Thursday, June 18, 2015
The Supreme Court holds unanimously in Reed v. Town of Gilbert that an Arizona municipality's sign code violates the Speech Clause.
I have a little more here, including a note that, though it isn't a Religion Clauses case and though there were a couple of concurrences in the judgment only in Reed, this case continues the Roberts Court's uniform voting pattern in law and religion-related cases of either 9-0 or 5-4. For more discussion of this question, see this paper.
The Supreme Court decided today that Texas did not violate the First Amendment's protections for free speech by denying the Sons of Confederate Veterans the ability to have a state-issued specialty license plate for their group. The Court held that Texas's license plates are government speech, and the Free Speech Clause does not bar the government from controlling the content of the government's own speech.
The government-speech theory that won the case was Texas's lead theory all along. This theory did not seem to fare very well at oral argument. But that only goes to show that oral argument is not always an aid to prediction.
One might wonder whether the unusual voting line-up in today's decision in Walker v. Texas Division, Sons of Confederate Veterans had something to do with the seeming mismatch between oral argument and outcome. Justice Thomas, who almost never speaks at oral argument, voted with Justices Ginsburg, Breyer, Sotomayor, and Kagan, and on the opposite side of Chief Justice Roberts and Justices Scalia, Kennedy, and Alito. Justice Thomas, of course, more regularly votes with the latter cohort. But this was not a contributing factor to the mismatch. Some of the Justices who voted for Texas on government-speech grounds seemed skeptical of those grounds at oral argument.
The most similar example of argument-outcome mismatch that comes to mind in recent years is McBurney v. Young. In that case, the Court upheld a challenged state law based on a categorical rule that the State led with and held tightly to even while it seemed to face significant headwinds at oral argument.
I would not go so far as to suggest that these two points make a line. But perhaps they can provide pre-opinion, post-argument reassurance to government lawyers when their categorical arguments don't seem to have found much judicial love at oral argument.
I haven't had a chance to read Laudato Si yet, but a group of my colleagues at UST (including my co-director at the Murphy Institute, Billy Junker) just had a conference on these issues here last week, and had this to say in today's local paper. Their conference included a keynote by John Allen, in which he offered some of the predictions and cautions about likely reactions to the encyclical that appeared in this column of his (he calls it "getting ahead of the spin"). Today's column offers an informative historical survey of the evolution of Church thought on these issues.
Wednesday, June 17, 2015
Several times now over the past while, I have resolved but failed to write a post with a link to Charles Alan Wright's tribute to his Texas colleague (and former Notre Dame Law professor) Bernard Ward. I have been stymied by inability to locate a publicly accessible full-text version. I have given up for now. Having recently come across a hard copy of the essay in the course of switching between offices, I've decided that it's worth simply recommending to people interested in law and humanity that they go ahead and figure out a way to get a copy for themselves. Here's a start: Charles Alan Wright, The Wit and Wisdom of Bernie Ward, 61 Tex. L. Rev. 13 (1982).
I will be speaking on the topic "Responses to the 'Hook-up' Culture: In Search of Sexual Integrity" at the World Meeting of Families in September. Here is a summary of my slated talk:
These days it seems as though coarseness has replaced courtship, but there are signs that a new springtime of sexual integrity is dawning. Drawing on personal experience, current data, and the inspiring work of many, Bachiochi tells the curious story of casual sex today. The reality is that fewer people hook up than is perceived; fewer, still, enjoy it. But the hook-up culture remains pervasive and has created a relationship vacuum. Participate in this multimedia presentation to learn more about how young men and women can find long-lasting, fulfilling love.
In terms of a "new springtime," I intend to highlight the courageous work of those associated with the Love & Fidelity Network (and the many college-based groups that have emerged following the Anscombe Society at Princeton), as well as David and Amber Lapp's work, and the new I Believe in Love website, among others.
Should MOJ readers know of other organizations, churches, or individuals that are showing signs of success in helping women and men find both reasons and strength to resist the temptations of the "hook-up" culture, do let me know: [email protected].
I'm very pleased to tell readers about an upcoming conference, "Patents on Life: Through the Lenses of Law, Religious Faith and Social Justice," to be held at Cambridge University, England, on September 4 and 5. (See descriptions here and here.) It is co-sponsored by two institutes focused on Catholic thought and social and legal questions: the Von Hugel Institute at St. Edmund's College, Cambridge, and the Murphy Institute at the University of St. Thomas.
This will be a fantastic occasion bringing Catholic, and more generally Christian, social thought into conversation with law, ethics, and other disciplines on a range of challenging issues with deep implications for human development, social justice, the Church, industry and the marketplace, and the understanding of the human person. The brief online summary of some of the issues:
With the explosion of genetic technology and the drive to access and make use of genetic resources, the issues surrounding the patenting of living things and living material--human, animal, and plant--have become tremendously complex and important. What is the line between patentable scientific creations and unpatentable features of nature? What effects do patents on human genes, or on genetically modified crops, have on people in poverty or in developing countries? What is a fair allocation of indigenous genetic resources among traditional peoples and multinational corporations? What role should moral objections to particular technologies play in determining whether they can be patented? And what do religious insights have to offer on these legal, moral, and social questions?
As the conference links above indicate, we will be treated to an amazing range of speakers: some of the leading patent-law scholars in Europe and the US, current and former judges handling European patent and IP cases, Catholic and other bioethcists, voices from the practicing bar and the biotech industry--as well as several important figures in the Vatican's approach to intellectual property questions, including Abp. Silvio Tomasi, the Holy See's permanent observer to the UN in Geneva; Steve Colecchi, director of the Office of International Justice and Peace for the USCCB; and the Vatican's lead officials on IP issues and on trade negotiations in Geneva.
If you are a reader in Europe, please consider coming to Cambridge in September (information here). If you're in the US, we understand it would be difficult (but Cambridge is beautiful in September!); in any event, we are working on systems for making the conference video available online after the conference ends. At least some of the conference papers will also be published.
The about-to-drop encyclical will call attention to Catholic teaching on ecology and the environment. Catholic and Christian teaching also have a great deal to say about intellectual property issues (see, e.g., some previous discussions here, here, and here)--and with biotech patents, the IP and environment questions overlap. We hope this conference will advance those connections in many ways.
This story by Rachel Aviv of The New Yorker can also be filed in the "horrifying" and "in case anyone accuses you of being scare-mongering to to warn about how quickly and far-off-the-rails we are going when it comes to human dignity" categories. It is about physician-assisted suicide in Belgium for people with non-terminal illnesses. Especially for those with psychological disorders, the distinction in theory between physician-assisted suicide and physician-promoted suicide is difficult to discern in practice.
A good friend sent along, a few days ago, a wonderful essay -- one that I cannot believe I hadn't encountered before! -- by Dorothy Sayers called "Why Work?" "Work," she contends (sounding very much like Laborem Excercens) "should be looked upon, not as a necessary drudgery to be undergone for the purpose of making money, but as a way of life in which the nature of man should find its proper exercise and delight and so fulfill itself to the glory of God." Her critique of what already seemed (50 years ago!) a crassly superficial and consumption-oriented post-War economic situation seems prescient.
Other nuggets include "[t]he only Christian work is good work well done" and "God is not served by technical incompetence; and incompetence and untruth always result when the secular vocation is treated as a thing alien to religion[.]" But, there's a lot more, and the piece certainly does not map nicely onto today's political and partisan lines and distinctions. Check it out.
Tuesday, June 16, 2015
Related to Rick's recent post about the advertising in Spain for a prenatal test for Down Syndrome called "Tranquility", here's an equally frightening essay by Renate Lindeman, a spokesperson for the Dutch parent group Downpride.
She writes:
Denmark was the first European country to introduce routine screening for Down syndrome in 2006 as a public health-care program. France, Switzerland and other European countries soon followed. The unspoken but obvious message is that Down syndrome is something so unworthy that we would not want to wish it for our children or society. With the level of screening among pregnant Danish women as high as 90 percent, the Copenhagen Post reported in 2011 that Denmark “could be a country without a single citizen with Down syndrome in the not too distant future.”
... like other European governments, the Netherlands is currently considering permanently including the NIPT, primarily aimed at Down syndrome, in its prenatal screening program. An American-European-Canadian study on DNA screening for Down syndrome was published in the New England Journal of Medicine this year. Dick Oepkes, chairman of the Dutch NIPT consortium, called results “positive,” stating in a recent interview: “Surveys show women experience waiting for test results arduous. Offering the DNA test as a first step will allow women who consider terminating the pregnancy to make their choice before they have felt the fetus move.”
Lindeman has two children with Down Syndrome. She gets right to the crux of what's really at stake behind the rhetoric of the push for such testing, including what makes the "Tranquility" advertising approach that Rick found so horrifying:
Screening and selection say nothing about the inherent worth of people with Down syndrome. They say everything about the elevation of the capacity for economic achievement above other human traits. My children are fascinating, demanding, delightful, present, annoying, dependent, loving, cuddly, different, unpredictable and completely human, just like other children. They are not a mistake, a burden or a reflection of my “personal choice,” but an integral part of society.
If we allow our governments to set up health programs that result in the systematic elimination of a group of people quite happy being themselves, under the false pretense of women’s rights, than that is a personal choice — one we have to face honestly.
As we await the papal encyclical that will be published this week, my plea to Catholic friends is to receive it in a spirit of willingness to listen and to be taught by the Holy Father. Do not approach it by simply looking for what one agrees with or disagrees with on matters of climate science or anything else. The gift of the papal magisterium to us, the faithful, is just that: a gift--a charism. We are to receive it as such. We can, and no doubt each of us will, appreciate the fact that different teachings or aspects of the teaching contained in the document will be proposed at different levels of authority. That is virtually always true of teaching instruments of this sort. But there will be plenty of time to sort all that out. It should NOT be our first priority. Our first priority should be to open ourselves to learning what is to be learned from the Holy Father's reflections on the physical and moral ecology in the context of the Church's witness to, and proclamation of, the Gospel. We are about to hear the voice of Peter. Our first and most important task is to listen attentively and with open-hearted willingness to be taught.
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