In my work on conscience, I focus on our society's need to allow a vibrant moral marketplace to flourish, urging culture war combatants to resist using the levers of state power to shut down arguments with which they disagree. In the California legal system, this does not appear to be a particularly popular position. A couple of months ago, a California court ruled that an Arizona adoption-related website was subject to California law in a suit brought by a same-sex couple alleging that the website's owners unlawfully discriminated against them by refusing to post their profile online as potential adoptive parents. This ruling was key because of California's Unruh Act, which forbids discrimination by any "business establishment." The statute has been interpreted to apply to discrimination based on marital status and sexual orientation. After the ruling, the parties settled, with the website owners agreeing not to post the profiles of any California residents unless they were prepared to post the profiles of same-sex couples.
Now there is a suit against the online dating service e-Harmony alleging that the company (which was started by evangelical Christians) violates California law by not including categories of "men seeking men" and "women seeking women." The plaintiff's lawyer explains that:
[T]he lawsuit was "about changing the landscape and making a statement out there that gay people, just like heterosexuals, have the right and desire to meet other people with whom they can fall in love."
[The] lawyers expect a significant number of gays and lesbians to join the class action, which seeks to force eHarmony to end its policy as well as unspecified damages for those denied eHarmony services based on their sexual orientation.
To be clear, I agree that gays and lesbians have (and should have) the right to "meet other people with whom they can fall in love." The more pressing question is: against whom should that right be enforceable? I support legally enforceable rights against discrimination -- including discrimination based on sexual orientation or marital status -- in the economic (i.e., employment) and political (i.e., voting) spheres. But in the wider social arena (e.g., Boy Scouts, student groups, adoption/dating services) the law can be a blunt (and dangerous) hammer. And the internet raises the stakes for these invocations of state power, as state borders are increasingly irrelevant. If the plaintiffs are serious about "making a statement" and doing so in a way that maintains the space needed for others to make their own statements about contested moral issues, I suggest that they boycott eHarmony, support more inclusive dating services, and write fiery op-eds urging the public to do the same. "Making a statement" suggests that there is a conversation going on; it seems to me that this lawsuit is a conversation-stopper.
The Washington Post reports that Gonzales v. Carhart has made a split among pro-life groups wider and more visible, with some groups publicly accusing James Dobson of being a leader of the "pro-life industry."
Wednesday, May 30, 2007
Focus on the Family has launched "The Truth Project," a curriculum designed to reintroduce Christians to a biblical worldview of science, law, and other fields of knowledge. Seton Hall law prof David Opderbeck offers a thoughtful, sympathetic critique of the effort, but he concludes:
At the end of the day, my biggest source of angst with something like the “Truth Project” is its insistence that “the Truth” has once-for-all been captured in some neatly packaged curriculum, which often is presented as beyond question in all its aspects. I guess this helps some people who have never really thought about the fact that there is something like “the Truth” outside themselves. It doesn’t really help people like me, who believe in transcendent Truth, but who are experienced, traveled and read enough to know that all human expressions of the Truth are contingent and slippery, and carry elements of danger. Humans who claim to possess the Truth tend to shut out all other voices, thereby immunizing themselves from inconvenient truths outside their own limited sphere of knowing. Humans who claim to possess the Truth also tend want to transmute their truth into power, in the end disregarding a basic truth — that all people are created in the image of God with inherent dignity and freedom.
Ultimately, as followers of Jesus, we never really “possess” the Truth — it possesses us, in the person of Jesus. And ultimately, as followers of Jesus, the power of the Truth that possesses us is the power of the cross — the power of the way of sacrifice and love. Let us bear witness to the Truth that possesses us, but let us do so in humility, in the aspect of pilgrims and disciples (”learners”), not in the aspect of war.
Over at First Things, Villanova law prof Robert Miller criticizes the Vatican for the conflicting signals sent out regarding the excommunication of Catholic politicians who voted to legalize first-trimester abortions in Mexico. Here's an excerpt:
The Church’s reluctance to speak straightforwardly about whether Catholic politicians incur an excommunication latae sententiae for their actions related to abortion legislation seems to derive from a desire to avoid embroiling the Church further in the bitter controversies about abortion. If so, such considerations are misguided. The Church has embodied in canon 1398 her judgment that procuring an abortion is a crime so serious that it warrants the penalty of excommunication latae sententiae. If the Church has changed her mind about that, then canon 1398 should be amended accordingly.
Assuming, however, that procuring an abortion is as gravely wrong as the canon implies, then the Church should stand by this judgment. If I say to the wicked, “You shall surely die,” and you give him no warning, nor speak to warn the wicked from his wicked way, in order to save his life, that wicked man shall die in his iniquity; but his blood I will require at your hand. But if you warn the wicked, and he does not turn from his wickedness, or from his wicked way, he shall die in his iniquity; but you will have saved your life. (Ezek. 3:18–19). Hence, when Catholic politicians violate the canon, the Church should declare openly that they have incurred the penalty of excommunication latae sententiae. The pope, of all people, must be straightforward about the truth of the Gospel (Gal. 2:14).
Tuesday, May 29, 2007
Fordham law prof Russ Pearce has posted his new article, The Legal Profession as a Blue State: Reflections on Public Philosophy, Jurisprudence, and Legal Ethics. Here's the abstract:
What do lawyers and Blue State voters have in common? They subscribe to the view that values do not belong in public discourse and that, as Ronald Dworkin put it, “no person or group has the right deliberately to impose personal ethical values on anyone else.” This view animates both the legal profession's prevailing “hired gun” perspective and the principal political approach of voters who supported the Democratic presidential candidate in the 2000 and 2004 elections. This Essay suggests that this confluence is no accident, for both are grounded in the same public philosophy.
The Essay traces the history of how dominant public philosophies have shaped both jurisprudence and legal ethics. Prior to the Civil War, the republican combination of natural law and empiricism prescribed a distrust of majority rule. Within this framework, a governing class of virtuous lawyers devoted to the public good would protect rule of law and individual rights. Following the Civil War, elite public philosophy began a shift that enthroned empiricism and discarded natural law. From this period through the 1960s, commentators progressively narrowed conceptions of both the capability of lawyers and their governing class role. Eventually, the lawyer's role diminished to that of an "amoral technician."
In spite of this historical trend, lawyers continue to serve as a de facto governing class both through their disproportionate role in formal governance and their day-to-day work as intermediaries between the law and the people. The Essay concludes with a call for lawyers to “revive their capacity as a political leadership class,” even in a public sphere “inevitably full of value conflict and debate.” This would require lawyers both to accept responsibility for their own values and to “develop the ability to promote dialogue among and between people of different values.”
I read an earlier draft of this essay and found it to be a helpful overview of the transformation of our understanding of the lawyer's public role. I would also be interested in unpacking the impact that legal education has here -- i.e., whether our methods of legal education flow from the dominant public philosophy or are an independent source of the profession's presumption of amorality.
