Apropos the discussion last week with Robby George about the need for care in making claims about the potential of stem-cell research (adult as well as embryonic), see this story.
Tom
Sunday, July 16, 2006
Adult Stem-Cell Research Controversy
Saturday, July 15, 2006
In case you're interested ...
Some MOJ-readers may be interested in a piece I have in the current issue (7/14/06) of Commonweal--a piece titled The Morality of Human Rights: A Problem for Nonbelievers. To read the piece, click here. (If anyone has any comments, I'd love to hear them: [email protected].)
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mp
Friday, July 14, 2006
Human Dignity and Human Rights Law
Check out this overview of the concept of human dignity in human rights discourse and law, by leading scholar Christopher McCrudden (with frequent nods to MOJ friend Paolo Carozza). Excerpts:
[A]lthough we see judges often speaking in terms of "common principles for a common humanity," in practice this is rhetoric, however well intentioned and sincere. The apparently common recognition of the worth of the human person as a fundamental principle to which the positive law should be accountable in fact covers up the use of dignity in human rights adjudication to incorporate theoretically significantly different approaches to the meaning and implications of such worth, enabling the incorporation of just the type of ideological, religious and cultural differences that a common theory of human rights would need to transcend. The "common enterprise" that I identified in my earlier article is not “the working out of the practical implications, in differing concrete contexts, of human dignity for the rights to life and physical integrity,” as Carozza would have it (Carozza, at 1081-2), but rather the use of the concept of human dignity to provide an apparently universalistic and principled surface justification for an enterprise that is better understood in functionalist terms. . . .
[Dignity’s role], in practice, is to enable local context to be incorporated under the appearance of using a universal principle. Dignity, in the judicial context, not just permits the incorporation of local contingencies in the interpretation of human rights norms, it requires it to an extent that the ideal of universalism is severely undermined. Dignity remains as a place-holder but in the judicial context it is a place holder that allows each jurisdiction to develop its own theory of human rights.
Tom
Bastille Day
Today is Bastille Day, and so thoughts turn -- naturally! -- to the Terror, the September Massacres, the "Temple of Reason," the suppression of religious orders and the confiscation of church property, and the genocide in the Vendee. (Here is a recent essay, by Sophie Masson, "Remembering the Vendee," that might be of interest). And also, maybe, to some recent, relevant thoughts of Pope Benedict XVI:
Although the Holy Roman Empire had been in decline since the late Middle Ages, and it had faded also as an agreed-upon interpretation of history, it was not until the French Revolution that the spiritual framework it provided—and without which Europe could not have been formed—would shatter in a formal sense. This process had a major impact on both politics and ideals. In terms of ideals, there was a rejection of the sacred foundation both of history and of the state. History was no longer measured on the basis of an idea of God that had preceded it and given it shape. The state came to be understood in purely secular terms, based on rationalism and the will of citizens.
The secular state arose for the first time, abandoning and excluding any divine guarantee or legitimation of the political element as a mythological vision of the world and declaring that God is a private question that does not belong to the public sphere or to the democratic formation of the public will. Public life was now considered the realm of reason alone, which had no place for a seemingly unknowable God. From this perspective, religion and faith in God belonged to the realm of sentiment, not of reason. God and His will therefore ceased to be relevant to public life.
In the late eighteenth and early nineteenth centuries, a new schism thus developed, the gravity of which we are only now grasping.
Vatican Condemns Israeli Offensive
According to Vatican Secretary of State Cardinal Angelo Sodano,
"[T]he Holy See deplores right now the attack on Lebanon, a free and sovereign nation, and assures its closeness to these people who already have suffered so much to defend their independence."
The Reuters account is here.
Rob
Same-sex marriage developments
The Eighth Circuit has reversed a district court's ruling that Nebraska's constitutional amendment banning same-sex marriage violates equal protection.
A Connecticut state court has ruled that the state's civil union law does not violate equal protection to the extent that it deprives same-sex couples of the right to marry.
The Tennessee Supreme Court has ruled that a constitutional amendment banning same-sex marriage properly belongs on the ballot this fall.
Rob
Christian Free Speech, Supported by the ACLU
It should be recognized that the ACLU does sometimes support the right of individuals to speak and act religiously in public settings. As an example, the NJ chapter is filing a friend-of-the-court brief supporting an elementary student's free speech/free exercise rights in this case (noted in The Christian Century):
A year ago a school superintendent in New Jersey barred a second-grade girl from singing the song "Awesome God" in an after-school talent show. The superintendent said that the song was a problem not because it was religious but because it moved into proselytizing. (One lines says, "His return is very close / And so you better be believing that / Our God is an awesome God.")
Tom
Establishment Clause and Attorney's Fees
MOJ friend Pat Shrake asks :
Tom's recent postings on the MOJ blog regarding religion and legislation, combined with a news story I just saw about the Public Expression of Religion Act of 2005 (HR 2679), led me to wonder about a couple of things.1) What does the MOJ Blogosphere think of that proposed Act (which attempts to prevent payment of attorney fees for Establishment Clause challenges).2) Would there be any legal reason that Congress couldn't enact a similar ban on payment of attorney fees for abortion legislation challenges? I'm wondering about that because the South Dakota ballot question regarding its abortion ban will probably have some language indicating that the state might have to pay the attorney fees for the opponents of the ban (i.e. - Planned Parenthood) (see this story).
With respect to Pat's first question, my reaction to the proposed Public Expression of Religion Act is negative.
1. I'm puzzled and disturbed by the text of the bill as found on Thomas.gov, the Library of Congress website tracking legislation. The link above is to Thomas, but it may not work, so I'm pasting the text here:
a) Civil Action for Deprivation of Rights- Section 1979 of the Revised Statutes of the United States (42 U.S.C. 1983) is amended--(1) by inserting `(a)' before the first sentence; and
(2) by adding at the end the following:
`(b) The remedies with respect to a claim under this section where the deprivation consists of a violation of a prohibition in the Constitution against the establishment of religion shall be limited to injunctive relief.'.
(b) Attorneys Fees- Section 722(b) of the Revised Statutes of the United States (42 U.S.C. 1988(b)) is amended by adding at the end the following: `However, no fees shall be awarded under this subsection with respect to a claim described in subsection (b) of section nineteen hundred and seventy nine.'.
From the title "Public Expression of Religion," I had assumed that the concern of this bill was to rein in the Establishment Clause some, e.g. to hinder lawsuits that would try to strike down noncoercive or mildly coercive official religious expressions in public schools, on public property (creches, 10 Commandments, etc.). But the text by its terms denies attorney's fees for any Establishment Clause suit under section 1983. It would deny fees in a case where a government official plainly imposed religion on students in a coercive manner that most all would agree is impermissible -- for example, if a teacher gave a sermon on her interpretation of the Bible to her first-grade class every day. (You could try to wrench that into a free exercise case, but the constitutional problem sounds much more naturally in the Establishment Clause.) It would deny fees to any plaintiffs challenging government funding of religious institutions, which I suppose moves in a direction some of us would like to see. But again it goes way too far -- no fees for a challenge to a funding law blatantly preferring Southern Baptists in Alabama or Mormons in Utah? -- and goes way beyond the category "public expression of religion" referred to in the title.
It's disturbing enough that the bill would empower truly coercive official impositions of religion. Equally disturbing is that it would cover claims by religious institutions that government interference in their internal affairs violates the Establishment Clause. As we've touched on before here, in the wake of the decline of free exercise claims after Employment Division v. Smith, churches seeking to protect their autonomy may rely more and more on the religion-protective elements of the church-state separation derived from the Establishment Clause.
So the title of the bill is a mistake or a fraud. The text reaches far beyond the mere "public expression of religion" claims and would hamper claims that are much more compelling constitutionally and morally -- including some claims that you'd think the "pro-religion" types would like, which is puzzling.
2. All the above, of course, assumes for sake of argument that we should try to empower (by shielding from fee awards) all instances of mere "public expression of religion" by government -- creches, 10 Commandments, prayers without direct coercion, etc. For lots of reasons, familar to many of us here, I think that a fair number of such official expressions ought to be deemed unconstitutional, or deemed morally and theologically unwise by thoughtful Christians. Therefore, I'm not happy with shielding from challenge everything that might be called a mere "public expression of religion." But to reiterate, I don't have to rest on this point, it seems, because the text of the bill reaches other Establishment Clause claims that are unquestionably compelling constitutionally or morally.
3. I imagine there are constitutional questions about whether Congress can disfavor a class of claims in terms of procedure or remedies. This has been debated in the context of jurisdiction-stripping proposals, with Tribe saying that stripping federal courts of jurisdiction to hear claims asserting a certain right is a presumptively unconstitutional burden on the right, and others disagreeing. Even if Tribe were right, though, a denial of fees in federal court is less of a burden than closing the federal forum altogether (though the fee denial also lacks a specific constitutional authorization like Congress's power to control federal court jurisdiction). Moreover, perhaps here the breadth of the text -- all Establishment Clause challenges -- would actually reduce the sense that Congress was trying to tip the scales against one particular set of plaintiffs or constitutional interests. (But you couldn't make this last point in defense of fee stripping in the abortion context; that would be more clearly aimed at one distinct set of constitutional interests.)
Tom
Thursday, July 13, 2006
"No More Smut Editors?"
A federal district judge in Colorado has ruled that the company "Clean Flicks" violated the copyright laws by making and renting "family-friendly" versions of movies with sex, profanity, and violence edited out. (Clear Flicks v. Soderbergh, 2006 WL 1876624 -- can't find it online yet.) The decision is probably right as a matter of copyright law, although the question seems to me somewhat closer than the judge allowed under the statute's fair-use defense (section 107). The judge placed heavy emphasis on the fact that Clean Flicks did not add any of its own commentary to the movie -- what courts refer to as "transformational use" -- the way, for example, someone doing a review makes comments after showing a movie clip or quoting a book passage. As I've argued here, a general problem with making the addition of commentary such a decisive factor is that it excludes from the fair-use defense an activity such as education -- say, the reproduction of part of a text simply to study it -- that has long been thought to be a quintessential fair use. The judge also found irrelevant any argument that Clean Flicks might not cost the movie producers much economic loss (and might even give them a net gain) since the producers weren't exploiting the market for sanitized versions of their works as it was. The judge's argument on this score continues a trend of giving copyright holders more and more control over markets for their works even if they can't show economic harm -- a trend that I think is in tension with basic premises of copyright law.
Nevertheless, what Clean Flicks did was probably not a fair use, because the copying of virtually an entire work for commercial use is strongly presumed unfair; because there might have been various kinds of economic loss and reputational harm; and because Congress in 2005 created a specific exemption that allows software helping private viewers to filter objectionable content from an original DVD, but refused to extend the exemption to cover making copies of an altered, sanitized form.
Those are some of the legal issues. A movie critic at Christianity Today considers the moral issues and also criticizes what Clean Flicks did:
I'd never consider showing my sons "sanitized" versions of [many] films. If you remove the violence and bloodiness of The Passion, what's the point of watching it? The scourging and crucifixion were the very definition of "graphic violence," so why pretend it was anything less?
Moreover, even if parents rent the mature movie and fast forward through the objectionable stuff, there are still differences between that and "having a company do that editing for you" (in other words, the line that Congress drew makes some moral sense):
First is this: I know my sons, and they don't. My wife and I want to be the ones deciding what they can, and can't, watch. If we decide they're ready for exploding heads but not to hear the Lord's name in vain (or vice versa), that's our call, and nobody else's.
Also, if an outside company edits that stuff out, it robs us of a potential "teaching moment." After a couple of years [of watching Raiders of the Lost Ark], we decided to let our boys [h]ear Marion use God's name in vain. And at that moment, I hit "pause" and we talked: "Did you hear what Marion said? How did that make you feel? Did that make the movie any better? Why or why not? Do you ever hear other kids say that at school? What's wrong with saying those words? What does God say about it?" And so forth. It made for a great time of teaching and discussion—arguably more powerful than simply sitting down and reading them the Third Commandment.
I can't imagine having such a teaching moment with an edited version of Raiders of the Lost Ark: "Hey guys, at this point in the original version, Marion uses God's name in vain. If you heard her say that, how would that have made you feel?" Uhh, it just doesn't work nearly as effectively.
Tom
Is innocence a "distraction"?
A few weeks ago, David Dow -- a law professor who is expert on death-penalty matters -- had a provocative opinion piece in the New York Times, "The End of Innocence," in which he suggested, among other things, that "innocence is a distraction" in the capital-punishment debate:
For too many years now, though, death penalty opponents have seized on the nightmare of executing an innocent man as a tactic to erode support for capital punishment in America.
Innocence is a distraction. Most people on death row are like Roger Coleman, not Paul House, which is to say that most people on death row did what the state said they did. But that does not mean they should be executed.
Focusing on innocence forces abolitionists into silence when a cause célèbre turns out to be guilty. When the DNA testing ordered by Gov. Mark Warner of Virginia proved that Mr. Coleman was a murderer, and a good liar besides, abolitionists wrung their hands about how to respond. They seemed sorry that he had been guilty after all.
I, too, am a death penalty opponent, but I was happy to learn that Mr. Coleman was a murderer. I was happy that the prosecutors would not have to live with the guilt of knowing that they sent an innocent man to death row. . . .
As Justice Scalia has said elsewhere, of course we are going to execute innocent people if we have the death penalty. The criminal justice system is made up of human beings, and fallible beings make mistakes.
But perhaps that is a price society is willing to pay. If the death penalty is worth having, it might still be worth having, despite the occasional loss of innocent life. . .
[We] ought to focus on the far more pervasive problem: that the machinery of death in America is lawless, and in carrying out death sentences, we violate our legal principles nearly all of the time.
Dow makes a good point, I think. (I would probably not characterize the "machinery of death" in America as "lawless"; but, certainly, even putting aside moral objections to capital punishment, it is badly flawed.) To be sure, any decent people will and must care about the accuracy of the results of its criminal-justice process. At the same time, a decent people will and must accept the possibility -- indeed, the reality -- of error even in the context of a criminal-justice process that is morally justifiable. It seems to me that the heart of the matter is whether it is wrong for the political authority to kill a human being, lawfully convicted of murder, as punishment for that matter. And, as I have argued elsewhere --
[W]hat the public square needs from engaged Christians is a counter-cultural argument about the dignity and destiny of the human person. Such an argument could help our fellow citizens reach the right conclusion about what to do with convicted murderers not so much by dusting the usual arguments with God-talk as by challenging our culture to understand who and what these condemned persons are, and why it should make a difference.
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