My thanks to Rick for his recent posting on the UNESCO adoption of the text for the Convention on the Protection and Promotion of the Diversity of Cultural Protection. We live in interesting times. I still need to study the voting record more carefully, but I would like to know which of the 37 Members of the General Conference were not present to vote. So far, this information has not been posted by UNESCO. It is possible these Members were out for a coffee during the vote. This happens when an important vote takes place in an international organization on a text for a proposed juridical instrument. It is always important to know who did not vote. There were 148 yes votes, there were two no votes (US and Israel), and there were four abstentions (this information is still not available). This means that thirty-seven members of the conference did not register their views. This is important to know. It is also important to recall that some countries have recently taken steps over the past several years to restrict various kinds of transmissions that their citizens can receive from the Internet and satellite communications, etc. It is also relevant to note that the number of States needed for ratification is rather low, 30. The normal practice when a controversial and important treaty is at stake is that it requires 60 ratifications, about one-third of the UN membership, before it goes into force. This number is half that. Should the instrument go into force with 30 Parties, what does that say about its universality as the jus gentium? There are a number of recent treaties which only required 30 ratifications, but they have still not gone into force because of the failure to reach the 30 ratifications. Lots of countries voted for the text, but they did not ratify the instrument. I would suggest that this treaty needs more careful study which would include who didn't vote; who will vote for ratification; and when will they vote for ratification. I think most folks are generally supportive of protecting the wide variety of world cultures, but there seems to be something still to be learned that was not reported in the Washington Post article to which Rick referred. As the news people are fond of saying, "more at eleven...." RJA sj
Saturday, October 22, 2005
Diversity of Cultural Expression Convention
U.N. Endorses "Cultural Protection"
The Washington Post reports:
In a vote cast as a battle of global conformity vs. cultural diversity, delegates to a U.N. agency turned aside strong U.S. objections Thursday and overwhelmingly approved the first international treaty designed to protect movies, music and other cultural treasures from foreign competition.
The 148 to 2 vote at the U.N. Educational, Scientific and Cultural Organization emerged as a referendum on the world's love-hate relationship with Hollywood, Big Macs and Coca-Cola. . . . Louise Oliver, U.S. ambassador to UNESCO, told delegates at the organization's headquarters near the Eiffel Tower that the measure was "too flawed, too prone to abuse for us to support." She contended that dictators could potentially use it to control what their citizens read.
The measure passed at a time of growing fear in many countries that the world's increasing economic interdependence, known as globalization, is bringing a surge of foreign products across their borders that could wipe out local cultural heritage. France, for instance, has long kept measures in place to protect its film industry against imports, notably Hollywood productions.
Called the Convention on the Protection and Promotion of Diversity of Cultural Expressions, the document approved Thursday declares the rights of countries to "maintain, adopt and implement policies and measures that they deem appropriate for the protection and promotion of the diversity of cultural expressions on their territory."
(Snarky) translation: The French are upset that French people like American movies. (Or, worse: The Chinese are upset that Chinese people like American political values). Now, I imagine that this move can and will be defended in terms of "subsidiarity." And, certainly, I share the concern that a world flattened to McCulture is worse than one with cultural diversity and distinctiveness. Still, I don't expect this form of regulatory protectionism to work any better than others do. What do others think?
Rick
Religious Freedom and Equal Protection
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 LawContrary 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
Cleft-palate abortions in the UK
When I was living and working in London, in the Fall of 2003, I remember finding it refreshing that, over there, abortion-related questions are still, for the most part, political questions. Specifically, there was a debate going on about the unsettlingly common practice of aborting unborn children with cleft-palates. Leading the charge on this and some other pro-life issues was a young curate named Joanna Jepson. She was born with a cleft-palate, which was repaired, and her brother has Down's Syndrome.
Here is a powerful op-ed of hers, from the Telegraph:
As a Church of England curate, born myself with a congenital jaw defect 28 years ago, my own upbringing has instilled in me a sense of what is right and what is wrong. For me, an abortion on any foetus - let alone one that is seven months old - for what is a treatable facial condition, can never be morally justified. [RG: Note that even this "Church of England curate" says "for me".] Yet, as a society, we are now saying that a cleft lip and palate are grounds to end a viable unborn child's life.
Under the Abortion Act, as it was amended in 1990, it is legal for doctors to terminate the life of a foetus up to the point of birth if there is a "substantial risk" of the child being "seriously handicapped". But in reality, for an abortion to be lawful, none of the conditions identified by the Act need actually exist. They simply need to be thought to exist by two doctors acting "in good faith". Taken to its extreme, the law as it stands today, is therefore saying that a remedial condition such as mine is a good enough reason for me not to be alive. . . .
How can we put such little value on life? The history of the 20th century and the chilling horror of the Nazi eugenics programme - supervised by doctors "in good faith"- show only too clearly what can happen when supposed imperfections are deemed to negate the right to life. As a society, we now seem to be saying that the only measure of a life's worth is whether it is wanted or not. . . .
Of the three main party leaders, only Michael Howard has claimed he would like to see the abortion law changed, lowering the upper limit to 20 weeks. Tony Blair has abdicated responsibility, weakly insisting that he "dislikes the idea of abortion". Perhaps he should ask himself why he dislikes the idea so much. . . .
Rick
Chaput on the Death Penalty
Here is a recent column by Archbishop Charles Chaput, "What Does the Church Teach on the Death Penalty?" The essay opens with this:
Catholic teaching on the death penalty is best understood by viewing it through two lenses: what it is; and what it is not. The Church’s critique of capital punishment is not an evasion of justice. Victims and their survivors have a right to redress, and the state has a right to enforce that redress and impose grave punishment for grave crimes. [RG: I'm not sure what is meant by the right of "victims" to "redress" and the state's right to "enforce" it. Properly understood, it seems to me, "retribution" -- a proper aim of punishment -- is not "redress" for "victims".]
It is not an absolute rejection of force by the state. The death penalty is not intrinsically evil. Both Scripture and long Christian tradition acknowledge the legitimacy of capital punishment under certain circumstances. The Church cannot repudiate that without repudiating her own identity.
It is not an idolatry of individual rights — in this case, the rights of the murderer. Catholic social teaching rests on two equal pillars: the dignity of the individual person, and the common good. The right to life of the convicted murderer must be balanced against society’s right to justice and security. [RG: I'm not sure about this, either. In light of Catholic Social Teaching, is it the case that we are "balanc[ing]" the "right to life" against "society's right to justice and security"? And, what does it mean to talk about the "rights" of "society", anyway?].
Finally, it is not a false equation of related but unequal issues. Catholic teaching on euthanasia, the death penalty, war, genocide and abortion are rooted in the same concern for the sanctity of the human person. But these different issues do not all have the same gravity or moral content. They are not equivalent.
Archbishop then goes on to explain and endorse this statement in the Catechism:
“The Catechism of the Catholic Church” explains it in these words: If “non-lethal means are sufficient to defend and protect people’s safety from the aggressor [i.e., the convicted murderer], authority [should] limit itself to such means, as these are more in keeping with the concrete conditions of the common good and more in conformity with the dignity of the human person” (2267).
Rick
Limon v. Kansas: Response to Rob
As Rob notes, the Kansas Supreme Court has invalidated the part of Kansas's "Romeo and Juliet" law that (quoting from the opinion) "results in a punishment for unlawful voluntary sexual conduct between members of the opposite sex that is less harsh than the punishment for the same conduct between members of the same sex." Here is the ACLU's press release about the case. Here is a release put out by Liberty Counsel, which defended the provision, after the lower Kansas court upheld it last year.
The Kansas Court's conclusion that "we are directed in our equal protection analysis by the United States Supreme Court's holding in Lawrence that moral disapproval of a group cannot be a legitimate governmental interest" probably comes as no surprise. Interestingly, the Court also writes, near the end of its opinion:
[T]he State's interests fail under the holding in Lawrence that moral disapproval of a group cannot be a legitimate governmental interest. As Justice Scalia stated: "If, as the [United States Supreme] Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest," the statute cannot "survive rational-basis review." 539 U.S. at 599 (Scalia, J., dissenting).
Three quick thoughts: First, should we worry about the Court's (in my view) unexamined equation of "disapproval of a group" with "disapproval of certain conduct"? I would have thought that, at least in the context of Catholic thinking about this matter, a distinction between the two is important. Second, do we really think that laws -- including coercive and penal laws -- should not and may not rest on "moral disapproval"? Third, I think that Rob's conclusion that "[s]tatutory schemes like these lend credibility to critics' insistence that opposition to gay rights stems from nothing more noble than hatred of 'the other'" might be too hasty. The Kansas Court's "rational basis" analysis notwithstanding, it seems to me that more than "hatred of 'the other'" might underly a view that homosexual conduct among teenagers is more of a concern to the public authority than heterosexual conduct among teenagers. Now, to be clear, I'm not bothered, as a policy matter, by the result in this case (though I do regret the ongoing pretense that "rational basis" review is being applied in these cases). But I'm reluctant to embrace too quickly the notion that morals legislation reflects hatred or unreason.
Rick
Friday, October 21, 2005
Punishing Underage (Gay) Sex
The Kansas Supreme Court has ruled that the state cannot punish underage sex more severely if it involves homosexual conduct. A lower court had ruled that the disparity in applicable sentences was justified by the state's interest in children's traditional development, fighting disease, and strengthening traditional moral values. Last I checked, traditional moral values frowned on underage sex, regardless of the genders involved. Statutory schemes like these lend credibility to critics' insistence that opposition to gay rights stems from nothing more noble than hatred of "the other."
Rob
on Miers and substantive due process
On the Miers' nomination and whether her possible (increasingly dubious?) confirmation will mean another vote to overturn Roe, I have come to feel increasingly and even substantively nearly as concerned about that, as I am about having a Justice who will cease reading passing opinions into constitutional family law jurisprudence. This, when one considers how very far the constitutional rights of families have moved away from Pierce and Myers, and even Griswold, to the point where Justice Kennedy's Lawrence opinion can locate the right to homosexual intercourse within the group of constitutional rights concerning parents' care, custody and control of their children, and even rights which at least contemplate children (even while supporting a right to prevent their conception, or terminate their unborn lives). He makes a passing attempt to link non-procreative sexual relations to the "family" in dicta assuring the reading public that surely such behavior indicates a longer term relationship of real significance. It is embarrassing on its face.
Whether the near-equal status I give to this process of finding substantive due process rights flows from a commitment to subsidiarity, or from a continuing, stubborn belief in the truly human aspirations of the large mass of the electorate, I cannot say. But my continued exposure to this line of constitutional cases only strengthens it.
Thursday, October 20, 2005
THE FEDERAL MARRIAGE AMENDMENT
Today, I posted a brief piece on SSRN. The piece will soon be published in a symposium issue of the San Diego Law Review. Thought that some MOJ readers might be interested. The title:
Why the Federal Marriage Amendment Is Not Only Not Necessary, But a Bad Idea
The abstract:
The proposed Federal Marriage Amendment states:
"Marriage
in the United States shall consist only of the union of a man and a
woman. Neither this Constitution, nor the constitution of any State,
shall be construed to require that marriage or the legal incidents
thereof be conferred upon any union other than the union of a man and a
woman."
In this paper, which is my contribution to a symposium
issue of the San Diego Law Review, I explain - as the title indicates -
why the Federal Marriage Amendment is not only not necessary, but a bad
idea. This paper is a response to another paper in the symposium:
Christopher Wolfe, Why the Federal Marriage Amendment Is Necessary.
To download/read the paper, click here.
_______________
mp
Just Call Me Anselm
Which theologian are you? (Click here, then scroll down to take the test. HT: St. Maximos' Hut)
Rob
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