Mirror of Justice

Sunday, January 6, 2013

Chemerinsky Urges Compulsory Public Schooling and the Elimination (and Unconstitutionality?) of Private Schooling

I am not attending the AALS conference this year, but I thought to reproduce (with permission) a message on a constitutional law listserv that I'm on, written by Pepperdine law professor Mark Scarberry. Mark reports his impressions of a presentation by UC Irvine law dean Erwin Chemerinsky:

Dean Chemerinsky stated, if my memory is correct, that the only way to deal with educational disparities and the problem of (de facto) resegregation of public schools is to require all children to attend public schools and to require that they do so within districts made up of metropolitan areas. That would include suburbs along with inner cities, so that racial integration by busing will be possible. He stated that Milliken v. Bradley should be overruled, so that suburban school districts could be, for these purposes, combined with inner city school districts to allow integration. He also stated that Pierce v. Society of Sisters should be overruled, so that all children could be required to attend these racially mixed public schools. As I understand it, he thinks that only if whites are required to put their children in the same schools as those attended by racial minorities will there be the political will to provide the resources so that minority students can receive a quality education. He said that parents who wanted to have their children receive religious education or other forms of education could have them receive it after school or (I believe he said) on weekends.

I don’t think he meant to say that the right of parents to control their children’s upbringing and education would be eliminated, but that the right should be overridden by a compelling state interest in providing an adequate education to all students. It wasn’t clear to me whether he wanted all the work to be done by the courts, with courts holding that the Constitution requires that all students attend schools on such a metropolitan-area racially-mixed basis (either as a matter of equal protection or as a matter of a fundamental right to an adequate public education) --- or, alternatively, that the Court should allow Congress or states to impose this scheme.

I thought this proposal might be of interest to MOJ readers, and I am opening comments -- though in the comments, it would be best either to get (a) confirmation and/or further elucidation of Dean Chemerinsky's remarks; or (b) analysis of the legal implications of compulsory public education and the overruling of Milliken v. Bradley and/or Pierce v Society of Sisters. There is certainly a pressing need to take seriously the problem of grossly undereducated children in urban and poor areas, and the consequences of Milliken were pretty awful, though what exactly is to be done about that is obscure, at least to me (this is not my area of expertise). But this proposal seems, as Mark later notes, rather illiberal. It also doesn't quite do justice to the reasons for attending a religious school, or any private school for that matter (admittedly, my own educational experience has been entirely within such schools). I also wonder whether Dean Chemerinsky, as part of his proposal, would be favorably disposed to overruling McCollum v. Board of Education, in which the Court in 1948 held that it violated the Establishment Clause for public schools to release students for religious instruction on school premises, taught by teachers outside the public school system. It seems to me that Dean Chemerinsky would probably approve of Zorach v. Clausen (but maybe not, because the released time program was being conducted during regular school hours, let alone all of that “Supreme Being” stuff), where the Court in 1952 approved released time religious instruction off school premises. In conjunction with the (constitutionally mandated?) elimination of private schools, does he envision a larger role for the state (financial or otherwise) in religious education? If not, after private and religious schools are effectively closed down by the state (whether by judges or by legislators), where would students receive the education that their parents, and they, actually want?

Pedophilia as a "sexual orientation"

By Robert George

The logic of expressive individualism and sexual revolutionary ideology relentlessly plays itself out. Is it 1967 for pedophilia? From the British newspaper The Guardian:

http://m.guardian.co.uk/society/2013/jan/03/paedophilia-bringing-dark-desires-light

It's worth reading the whole thing, but here are some key quotations:

"There is, astonishingly, not even a full academic consensus on whether consensual paedophilic relations necessarily cause harm."

"In 1976 the National Council for Civil Liberties, the respectable (and responsible) pressure group now known as Liberty, made a submission to parliament's criminal law revision committee. It caused barely a ripple. 'Childhood sexual experiences, willingly engaged in with an adult,' it read, 'result in no identifiable damage … The real need is a change in the attitude which assumes that all cases of paedophilia result in lasting damage'."

"There is much more we don't know, including how many paedophiles there are: 1-2% of men is a widely accepted figure, but Sarah Goode, a senior lecturer at the University of Winchester and author of two major 2009 and 2011 sociological studies on paedophilia in society, says the best current estimate – based on possibly flawed science – is that 'one in five of all adult men are, to some degree, capable of being sexually aroused by children'."

"A Dutch study published in 1987 found that a sample of boys in paedophilic relationships felt positively about them. And a major if still controversial 1998-2000 meta-study suggests – as J Michael Bailey of Northwestern University, Chicago, says – that such relationships, entered into voluntarily, are 'nearly uncorrelated with undesirable outcomes'."

"But there is a growing conviction, notably in Canada, that paedophilia should probably be classified as a distinct sexual orientation, like heterosexuality or homosexuality. Two eminent researcher testified to that effect to a Canadian parliamentary commission last year, and the Harvard Mental Health Letter of July 2010 stated baldly that paedophilia "is a sexual orientation" and therefore 'unlikely to change'."

"Some academics do not dispute the view of Tom O'Carroll, a former chairman of PIE and tireless paedophilia advocate with a conviction for distributing indecent photographs of children following a sting operation, that society's outrage at paedophilic relationships is essentially emotional, irrational, and not justified by science. 'It is the quality of the relationship that matters,' O'Carroll insists. 'If there's no bullying, no coercion, no abuse of power, if the child enters into the relationship voluntarily … the evidence shows there need be no harm'."

"For Goode, though, broader, societal change is needed. 'Adult sexual attraction to children is part of the continuum of human sexuality; it's not something we can eliminate,' she says. 'If we can talk about this rationally – acknowledge that yes, men do get sexually attracted to children, but no, they don't have to act on it – we can maybe avoid the hysteria. We won't label paedophiles monsters; it won't be taboo to see and name what is happening in front of us'."

"'We can help keep children safe,' Goode argues, 'by allowing paedophiles to be ordinary members of society, with moral standards like everyone else', and by 'respecting and valuing those paedophiles who choose self-restraint'. Only then will men tempted to abuse children 'be able to be honest about their feelings, and perhaps find people around them who could support them and challenge their behaviour before children get harmed'."

Friday, January 4, 2013

Illinois Letters re. Same-Sex Marriage and Religious Liberty

By Thomas Berg

Illinois is considering and seemingly moving toward (although perhaps more slowly than expected) recognizing same-sex marriage. Latest letters from two groups of academics, arguing for religious-liberty provisions, are here, here, and here.

Movsesian on Concerning Developments in the UK

By Marc DeGirolami

My colleague, Mark Movsesian, has a very worthwhile post on a couple of cases in Great Britain involving several infringements of religious liberty that have recently been ratified by the government. Here's a chunk from Mark's post:

In England, a High Court judge recently ruled that employers may discipline observant Christians who refuse to work Sundays.

The case involves Ms. Celestina Mba, who worked as a caregiver in a government-run children’s center. A devout Baptist, she goes to church every Sunday and does not wish to work on that day. When her employer — a government agency, note, in a state with an established church — pressured her to work Sundays, she quit and sued for employment discrimination. She lost at trial and, last month, in the High Court as well.

Why did she lose? English law allows employers to require employees to work Sundays if there is “a legitimate business need.” According to press reports, though, the High Court did not rely on that principle in Ms. Mba’s case. Rather, the court reasoned that Christianity did not require Sabbath observance in the first place. Plenty of Christians work Sundays, the court noted; only a few, like Ms. Mba, see it as a problem. As a result, religious freedom was not seriously implicated by requiring her to work. Employers, the court reasoned, do not need to accommodate outliers like Ms. Mba.

Now, this reasoning is very odd. The fact that some of those Christians who work Sundays might be doing so because they have to — that is, because otherwise they would lose their jobs — apparently did not occur to the court. Moreover, the fact that many Christians see no problem with working Sundays doesn’t mean that other Christians cannot have a legitimate religious objection. Courts don’t usually require that practices be “mainstream” within a religion in order to receive legal protection. Besides, attending church on Sundays is hardly an esoteric practice in Christianity. Many Christians are known to do it — though not in today’s England, I guess.

Thursday, January 3, 2013

Time Magazine: Pro-Life Movement is Winning!

By Greg Sisk

We may lose some political battles, such as the re-election to the White House of the most pro-abortion candidate ever nominated by a major party, but the pro-life cause is winning the war by changing the hearts and minds of our young people.

In this Time issue, Emily Buchanan writes:

Not only does this young generation of pro-life women shun the notion that abortion somehow liberates women; it views abortion as the civil- and human-rights cause of our day.

For more on this very important issue of Time, from a pro-life perspective, see here.

Protestant Communitarianism and Catholic Individualism

By Steve Shiffrin

The common understanding is that Catholics emphasize community and Protestants emphasize the individual. From the Catholic perspective human beings are social animals rooted in a community that begins with the family. Catholic support for the poor is rooted in the recognition that we are all made in the image of God, are all part of the human family, and that the option for the poor is a part of what it means to be a Christian. On the other hand, the common understanding is that Protestants emphasize the individual. One common path from that is a strong endorsement of the capitalistic system (where Catholic thought emphasizes the perils of unregulated capitalism) though quite different conclusions follow from Protestant individualism for evangelicals and mainline Protestants (though there are differences within those groupings). The former tend to limit support of the poor, for example, to the “worthy” poor; the latter tend to be closer to the traditional Catholic view in this respect though not in many others including women, sexual teachings, and the like.

The communitarian/individualistic emphasis seems to be turned upside down on Sundays. The communitarian Catholics turn into individualists at Sunday Mass. It is possible for a visitor to walk into a Sunday Mass (of course, there are exceptions) and be spoken to by no one except a person assigned to hand out a program (of course, contact is made with others when the exchange of the Peace of Christ is made during the service, but the Vatican advises parishioners to stay close to their places). In stark contrast in the overwhelming majority of Protestant churches, it is not possible to walk into them as a visitor without being greeted by many. It is sometimes overwhelming. It is hard to go into such churches and simply pray at the outset of a service. The passing of the Peace in many of these churches is an occasion for greeting most of those present.

I imagine a Protestant walking into many Catholic churches feels unwelcome. A Catholic walking into a Protestant church feels barraged. But there is more. I do not mean to criticize Catholics or Protestants here (I aim to describe general patterns). I believe that the reason Catholics are not as social when they gather for Mass is that there is a sense of the sacred in church, and a sense that the right thing to do is to quietly pray. There is surely no intention to make visitors feel unwelcome. Similarly, Protestants are not trying to make visitors feel uncomfortable. Quite to the contrary, they are simply making clear that visitors are welcome. I wonder, however, what impact this difference in the ritual has on the communitarian sense of Protestant congregations and without arguing against a sense of the sacred, I wonder whether the sense of the sacred works against community bonding in Catholic congregations.

cross-posted at religiousleftlaw.com

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

By Michael Perry

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.

Wednesday, January 2, 2013

An interview about what marriage is

By Robert George

My book with Sherif Girgis and Ryan Anderson, What is Marriage? Man and Woman: A Defense, was recently published by Encounter Books. Brandon Vogt inteviewed me for Our Sunday Visitor Newsweekly about the principal themes, claims, and arguments my co-authors and I advance:

http://www.osv.com/tabid/7621/itemid/10340/Understanding-definition-of-marriage.aspx

Let me also take this opportunity to encourage people to read a splendid new book by Baylor University philosopher Alexander Pruss entitled One Body: An Essay in Christian Sexual Ethics. It appears in the Notre Dame Studies in Ethics and Culture book series. In my review of the manuscript for the University of Notre Dame Press, I said:

"This is a terrific—really quite extraordinary—work of scholarship. It is quite simply the best work on Christian sexual ethics that I have seen. It will become the text that anyone who ventures into the field will have to grapple with—a kind of touchstone. Moreover, it is filled with arguments with which even secular writers on sexual morality will have to engage and come to terms."

John Finnis was similarly enthusiastic in his review:

"Alexander Pruss here develops sound and humane answers to the whole range of main questions about human sexual and reproductive choices. His principal argument for the key answers is very different from the one I have articulated over the past fifteen years. But his argumentation is at every point attractively direct, careful, energetic in framing and responding to objections, and admirably attentive to realities and the human goods at stake."

Professor Pruss has thought as deeply and rigorously about the meaning and moral significance of human sexuality, and about the norms by which sexual choices should be guided and sexual conduct governed, as anyone of whom I am aware writing today.

Reminder: 2013 Conference on Christian Legal Thought in New Orleans

By Michael Moreland

A reminder for those attending the AALS in New Orleans that the 2013 Conference on Christian Legal Thought sponsored by the Lumen Christi Institute at the University of Chicago and the Law Professors' Christian Fellowship will take up the nature of law, based partly on a pending statement on the nature of law from a group of Evangelical and Catholic scholars. The schedule of speakers is below, and you can register here.

Saturday, January 5, 2013, 1 PM to 6:15 PM
Wyndham Riverfront New Orleans
701 Convention Center Boulevard
New Orleans, LA 70130

Conference Topic: The Statement on the Nature of Law from Evangelicals and Catholics

1:15 PM – 2:45 PM: Session One: Christian Perspectives on the Nature of Law
Chair: Michael Moreland (Villanova University School of Law)

William Brewbaker III (University of Alabama School of Law)

Nora O’Callaghan (Loyola University Chicago School of Law)

David Skeel (University of Pennsylvania Law School)

2:45 PM – 3:00 PM: Coffee Break

3:00 PM – 4:30 PM: Session Two: Non-Christian Perspectives on the Nature of Law
Chair: Zachary R. Calo (Valparaiso University Law School)

Bruce Ledewitz (Duquesne University School of Law)

Dan Markel (Florida State University College of Law)

Seval Yildirim (Whittier Law School)

4:45 PM – 5:15 PM: Vespers

5:15 PM: Reception

Tuesday, January 1, 2013

Is the Constitution the Problem?

By Robert John Araujo, SJ

First of all, a blessed new year to the Mirror of Justice community—participants and readers all.

I have found Patrick’s and Marc’s commentaries on Professor Louis Michael Seidman’s December 30 essay published in The New York Times fascinating and illuminating commentaries. Professor Seidman is well-known for his work on Constitutional Law and Criminal Law and Procedure and enjoys a favorable reputation amongst many in the legal academy. Moreover, I enjoyed the several conversations I had with him when I was a visiting professor at Georgetown Law during the summer of 1993. However, I respectfully think that he has misidentified the source of the problems which he addresses in his essay.

It is not the Constitution per se that is the problem; rather, it is people who interpret it, mold its meaning, and administer its provisions. I would agree that the Constitution is not without its limitations or ambiguities, but it is still a remarkable document, especially when the often forgotten Preamble is considered, for within this beginning we, regardless of the time in which we live, can see the eternal wisdom that defines the Constitution’s raison d’être. What might that be? Well, the text spells it out with clarity for any age including that of the Framers and that of today and tomorrow—the community of people formulating the objectives of: forming a more perfect union; establishing justice; insuring domestic tranquility; providing for the common defense; promoting the general welfare; and securing the blessings of liberty for the folks of 1787 and for future generations. This sounds like and is a sensible and durable plan for the fundamental positive law of the nation. So, is it really the problem?

Indeed, it is, as I have said, not without its limitations. But even the Framers foresaw its limitations and made prearrangement for its revision when needed by amendment. Its provisions really are not the source of what is archaic, what is idiosyncratic, or what is “downright evil.” It must not be forgotten that the Constitution is, besides a construction of human effort, a tool in the form of a judicial instrument that is to be used as a principal means for attaining what is spelled out in its Preamble. And, there is nothing archaic, idiosyncratic, or “downright evil” there. By itself, the Constitution does nothing until it is used by the citizens and by those chosen, directly or indirectly by the citizens, to implement its provisions. If there are problems with the Constitution, it is not with the text per se but with those who use and apply it.

The objectives of the Constitution specified in the Preamble were not only noble for the time in which the text was written and adopted. They are durable and ought to apply to any time regardless of what the demands of any time may dictate. The difficulty is not with the text that the Framers developed, but rather how the users appropriate the text and then construe or misconstrue it. The real question and, therefore, the real problem is with the person who does this work—be the person citizen, lawyer-advocate, judge, administrator, legislator, or policy-maker. My contention is that there is a problem, so I am in some agreement with Professor Seidman. But our disagreement is with the problem’s source. His position is that it is with the text; mine is that it is not with the text but with the people who have claimed the authority to use and apply it.

Here I need to be more specific about why I make this claim. For the Constitution to do anything, it needs human agents. By itself, it is inert (as you might glean, I am not a big fan of the doctrine of the “living Constitution”). For it to have activity in human existence, it requires human agents. These agents can accomplish much that is good for the human race, but they can also accomplish mischief along the way. The real source of the problem is how are these agents formed and what do they see as their objectives? When we understand the import of this assertion, we can then better understand how the text, i.e., the Constitution of the United States, is employed and what it accomplishes.

I do not like to identify what I consider to be a problem without offering a solution or a means to one, which I hope is shared by people of good will who have a strong sense of the importance of the common good. One place to begin with the formation of the human agents who have claimed responsibility for implementing the Constitution and its various provisions is to test the degree to which they have been exposed to and adopted the cardinal virtues of courage, prudence/wisdom, forbearance/temperance, and justice. These are all important dimensions of human existence that are allied with the objectives of the Preamble. The issue is, I think, the degree to which the “elites”, to borrow from Professor Seidman whose term this is, have been reared in these indispensable human attributes that are essential for the agents who will determine what the Constitution is about and what it is not.

A great deal more needs to be said about my thesis, but since Professor Seidman has welcomed mature and tolerant debate on the matter of the Constitution, I, for one, look forward to this exchange, which I am sure will demonstrate that the Constitution is not the problem.

RJA sj