[This morning I received the following message from David Schraub, a student at Carleton and an enthusiastic MOJ-reader. At the end of his message, David has a generous compliment for the motley crew of MOF-bloggers. David's message was prompted by my post this weekend on the decision of the Arkansas Supreme Court.]
Professor Perry,
I read with interest the Arkansas Supreme Court's decision regarding gay foster parents. Several months ago, I blogged about the original trial court decision [here],which was a fascinating read because it did a great job running through all the testimony on the scientific data regarding gay parenting. The key witness, Dr. Michael Lamb, testified that having a gay parent:
"(i) does not increase the risk of problems of adjustment for children; (ii) does not increase the risk of psychological problems for children; (iii) does not increase the risk of behavioral problems; (iv) does not prevent children from forming healthy relationships with their peers and others; (v) does not cause academic problems; (vi) does not cause gender identity problems; and (vii) does not cause any adjustment problems at all."
I thought it would make an interesting appendix to your post.
I don't know how many Jewish readers you have, but I for one find you and all your co-bloggers to be consistently erudite, articulate, and well-argued. Keep up the great work. I hope to become a law professor some day, and yours is an excellent model for all of us aspiring scholar-bloggers to follow.
Yours,
David Schraub
The Debate Link: http://dsadevil.blogspot.com
Carleton College '08
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mp
Monday, July 3, 2006
A Message from a MOJ-Reader
Sunday, July 2, 2006
Family Matters
As if the Eye of Sauran were watching Rick and Michael's recent exchange, the Boston Globe responds with its own account about some aspects of domestic affairs and family matters [Download wasserman_cartoon.bmp ].
The characteristic nuances of the Globe raise a number of questions for me. One of them deals with the relationship between democracy (legislative initiatives and voter participation) and judicial review (the Goodrich case). The Globe has its own view on the matter, but that should not preclude the views of others being expressed--especially when the vehicle is within the structures of representative government. RJA sj
Saturday, July 1, 2006
Reply to Rick
Dear Rick,
Contrary to what you stated in your post, the Arkansas Supreme Court did not rule that it is improper for "the state" or "government" to regulate public morality. It ruled that the Child Welfare Agency Review Board was acting beyond its statutory mandate--it was acting ultra vires--in ruling on the basis of its moral opposition to homosexuality. The court did not suggest that the Arkansas legislature could not establish a foster-care rule based on its moral opposition to homosexuality. But in the court's judgment the Child Welfare Agency Review Board had usurped the legislative function; it acted beyond its statutory mandate, thereby violating the separation of powers (opined the court).
Happy Fourth of July.
Michael
Defining religion
Professor Friedman reports on an interesting case out of California:
[A] California federal court held that even though the belief is sincerely held, veganism is not a "religion" for purposes of the First Amendment or RLUIPA. The issue arose in the context of a prisoner's request for a vegan diet. The court held: "Plaintiff's veganism ... does not address 'fundamental and ultimate questions;' it has no formal and external signs. Plaintiff does not allege the existence of any larger body of adherents to which he belongs. Instead, he describes his veganism as a 'right and appropriate way to live.' .... [Therefore] Plaintiff's dietary regimen is a purely secular lifestyle choice, not protected by the Free Exercise Clause."
What do we think of this definition of "religion"?
Where is international law?
I am sure I join many others who are still working their ways through the Hamdan v. Rumsfeld decision. At this stage I would like to make a brief observation about two issues addressed by the Court in this case. While references are made by members of the Court to international law, particularly the Geneva Conventions of 1949, little is said about the present day international criminal tribunals. I believe one reference is made in the context of the ICTY (International Criminal Tribunal for the Former Yugoslavia) regarding “conspiracy.” While the Court took strong views about international law in Roper v. Simmons and Texas v. Lawrence, it was less bold in relying on international law, especially international criminal law, in the Hamdan case. I was surprised that the majority/plurality in particular did not make any reference to the Rome Statute of the International Criminal Court. While that Statute’s provisions still remain largely unexplored in actual case applications, we need to be mindful about the fact that the Rome Statute addresses “conspiracy-type” collaboration in discussing individual criminal responsibility in Article 25. Moreover, there are provisions within the Statute itself along with the accompanying Rules of Procedure and Evidence which just might allow in camera ex parte proceedings from which the defendant/accused is excluded. Again, it will take some time to clarify the meaning of these provisions of the Rome Statute and its Rules through case application and the development of the ICC’s jurisprudence. However, it would be premature at this time to say that the Military Commissions criticized by the Court in Hamdan are unlike the proceedings that could take place under the ICC. Perhaps Justice Scalia was on to something in his dissenting opinion in Roper when he criticized his colleagues for selective reliance on international law in Constitutional adjudication. RJA sj
"Improper[]" regulation of "public morality"?
Thanks to Michael for posting the news about the recent Arkansas decision about foster parenting. (I thought it was particularly interesting that the court declined to reach the equal-protection and privacy claims, and instead concluded that the regulation against foster parenting by gays and lesbians violated separation-of-powers principles.) Justice Corbin's observation that, based on the lower court's findings-of-fact, "[t]here is no correlation between the health, welfare and safety of foster children and the blanket exclusion of any individual who is a homosexual or who resides in a household with a homosexual", seems unremarkable. But, can it really be true that it is, as a general matter, and absent a claim that the regulation burdens particular legal rights, "improper[]" for the state to "regulate public morality"? Don't governments "regulate public morality" all the time?
Same-Sex Foster Parents
I thought that MOJ-readers would be interested in this. (I'm very sympathetic to the Arkansas Supreme Court's reasoning, but that's neither here nor there.) I provide a link to the opinion below.
New York Times
June 30, 2006
Court Overturns Arkansas Ban on Same-Sex Foster Parents
On a vote of 7 to 0, the justices agreed with a lower court judge that the state's Child Welfare Agency Review Board, which adopted the ban in 1999, had improperly tried to regulate public morality and had violated the separation of powers between the executive branch and the General Assembly, Arkansas's legislature.
In approving the policy, the board had said children should be in traditional two-parent households headed by a man and a woman because, it said, they would be more likely to thrive. Four Arkansas residents, represented by the American Civil Liberties Union, filed suit claiming discrimination and privacy violations against gay men and lesbians who otherwise qualified as foster parents.
The justices agreed Thursday, saying the ban was "an attempt to legislate for the General Assembly with respect to public morality."
"There is no correlation between the health, welfare and safety of foster children and the blanket exclusion of any individual who is a homosexual or who resides in a household with a homosexual," Associate Justice Donald L. Corbin wrote in the opinion.
In addition, the court said, the testimony of a member of the child welfare board demonstrated that "the driving force behind adoption of the regulations was not to promote the health, safety and welfare of foster children but rather based upon the board's views of morality and its bias against homosexuals."
The court also said that contrary to what the state had argued, being raised by homosexuals did not cause academic or sexual identity problems.
Julie Munsell, a spokeswoman for the Arkansas Health and Human Services Department,
which oversees the child welfare board, said that the ban had not been
applied since the lower court ruling in 2004 and that the plaintiffs
had not sought foster-parent status since then.
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To read the Arkansas Supreme Court's opinion, click here.
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mp
Amnesty International and Abortion
This is from The Tablet [London], July 1, 2006.
Australia
Amnesty 'losing ability to distinguish human rights'. CHRISTIANS WOULD be compelled to resign membership from Amnesty International if it accepted that abortion was a human right, Cardinal George Pell has warned, saying the humanitarian organisation was "on the brink of working for a universal right to kill".
The Archbishop of Sydney said that the notion of human rights had become so twisted that the claim that every woman had the right to abort her baby was "double-speak at its best".
"Amnesty now has 1.8 million members around the world but any decision that a woman's rights to physical and mental integrity include her right to terminate her pregnancy will mean that gospel Christians in every mainline denomination will be compelled to resign," the cardinal wrote in his weekly column in Sydney's Sunday Telegraph. "Much of the group's energy and enthusiasm will be drained from it."
Noting that the organisation was founded in 1961 by a Catholic, Peter Benenson, Cardinal Pell said it was a "tragedy" that after 45 years Amnesty risked "losing its capacity to distinguish a genuine human right from a totally bogus claim".
Cardinal Pell wrote that a woman's reproductive right to choose could not suppress the more basic human right to life itself, citing Article 3 of the United Nations Declaration of Human Rights, which proclaims that everyone has the right to life, liberty and security of person.
He praised Amnesty's record, but warned that the UN declaration was now under threat.
"Formerly, Amnesty had a neutral position on abortion because there was no generally accepted right to abortion in international human rights law."
Cardinal Pell wrote that New Zealand and Britain had adopted pro-abortion positions, with Amnesty's Australian branch due to vote within days.
The cardinal noted that in every country where Amnesty's intentions had been made public, Christian leaders had objected strongly. Amnesty had gone "particularly quiet" in the United States because pro-life awareness and sympathies were more developed there.
"Pope John Paul II said that an inability to distinguish good from evil is the most dangerous crisis which can [affect] man," Cardinal Pell wrote.
"Let us hope there will be
sufficient clear-minded humanitarians in Australia, and throughout the
world, to prevent Amnesty making a terrible mistake and betraying its
origins."
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mp
Friday, June 30, 2006
More trouble for church autonomy
This time from California. Apparently, the California Supreme Court has ruled that two Riverside County girls may sue a Christian high school, under non-discrimination laws, that expelled them because the principal believed they were lesbians.
Thursday, June 29, 2006
Coercion v. Expression
I should have been more precise in my earlier post about the flag-burning amendment, and Rick's skepticism underscores my lack of clarity. I can envision a prudent role for the expressive function of the law in articulating, or even facilitating, the society's collective embrace of a certain symbol -- e.g., a law describing the official flag of the United States and recommending a certain course of treatment (disposal, folding, etc.) by citizens. I would separate the expressive component from the coercive component. If the law, understood as representing the coercive power of the state, mandated particular treatment of a class of objects (rather than a specific irreplaceable object, such as a flag sewn by Betsy Ross) solely because of the objects' symbolic value, I would object.
My question to Rick (and others): can you think of an example where state power could prudently be brought to bear to mandate certain treatment of a class of objects that are valuable solely because of their symbolism? When it comes to symbols, shouldn't the state act like the Church: willing to propose, but not to impose?
Rob
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