I just posted a paper to SSRN that will be of interest, I think, to some MOJ readers. The paper is available here. The abstract:
In this paper, I discuss the criminalization of abortion both as a human rights issue and, especially, as a constitutional issue.
Governments are free, insofar as internationally recognized human rights are concerned, not to ban abortion. The serious question, which I address in this paper, is whether governments are also free, insofar as international human rights are concerned, to ban abortion. In particular: Is it a violation of a woman’s human rights for a country to ban abortion? One of the world’s most important human rights NGOs—Human Rights Watch—has answered in the affirmative.
Whatever the answer to the preceding question, a different question remains, and it is one of the most perennially contested questions in American constitutional studies: Were the Abortion Cases correctly decided?
Of all the constitutional rulings by the Supreme Court since the end of the Second World War, none have been more persistently controversial than the Court’s rulings, in 1973, in the Abortion Cases: Roe v. Wade and Doe v. Bolton. In Roe, the Court invalidated a Texas law that banned all abortions except those necessary to save the life of the mother. The Georgia law at issue in Doe was more permissive; it exempted abortions necessary “because (1) a continuation of the pregnancy would endanger the life of the pregnant woman or would seriously and permanently injure her health; or (2) the fetus would very likely be born with a grave, permanent, and irremediable mental or physical defect; or (3) the pregnancy resulted from forcible or statutory rape.” Nonetheless, the Court invalidated the Georgia law. In 1992, four Supreme Court justices voted to overrule the Abortion Cases; a bare majority of the Court—five justices—refused to go along. In 2014, over forty years after the Court’s rulings in the Abortion Cases, four justices, given the opportunity, would almost certainly vote to overrule the Abortion Cases: Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito.
The conclusion I reach in this paper—that the Supreme Court’s ruling against the Texas law, but not its ruling against the Georgia law, was warranted—is, of course, controversial: Many insist that both rulings were warranted; many others, that neither ruling was warranted. Although controversial, the position at which I have arrived brings me into alignment—for me, comfortable alignment—with the position espoused by Justice Ruth Bader Ginsburg in 1985, when she was a judge of the United States Court of Appeals for the District of Columbia Circuit: In the Abortion Cases, then-Judge Ginsburg wrote, the Supreme Court should not have “gone beyond a ruling on the extreme [Texas] statute before the Court. . . . Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.”
This paper is one of a several connected papers that I have posted to SSRN in the last nine months, discussing “human rights in the constitutional law of the United States”—discussing, in particular, the implications of one or more constitutionally entrenched human rights for the divisive controversies over capital punishment, same-sex marriage, and, in this paper, abortion. A list of the papers is available here.
That question was in the subject line of an e-mail I received this afternoon from the Jesuit magazine America. The reference, it turned out, was to an article, in the new issue, by John Langan, S.J., who is the Joseph Cardinal Bernardin Professor of Catholic Social Thought at Georgetown University. The article--which is titled See the Person: Understanding Pope Francis' Statements on Homosexuality--will be of much interest to many MOJ readers (and bloggers). As Larry Solum says: Highly Recommended! The article is available here.
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A related piece in the same issue--an editorial, titled When the Law is the Crime--is here, arguing vigorously that "supporters of traditional marriage must denounce unjust discrimination against homosexuals." An excerpt:
"It is especially disturbing that such legislation is immensely popular in predominately Christian countries like Uganda, where 40 percent of the population is Roman Catholic and the Catholic bishops have sent mixed signals about the legislation. When the bill was first considered in 2009, Archbishop Cyprian Lwanga of Kampala, speaking on behalf of the Catholic bishops’ conference, said it was 'at odds with the core values' of Christianity. When the bill was reintroduced in 2012, however, the Uganda Joint Christian Council, which includes Catholic, Anglican and Orthodox bishops, expressed support for the bill. Archbishop Ignatius Kaigama of Jos, Nigeria, meanwhile, has praised President Goodluck Jonathan for his 'courageous and wise decision' to sign the new law in that country."
I am delighted to annlounce that Volume 29, Issue 1, of the Journal of Law and Religion is now available. All of the articles are available online through the JLR's Cambridge Journals Online website, here. All articles will be accessible without charge for the first two months. Print copies should ship to subscribers in the coming week.
As MOJ readers know, the magisterium of the Roman Catholic Church is morally opposed both to capital punishment and to granting access to civil marriage to same-sex couples. I have recently argued, in my new book and elsewhere, that the two practices—capital punishment and excluding same-sex couples from civil marriage—violate the constitutional law of the United States (here, here, and here). Of course, any argument about the constitutionality of capital punishment or of excluding same-sex couples from civil marriage (or of any other law or public policy) necessarily relies on a particular understanding of how the judiciary should go about determining (1) whether a right claimed to be a constitutional right has constitutional status and, if so, (2) whether the challenged government action violates the right. What understanding do my arguments rely on—my arguments about capital punishment and same-sex marriage? I address that question in a new paper—a “working paper”—that I have just posted to SSRN. Some MOJ readers may be interested. The abstract of and a link to the paper are available here.
WASHINGTON — President Obama on Thursday scolded China, Iran, North Korea and other countries known for repressing religious minorities and declared that promoting freedom of faith around the world was a central goal of American foreign policy.
Speaking at the annual National Prayer Breakfast, Mr. Obama singled out the government in Beijing and urged it to do more to allow Christians and others to worship. He also called on North Korea to release a Christian missionary held for the last 15 months and insisted that Iran release a Christian pastor held for more than 18 months.
“History shows that nations that uphold the rights of their people, including the freedom of religion, are ultimately more just and more peaceful and more successful,” Mr. Obama told a hotel ballroom audience of 3,500 people. “Nations that do not uphold these rights sow the bitter seeds of instability and violence and extremism. So freedom of religion matters to our national security.”
The president used the breakfast to lavish praise on Pope Francis, whom he plans to visit at the Vatican next month and whose messages on economic injustice around the world have coincided with Mr. Obama’s focus on income inequality in the United States.
“Like Matthew, he has answered the call of Jesus, who said, ‘Follow me,’ ” Mr. Obama said, “and he inspires us with his words and deeds, his humility, his mercy and his missionary impulse to serve the cause of social justice.”
That's the headline of a proud announcement issued by Boston College earlier today. The entire announcement is here. An excerpt:
Cathleen Kaveny, a legal scholar, moral theologian and nationally noted expert on the intersections of law, morality and religion, has joined Boston College as the Darald and Juliet Libby Professor. With an appointment in the Law School and Theology Department in the College of Arts and Sciences, Kaveny is the first person to hold a faculty appointment in two schools at the University.
Prior to her arrival at Boston College, Kaveny was the John P. Murphy Foundation Professor of Law and Professor of Theology at the University of Notre Dame, where she had been on the faculty since 1995. She also held visiting professorships and fellowships at Yale University, Princeton University, University of Chicago and Georgetown University. Previously, Kaveny was an associate with in the Health Law Group at the law firm Ropes & Gray in Boston and clerked for Judge John T. Noonan Jr. in the US Court of Appeals, Ninth Circuit.
Kaveny graduated with a bachelor’s degree summa cum laude from Princeton University and earned a JD and PhD from Yale University. She is the incoming president of the Society of Christian Ethics, the major scholarly organization of Christian ethicists in North America. The society meets annually in conjunction with Jewish and Muslim ethicist groups.
“Bringing Cathleen Kaveny to Boston College is a spectacular move for the entire University community and in particular, the Law School and the Theology Department,” said Founders Professor of Theology James Keenan, SJ, acting chairman of the Theology Department. “She brings the rare combined competency of vigorously mastering law and ethics and teaches and writes with wit and brilliance. It is simply great to have her here.”
Law School Dean Vincent Rougeau said, “Professor Kaveny’s appointment places Boston College at the forefront of scholarship in both law and theology, with her most recent work offering critical insights on how American law engages highly contested moral debates in an increasingly diverse society.
Amici on the brief are Frederick Mark Gedicks (Brigham Young University Law School), Vincent Blasi (Columbia Law School); Caitlin Borgmann (CUNY School of Law), Caroline Mala Corbin (University of Miami School of Law), Sarah Barringer Gordon (University of Pennsylvania Law School & Dept. of History), Steven K. Green (Willamette University College of Law), Leslie C. Griffin (William S. Boyd School of Law, University of Nevada, Las Vegas), B. Jessie Hill (Case Western Reserve University School of Law), Andrew M. Koppelman (Northwestern University Law School & Dept. of Political Science), Martha C. Nussbaum (The University of Chicago Law School & Dept. of Philosophy); Eduardo Peñalver (The University of Chicago Law School); Michael J. Perry (Emory University School of Law); Frank S. Ravitch (Michigan State University College of Law), Zoë Robinson (DePaul University College of Law), Lawrence Sager (University of Texas at Austin School of Law), Richard Schragger (University of Virginia School of Law), Micah Schwartzman (University of Virginia School of Law), Elizabeth Sepper (Washington University School of Law), Steven H. Shiffrin (Cornell University Law School), Nelson Tebbe (Brooklyn Law School) & Laura Underkuffler (Cornell University Law School).
This brief argues that permissive religious accommodations violate the Establishment Clause and conflict with Free Exercise Clause and Title VII accommodation decisions when they impose significant costs of practicing the accommodated religion on those who do not believe or participate in it. For-profit employer exemptions from the Affordable Care Act contraception mandate under the Religious Freedom Restoration Act would constitute congressional and federal judicial action that violates the Establishment Clause, by shifting significant costs of observing religious beliefs against contraception from the employers who hold them to employees who don't. The brief concludes that keeping federal government action within the structural limits set by the Establishment Clause is a compelling interest that justifies denial of for-profit employer exemptions from the mandate under RFRA.
FIRST AMENDMENT — FREE EXERCISE OF RELIGION — TENTH CIRCUIT HOLDS FOR-PROFIT CORPORATE PLAINTIFFS LIKELY TO SUCCEED ON THE MERITS OF SUBSTANTIAL BURDEN ON RELIGIOUS EXERCISE CLAIM. — Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114 (10th Cir. 2013).
The concluding paragraph:
The Tenth Circuit in Hobby Lobby pierced the veil between the corporate plaintiffs and their shareholders, not to protect third parties, as veil piercing is meant to, but to protect the corporations’ expression of the Greens’ religious beliefs, even while the Greens maintained the benefits of limited liability. If for-profit corporations do merit RFRA protection, such protection should be limited to the corporations’ own religious expressions. In this case, failing to limit the protection imposed the costs of the Greens’ freedom of religious exercise on any of their more than 13,000 full-time employees who choose forms of contraception that violate the Greens’ religious beliefs; those employees must now pay out of pocket, despite having had only a statement of commitment to biblical principles to warn them that they might bear those costs.
That's the title of a new paper--which may interest some MOJ readers--by University of St. Thomas law prof Charles Reid. The paper is available here. The abstract:
This Article has two principal purposes. The first is to examine the logic and limits of a medieval debate over same-sex unions. The medieval lawyers who engaged in this debate were no friends of same-sex unions. The debate, rather, seemed to take the form of an academic exercise by which the lawyers involved defined more rigorously the boundaries of what counted as marriage and also imported into the jurisprudence of marriage a deeply-hostile homophobia. I do not assert that same-sex marriage was an actual social reality in the Middle Ages. The existence of this debate, however, is quite remarkable in its own right. The Article’s second major purpose, then, is to reconsider the origins of homophobia. By connecting the canon law of marriage with homophobic rhetoric, the medieval lawyers reinterpreted marriage as an institution that not only served certain ends in its own right but existed to defeat the perceived threat of same-sex relations. This linkage, first articulated in the thirteenth century, unfortunately remains a feature of the contemporary debate over same-sex unions.
That's the title of an op-ed by BYU law prof Fred Gedicks--who is a good friend to many of us here at MOJ. You can read Fred's op-ed, which appears in the Washington Post, here.
