Mirror of Justice

Tuesday, November 5, 2013

Douthat on marijuana legalization, gambling, and luxury-libertarianism

This recent op-ed by Ross Douthat is well worth reading. Like Charles Murray (see, for example, his Coming Apart) Douthat is sensitive to the fact that the live-and-let-live nonjudgmentalism/libertarianism of many in America's cognitive and other elites might "work" fine for those elites but is very costly to the vulnerable at the bottom -- and, increasingly, in the middle -- of America's socio-economic ladder. Elites, as Murray noted, often make good choices in life (e.g., they don't abuse drugs, they don't overdo it at casinos, they get and stay married) but they are -- because of their politically-correct nonjudgmentalism -- don't "preach what they practice." Rather, they preach something very different, and something that can, again, be damaging to the vulnerable. As he concludes:

[L]iberals especially, given their anxieties about inequality, should be attuned to the way that some liberties can grease the skids for exploitation, with a revenue-hungry state partnering with the private sector to profiteer off human weakness.

This is one reason previous societies made distinctions between liberty and license that we have become loath to draw — because what seems like a harmless pleasure to the comfortable can devastate the poor and weak.

Review of "Reading Law" by Justice Scalia and Bryan Garner

By Marc DeGirolami

Commonweal has posted my review of Reading Law: The Interpretation of Legal Texts, by Justice Antonin Scalia and Bryan A. Garner. The piece is behind a paywall, I'm afraid. The review reflects on the nature and value of the canons of textual interpretation--the book's primary focus. Indeed, it might have been better if the canons had been the book's exclusive focus. The sections devoted to constitutional theory are not the best parts of the book. The review also discusses the sense in which--notwithstanding the skeptical criticism that has been leveled at them throughout the realist period and thereafter--the canons create something like a linguistic tradition for lawyers. Here is a fragment:

Some of the most interesting studies of law approach it as a distinctive tradition. And like many traditions, law has its own language which informs and suffuses the thought of those who think and speak through it. If the language of the law is not preserved—if it decays through lack of use, disregard, or skeptical dismissal as just so much transcendental nonsense—then the tradition of law dies as well . . . .The core aim of the book is to retrieve and systematize one of the law’s most important and enduring linguistic traditions—the canons of textual interpretation. The canons are not rules as much as rules-of-thumb, presumptions about the meaning of legal texts. Skill in legal interpretation involves the capacity to discern when a canon should, and should not, yield to countervailing considerations . . . .

Reading Law is, as the authors put it, a normative treatise that introduces the language of law to an audience for whom it is largely alien while offering a refresher course for attorneys and judges who have forgotten (or who never really learned) their canons. Like all treatises, the point is not to read through from front to back and I cannot recommend marching through the book’s 414 pages (that’s before the appendices). No one who isn’t looking for it will much miss the “Scope-of-Subparts Canon” explaining the relationship of subparts to parts, or the “Punctuation Canon,” which warns against “hostility to punctuation” and whose examples include various obscure nineteenth-century precedents involving the use of semicolons. But lawyers faced with interpretive problems will find in Reading Law a pathway to a set of linguistic precepts that structure and enrich the tradition of American law. That is a worthy contribution.

Monday, November 4, 2013

Where the D.C. Circuit's analysis of whether a corporation may assert a RFRA claim went off track

By Kevin C. Walsh

A split panel of the D.C. Circuit held last week in Gilardi v. HHS that the HHS contraceptives mandate violates the Religious Freedom Restoration Act. This post is not about the merits of that holding (with which I agree), but about the court's determination that "secular corporations" may not assert a RFRA claim. I think that the court's analysis was flawed and that it reached a wrong decision on this issue. The basic flaw was a failure to examine what constitutes an exercise of religion under RFRA. As I have previously argued, once one recognizes that "a religiously based refusal to do something otherwise required by law is an 'exercise of religion'" within the meaning of RFRA, it is not too difficult to see that corporations can engage in the exercise of religion because they can decide for religious reasons not to do something otherwise required by law.

First, some background:

Gilardi v. HHS was brought by two brothers and their two closely held corporations. These corporations collectively employ approximately 400 employees and sponsor a self-insured health plan that has historically excluded contraceptives, sterilization, and abortion. En route to holding that enforcement of the contraceptives mandate against the corporations violates the RFRA, the court held that the corporations themselves could not assert a claim under RFRA but that the brothers who controlled the corporations could. Judge Brown wrote the principal opinion, joined by Judge Edwards with respect to the issue of who may assert a RFRA claim and joined by Judge Randolph with respect to the merits. Judge Edwards dissented on the merits while Judge Randolph thought it unnecessary to decide whether the corporations themselves could assert a RFRA claim.

Now, some analysis:

RFRA provides that "[a] person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government." 42 U.S.C. § 2000bb-1(c). As the Tenth Circuit explained in Hobby Lobby v. Sebelius, and as appellants argued, "person" generally encompasses corporations pursuant to 1 U.S.C. § 1 (the Dictionary Act). Judge Brown observes, however, that "the focus on personhood [alone] is too narrow; instead, we must construe the term 'person' together with the phrase 'exercise of religion.'"

Until this point, the analysis is correct. The right question to ask is whether a corporation is a "person" that can engage in an "exercise of religion" under RFRA. And to answer this question we need to know what counts as an exercise of religion. The analysis goes off track, however, when Judge Brown surveys Free Exercise Clause caselaw. Nowhere in Judge Brown's analysis does she examine what constitutes an "exercise of religion" under Free Exercise Clause caselaw even though that is the avowed object of her inquiry. Although Judge Brown asserts that "RFRA provides us with no helpful definition of 'exercise of religion,'" Congress declared that the purpose of RFRA was "to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened." Presumably, then, Sherbert and Yoder are good cases to look to for an understanding of what constitutes a proteted "exercise of religion" under RFRA. In each of those cases, the exercise of religion was a religiously based refusal to do something otherwise required by law. Judge Brown's analysis, however, mistakenly proceeds under the (unargued for) notion that the exercise of religion is limited to worship. She writes that "[w]hen it comes to the free exercise of religion . . . the Court has only indicated that people and churches worship. As for secular corporations, the Court has been all but silent." The issue is not whether corporations can worship; the issue, instead, is whether a corporation can refuse for religious reasons to do something otherwise required by law. And a corporation can do this. (See after the jump for relevant excerpts from prior blog posts on this topic.)

Call for Proposals: Feminism, Law, and Religion

By Elizabeth Schiltz

Call for Proposals

Conversations and Workshops on Emerging Scholarship in Feminism, Law, and Religion

March 20-21, 2014

Woulfe Auditorium, Anderson Student Center

University of St. Thomas, St. Paul Campus

On March 20-21, 2013, the University of St. Thomas in Minnesota will be hosting a two-day program continuing a conversation begun by feminist legal scholars and theologians in the recently published collection of essays by feminists of a wide variety of religious perspectives, Feminism, Law, and Religion (Ashgate Press 2013, Failinger, Schiltz and Stabile eds). The book’s authors and others will be exploring the role that theology and religious law from various religious traditions can play in construing and critiquing just law throughout the world. The complete list of panel topics and speakers and conference registration information can be found on the university’s website here.

To enrich and continue this conversation beyond these two days, one segment of the conference will be devoted to supporting emerging scholarship on these issues. We are currently accepting proposals for two different types of opportunities for emerging scholars:

1) presenting a work-in-progress on feminism, law, and religion in a supportive workshop environment;

2) hosting an informal conversation on some particular aspect of this conference with other conference participants.

Scholars interested in either presenting a work-in-progress or hosting a conversation should send a brief (no longer than one page) description of their work or conversation topic to Seanne M. Harris, [email protected] by Nov. 30, 2013. Applicants will be notified of acceptance by December 15, 2013.

Sponsored by:

The University of St. Thomas College of Arts and Sciences, Jay Philips Center for Interfaith Learning, Luann Dummer Center for Women, Muslim-Christian Dialogue Center, Siena Symposiumfor Women, Family, and Culture, and the Terrence J. Murphy Institute for Catholic Thought, Law, and Public Policy at the University of St. Thomas.

Friday, November 1, 2013

"Eccesiastical Exceptionalism"

By Rick Garnett

Check out this piece, at First Things, by James Rogers, called "Ecclesiastical Exceptionalism." Among other things, the paper wrestles with the problems that attend to treating churches -- or the Church -- as one of those "voluntary associations" that we Tocqueville (etc.) fans talk about a lot. (I talk about this matter, too, in this paper: "Are Churches (Just) Like the Boy Scouts?"). Here's a bit from Rogers' piece:

. . . [W]e can ask whether the tendency to rank the Church as just one of many “voluntary associations” has an impact on the way that Christians think about the Church. If the Church is no more than a spiritual version of the Rotary Club, then it is no more than another avenue for our self-expression and self-interest. This way of understanding the Church, to draw on sociologist Ferdinand Tönnies’ phrasing, is to turn the Church from an organ of gemeinschaft(roughly translated as “organic community”) into an expression of gesellschaf(roughly translated as ”civil society). This self-understanding implicitly limits Christians’ aspiration for the Church and for their experience of it.

A "new approach" to adoption in Texas

By Rick Garnett

My friend and former colleague, Elizabeth Kirk, has an essay up at National Review Online about a proposed law in Texas that would require a woman to "receive limited adoption information before obtaining an abortion" and responding to some of the proposal's critics. Check it out.

Exploitation and the Culture of Impunity

By Robert George

High on my list of contemporary heroes are Donna Hughes, a professor of women's and gender studies at the University of Rhode Island, and lawyer Melanie Shapiro. These two fearless and determined women have done more than anyone I know to fight the unspeakable evil of human trafficking. They don't just talk, they act. And that means taking on the powerful and well-funded sex industry, and the "respectable" people wh directly and indirectly profit from it. Sometimes it has also meant taking on the National Organization for Women and the ACLU, as Donna and Melanie did in the fight against the legalization of prostitution in Rhode Island. (These women know what the actual consequences of legalization would be for women trafficked in from southeast and central Asia and eastern Europe and for American teenage runaways.) Today they have an op ed in the Providence Journal. It directly concerns recent incidents in a "gentleman's club" (a minomer if ever I saw one) in Rhode Island and a prosecution following from those incidents, but its message against the "culture of impunity" in which exploitation thrives is one that is relevant across the country.

The officials of Rhode Island need to end the culture of impunity for the big pimps, the pimps that operate inside the state, the pimps who call themselves businessmen and have well-connected lawyers and associates. The Providence Police charged that Tapalian was “permitting prostitution” in his Cheaters Club. To Police Commissioner Steven Paré’s credit, he wanted the licensing board to shut down the club. Instead, Tapalian got a penalty that is little more than a cost of doing business. Paré said he will appeal the decision as well.

The Department of Business Regulation should deny Tapalian’s appeal and the Providence Board of Licenses should revisit its decision. The City of Providence should revise its ordinance to prohibit private booths in strip clubs. These can be the first steps to ending the culture of impunity for sex trafficking in Rhode Island.

Read the entire piece here: http://www.providencejournal.com/opinion/commentary/20131101-donna-m.-hughes-and-melanie-shapiro-impunity-for-sex-trafficking-in-r.i..ece

Jennifer Lahl on the dark side of the "assisted reproduction" industry

By Robert George

Today at the indispensable site Public Discourse, Jennifer Lahl casts a bright light on features of "assisted reproduction" that the industry has shoved into the darkness:

We find ourselves in a world in which a global multi-billion-dollar per year fertility industry feeds reproductive tourism. Women old enough to be grandmothers become first-time mothers, and litter births like the Octumom's . . . are distressingly common. Pre-implantation genetic screening, which is in reality a "search and destroy" mission, has become the modern face of eugenics. Grandmothers are carrying their daughters' babies (their own grandchildren) to term. Doctors are now creating three-parent embryos using DNA from two women and one man. Single-by choice mothers and fathers, same-sex parents, and parenting partnerships between non-romantically involved couples have become "The New Normal."

The entire essay is available here: http://www.thepublicdiscourse.com/2013/11/11111/

Jennifer Lahl is producer of the the important documentary film Eggsploitation. Her new documentary film on the exploitation of poor women for the reproductive purposes of the affluent, Breeders: A Subclass of Women? will be released soon.