Ross Douthat's op-ed makes the case for teenagers delaying sexual activity:
When social conservatives talk about restoring the link between sex, monogamy and marriage . . . . [t]he point isn’t that we should aspire to some Arcadia of perfect chastity. Rather, it’s that a high sexual ideal can shape how quickly and casually people pair off, even when they aren’t living up to its exacting demands. The ultimate goal is a sexual culture that makes it easier for young people to achieve romantic happiness — by encouraging them to wait a little longer, choose more carefully and judge their sex lives against a strong moral standard.
It's a very good column, though I was struck by the fact that Douthat backs off the "wait until marriage" argument and appears to embrace the more realistic (?) and widely accessible (?) "wait for somebody special" argument. I don't know how widespread this view is becoming among social conservatives, whether it's just the public adaptation of what is now seen as a primarily religious argument against all premarital sex, and/or whether the traditional argument will be increasingly seen as outdated -- even as a stated policy aspiration -- given increasing delays in marriage, etc. In any event, it's worth a read.
Friday, March 4, 2011
Michael Helfand is a very bright young legal scholar who just joined the faculty at Pepperdine. My guess is that his work will always be worth reading. Check out his new paper, Religious Arbitration and the New Multiculturalism: Negotiating Conflicting Legal Orders. Here's the abstract:
This Article considers a trend towards what I have termed the “new multiculturalism,” where conflicts between law and religion are less about recognition and symbolism and more about conflicting legal orders. Nothing typifies this trend more than the increased visibility of religious arbitration, whereby religious groups use current arbitration doctrine to have their disputes adjudicated not in U.S. courts and under U.S. law, but before religious courts and under religious law. This dynamic has pushed the following question to the forefront of the multicultural agenda: under what circumstances should U.S. courts enforce arbitration awards issued by religious courts in accordance with religious law. Indeed, with growing skepticism regarding the oppressive potential of religious majorities, critics have questioned whether religious arbitration has any place in a regime dedicated to individual liberties. By contrast, this Article contends that current arbitration doctrine can meet the challenges of the new multiculturalism. To do so, this Article makes two concrete policy recommendations: (1) courts should redefine the scope of enforceability of religious arbitration awards by limiting the application of the public policy exception to vacate religious arbitration awards and (2) courts should expand the application of unconscionability to void religious arbitration agreements.
Thursday, March 3, 2011
We've already noted President Obama's recommendation that laws discriminating against gays and lesbians be subject to heightened scrutiny -- i.e., that rational basis review of bans on same-sex marriage is not appropriate. The question that hasn't received much attention, though, is why did Obama stop with intermediate scrutiny (the standard applied to gender discrimination)? Why didn't he endorse strict scrutiny (the standard applied to racial discrimination) as the appropriate standard for laws discriminating against gays and lesbians? Jason Mazzone weighs in:
[A]nother explanation for the administration's choice seems unavoidable: the administration picked the level of scrutiny least likely to alienate Black voters. Numerous polls demonstrate that Blacks constitute the ethnic group least likely to support same-sex marriage and by a significant margin (though perhaps as Obama's thinking "evolves" on same-sex marriage, other Black voters might change their minds as well). For many years, (certain) Black commentators have expressed offense at any comparison between racial prejudice and discrimination on the basis of sexual orientation. In particular, comparisons between bans on same-sex marriage and anti-miscegenation laws have drawn sharp criticisms. It follows that Blacks will be the least likely group to accept the administration's argument for special constitutional protections for gays and lesbians--especially when it comes to same-sex marriage.
So the administration is playing to both sides: recognizing the need for stronger protections for gays and lesbians while leaving race as a special category that deserves the strongest judicial protections. In this way, the administration can avoid (or try to avoid) any need to argue that the prejudice underlying the historical bans on interracial marriage has a contemporary manifestation.
Can you come up with any reasons to choose intermediate over strict scrutiny that are not rooted in political considerations?
Since we're on the subject of parental rights, here's another new paper (this one by Scott Altman) that explores a different approach as a basis for parental claims: the value of intimacy. Here's the abstract:
This paper explores whether parents’ rights to live with their children and to deny others access to those children are justified by the more basic right to form and maintain intimate relationships. Many theories treat parental rights as derivative – indirectly justified by children’s interests. This paper asserts a nonderivative justification based on the value of intimacy to parents.
The paper initially explores the potential intimate relationship between a father and his newborn genetic child. It asks whether the interest in parental intimacy creates any reason to demand access to this particular child. Just as a right to intimacy provides no claim that a particular stranger become my friend, the right to become a parent seems to provide no justification for demanding access to a particular child. The paper argues that duties to care for genetic children – even controversial duties not widely accepted – provide a prima facie right to care for a genetic child. The right to establish an intimate relationship derives from a duty to do so.
The paper next considers rights to maintain ongoing intimate relationships with children. These are often challenged when grandparents or step-parents seek visitation over a parent’s objection, or when a custodial parent seeks to relocate after divorce. I explore two common interpretations of these conflicts, which are pervasive in both legal and moral relationships: that people who knowingly make themselves vulnerable assume risks of loss, or that people who knowingly accept another’s vulnerability owe duties not unreasonably to disappoint those who rely on them.
The paper concludes by considering whether broad parental authority – to exclude others and to direct the upbringing of children – can be justified by the parental right to intimacy. I do not believe intimacy can justify such rights. But I explore briefly alternative parental interests that could ground this right – interests that compare parents with artist and other creative workers.
Wednesday, March 2, 2011
A new entry on the ledger of anti-Muslim hysteria: A bill has been introduced in the Tennessee legislature that would make it a felony to follow Shariah law. OK, I understand the concern about Shariah law being allowed to subvert civil law, but making it a crime for an individual to follow the dictates of their religious tradition? If we are concerned about some elements of Shariah law having the potential to lead an individual to commit acts of violence or treason, let's focus on the violence or treason, not the purported religious justification for the acts. For the good of all concerned, I hope the bill meets a quick and painless demise in committee. (It will meet its demise in the courts, at the very least.)
Clyde Haberman is troubled by the quick removal of the anti-abortion billboard in NYC.
Tuesday, March 1, 2011
Perhaps not, at least in the U.K. While postponing the ultimate decision, the Queen's Bench division of the High Court of Justice issued this opinion yesterday:
If children, whether they are known to be homosexuals or not, are placed with carers who . . . evince an antipathy, objection to or disapproval of, homosexuality and same-sex relationships, there may well be a conflict with the local authority's duty to "safeguard and promote" the "welfare" of looked-after children. There may also be a conflict with the National Minimum Standards for Fostering Services and the Statutory Guidance. Religion, belief and sexual orientation are protected characteristics under the Equality Act 2010. . . . While as between the protected rights concerning religion and sexual orientation there is no hierarchy of rights, there may . . . be a tension between equality provisions concerning religious discrimination and those concerning sexual orientation. Where this is so, Standard 7 of the National Minimum Standards for Fostering and the Statutory Guidance indicate that it must be taken into account and in this limited sense the equality provisions concerning sexual orientation should take precedence.
HT: Howard Friedman
