I just finished another semester teaching con law and another effort, which always comes toward the end of the semester, to explore the "life or health of the mother" exception that Roe and Casey require for abortion laws even post-viability. It always takes a while to explain how that exception has been construed in some (but not all) later cases to encompass a wide range of effects beyond physical harms. Did the exception ever really go so far as to guarantee "abortion on demand through all of pregnancy," as many pro-life people have claimed, and what's the status of the exception now? From here on it will be much easier for me to think through and teach these questions, because Steve Gilles (Qunnipiac) has written a great article, "Roe's Life-or-Health Exception: Self-Defense or Relative Safety?," 85 Notre Dame L. Rev. 525 (2010), a reprint of which just came in my mail. It's a model of how to work through an issue and identify how the Court's opinions have handled it, mishandled it, dodged it, etc. As Steve says, the article is essentially descriptive, but "it does make one normative claim: that the Supreme Court’s failure to explain the life-or-health exception’s rationale and scope is utterly irresponsible." Read the piece: it's a great resource.
Friday, April 23, 2010
Steve Gilles on Roe's Life-or-Health Exception
Tuesday, April 13, 2010
Articles: (1) SSM and Religious Liberty, and (2) Religious Symbols
As an associate dean, I've found it next to impossible to have time to post on MOJ. But every once in a while I want to show up to let people know I still exist. So here are abstracts from a couple of new articles I've posted on SSRN.
"What Same-Sex-Marriage and Religious-Liberty Claims Have in Common"
This Article, from a symposium keynote talk, presents a case for adopting significant religious accommodations for objectors to same-sex marriages. My thesis is that there are important common features between the arguments for same-sex civil marriage and those for broad protection of religious conscience. Even though the two are pitted against each other in disputes, the strongest features of the case for same-sex civil marriage also make a strong case for significant religious-liberty protections for dissenters. One implication is that there are good reasons for recognizing same-sex civil marriage. But the other implication is that if a state does so, it should enact strong religious accommodations too, as a matter of consistency and even-handedness.
Among the parallels, both same-sex couples and religious believers claim that their conduct stems from commitments central to their identity – love and fidelity to a life partner, faithfulness to the moral norms of God – and that they should be able to live these commitments in a public way, touching all aspects of their lives. If gay couples claim a right beyond private behavior – participation in the social institution of civil marriage – so too do religious believers who seek to follow their faith not just in houses of worship, but in charitable efforts and in their daily work lives. Therefore, I argue, religious accommodation ought to protect not just churches and clergy, but also religious nonprofit organizations like Catholic Charities, and small businesses like the wedding photographer providing personal services related to a marriage.
"Religious Displays and the Voluntary Approach to Church and State"
This article, from a keynote talk for a symposium on Ten Commandments monuments and other government religious displays, argues that the distinctive constitutional approach to church-state relations in America has been the “voluntary” approach, under which government leaves religious practice to the free decisions and energies of individuals and groups. Several principles within that approach call for invalidating official displays that endorse the religious truth of propositions such as the Ten Commandments. But another key component of the American constitutional approach is that religion remains important to public life: indeed, in America a primary argument for religious freedom and other human rights has been a religious argument that rights are God-given and therefore have priority over government authority. Thus, although religious voluntarism calls for invalidating many government-sponsored religious displays, the rationale for doing so must recognize multiple ways in which religion is relevant to public life at the most fundamental levels. The paper concludes with three suggested means of recognizing that relevance.
Tom
Monday, March 8, 2010
Judge not?
I'm grateful for the friendly tone of Steve's most recent comment, and happy to reflect with him on the important question he raises:
"I wonder in general what the standard is for calling one’s Catholicism into question and I wonder whether [Ted] Kennedy’s actions ever crossed that threshold."
I've already said all I intend to say about Ted Kennedy's conduct, and I've cited biographical works that contain all the gory details. Here I'll say a word in reply to Steve's question about "the standard for calling [some]one's Catholicism into question." I think it is legitimate---and sometimes necessary---to do so when a politician cultivates an image of himself as devout and uses his religion for political gain, yet consistently defies its tenets in the way he lives. Such a politician can scarcely appeal to the "judge not" principle to immunize himself from criticism or to condemn those who expose his hypocrisy.
That is why I opened my very first post replying to Steve with the following points:
"Joseph P. Kennedy, John F. Kennedy, and Edward M. Kennedy (until public revelations of his conduct made it no longer possible) each depicted himself, or permitted his political machinery to depict him, as a man who was loyal in belief and practice to Catholic teaching. They used their professed Catholicism to paint a false picture of themselves for political purposes. They sought to deceive the voting public, Catholic and non-Catholic alike, about the kind of men they were, and they exploited the image they created of themselves as dedicated Catholics who lived by the teachings of the Church."
Had the Kennedys (those I mentioned, not everyone in the family---certainly not Eunice Kennedy Shriver, for example) not ginned up a false image of themselves as deeply loyal to Catholic teaching and exploited that image for politican gain, there would have been no hypocrisy for Professor Arkes, me, or anyone else to point out.
Steve says that he finds attacks on the dead to be unsettling. This is to his personal credit, but I think I can assure him that it is not a function of his "liberal squeamshness." Like Steve, I live in a segment of the world populated almost entirely by liberals. In my twenty-five years as a professor, I've encountered no squeamishness about criticizing dead conservatives---often in the most vituperative terms. You can test this yourself: just mention "Richard Nixon" or "Ronald Reagan" or "Jerry Falwell" in the faculty lounge.
Friday, February 5, 2010
Christian Legal Society Briefs in the Supreme Court
Christian Legal Society v. Martinez, now before the Supreme Court, is a very important case about freedom of association, free exercise of religion, and the definition of viewpoint neutrality. It concerns whether a CLS chapter can be excluded from a limited public forum for student organizations at a public university because it asks leaders and voting members to affirm a statement of faith and refrain from extramarital sexual conduct. CLS's petitioner's brief is here.
Among the amicus briefs filed in support of CLS today is this brief for (among others) various former CLS student-chapter officers, on which Rick Garnett and I are both counsel. The brief emphasizes two points: (1) When the government forbids a religious organization to engage in religion-based selection of leaders, members, etc. (i.e. "discrimination"), the government itself commits discrimination against religious viewpoints, because those viewpoints are singled out as the only animating beliefs that an organization cannot ask that its leaders and members affirm (no law prohibits the Sierra Club, a homeless-advocacy group, or any other idea-based group from enforcing its beliefs). (2) The right to refuse to choose leaders and members who depart from a group's tenets, recognized in the Boy Scouts v. Dale case among others, protects an organization not only from civil liability but from being excluded from a public forum where the government encourages a range of private speech. Among other things, the brief responds to some previous writing by Eugene Volokh arguing against any constitutional right of these student groups to select leaders and members.
Tom
Thursday, January 7, 2010
Analysis of SSM/Religious Liberty Conflicts in New Jersey
In December, Rick posted a copy of the letter from religious-liberty scholars analyzing potential conflicts between same-sex-marriage and religious liberty in New Jersey and proposing a statute accommodating religious objectors when SSM is recognized. Since MOJ has served as an online source for those wanting to read those letters for various states and cite them in articles, briefs, etc., and since the NJ-letter file is now blocked by a security firewall, I am reposting it here. Rick's original post explains the context.
There is a reasonably complete and updated collection of these letters for various states, at this post, which originated last August.
Tuesday, January 5, 2010
Laycock on Preserving Religious Freedom for Religious Organizations Receiving Funding
An important question for both religious-freedom law and civil society is whether religious organizations can receive funding to provide social services without having to compromise their religious character in doing so. The Bush Justice Department issued an opinion concluding that organizations receiving government funding could invoke the Religious Freedom Restoration Act (RFRA) to challenge funding conditions that conflicted with their religious tenets or identity. Now the Obama DOJ has proposed reversing a set of liberal adovcacy groups have urged that the Obama DOJ reverse that interpretation. In response, in this memorandum letter, religious-liberty expert Doug Laycock, in his typical incisive way, explains why RFRA should be held to protect the organization.
CORRECTION TO ORIGINAL POST: see strikethrough above and the language following it. Thanks to Stanley Carlson-Thies at the Institutional Religious Freedom Alliance for pointing out my synapse misfire.
Tuesday, December 8, 2009
More on Cathy Kaveny's Argument (c) re. Conscience
I'd like to second Bob Hockett in arguing that there's more to what Cathy labels argument (c) for accommodation of conscience than she gives it credit. Cathy writes:
c. You could make an analogy to the Americans with Disabilities Act. You could say, "we have an objection to performing an act which is not an essential act of the job, and you should treat it like a moral disability--make reasonable accommodation." This would get you coverage for the pharmacists, and most doctors--not OB/GYNS, probably. And people would have to admit their moral beliefs were a disability--that's a huge problem.
It seems to me that this conflates two analogies, or two components in the analogy, to disability/ADA. One is the use of "reasonable accommodation" as the governing standard for conscienctious-objection claims as for disability claims. The other is the use of disability as the analogy for why conscientious objections should be accommodated in the first place. One can appeal to "reasonable accommodation" as a good standard for handling these cases (analogy #1) without thereby committing oneself to saying that the only normative ground for treating conscience as worthy of accommodation is that it's a disability (analogy #2, which Cathy finds "a huge problem").
"Reasonable accommodation" as a standard is simply the method of giving weight to a claim for accommodation (disability or conscience) but not absolute weight over other interests. In this context, as Bob observed, it means something like, "Make accommodation unless the objection is to a substantial or essential element of the job" (as perhaps carrying a weapon is to policing, while performing abortions is not to medicine). But the reasons why conscience is worthy of being accommodated are hardly limited to (although they might include) "conscience is like a disability." The multiple reasons for accommodating conscience can include (i) the idea that it's at least partly involuntary ("I can do no other," which is sort of analogous to disability); but also (ii) people suffer particularly severely when pressured to give up or violate their conscience, especially religious conscience, because of the pervasiveness of religion to personal identity; and (iii) respecting conscience is an important way for the state to acknowledge its limited status. (There are likely other reasons; and this is to say nothing of Cathy's argument (d), that the particular conscientious objection may be a reminder of a value that society wants to affirm even if it doesn't agree that the particular objection necessarily reflects that value.)
Whatever you think of arguments (ii) and (iii) above, the point is they are independent of the disability analogy. But they might show that conscience is presumptively worth accommodating, and that we should draw on the disability standard as a workable one for calibrating the competing interests.
Monday, December 7, 2009
Cert Grant in Christian Legal Society Leadership-Selection case
See the press release from CLS and the Alliance Defense Fund. It is excellent news for organizational freedom that the Court is willing to look at overturning the Ninth Circuit decision in this case.
The U.S. Supreme Court Monday agreed to decide whether a public university can refuse to recognize a religious student group because the group requires its leaders to share its religious beliefs. Attorneys with the Christian Legal Society and the Alliance Defense Fund Center for Academic Freedom represent a student chapter of CLS, which Hastings College of the Law in San Francisco refused to recognize because the group requires all of its officers and voting members to subscribe to its basic Christian beliefs.
Monday, November 16, 2009
In the Department of "So What Else is New" ...
... Marci Hamilton joins the bishop-bashers in a piece arguing that the Stupak Amendment violates, among other things, the Establishment Clause. No surprise there. The novelty is that she argues that the bishops' effort to assert taxpayers' conscientious objections to abortion funding violates the principle of Madison's "Memorial and Remonstrance Against Religious Assessments." Hmmm ... that would be the Memorial and Remonstrance that was a petition from religious groups (Baptists and Presbyterians) opposing tax funding for something to which they conscientiously objected. There are colorable arguments that the Stupak Amendment goes too far in affecting private funding, but the Establishment Clause is not one of them. (Disclosure: I gave advice to the Democrats for Life of America in connection with the recent abortion-funding issue.)
Saturday, November 14, 2009
NU Conference on Same-Sex Marriage and Religious Liberty
As an academic associate dean, I can handle about one substantive scholarship/advocacy area at a time, and right now it's religious liberty and gay-marriage recognition. This past Thursday saw a fine conference at Northwestern Law School on the topic, and I gave the "keynote" talk, on "What Same-Sex Marriage and Religious-Liberty Claims Have in Common."
I personally have come to find the case for legislative recognition of same-sex marriage to be strong (a position that should in no way be imputed to the co-authors of our letters advocating strong religious exemptions). But my conclusion on the underlying question in no way lessens my commitment to strong accommodations for religious objectors, both organizations and individuals. Indeed, the gravamen of my NU talk was that the very arguments that support recognition of SSM also strongly support accommodation of religious objectors unless they are in a position substantially to block access to marriage. I'll post the full piece when it's written, but here's a summary:
Both same-sex couples and religious objectors argue that they should be able, free from state interference or discouragement, to engage in conduct that is fundamental, in a pervasive way, to their personal identity. . . . Both gay-rights and religious-liberty proponents have had to confront the counterargument that their interests involve only conduct, which the state can presumptively regulate [as opposed to, respectively, orientation or belief]. Both set of proponents respond that when conduct is fundamental to personal identity, the state should weigh that heavily and not burden, discourage, or disfavor the conduct without strong, concrete reasons for doing so. . . . If the centrality of conduct to personal identity supports recognizing same-sex marriage, it also supports broad recognition of rights of religious conscience.
Related to this first commonality is a second: that both same-sex marriage and religious claimants seek to live out their identities in ways that are public in the sense of socially apparent and socially acknowledged. . . . When same-sex couples are told they will receive no more than toleration of their private behavior, they are asked to keep their identities in the closet. But when traditional religious believers are told to keep their beliefs to themselves, or to leave them behind upon entering the world of social services or the commercial marketplace, they too are told to keep their identities in the closet.
This combination of arguments makes a strong case for recognizing same-sex marriage but also recognizing significant religious accommodations [unless] the objector's refusal to serve would impose substantial hardship on the same-sex couple seeking services. . . . This approach presumptively allows both sides to live out their identity without state interference or discouragement. . . . Denials of service do affect gay couples by causing them disturbance and offense, [but] the harm to the objector from legal sanctions is far greater. In most cases, the offended couple can go to the next entry in the phone book or the Google result. The individual or organization held liable for discrimination, by contrast, must either violate the tenets of the faith or exit the service area or livelihood in which she/it has invested time, effort, and money. The state simply does not give the religious objector's identity equal weight if it overrides the living out of that identity on the basis of symbolic harm or offense.
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