Friday, November 22, 2013
On this sad day when we mark the 50th anniversary of one of the great tragedies of our national history, the James Madison Program at Princeton will be hosting presidential historian Alvin Felzenberg for a public dialogue on the cultural and political impact of the assassination of President Kennedy. The event, which is free and open to the public, will be at 4:30 in Frist Hall 302. MoJ friends in the Princeton area are most welcome to attend.
Today is the anniversary of C.S. Lewis's death. Both to celebrate it, and as something of a remedy for the many silly and shallow things that get said about textualism, here's something from his memoir, Surprised By Joy: The Shape of My Early Life. Lewis is describing his father's deliberations about which primary school to select for his children. The choice ends up being quite wrong, as Lewis is sent to a school with a cruel master whom the students call "Oldie."
You may ask how our father came to send us there. Certainly not because he made a careless choice. The surviving correspondence shows that he had considered many other schools before fixing on Oldie's; and I know him well enough to be sure that in such a matter he would never have been guided by his first thoughts (which would probably have been right) nor even by his twenty-first (which would at least have been explicable). Beyond doubt he would have prolonged deliberation till his hundred-and-first; and they would be infallibly and invincibly wrong. This is what happens to the deliberations of a simple man who thinks he is a subtle one. Like Earle's Skepticke in Religion he "is always too hard for himself." My father piqued himself on what he called "reading between the lines." The obvious meaning of any fact or document was always suspect: the true inner meaning, invisible to all eyes except his own, was unconsciously created by the restless fertility of his imagination. While he thought he was interpreting Oldie's prospectus, he was really composing a school story in his own mind. And all this, I doubt not, with extreme conscientiousness and even some anguish.
Thursday, November 21, 2013
I am a little late in noting this decision of the United States District Court for the Southern District of New York involving a Free Exercise Clause challenge to the New York Police Department's facial hair policy by a NYPD probationary police officer. The probationary officer is a member of the Chabad Lubavitch Orthodox Jewish community, and his faith prohibits him from cutting his facial hair. The NYPD's policy generally prohibits the wearing of beards but makes exceptions for undercover duties, medical conditions, and religious reasons, but the last two exceptions require written approval. In practice, however, even accommodated beards may only be 1 millimeter or less in length, and the plaintiff's natural beard grew to 1 inch. So the accommodations would not work for the plaintiff, because they would require him to trim his beard.
After his request for exemption was denied and he was eventually fired, the plaintiff sued under the Free Exercise Clause. One might think that the plaintiff would lose, because the policy was neutral as to religion and applied generally (see Employment Division v. Smith). But the plaintiff won. The City argued that the beard policy and the 1 millimeter exemption was a neutral, generally applicable rule, but the court disagreed. It said: "'[f]acial neutrality is not determinative' when the record shows that Plaintiff was terminated pursuant to a policy that is not uniformly enforced."
What is particularly interesting is the nature of the exemptions that the court found trigger strict scrutiny. It isn't just the stated exemptions in the policy. It's the fact that "the undisputed record demonstrates that de facto exemptions to the one-millimeter rule abound." There were temporary exemptions to the one millimeter rule granted for religious reasons and family reasons. And there was under-enforcement of the one millimeter rule against officers who violated the policy for unspecified reasons. The court also rejected the City's claim that shaving is necessary in order to render effective the fitness testing apparatus used by the Department, which is fitted over the officers' mouth and needs to sit flush against the face. There was evidence that some officers were accommodated as to this requirement for medical reasons, and so strict scrutiny applied when plaintiff's request for accommodation on religious grounds was denied. Here the court relied on then-Judge Alito's famous police-beard case in Fraternal Order of Police Newark Lodge #12 v. City of Newark, in which the court held that where the government has made a "value judgment" that medical reasons are more important than religious reasons, strict scrutiny applies.
I've written before several times about the gaping hole (see Chapter Eight) in Smith that is being broadened all the time by the problem of the general applicability exception carved right into Smith itself. In this case, it isn't only explicit exemptions to the policy that trigger strict scrutiny, but the "de facto" exemptions and accommodations in implementation and administration of the policy. If discretion in enforcement of a policy, and the exceptions that governments make all the time to their rules, really do trigger strict scrutiny, then one should expect to see the number of free exercise claims greatly increase in the coming years. Smith's rule will look a whole lot less rule-like than it actually appears. What free exercise effect this expanding exception to Smith may have on other sorts of cases in which executive and administrative discretion as to the enforcement of the law is high remains to be seen.
Our MOJ colleagues Patrick Brennan and Michael Moreland have a clear and compelling essay up at Public Discourse on Gov. Jerry Brown's (D-CA) recent, wise, and just decision to veto California Senate Bill 131, "which would have revived sexual abuse claims that have long been time-barred under California’s statute of limitations." As Michael and Patrick say, "Brown refused to allow the law to be twisted into a crude tool of vengeance." A taste:
Fairness and equality must be the grounding principles for our laws. One of the goals of the law is to protect the common good by providing justice and security for the maximum number of citizens. Statutes of limitations reflect the good judgment that remedies for legal wrongs must be fair.
A mark of bad law is the amount of collateral damage it does to innocent individuals, to vital institutions, and to society at large in seeking to remedy an injustice. The damage is often done under the guise of well-meaning intentions to remedy an injustice or identified problem. But the damage is nonetheless real.
Read the whole thing. And then, perhaps, contrast the reasonable arguments of Moreland and Brennan, and the wise decision of Gov. Brown, with the misguided claims and unjust goals of groups like this one.
Just in time for Thanksgiving, your horn of plenty of accomplice liability runneth over. I recently noted Sherif Girgis's smart piece and you ought also to take a look at Gideon Yaffe's terrific recent work. In this post I want to highlight the work of my friend Jim Stewart (UBC), who specializes in comparative criminal law and writes about corporate pillage in Africa (a conducive place to think about problems of accomplice liability).
Here is a succinct and very useful piece on complicity. I especially like Jim's methodological approach, one which seems to pair naturally with a comparative perspective. Rather than constructing a top-down account of the best understanding of complicity, Jim identifies several recurring problems or themes in the area and discusses various solutions that have been offered by different jurisdictions. It is an approach which, Jim says, "exposes blind spots in the various schools of thought about accomplice liability." One particular section I thought provocative was the discussion of the relationship of complicity and justification (pp. 10-11). Jim argues for using the affirmative defense of justifcation to obviate the need to decide between a purpose or knowledge mens rea requirement (he relies on a British case involving the sale of contraceptives by doctors to minors, who were then implicated in charges of statutory rape). The choice of evils defense is a familiar repository for the problems of moral nuance, but I'm not sure the law of complicity ought to be let off the hook this way. At any rate, read the piece, and also take a look at Jim's newest piece on corporate criminal responsibility (h/t Larry S.).
Also, here is Jim's extremely well-written and powerful editorial last week about the moral outrage of corporate pillage in Africa--wrongdoing which, of course, presents the problem of corporate complicity in stark terms.
Wednesday, November 20, 2013
My colleague, Mark Movsesian, and I have recorded a podcast discussing Town of Greece v. Galloway, the legislative prayer case just argued at the Supreme Court, in the Center for Law and Religion's first in a planned series of podcasts on law and religion cases and issues.
We tried to be fairly complete in our discussion of the case, and I hope that this podcast might be particularly useful for students and others interested in an introduction to the issue of legislative prayer and in some fairly detailed analysis of and commentary about the oral argument.
Tuesday, November 19, 2013
Sherif Girgis, Ryan Anderson, and I will, of course, be publishing a reply to Charles Reid's critique of what he claims is our argument. In the meantime, though, I'm wondering whether there are any MoJers who hold that "love makes a marriage." I also wonder whether any MoJers believe that Sherif, Ryan, or I (or, for that matter, anyone), believes that "sex makes a marriage." Just pause for a minute and think about the manifest implausibility of these propositions. Professor Reid's framing of the dispute, and his characterizations of his own side's position and that of those of us on the other side, should set off alarm bells in the reader's mind. Our aim in replying will be to show that those alarm bells are fully warranted.
Monday, November 18, 2013
MOJ readers will recall the important article-turned-book: What Is Marriage? Man and Woman: A Defense (2012), by Sherif Girgis, Ryan T. Anderson, and MOJ’s Robert P. George. Andrew Koppelman, in an article in a forthcoming issue of the University of Illinois Law Review—an article in which in he criticizes the book—has described the book as “the leading statement of the case against same-sex marriage . . .” (The Koppelman article is here.) University of St. Thomas law prof Chuck Reid has just posted, over at ReligiousLeftLaw, some comments on the central argument of the book. The comments begin with this: “Does love make a marriage? Or does sex? And if sex makes a marriage, then what kind of sex? These were central themes of a debate I participated in at the University of Notre Dame on November 9th, where I discussed these questions with two proponents of a highly traditional understanding of the marriage relationship, Ryan Anderson and Sherif Girgis.” Reid’s comments are available in full here.
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