Sunday, March 31, 2013
The story linked to above might or might not prove to be for real. But even if it turns out to be an early April Fool's joke, it provides an interesting exam question for courses in ethics and public policy, constitutional interpretation, and civil liberties. I understand how the questions below would be answered from the point of view that is these days labeled "conservative." I'm curious about how they would be answered from the liberal point of view. Any liberal MoJ colleagues like to have some fun giving it a try?
"If Phil and Pearl [the grandmother and grandson in the Daily Telegraph story] would like to get married in order to bring up their child in the marital context, shouldn't they be permitted to? If there are laws forbidding them from marrying or barring the legal recognition of their marriage, don't those laws violate their rights to liberty and equality? Why shouldn't law honor all families, including incestuous ones? Is it right for law to impose upon people like Phil and Pearl (and Columbia professor David Epstein and his adult daughter: http://www.dailymail.co.uk/news/article-1339108/David-Epstein-Homosexuals-want-INCEST-different.html) majoritarian moral values they do not share? Isn't opposition to love and its sexual expression by closely related adults simply rooted in disgust, prejudice, and animus? Where are the studies showing that children raised in the homes of incestous adults in consensual relationships fare worse than others? Aren't Phil and Pearl (and the Epsteins) just like other couples whose relationships we honor and are happy to recognize as marital? After all, they have a relationship of mutual caring and sexual-romantic companionship and domestic partnership. They love each other and are willing to care for each other and take responsibility for each other. Phil is Pearl's NOP (Number One Person); and Pearl is Phil's. If they wish to marry, how would their marriage harm yours or anyone else's? What justification could there be for denying them the right to marry?"
In my book, The Tragedy of Religious Freedom, I have a chapter that tells "A Tale of Four Crosses" in an effort to flesh out my approach to questions of religious liberty, and specifically government display of religious symbols. One cross in the tale is the September 11 cross--a collection of beams which fused together amid the debris of the tragedy and was discovered by a rescue worker. The cross provided inspiration, solace, and hope to many people who were grieving at the time. After various developments, the state decided to display the cross in a museum about the events on that day, but this was opposed by American Atheists, Inc. I conclude in that chapter that, applying my method (and not the Supreme Court's tests), display of the cross in a state museum is almost certainly constitutional.
Applying the Supreme Court's tests, the United States District Court for the Southern District of New York agreed. In an opinion issued March 28, the court granted the defendants' motion for summary judgment in a case brought by American Atheists, Inc., which challenged the constitutionality of displaying the September 11 cross in a state museum. The Port Authority donated the cross to the National September 11 Memorial and Museum at the World Trade Center Memorial Foundation, Inc. The Foundation attempted to display the cross in the museum, but American Atheists sued to block this from happening on Establishment Clause grounds.
That claim was rejected by the district court (Batts, J.). After finding that the activities of the Foundation constitute state action, the court laid out the Establishment Clause standard in Lemon v. Kurtzman and the Supreme Court's subsequently elaborated "endorsement" test. The parties agreed that display of the cross satisfied Lemon's requirement of "secular purpose," inasmuch as the reason for its display was "historical and secular." As to secular "effect" (which generally is the same as perceived "endorsement" in this context), the court said this--and note in particular the permissibility of "acknowledgment" on the part of the state:
[S]ince the cross is housed in the Museum, its inclusion--in the September 11 Museum context with placards to explain why it was included in the Historical Exhibit--does not advance or endorse religion.
Plaintiffs assert that because the cross was used during Christian religious ceremonies, it is unlike historic religious objects that are housed in museums. They, however, cite no case law making such a distinction. Rather, the fact that the artifact is housed in the Historical Exhibit helps to negate any "sacred message" even though it "undeniably has a religious message." . . . . Also helping to negate any potential endorsement is the fact that the explanatory placards will accompany the artifact . . . . Moreover, the acknowledgement that many rescuers and volunteers found [solace] in the cross is not an endorsement of their religion . . . .
Plaintiffs also argue that because the artifact is seventeen feet tall, its size signals endorsement because no other artifact is as large as the cross . . . . Although the size of the item may be a factor in determining whether government endorsement exists, here, the cross is seventeen feet tall because that was the artifact's size when it was found.
Saturday, March 30, 2013
Thanks to Michael P. for posting another comment on my thought from Commonweal. This time it is a comment by Eduardo Penalver. I gather that neither Eduardo nor Michael is asserting that I have cast aspersions on the adoption of children who have been orphaned or whose parents cannot properly care for them. That's good because I haven't. To suggest that I have, would be odd in view of the work I've done (beginning in the mid-90s with the late Robert P. Casey, then-Governor of Pennsylvania) to promote adoption and reform legal procedures that unnecessariliy impede or discourage adoption in certain cases. I'm pro-adoption, not anti; and there is nothing in my thought that would cast aspersions on adoption where circumstances are such that the interests of chlidren are served by it---as they often are. On a different point in Eduardo's comment, I gather that he is merely claiming that the distinction between acts that are procreative in kind or type (those that fulfill the behavioral conditions of procreation whether or not the nonbehavioral conditions happen to obtain) and the subset of such acts that are procreative in effect (given that the nonbehavioral conditions of procreation more often than not do not obtain) is subtle, not that it is false or fallacious. For what it is worth, it doesn't strike me as especially subtle, nor did it when I first encountered it in the careful and analytically precise work on marriage and sexual morality of Elizabeth Anscombe. But perhaps subtlety is in the mind of the beholder. And, of course, what matters is not whether a distinction or principle is subtle, but whether it is valid.
Friday, March 29, 2013
My wife, Maria, along with Eve Tushnet, Rod Dreher, and a couple of others were invited by the New York Times to write about the purpose of Lenten sacrifice. Here is a taste of Maria's response:
In so many ways, the Camino is a metaphor for our whole lives: I can’t anticipate what struggles today will bring, but anything is doable one step at a time. Every uphill has a downhill. Hardship becomes manageable with a friend. Every single thing that I carry weighs me down, so I must choose wisely.
In our culture, pain, suffering, worries, difficulties and grieving are all things to conquer — and to anesthetize as quickly as possible. Each of us is an addict looking for a quick fix. Drugs. Food. Exercise. Sex. Shopping. Disposable relationships. Whatever it takes to not feel bad, sad, hurt.
Thus the question for me is not whether there’s a point to giving things up during Lent, but whether I should ever stop fasting from all that numbs, dulls and deadens me to life, all of life, as it is today — the good and the bad. Fasting makes me willing to try.
Thursday, March 28, 2013
"For the first time, a state court has affirmed the constitutionality of a Modern Orthodox-sponsored prenuptial agreement meant to protect agunot — Jewish women “chained” by husbands who refuse to grant them a religious divorce."
Read more: http://forward.com/articles/170721/in-victory-for-chained-wives-court-upholds-o/?p=all#ixzz2Or4t6b3H
I note that the piece quotes Prof. Michael Helfand (Pepperdine), one of the most interesting church-state legal scholars around.