Monday, August 12, 2013
News of interest to some MOJ bloggers and readers:
The most recent issue (Spring 2013) of the National Catholic Bioethics Quarterly contains several articles critiquing, from the perspective of Thomistic Natural Law, the New Natural Law Theory of Germain Grisez and John Finnis. The issue is not yet available online, but the table of contents and the informative abstracts of the several articles are available here.
(Just noticed that Richard M. posted on this earlier this month.)
Friday, July 19, 2013
Thanks very much, Tom, for engaging my brief commentary in Commonweal on United States v. Windsor.
1. I explicate the right--the human right--to religious and moral freedom, and explain why we are warranted in concluding that the right is entrenched in the constitutional law of the United States, both in my new book and, more recently, in an article that will soon be published in the Journal of Law and Religion. The article is available here.
2. You ask: "Michael, given your argument, do you think that Roe and Casey were rightly decided--and rightly decided simply because restrictions on abortion are 'widely contested' (without some need to establish that they seriously impose on women's physical autonomy or life plans)?" The way you formulate your question reflects, I think, a misunderstanding of the content of the right to religious and moral freedom. About the right, please see my first response, above.
About the constitutional controversy over the criminalization of abortion: In the final chapter of my new book, I bring both the right to moral equality (which I explicate in the book) and the right to religious and moral freedom to bear on the Abortion Cases--and conclude both that Roe v. Wade was rightly decided (which is not to say, rightly reasoned), principally because of the right to moral equality, and that Doe v. Bolton was wrongly decided. In reaching that twofold conclusion, I am aligned with what I understand to be the position my former teacher Ruth Ginsburg expressed when she was a member of the U.S. Court of Appeals for the D.C. Circuit.
3. I've already referred twice to my new book, Human Rights in the Constitutional Law of the United States (2013), the official publication date of which is July 31, 2013. The table of contents and introduction to the book are available here.
4. Space contraints did not permit me to develop adequately my Commonweal critique of SCOTUS's opinion in United States v. Windsor. I will present the full critique in the context of a lecture that I am due to deliver at the University of Illinois on November 6: The David C. Baum Lecture in Civil Rights and Civil Liberties. I will make the lecture available shortly after I deliver it. In the lecture, I will explain why, in my judgment, the right to equal protection--which is the American articulation of the internationally recognized human right to moral equality--is not the appropriate basis for ruling that it is unconstitutional for government to deny access to civil marriage to same-sex couples.
So, to be continued ...
Friday, July 12, 2013
The
title of my new book, Human Rights in the Constitutional Law of the United States, references the subject matter that has been my
principal scholarly obsession since the beginning of my academic career. In
the book--the introduction to which is available here for download--I elaborate three internationally recognized human rights, each of
which, as I explain, is entrenched in the constitutional law of the
United States: the right not to be subjected to “cruel and unusual”
punishment, the right to moral equality, and the right to religious and
moral freedom. I then pursue three inquiries that are of special concern to MOJ readers:
• Does punishing a criminal by killing him violate the right not to be subjected to “cruel and unusual” punishment?
•
Does excluding same-sex couples from civil marriage violate the right
to moral equality or the right to religious and moral freedom?
• Does criminalizing abortion violate the right to moral equality or the right to religious and moral freedom?
I
also pursue a fourth inquiry: In exercising judicial review of a
certain sort--judicial review to determine whether a law (or other
public policy) claimed to violate a constitutionally entrenched human
right does in fact violate the right--should the Supreme Court of the
United States inquire whether in its own judgment the law violates the
right? Or, instead, should the Court proceed deferentially, inquiring
only whether the lawmakers’ judgment that the law does not violate the
right is a reasonable one? In short, how large/small a role should the
Court play in protecting (enforcing) constitutionally entrenched human
rights?
I have long been engaged by, and have before written
about, questions such as those I address in this book: questions about
the implications of constitutionally entrenched human rights--and the
question about the proper role of the Supreme Court in adjudicating such
questions. (The title of my first book, published in 1982: The
Constitution, the Courts, and Human Rights.) Indeed, I have before
written about each of the three constitutional controversies at the
heart of this book: capital punishment, same-sex marriage, and
abortion. Because I was not satisfied with my earlier efforts, I decided to revisit
the controversies.
Tuesday, July 9, 2013
Grant Gallicho has the story--which will interest many MOJ readers--at dotCommonweal. The beginning:
"Last night [July 8] the Catholic Health Association issued a memo to its members announcing that the final rules governing the Obama administration's contraception-coverage mandate are workable. In June of last year, CHA strongly criticized--as did the U.S. Conference of Catholic Bishops--the way the Department of Health and Human Services had attempted to accommodate the concerns of religious employers who objected to the mandate. The USCCB is still not (and may never be) happy with the rule. But CHA now believes HHS has addressed their concerns."
The rest of the story, with links, is here.
Tuesday, July 2, 2013
Some MOJ readers may be interested in this paper, which I just posted to SSRN (here). The abstract:
In a
paper I posted to SSRN last month — “The Morality of Human Rights” (June
2013) — I explained that as the
concept “human right” is understood both in the Universal Declaration of
Human Rights and in all the various international human rights treaties
that have followed in the Universal Declaration’s wake, a right is a
human right if the rationale for establishing and protecting the right —
for example, as a treaty-based right — is, in part, that conduct that
violates the right violates the imperative, articulated in Article 1 of
the Universal Declaration, to “act towards all human beings in a spirit
of brotherhood”. Each of the human rights articulated in the Universal
Declaration and/or in one or more international human rights treaties —
for example, the right, articulated in Article 5 of the Universal
Declaration and elsewhere, not to be subjected to “cruel, inhuman or
degrading treatment or punishment”—is a specification of what, in
conjunction with other considerations, the imperative — which functions
in the morality of human rights as the normative ground of human rights —
is thought to forbid (or to require).
A particular specification
is controversial if and to the extent the supporting claim — a claim to
the effect that the “act towards all human beings in a spirit of
brotherhood” imperative forbids (or requires) X — is controversial. My
aim in this essay is to elaborate and defend a particular specification:
the right, internationally recognized as a human right, to freedom of
conscience — to freedom, that is, to live one’s life in accord with the
deliverances of one’s conscience.
A more focused name for the
right is the right to religious and moral freedom. Jocelyn Maclure and
Charles Taylor begin their book Secularism and Freedom of Conscience
(2011) by stating that “[o]ne of the most important challenges facing
contemporary societies is how to manage moral and religious diversity.”
One indispensable strategy for managing religious and moral diversity
is, as I explain in this essay, the right to religious and moral freedom
— to freedom to live one’s life in accord with one’s religious and/or
moral convictions and commitments.
In the final part of the
essay, I explain why we are warranted in concluding that the
internationally recognized human right to freedom of conscience — to
religious and moral freedom — is part of, is entrenched in, the
constitutional law of the United States.
Thursday, June 27, 2013
An MOJ reader asks:
Assume that in a state that grants access to civil marriage to same-sex couples the law requires all employers (including private employers) who employ more than a specified number of persons to make health insurance benefits available not only to its employees but also to the the families of its employees--including, of course, spouses. Does it violate a Catholic employer's religious freedom to require the employer to make health insurance benefits available to the same-sex spouse of an employee?
Monday, June 24, 2013
Professor M. Cathleen Kaveny’s newest book, Law’s Virtues: Fostering Autonomy and Solidarity in American Society (Georgetown University Press) has won a 2013 Catholic Press Award (First Place) in the category of Faithful Citizenship, which includes books covering contemporary political issues and the formation of conscience.
In announcing the award, the Catholic Press Association of the United States and Canada noted that:
“Law’s Virtues is a lucid, timely analysis of the role of law in a complex, multi-dimensional democratic society, and law’s potential for being a “teacher of virtue.” Thoroughly researched and compellingly argued, this volume is expansive, timely, and readable. The author addresses many fraught political/moral issues and is replete with illuminating distinctions and practical wisdom.”
Professor Kaveny teaches contract law to first-year law students at the Notre Dame Law School and offers a number of seminars that explore the relationship between theology, philosophy, and law. She also teaches in the Department of Theology.
A video of the Berkley Center for Religion, Peace, and World Affairs seminar on the book is available at Georgetown University’s website.
A podcast of a discussion about the book that was hosted by the religion, policy and politics project at Brookings is available at Brookings Institution’s website.
Monday, June 10, 2013
Some MOJ readers may be interested in a paper I just posted to SSRN (here): "The Morality of Human Rights". This is the abstract:
In
the period since the end of the Second World War, there has emerged what never
before existed: a truly global morality. That morality — which I call “the
morality of human rights” — consists not only of various rights recognized by
the great majority of the countries of the world as human rights, but also of a
fundamental imperative that directs “all human beings” to “act towards one
another in a spirit of brotherhood.” The imperative — articulated in the very
first article of the foundational human rights document of our time, the
Universal Declaration of Human Rights — is fundamental in the sense that it
serves, in the morality of human rights, as the normative ground of human
rights.
I begin, in the first section of this essay, by explaining what the term “human
right” means in the context of the internationalization of human rights. I also
explain both the sense in which some human rights are, in some legal systems,
“legal” rights and the sense in which all human rights are “moral” rights.
Then, in the longer second section, I turn to the inquiry that is my principal
concern in this essay: Why should one take seriously the imperative that
serves, in the morality of human rights, as the normative ground of human
rights? That is, what reason or reasons does one have, if any, to live one’s
life in accord with the imperative to “act towards all human beings in a spirit
of brotherhood”?
This essay, the final draft of which will be published in a symposium issue of
the San Diego Law Review, was my contribution to the conference on “The Status
of International Law and International Human Rights” that was held at the
University of San Diego School of Law on May 3-4, 2013, under the auspices of
the School’s Institute of Law and Philosophy. Some of the material in this
essay is drawn from my new book, Human Rights in the Constitutional Law of the
United States (2013). Most of the material here that is not drawn from my book
was first presented in a lecture I was honored to deliver at Santa Clara
University in March 2013, under the auspices of the Bannon Institute of the
Ignatian Center for Jesuit Education.
Saturday, June 8, 2013
Tuesday, April 30, 2013
That's the title of a new post at ReligiousLeftLaw by University of St. Thomas law professor Charles Reid. The post begins:
"From 2003 to early 2009, I wrote a series of historically-grounded papers that reached the common conclusion that marriage equality represented a radical departure from the western tradition of marriage and so, for that reason, should be rejected as a matter of public policy. I have now changed my mind regarding this conclusion. While there is no question that marriage equality represents a dramatic departure from what has gone before, I can now find support within our western tradition for expanding the definition of marriage to embrace loving, committed same-sex unions.
Let me begin with my professional background: I am a lawyer and an historian. These two sides of my brain co-exist in what I like to think is, for the most part anyways, a creative tension. The lawyer side of my brain considers public policy issues in the urgency of the present. The historian's training, however, summons me always to look at the deep picture, to appreciate what has come before, and it was this innate conservativism that long governed my instincts on marriage equality. In my historical writings on the subject, I made essentially three arguments: (1) In the few instances in which same-sex marriage was debated on the historical record, it was rejected; (2) a principal reason for this rejection, furthermore, was because marriage was about procreation, and only procreative relationships should therefore be recognized as marriage; and (3) public policy should remain within these tightly-drawn boundaries, because any departure would be likely to result in arbitrary line-drawing."
The rest of the post, is here, where, if you want, you can comment.
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