Rick raises good questions (here and here) about the constitutional analysis in the Kansas decision striking down the differential "Romeo and Juliet" law. It may be that something more than typical rational-basis scrutiny is going on in these cases. I think, for example, that Romer v. Evans reflects a higher level of scrutiny, and that the Court was unconvincing in interpreting the Colorado constitutional amendment as reflecting nothing more than "animus" against homosexuals, rather than an attempt to protect the conscience of employers, landlords, etc. in Colorado.
But I would also say:
(1) Let's realize how truly severe, and morally unattractive, was the differential treatment in the Colorado [CORRECTION: Kansas] case. Limon, who'd just turned 18 when he had oral sex (non-coerced, the record indicates) with the almost-15-year-old boy, was sentenced to 17 years in prison plus, among other things, registering thereafter as a sex offender (with the public notice, and sometimes harassment, that accompanies registration). Had the oral sex been with a girl of the same age (and even a third offense as was the case with Limon), the maximum sentence would have been 13-15 months and no sex-offender registration. This was perhaps one of the most severe differential applications of the statutory scheme, but a statutory scheme that can authorize that sort of differential certainly lends itself to an inference that the homosexual person himself is being treated as fundamentally and irredeemably flawed and worthy of dismissal. The statute authorizes an "imprison them and throw away the key" attitude toward teenage gay sex while aiming consciously to protect teens engaged in opposite-sex acts based on the judgment that a sexual misstep, even a serious one, in their teenage years shouldn't be treated as irredeemable and destroy their lives. And as our prison system stands now, a multi-year prison term running through one's 20s and 30s, even with possibility of parole in several years (Limon served more than four years, as I recall the facts, before this week's reversal), virtually guarantees the destruction of one's life -- it will be very hard to put it back together. No wonder the attorney general has said he won't petition for cert.
(2) I agree that courts should be reluctant to find nothing but animus, and reluctant to dismiss other rationales as pretextual. But to follow up on Michael's point, shouldn't there some point at which the severity of the differential and the weakness of other rationales for it raise an inference that the law is fundamentally dismissing the defendant as a person of worth and value? I am cautious about such conclusions, because they can easily lead courts to call a moral point of view with which they disagree "animus" -- as is starting to happen with gay marriage. Moreover, review of the proportionality of lengths of sentences is at best a tricky matter for constitutional analysis. But does that mean a court can never identify a true case of dismissal of the dignity of the person whose conduct is bering criminalized?
(3) To take it back to the policy issue ... One thing that is especially harmful about differentials like this, in my view, is that their defenders end up having to argue, or reasonably appear to argue, that the opposite-sex behavior -- behavior that unquestionably contravenes traditional moral standards -- isn't really that much of a concern (in order to argue that it rationally can be treated as non-criminal, or as less serious than the same-sex behavior). I realize that one can logically argue both that a certain category of opposite-sex behavior is bad and that same-sex behavior of the same category is worse. But it's very hard to do this -- at least to justify punishing the same-sex behavior criminally and other not at all or far less severely -- without conveying the impression that the opposite-sex behavior isn't really that harmful. I think, for example, of Professors Bradley and George arguing in an amicus brief in Lawrence v. Texas (on Westlaw, 2003 WL 470066, but I can't find it online) that a legislature could rationally vote to criminalize private consensual same-sex sodomy, but leave opposite-sex sodomy alone because the latter can occur in "potentially or incipently marital relationships" -- a category that, in their argument, extends as broadly as sodomy between "couples who are just beginning to date and who, if all goes well, will soon be considering marriage." It seems to me that these two powerful defenders of the traditional, sex-within-marriage-only view found themselves stuck in the position of minimizing or appearing to minimize the problems of widespread premarital sex -- including sex on the first date, no less! -- or at least suggesting that one could reasonably view them as not big problems. Traditionalists should not want to be put in this position, and they should be furious when legislators put them there.
Tom
Saturday, October 22, 2005
A new article posted on SSRN concerning religious liberty, and the recurring question (as in Employment Division v. Smith) whether to treat free exercise of religion as a nondiscrimination right or a substantive liberty:
"The Equal Protection of Free Exercise: Two Approaches and their History"
BERNADETTE A MEYLER
Cornell University School of Law
Contrary to critics of the Supreme Court's current equal protection approach to religious liberty, this Article contends that, from the very first federal free exercise cases, the Equal Protection and Free Exercise Clauses have been mutually imbricated. The seeds of an equal protection analysis of free exercise were, indeed, planted even before the Fourteenth Amendment within the constitutional jurisprudence of the several states. Nor, this Article argues, should equal protection approaches be uniformly disparaged. Rather, the drawbacks that commentators have observed result largely from the Supreme Court's application of an inadequate version of equal protection that ignores the lessons that the Fourteenth Amendment taught about the nature of group classification and instead, by emphasizing the individual in isolation, downplays her free exercise claims. Considering this tendency within the context of current theories of group rights and antidiscrimination law, the Article concludes that we should resuscitate the now neglected, alternative strand of an equal protection approach to free exercise.
Tom
Tuesday, October 18, 2005
A powerful piece in the Washington Post today, with the opening:
If it's unacceptable for William Bennett to link abortion even conversationally with a whole class of people (and, of course, it is), why then do we as a society view abortion as justified and unremarkable in the case of another class of people: children with disabilities?
I have struggled with this question almost since our daughter Margaret was born, since she opened her big blue eyes and we got our first inkling that there was a full-fledged person behind them. . . .
Margaret's old pediatrician tells me that years ago he used to have a steady stream of patients with Down syndrome. Not anymore. Where did they go, I wonder. On the west side of L.A., they aren't being born anymore, he says.
(HT: Andrew Sullivan)
Tom
I've long enjoyed the Wittenburg Door, the satirical rag sometimes called the "Mad Magazine [or National Lampoon] of the evangelical Christianity." They've been skewering televangelists -- admittedly an easy target -- and other creatures in the bestiary of American religion for nearly 30 years now. (Often hilariously, though sometimes missing the target, as most all satires do.) Check out, for example, the account of a Sotheby's auction of memorabilia associated with C.S. Lewis, the "evangelical saint."
More seriously, the Door also runs good interviews with a variety of figures, and this month's online is with Philip Jenkins (The New Anti-Catholicism, The Next Christendom, etc.). It touches on the priest sex-abuse scandals, the Jesus Seminar, Christianity in the developing World, religion in America vs. Europe, etc. A couple of excerpts on the last two subjects:
DOOR: What's the big picture? What will the mass of Christians look like 50 years from now?
JENKINS: My argument is that one of the big factors will be ethnic. In the United States, looking at the whole population, something like a third of Americans will have either Latino or Asian roots, and the vast majority of those come from backgrounds, which are presently Christian. I think it's quite likely that those people will still continue to be Christian and they will certainly be very dominant voices in the Catholic Church and probably most of the mainstream churches.
Globally, Christianity will be much more of a black and brown religion. The figures I suggest, with all awareness of the queries about numbers, somewhere between four fifths, and five sixths will be in Africa, Asia, Latin America, or from migrant communities in the West. Non-Latino white Christians will represent only about a fifth or sixth of the whole, so Christianity will be much more a black and brown religion.
. . .
DOOR: What do you think of the argument [explains America's greater religiosity on the ground] that America's separation of church and state has caused religion here to be an organic extension of the people, while in Europe it's seen as part of the state, or something that came from the state?
JENKINS: The argument doesn't work very well if you compare [the U.S. to] Britain, because although the Anglican Church was an established church there, it's been a couple of hundred since there was any real enforcement. So there's no real reason why people shouldn't go off and become Methodists or Baptists, and many did. And they lived in those church set-ups and then the secularization thesis kicked in and those churches faded away to insignificance—as they should have done in America but didn't.
So, I genuinely don't know. It's not a religious freedom argument or a separation of church and state argument, because separation of church and state, in most European countries, was always pretty much a formal thing. You were always pretty free to be a Methodist or a Baptist in Britain, so I think you've got a real problem there for sociologists of religion.
Tom
Monday, October 17, 2005
The Christian Century reports:
As Americans set new records for charitable giving in response to Hurricane Katrina, some fund-raisers are seeing a principle confirmed: when the sufferers are perceived as innocent victims, donors respond generously.
But giving patterns suggest that donors are losing interest in chronic problems such as poverty, in which suffering is arguably exacerbated by questionable individual choices. Private donations are shrinking for homeless shelters, AIDS-related services and programs for troubled youth, to cite just a few examples.
Read the full story. If this trend is true, it seems to me that it reflects a failure to make an important distinction between (1) a program that helps people with problems and suffering that are in part the result of their own individual irresponsibility or bad habits, and (2) a program that helps people with such problems and suffering but doesn't work at changing the irresponsible habits. I'm quite happy to happy to say that we should be leery of supporting programs in category #2 because they're not likely to produce long-term changes. The issue there is long-term effectiveness. But it is a different matter to withhold support even from programs that do try to help change individual habits, simply because the individual needing help got himself/herself into the situation in part irresponsibly. The reason for withholding support to that category of programs, it seems to me, is not a desire for effectiveness; it's a simple inclination to punish. (And unless the persons' past acts have been criminal, punishment is not the appropriate, or the Christian, tack to take.)
Tom
Friday, October 14, 2005
From a notice by Democrats for Life of America, soliciting support on the following:
H.R. 2520 recently passed the U.S. House of Representatives [buit has not yet passed the Senate].
The bill, better known as, the Stem Cell Therapeutic and Research Act of 2005 is legislation introduced by Congressman Chris Smith (R-NJ) and Congressman Artur Davis (D-AL).
The bill creates a new federally funded stem cell research program for the scientifically sound collection and inventory of umbilical cord blood. This research has shown promising results. Published studies have shown that cord blood stem cells have the capacity to change into other cells types, which give them the potential to treat many other debilitating conditions such as spinal cord injury, Parkinson's, Diabetes and heart disease. Thousands of patients have been successfully treated with cord blood cells for many diseases including Leukemia and Sickle Cell Anemia.
Tom
... for the next contentious faculty meeting, here. (Hat tip to Red State)
Tonight's panel at Cumberland Law School (Birmingham, AL) on 10 Commandments displays was interesting and entertaining as expected. Jay Sekulow (American Center for Law and Justice) and Professor Marci Hamilton went at it a few times. There was also a good contribution from Dr. Ron Sider, who I admire as a pioneer of "pro-life progressivism" among evangelicals and a leading proponent of the role of faith-based organizations in combatting poverty. Discussion of the issue has special relevance in Alabama because Roy Moore, the judge who rose to fame by putting up 10 Commandments in his courtroom and (as chief justice) the AL Sup Ct courthouse, is now running for governor (the word seems to be, though, that he's not likely to win the GOP primary).
A couple of notes about the panel. FIrst, no one on it was all that hepped on getting 10 Commandments displays or other government symbols erected. Even though Jay defended their constitutionality, he agreed with my argument that cases about (i) free-exercise rights and (ii) equal participation of religion in school vouchers and other benefits programs are far more important to true religious freedom and vitality in modern America.
Second, Marci spoke quite eloquently against imposing on the conscience of atheists through 10 Commandments displays and other government symbols, and argued that the courts need to prevent such impositions through judicial review under the Establishment Clause (because, she implied, you can't trust legislatures). But she contined to set forth her position that religious conscience should not be constitutionally protected from secular laws under the Free Exercise Clause -- in that case, she says, any protection should come from legislatures, not from courts engaging in judicial review. Although there are ways of distinguishing the two situations, it still seems to me that her position gives far more weight to the conscience of the atheist than to that of the religious believer. I'd argue, by contrast, for giving substantial weight to both. It reminded me of the point that BYU law prof Fred Gedicks once noted: according to the governing law, an atheist student who has to listen to a 30-second prayer at graduation ceremonies suffers an unconstitutional burden under the Establishment Clause (Lee v. Weisman), but (under the Mozert 6th Cir. decision of 1987) a fundamentalist student who has to listen day after day in public school to secular lessons that conflict with his or her faith suffers no constitutional burden under the Free Exercise Clause. Something screwy there.
Tom
