Brief Response to Tom Berg

Thanks very much, Tom, for engaging my brief commentary in Commonweal on United States v. Windsor.

1.  I explicate the right--the human right--to religious and moral freedom, and explain why we are warranted in concluding that the right is entrenched in the constitutional law of the United States, both in my new book and, more recently, in an article that will soon be published in the Journal of Law and Religion.  The article is available here.

2.  You ask:  "Michael, given your argument, do you think that Roe and Casey were rightly decided--and rightly decided simply because restrictions on abortion are 'widely contested' (without some need to establish that they seriously impose on women's physical autonomy or life plans)?"  The way you formulate your question reflects, I think, a misunderstanding of the content of the right to religious and moral freedom.  About the right, please see my first response, above.

About the constitutional controversy over the criminalization of abortion:  In the final chapter of my new book, I bring both the right to moral equality (which I explicate in the book) and the right to religious and moral freedom to bear on the Abortion Cases--and conclude both that Roe v. Wade was rightly decided (which is not to say, rightly reasoned), principally because of the right to moral equality, and that Doe v. Bolton was wrongly decided.  In reaching that twofold conclusion, I am aligned with what I understand to be the position my former teacher Ruth Ginsburg expressed when she was a member of the U.S. Court of Appeals for the D.C. Circuit.

3.  I've already referred twice to my new book, Human Rights in the Constitutional Law of the United States (2013), the official publication date of which is July 31, 2013.  The table of contents and introduction to the book are available here.

4.  Space contraints did not permit me to develop adequately my Commonweal critique of SCOTUS's opinion in United States v. Windsor.  I will present the full critique in the context of a lecture that I am due to deliver at the University of Illinois on November 6:  The David C. Baum Lecture in Civil Rights and Civil Liberties.  I will make the lecture available shortly after I deliver it.  In the lecture, I will explain why, in my judgment, the right to equal protection--which is the American articulation of the internationally recognized human right to moral equality--is not the appropriate basis for ruling that it is unconstitutional for government to deny access to civil marriage to same-sex couples.

So, to be continued ...