Here is an announcement for a blockbuster church-state-law conference, "The Future of Freedom of Religion: A Dialogue," sponsored by Sidley & Austin, the American Constitution Society, and Catholic University's Interdisciplinary Program in Law & Religion.
Thursday, April 26, 2007
"Future of Freedom" conference
Yet Another Front in the Battle....
From the trenches of tax law, here's the abstract of an article posted on SSRN by Paul Caron, entitled "When Does Life Begin for Tax Purposes?"
I have written before about what I call “tax myopia” - the tax law's failure to consider insights from other areas of law that would inform the tax debate. (Tax Myopia, 13 Va. Tax Rev. 517 (1994); http://ssrn.com/abstract=799007). One illustration of this theme is how the tax law has ignored insights from other areas of law on perhaps the dominant social issue of our time: when does human life begin? The question was addressed in two tax cases decided over 55 years ago, and then revisited recently.
Although Wilson v. Commissioner, 41 B.T.A. 456 (1940), refused to treat an unborn child as a person for purposes of the income tax dependency exemption, Faulkner v. Commissioner, 41 B.T.A. 875 (1940), treated as unborn child as a person for purposes of the gift tax annual exclusion. The Board of Tax Appeals justified the different results on the ground that the dependency exemption benefitted the parents while the annual exclusion benefitted the unborn child. In subsequent rulings, the Service has rejected this distinction and refused to treat unborn children as persons for both income tax and gift tax purposes. In Cassman v. United States, 31 Fed. Cl. 121 (1994), the Court of Federal Claims recently denied the dependency exemption for an unborn child but accepted the Board's facile distinction permitting unborn children to be treated as persons for tax purposes where they benefit from that treatment. Cassman thus perpetuates the schizophrenic state of the tax law in this area and ignores both basic tax principles and nontax considerations in addressing this pivotal issue.
Casey, Carhart, and the Court's Catholics
Here's an op-ed of mine, now up on Jurist, called "Carhart, Casey, and the Court's Catholics." It's an expansion of the exchange that Prof. Geoff Stone and I had over at the University of Chicago law faculty blog. Here's a bit:
It is true that the majority included “moral concerns” – like the public interest in promoting “respect for life” – among the “legitimate government interests” that could justify the federal ban. It is not clear, though, why we should regard these concerns, or the view that human fetuses are moral subjects whose lives have value, as any more “religious”, and therefore suspect, than our nation’s fundamental commitment to the view that all human beings are moral equals, regardless of race, and should be treated as such in law. For a judge to identify such concerns as a permissible basis for legislating – given the fact that, in the Court’s view, the law did not impose an “undue burden” on the abortion right – is not to attack church-state separation or to substitute revelation for the will of We the People.
It is, of course, hardly a secret that a Catholic justice is taught by his or her Church, and should believe, that abortion is a grave moral evil. However, all judges – Catholic or not – come to the bench with views, commitments, and experiences that shape their decision-making and reasoning. We can, and should, ask of every judge that she work conscientiously in every case to identify not her own preferred or “faith-based” outcome but the answer that is given by the relevant legal texts, rules, and precedents. As it happens, the Catholic understanding of vocation, and of justice under law, extends to Catholic judges the same invitation.
Saint Louis University
Blogger Matthew Fish has an interesting post up about the recent court decision involving the religious nature (or not) of Saint Louis University. (For earlier MOJ comments on this case, go here). Matthew is not a Jesuit-basher, at all (indeed, I gather from his blog that he is considering joining the Society of Jesus) so his reflections struck me as particularly worth engaging. Here's a bit:
[A]ccording to this decision, and what seems to be the case, the Jesuits (today at least) are no longer really in control of their universities, but only merely affiliated. Of course individual Jesuits may be incompetent or may be exemplary in their respective positions, but as a corporate body, it seems that they cannot change these schools in any kind of direct way any longer. For me, this seems to point to the importance of having patience with the present attempts of the Society of Jesus to continue to faithfully live out its charism and renew itself, particularly in its educational apostolates.
Still, the question remains: can we call these (and most Catholic universities then) “Catholic”? Or are our Catholic universities in fact “secular” in mission and identity (at least, insofar as the Constitution may be concerned)?
What hasn’t been mentioned is, in my mind, the greater responsibility possessed by the local ordinary. It is his responsibility as Bishop to hold “Catholic” institutions accountable, as well as protect or warn his flock. A Bishop can always tell a University they cannot call themselves Catholic, offer the sacraments on campus, as well as tell the Jesuits not to operate in the diocese.
In the end, I am left wondering, what does it mean after all to be a
? Does it mean much of anything anymore? Catholic
University
See also, of course, John Breen's "Justice and Jesuit Legal Education: A Critique".
Just for the record ...
In response to Rick's post:
My suggestion that the situation at OHSA should be of concern to all of us for whom the life of every human being is precious--is that a controversial proposition?-- was not an effort to link the controversy over OHSA policies to the controversy over partial-birth abortion. (I still don't know where Rick stands on the OHSA policies.) For the record, and as I explained to my students this week: I think Justice Kennedy got it right in the partial-birth abortion case; that is, even given Roe v. Wade, I think the decision in Gonzales v. Carhart was right.
Just as I think that Justice Kennedy got it right in the death-penalty cases. On the reasonableness/unreasonableness issue: Reasonableness in this context is, I think, a matter of degree. I invite MOJ bloggers and readers to read the three death penalty cases and then decide how a Cathoilic justice--or indeed any justice for whom the life even of the most depraved criminal is precious--should have voted, all things considered--not least, that in each case the life of a human being hung in the balance. (Which opinion(s) would you have joined or concurred in, Rick?)
About the dismissal of the U.S. attorneys: To say, as Rick does, that the White House is entitled to dismiss them is ambiguous. Surely Rick doesn't think that the White House is entitled--either morally or legally--to dismiss them for certain reasons. And to say, as I did in my post, that Rick's position is complacent is to say that Rick gives no indication, in his (shoulder-shrugging) comments, of having taken seriously enough the possibility that the White House dismissed at least some of the U.S. attorneys for morally and legally objectionable reasons.
Response to Michael
Well, Michael, my friend: With respect to hiring and firing U.S. Attorneys, I say ("shrugging [my] shoulders"), the White House is entitled -- of course -- to do what it wants. And, I suspect I am as clear about the merits of OSHA's policies as you are, yet I retain my doubts about whether it makes sense to assimilate debates about OSHA policy to, say, debates about a ban on partial-birth abortion.
As for your comment about the death-penalty cases, I share your admiration for Judge Noonan. That said, I'm curious: Is your claim that -- since, after all, any case that reaches the Supreme Court is one about which reasonable people can disagree -- no decent judge may ever vote against a claim brought by an inmate on death row? You and I agree that the death penalty should be abolished. Does this mean, though, that we are precluded from thinking that not everyone on death row has a winning legal argument?
Wednesday, April 25, 2007
Two Responses to Rick Garnett
1. Rick's comment re the OSHA story (here) strikes me as complacent. (As did Rick's earlier comment about dismissal of the several U.S. attorneys, when the story first broke and I posted a piece by the NYTs Adam Cohen. I could almost see Rick shrugging his shoulders as he said, in effect, what's the problem, the White House and Gonzales are entitled to do what they want, the U.S. attorneys are political appointees after all.) Rick writes: "I have no idea whether OSHA is employing sensible policies or not." Well, I would love to hear what Rick thinks when he has had time to achieve some clarity about the matter. (Just as I would love to hear what Rick now thinks about the dismissal of the U.S. attorneys.)
2. In response to Rick's question to me about the three capital punishment cases decided by the Supreme Court today: If there is room for a reasonable difference in judgments about the proper outcome of the cases, which way should the benefit of the doubt be resolved, when a human being's life hangs in the balance? (I think I know how John Noonan would respond.). Of course, one may say that there isn't room for a reasonable difference in judgments--that Kennedy and the four non-Catholics justices were not merely wrong but unreasonably wrong. Ah, such confidence! But is such confidence appropriate, much less admirable, when a human being's life hangs in the balance?
Getting it right
Commenting on the Court's capital-sentencing decisions today, Michael notes that the 5 Catholic Justices split (1-4) in ruling that the Texas Court of Criminal Appeals -- I'm quoting Lyle Denniston -- "wrongly put up a new legal barrier to a death row inmate's challenge to jury instructions in his sentencing." Michael asks, "which Catholic[s] got it right?"
I don't know. (The opinions are here.) I am confident, though, that the question presented -- whether a defendant's pretrial objections to jury instructions preserved for review a particular constitutional challenge to those instructions -- is one to which the Catholic faith does not supply an answer. Do you disagree, Michael?
"A Pro-Life Issue"
Michael urges -- "urgent[ly]" -- those of us who vote Republican to "do something about the unholy folly [of OSHA employing 'voluntary compliance strategies']. This too, after all, is a pro-life issue."
Is it? I mean, is it a "pro-life issue" in a way that distinguishes it from any question -- or, at least, many, many policies -- of regulatory policy? I have no idea whether OSHA is employing sensible policies or not. But, I am confident that OSHA is not acting in a manner that involves the constitutionalization of a license to kill human fetuses. Certainly, I concede the rhetorical usefulness of calling this a "pro-life issue", but isn't there a non-trivial risk of missing the point associated with suggesting that, say, the question whether the government should fund abortions is really the same, and of the same import, as the question how best to promote workplace safety?
Notice How the Five Catholic Justices Split in these Capital Punishment Cases
And which Catholic(s) got it right? Justice Kennedy or Justices Scalia/Thomas/Roberts/Alito?
April 25, 2007
Supreme Court Throws Out 3 Death Sentences
ASSOCIATED PRESS
Filed at 11:19 a.m. ET
WASHINGTON (AP) -- The Supreme Court threw out death sentences for three Texas killers Wednesday because of problems with instructions given jurors who were deciding between life in prison and death.
In the case of LaRoyce Lathair Smith, the court set aside the death penalty for the second time. It also reversed death sentences for Brent Ray Brewer and Jalil Abdul-Kabir.
The cases all stem from jury instructions that Texas hasn't used since 1991. Under those rules, courts have found that jurors were not allowed to give sufficient weight to factors that might cause them to impose a life sentence instead of death.
The three 5-4 rulings had the same lineup of justices, with Stephen Breyer, Ruth Bader Ginsburg, Anthony Kennedy, David Souter and John Paul Stevens forming the majority.
''When the jury is not permitted to give meaningful effect or a 'reasoned moral response' to a defendant's mitigating evidence...the sentencing process is fatally flawed,'' Stevens wrote in Abdul-Kabir's case
Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas dissented.
Roberts took aim at his colleagues in the majority in dissents he wrote in the Abdul-Kabir and Brewer cases. The court should have deferred to lower court rulings against the defendants because there was no clearly established federal law that judges could have followed to grant relief.
''Whatever the law may be today, the Court's ruling that 'twas always so -- and that state courts were 'objectively unreasonable' not to know it -- is utterly revisionist,'' Roberts said.
Smith was sentenced to die for the murder of Jennifer Soto, a former coworker at a Taco Bell who was stabbed and shot in a failed robbery.
In 2004, the justices overturned Smith's sentence because jurors were not allowed to consider sufficiently the abuse and neglect that Smith had suffered as a child.
The Texas Court of Criminal Appeals reinstated the death penalty, however, saying any errors involving the jury instructions were harmless.
Abdul-Kabir, also known as Ted Calvin Cole, was convicted in 1988 of using a dog leash to strangle Raymond Richardson, 66, during a $20 robbery at his San Angelo home. Abdul-Kabir's lawyers contend the jury that condemned him had no way to take into account the mistreatment and abandonment that contributed to his violent adult behavior.
The same sentencing problems applied to Brewer, convicted of fatally stabbing 66-year-old Robert Laminack, who was attacked in 1990 outside his Amarillo flooring business and robbed of $140. Brewer was abused as a child and suffered from mental illness, factors his jurors weren't allowed to consider, according to his petition.
The 5th U.S. Circuit Court of Appeals had upheld the death penalty for Brewer and Abdul-Kabir.
Forty-seven inmates on Texas' death row were sentenced under the rules that the state abandoned in 1991.
The cases are Smith v. Texas, 05-11304, Brewer v. Quarterman, 05-11287, and Abdul-Kabir v. Quarterman, 05-11284.
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