to my friend Rob, I guess I don't see anything particularly worrisome about Justice Thomas's (reported) statement, during the swearing-in of Alabama's Justice Tom Parker. (I agree, though, with Rob that Parker's mentor, Roy Moore, "dealt a significant blow to those of us who advocate for a religious presence in the public square" and also wish that Justice Thomas -- for whom I have huge respect -- had not participated in swearing in Justice Parker, who has a troubling record.)
According to one blogger, who personally transcribed Parker's remarks, Parker said:
Just moments before I placed my hand on the Holy Scripture, Justice Thomas soberly addressed me and those in attendance. He admonished us to remember that the worth of a justice should be evaluated by one thing, and by one thing alone: whether or not he is faithful to uphold his oath - an oath which as Justice Thomas pointed out is not to the people; it's not to the state; it's not even to the Constitution, which is sworn to be supported, but it is an oath which is to God Himself.
Assuming, of course, that Justice Parker recalled accurately Justice Thomas's statement, it seems to me that what Justice Thomas said is quite correct (or, at least, perfectly reasonable): A judge's oath -- and a judge's faithfulness to his or her oath -- is an all-the-more-weighty matter because it is not "to" the state or "to" the Constitution -- although, of course, it is the "Constitution" "which is sworn to be supported" -- but is "to God Himself."
So, in response to Rob's question -- "was Justice Thomas suggesting that a judge's accountability is not to the people, or the Constitution, but to God?" -- I think the answer is, pretty clearly, "no." (Or, "not in any troubling sense.")
It is unfortunate, though, that the incident appears widely to have been misleadingly misreported. As blogger (and law professor) Orin Kerr suggests, it seems that the whole "controversy" (see Legal Times) about Justice Thomas's remarks has been in no small part engineered to advance the agenda of crusading anti-Thomas activist, Barry Lynn, who charges that Thomas "condones religiously based defiance of the federal courts by state officials." Nonsense.
Rick
