Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, March 3, 2011

Why not strict scrutiny?

By Rob Vischer

We've already noted President Obama's recommendation that laws discriminating against gays and lesbians be subject to heightened scrutiny -- i.e., that rational basis review of bans on same-sex marriage is not appropriate.  The question that hasn't received much attention, though, is why did Obama stop with intermediate scrutiny (the standard applied to gender discrimination)?  Why didn't he endorse strict scrutiny (the standard applied to racial discrimination) as the appropriate standard for laws discriminating against gays and lesbians?  Jason Mazzone weighs in:

[A]nother explanation for the administration's choice seems unavoidable: the administration picked the level of scrutiny least likely to alienate Black voters. Numerous polls demonstrate that Blacks constitute the ethnic group least likely to support same-sex marriage and by a significant margin (though perhaps as Obama's thinking "evolves" on same-sex marriage, other Black voters might change their minds as well). For many years, (certain) Black commentators have expressed offense at any comparison between racial prejudice and discrimination on the basis of sexual orientation. In particular, comparisons between bans on same-sex marriage and anti-miscegenation laws have drawn sharp criticisms. It follows that Blacks will be the least likely group to accept the administration's argument for special constitutional protections for gays and lesbians--especially when it comes to same-sex marriage.

So the administration is playing to both sides: recognizing the need for stronger protections for gays and lesbians while leaving race as a special category that deserves the strongest judicial protections. In this way, the administration can avoid (or try to avoid) any need to argue that the prejudice underlying the historical bans on interracial marriage has a contemporary manifestation.

Can you come up with any reasons to choose intermediate over strict scrutiny that are not rooted in political considerations?

The Pursuit of Intimacy and Parental Rights

By Rob Vischer

Since we're on the subject of parental rights, here's another new paper (this one by Scott Altman) that explores a different approach as a basis for parental claims: the value of intimacy.  Here's the abstract:

This paper explores whether parents’ rights to live with their children and to deny others access to those children are justified by the more basic right to form and maintain intimate relationships. Many theories treat parental rights as derivative – indirectly justified by children’s interests. This paper asserts a nonderivative justification based on the value of intimacy to parents.

The paper initially explores the potential intimate relationship between a father and his newborn genetic child. It asks whether the interest in parental intimacy creates any reason to demand access to this particular child. Just as a right to intimacy provides no claim that a particular stranger become my friend, the right to become a parent seems to provide no justification for demanding access to a particular child. The paper argues that duties to care for genetic children – even controversial duties not widely accepted – provide a prima facie right to care for a genetic child. The right to establish an intimate relationship derives from a duty to do so.

The paper next considers rights to maintain ongoing intimate relationships with children. These are often challenged when grandparents or step-parents seek visitation over a parent’s objection, or when a custodial parent seeks to relocate after divorce. I explore two common interpretations of these conflicts, which are pervasive in both legal and moral relationships: that people who knowingly make themselves vulnerable assume risks of loss, or that people who knowingly accept another’s vulnerability owe duties not unreasonably to disappoint those who rely on them.

The paper concludes by considering whether broad parental authority – to exclude others and to direct the upbringing of children – can be justified by the parental right to intimacy. I do not believe intimacy can justify such rights. But I explore briefly alternative parental interests that could ground this right – interests that compare parents with artist and other creative workers.

Wednesday, March 2, 2011

The Woman's Movement: Has it Stalled?

By Elizabeth Schiltz

....that was the headline on the front page of our local paper today, over a story about this report released yesterday by the White House:  "Women in America:  Indicators of Social and Economic Well-Being."  The findings are old news to most of us, if we look around at our own work places.  Despite the fact that more women are increasingly more likely than men to have a bachelor's or master's degree, and that the numbers of women and men in the labor fource are almost equal, "At all levels of education, women earn about 75% of what their male counterparts earned in 2009.  In part because of these lower earnings and in part because unmarried and divorced women are the most likely to have responsibility for raising and supporting their children, women are more likely to be in poverty than men.  These economic inequities are even more acute for women of color."

What does it look like where you work?  How do the numbers of women colleagues at your level compare to the numbers of women who graduated from law school with you?  I suspect almost all of us would have to say we've lost a couple (or five or six) somewhere along the way.  The statistics in this forthcoming article substantiate that conclusion for law firms; I've documented the same on law school faculties in this article.  

Does that bother you?  Is there anything that can be done about it?  Start by taking a look at the parenting leave policies at your own workplace.  Do they make it possible for a woman who has more than one child to stay employed, let alone keep climbing up the ladder toward positions of the highest responsibility and salary?  If not, maybe that's one place to start chipping away at the persistent (and clearly complex and multi-facetted) feminization of poverty.

 

Free Speech Absolutism

By Marc DeGirolami

The Supreme Court has issued Snyder v. Phelps, the case about the Westboro Baptist Church's desecration of a serviceman's funeral by picketing the funeral with outrageous signs at about 1,000 feet in distance from the funeral site.  When the funeral attendees processed out, they came within 200-300 feet of the protesters, and the deceased's father could see the tops of the signs, though not what was written.  The father later saw the whole abomination on the Internet, along with further personally offensive and deeply hurtful material directed against his son.  The Church won.  Though I am not surprised by the judgment, I respectfully disagree with it, and I have to say that I am surprised by the fact that there was only one dissent (Justice Alito).

In the first place, Chief Justice Roberts raises a number of facts that the majority finds salient that I simply don't: the Chief Justice says, for example, that the picketers "did not yell or use profanity."  For me, carrying signs saying “God Hates the USA/Thank God for 9/11,” “Thank God for IEDs,” “Thank God for Dead Soldiers,” “God Hates Fags,” “You’re Going to Hell,” and “God Hates You" is quite profane enough (vulgar, that is to say popular, profanity is not the only variety).  Second, I disagree that signs displayed at a funeral and directed at the congregants containing the phrase "You're going to Hell" or "God Hates You" are at all matters of public concern, and I agree with Justice Alito that mixing in some statements that ostensibly are "public" ought not categorically to immunize the expression.  Third, this speech occurred right next to a private funeral -- its context was plainly private.  I recognize that technically, formally, the protesters were situated on a public street.  But that fact does not, in my view, do justice to what a "contextual" analysis ought to be all about.

Finally, and most importantly, I disagree with the Chief Justice's statement that "any distress occasioned by Westboro’s picketing turned on the content and viewpoint of the message conveyed, rather than any interference with the funeral itself."  That is true, again, only if one takes an exceptionally narrow view of what funerals are all about.  Funerals are not simply occasions bounded in time and space by the beginning and end of the proceedings at the burial.  Funerals are symbolic occasions to honor, mourn, and remember the dead.  Their meaning and value extends well beyond the time between the moment of the cleric's first utterance and the moment that the body falls to earth.  I recognize that this conception of a funeral creates problems of line-drawing.  So be it.  Whatever those problems might be, they are not implicated here, where protesters were only feet from the event itself and where their protest was flamboyantly and spitefully flaunted immediately thereafter.  And far better to trouble ourselves about slippery slopes than to sacrifice one of the most cherished values that we and so many civilized peoples hold dear -- the value of honoring the dead -- on the altar of free speech.

Speech is, indeed, powerful, as the Chief Justice rightfully says.  And it is precisely for that reason that speech rights ought to be strong, but not absolute; protected, but not inviolable.  A regime of free speech absolutism even when we deal exclusively with matters of "public concern" (which was not the case here) is not, in my view, consistent with a state's responsibility to cultivate, to the extent that it can, the social and moral ecology of its people.

Follow Shariah? Go directly to jail.

By Rob Vischer

A new entry on the ledger of anti-Muslim hysteria: A bill has been introduced in the Tennessee legislature that would make it a felony to follow Shariah law.  OK, I understand the concern about Shariah law being allowed to subvert civil law, but making it a crime for an individual to follow the dictates of their religious tradition?  If we are concerned about some elements of Shariah law having the potential to lead an individual to commit acts of violence or treason, let's focus on the violence or treason, not the purported religious justification for the acts.  For the good of all concerned, I hope the bill meets a quick and painless demise in committee.  (It will meet its demise in the courts, at the very least.)

J. Brian Benestad's book on Catholic Social Doctrine

By Richard Myers

J. Brian Benestad's book "Church, State, and Society: An Introduction to Catholic Social Doctrine" has just been released by The Catholic University of America Press. Here. It is difficult to find a relatively brief account of the Church's social teaching, although the Compendium of the Social Doctrine of the Church is the best place to start. Here. Benestad's book, which I have not yet had a chance to read in full, looks like a very useful introduction. His linking "understanding and living" Catholic social doctrine with "living the whole Christian faith," including the life of holiness to which we are all called, seems particularly valuable.

Richard M.     

A free marketplace of ideas (except . . . )

By Rob Vischer

Clyde Haberman is troubled by the quick removal of the anti-abortion billboard in NYC. 

The "sweet mystery of life" passage and conscience protection

By Rick Garnett

Prof. Mark Rienzi writes, at Public Discourse, and adapting (I think) a longer law-review piece, that the Court's Casey decision provides support for a constitutional conscience right of health-care providers to refuse to perform abortions.  Worth reading.

The British Foster Parenting Case

By Robert George

I've always been baffled by the perception of so many of my socially liberal friends and acquaintances that it is the social conservatives who are the principal aggressors in the "culture war." It has always seemed obvious to me, beginning with the campaign to legalize abortion and make it as widely available as possible, that the opposite is true. The British foster parenting case and controversy settles the issue, I think.

Tuesday, March 1, 2011

A Step Further Away from the Law

By Robert John Araujo, SJ

Earlier today Rob posted a notice of the recent action taken by the High Court of Justice, Queen’s Bench Division directed against a Christian couple and quoted from N. 93 of the approved judgment in Eunice and Owen Johns v. Derby City Council on the suitability of observant Christians to be foster carers (parents) in the UK. The full decision is here [Download Johns_Approved_Judgment]. Later on in N. 102, the court raises the question of the status of the freedom of religion and the refusal of the would-be foster parents to compromise the tenets of their Christian faith. The court holds that there is only a “qualified” right founded on religious freedom [the court’s italics] based on the authorities upon which it, the court, relies. The court then asserts that there are other interests at stake, and this “will be particularly so where a person in whose care a child is placed wishes to manifest a belief that is inimical to the interests of children.” (My italics)

So, the court holds and imposes the view that Christian beliefs which do not embrace homosexuality are “inimical to the interests of children.” I would suggest that the court, for whatever reason or no reason, overlooks other law that is applicable to this case. In this age when international law is often relied upon to help direct judicial decision-making, the court in Johns v. Darby City Council fails to acknowledge the fact that the UK is a party to both the 1966 International Covenant on Civil and Political Rights (ICCPR) and the 1966 International Covenant on Economic, Social, and Cultural Rights (ICESCR). Article 18(4) of the ICCPR states that “The States Parties [here the UK] to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.” Article 13(3) of the ICESCR presents an almost identical requirement “to ensure the religious and moral education of their children in conformity with their [the parents] own convictions.” It would then seem that the High Court of Justice failed to take stock of pertinent law to which the UK is bound assuming that foster carers hold the status of legal guardians.

The justifications for these provisions of the two 1966 Covenants are found in the working papers of the Universal Declaration of Human Rights where the drafters of the declaration knew that they had to preserve the rights of parents regarding the moral and religious education of their children which had first been compromised and then eviscerated by National Socialism. It appears that the High Court of Justice failed to take stock of this as well.

So what does Catholic legal theory have to say about all this? In 1965, one year before the ICCPR and the ICESCR were finalized, the Second Vatican Council in Dignitatis Humanae Personae, the Declaration on Religious Liberty, stated that,

Parents, moreover, have the right to determine, in accordance with their own religious beliefs, the kind of religious education that their children are to receive. Government, in consequence, must acknowledge the right of parents to make a genuinely free choice of schools and of other means of education, and the use of this freedom of choice is not to be made a reason for imposing unjust burdens on parents, whether directly or indirectly. Besides, the rights of parents are violated, if their children are forced to attend lessons or instructions which are not in agreement with their religious beliefs, or if a single system of education, from which all religious formation is excluded, is imposed upon all. N. 5.

Additionally, in 1983, the Pontifical Council for the Family issued the Charter on the Rights of the Family, and it had this to say about the issues found in the Johns case:

a) Parents have the right to educate their children in conformity with their moral and religious convictions, taking into account the cultural traditions of the family which favor the good and the dignity of the child; they should also receive from society the necessary aid and assistance to perform their educational role properly. b) Parents have the right to freely choose schools or other means necessary to educate their children in keeping with their convictions. Public authorities must ensure that public subsidies are so allocated that parents are truly free to exercise this right without incurring unjust burdens. Parents should not have to sustain, directly or indirectly, extra charges which would deny or unjustly limit the exercise of this freedom. c) Parents have the right to ensure that their children are not compelled to attend classes which are not in agreement with their own moral and religious convictions. In particular, sex education is a basic right of the parents and must always be carried out under their close supervision, whether at home or in educational centers chosen and controlled by them. Article 5

It would seem, then, that if the court were to revisit the issues in this case, it would need to take account of the two 1966 Covenants. Moreover, if a Catholic family were to find itself in the situation confronting the Johnses, they would also be guided by the principles of Dignitatis Humanae Personae and the Charter of the Rights of the Family.

 

RJA sj

 

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