Mirror of Justice

In the Department of "So What Else is New" ...

... Marci Hamilton joins the bishop-bashers in a piece arguing that the Stupak Amendment violates, among other things, the Establishment Clause.  No surprise there.  The novelty is that she argues that the bishops' effort to assert taxpayers' conscientious objections to abortion funding violates the principle of Madison's "Memorial and Remonstrance Against Religious Assessments."  Hmmm ... that would be the Memorial and Remonstrance that was a petition from religious groups (Baptists and Presbyterians) opposing tax funding for something to which they conscientiously objected.  There are colorable arguments that the Stupak Amendment goes too far in affecting private funding, but the Establishment Clause is not one of them.  (Disclosure: I gave advice to the Democrats for Life of America in connection with the recent abortion-funding issue.)

NU Conference on Same-Sex Marriage and Religious Liberty

As an academic associate dean, I can handle about one substantive scholarship/advocacy area at a time, and right now it's religious liberty and gay-marriage recognition.  This past Thursday saw a fine conference at Northwestern Law School on the topic, and I gave the "keynote" talk, on "What Same-Sex Marriage and Religious-Liberty Claims Have in Common."

I personally have come to find the case for legislative recognition of same-sex marriage to be strong (a position that should in no way be imputed to the co-authors of our letters advocating strong religious exemptions).  But my conclusion on the underlying question in no way lessens my commitment to strong accommodations for religious objectors, both organizations and individuals.  Indeed, the gravamen of my NU talk was that the very arguments that support recognition of SSM also strongly support accommodation of religious objectors unless they are in a position substantially to block access to marriage.  I'll post the full piece when it's written, but here's a summary:

Both same-sex couples and religious objectors argue that they should be able, free from state interference or discouragement, to engage in conduct that is fundamental, in a pervasive way, to their personal identity. . . .  Both gay-rights and religious-liberty proponents have had to confront the counterargument that their interests involve only conduct, which the state can presumptively regulate [as opposed to, respectively, orientation or belief].  Both set of proponents respond that when conduct is fundamental to personal identity, the state should weigh that heavily and not burden, discourage, or disfavor the conduct without strong, concrete reasons for doing so. . . .  If the centrality of conduct to personal identity supports recognizing same-sex marriage, it also supports broad recognition of rights of religious conscience.

Related to this first commonality is a second: that both same-sex marriage and religious claimants seek to live out their identities in ways that are public in the sense of socially apparent and socially acknowledged. . . .  When same-sex couples are told they will receive no more than toleration of their private behavior, they are asked to keep their identities in the closet.  But when traditional religious believers are told to keep their beliefs to themselves, or to leave them behind upon entering the world of social services or the commercial marketplace, they too are told to keep their identities in the closet.

This combination of arguments makes a strong case for recognizing same-sex marriage but also recognizing significant religious accommodations [unless] the objector's refusal to serve would impose substantial hardship on the same-sex couple seeking services. . . .  This approach presumptively allows both sides to live out their identity without state interference or discouragement. . . .  Denials of service do affect gay couples by causing them disturbance and offense, [but] the harm to the objector from legal sanctions is far greater.  In most cases, the offended couple can go to the next entry in the phone book or the Google result.  The individual or organization held liable for discrimination, by contrast, must either violate the tenets of the faith or exit the service area or livelihood in which she/it has invested time, effort, and money.  The state simply does not give the religious objector's identity equal weight if it overrides the living out of that identity on the basis of symbolic harm or offense.

Iowa Debate on Same-Sex Marriage and Religious Accommodations

Readers in and around Des Moines, IA, might be interested in a debate between Georgetown Law prof Nan Hunter and me, this Tuesday at 3 p.m. at Drake Law School.  The topic is "Religious Liberty Exemptions and Iowa's Same-Sex Marriage Decision."  The topic is of great importance nationally, of course, and in Iowa as the approaching legislative session will consider the implementation of the state supreme court decision legalizing gay marriage.

I'll be defending, broadly speaking, the model religious-exemption provision proposed by a group of scholars including Rick and me.  Our letters setting forth and defending that approach, as applied to various states including Iowa, are collected here.

Hope to see some Iowa readers!

Save the Date: "Christian Realism and Public Life: Catholic and Protestant Perspectives"

Readers might be interested in this conference on Christian Realism, to be held at St. Thomas's law building in Minneapolis November 20-21, and sponsored by the Murphy Institute for Catholic Thought, Law, and Public Policy.  (You can register at the link.)  Plenary and concurrent speakers include Jean Elshtain, Gerry Bradley, David Skeel, and our own Michael Scaperlanda, Susan Stabile, and Rob Vischer, among many others.  Here's an excerpt of the description in Call for Papers:

An examination of “realism” in religious and political thought is timely indeed.  The term has been at the forefront of recent American foreign-policy debates over the role of moral values and the use of force.  Pope Benedict XVI has spoken in several contexts of a “Christian realism” that offers a more sober and solid hope for social life than do alternative views.  And President Obama has identified the Christian Realism of Reinhold Niebuhr as among his chief philosophical influences.  Niebuhr’s approach was in several ways distinctively Protestant.  But it is evident that the impulse for Christian public theology to be realistic—to be based in a clear-headed assessment of facts about God, human beings, and the world—cuts across Catholic and Protestant thinkers, although the themes and the definitions of realism vary.

"What if Marriage is Bad for US?"

Here's an article from the new Chronicle of Higher Education, by two Middlebury sociology professors, on "what if marriage is bad for us?"  There are several striking things about it, including the lack of any reference to the welfare of children.  And there's this quote:

With all that marriage supporters promise —wealth, health, stability, happiness, sustainability—our country finds itself confronted with a paradox: Those who would appear to gain the most from marriage are the same ones who prove most resistant to its charms. Study after study has found that it is the poor in the United States who are least likely to wed. The people who get married are the same ones who already benefit most from all our social institutions: the "haves." They benefit even more when they convince everyone that the benefits are evenly distributed.

Too often we are presented with the false choice between a lifelong, loving marriage and a lonely, unmarried life. But those are far from the only options. We should consider the way people actually live: serial monogamy, polyamory, even polygamy.

The authors don't explain how or why those three options are somehow less likely than marriage to discriminate against the "have nots" (even though the three, you'd think, are "institutions" too).  Indeed, maybe the "have nots" do worse under those other options?  Others can chime in with the evidence, but it strikes me that mothers who are economically vulnerable -- to say nothing of children -- have not been well served under the system of effective serial monogamy (with marriage or not) that's become partly legitimized in recent decades.

Christianity Today: "Rome Won't Give Up on Europe Without a Fight"

Here's an appreciative article in Christianity Today, the evangelical magazine, on the Pope's campaign to win back Europe by preaching "basic Christianity" (an evocative term for evangelicals).  Among the thoughts:

Benedict seeks to mend an open wound in Europe politicians have not been able to heal. Secularism offers European nations no basis for relating to or confronting the highly religious immigrant populations now settling in their cities. Skeptics may rightly wonder whether church history offers a better way of coping with pluralism, given Europe's experience with interdenominational warfare. But Benedict deserves credit for steering the church back to basic Christianity in hopes of reminding Europe that the gospel of Jesus Christ once turned a barbarous continent into the cradle of Western civilization.

The Maine SSM/Religious Liberty Fight: Follow-Up Lawprofs' Letters

The tussle over the upcoming Maine ballot measure to de-recognize same-sex marriage, in which BC lawprof Scott Fitzgibbon has played a role, has also touched on the memo-letters that several of us lawprofs (including Rick and I) wrote back in the spring to legislative leaders and the governor.  We proposed meaningful religious-liberty protections to accompany any recognition of SSM, so as to reduce the conflicts between traditionalist believers and same-sex couples.  Our earlier letters have been used and criticized, respectively, by the two sides in the current all-or-nothing fight: those who want to eliminate SSM recognition for (among other reasons) religious-liberty concerns, and those who want to dismiss those concerns and keep SSM with the minimal religious-liberty protections that the state enacted in recognizing it.

We've now written another pair of memo-letters (here and here), among other things to (1) answer public criticisms of our claims that SSM recognition will conflict with religious liberty and (2) point out that it's still possible to address the concerns of both traditionalists and same-sex couples by adding meaningful religious-liberty protections to the SSM recognition law.  The bitterness of the all-or-nothing debate, we argue, is an indicator of the value of proposals like ours.

Tom

The Story Behind the Lemon Case

For those interested in the background of perhaps the most important Establishment Clause case ever, I've posted on SSRN this draft chapter, "Lemon v. Kurtzman: The Parochial-School Crisis and the Establishment Clause."  It's from a forthcoming book, edited by Leslie Griffin, called Law and Religion Cases in Context, an entry in Aspen Publisher's new series of stories about famous cases (corresponding to Foundation's "Law Stories" series that many of you know).  The abstract:

This chapter . . . traces the background and implications of Lemon v. Kurtzman (1971), the case that is famous for its 3-part Establishment Clause test and that also inaugurated a series of decisions in the 1970s and early 1980s striking down state efforts to assist parochial schools and the children attending them. In addition to summarizing the arguments, holding, and general implications of Lemon, the chapter draws attention to background and nuances: the parochial-school financial crisis that triggered these laws, the vigorous but unsuccessful attempt of the NAACP and other plaintiffs to challenge the laws for allegedly promoting white flight from urban neighborhoods, and factors (including changes in religious and racial demographics) that contributed first to the rise of Lemon's no-aid approach and then to its decline in recent decisions such as the Cleveland voucher case.

The overall volume should be very good, with contributions from, among other lawprofs, Michael McConnell, Marci Hamilton, Sam Levine (Pepperdine), and Marie Failinger (Hamline).

Memos/Letters on Religious Liberty and Same-Sex Marriage

Over the last months, there have been MOJ posts about the efforts of an assortment of religious-liberty scholars --including MOJers Berg, Garnett, and Perry -- proposing strong religious-liberty protections for conscientious objectors in states where same-sex marriage has been or may be legally recognized.  The most recent efforts are in Iowa, where the next legislative session (early 2010) will face the issue in implementing the state supreme court's Varnum decision finding a right to same-sex marriage.

Based on comments from readers and others, I thought it would be worthwhile to collect in one post links to the various memo/letters that the scholars have written on the religious-liberty effects of same-sex marriage in the respective states.  For each state, there is a Letter 1 -- a longer one with a full set of arguments by one group of scholars, including Garnett and Berg -- and a Letter 2 -- a shorter one by another group, led by Doug Laycock and including Michael Perry, all of whom support same-sex marriage but also support strong religious-objector provisions.

Iowa: here are Letter 1 and Letter 2

New York: Letter 1 and (UPDATE) Letter 2

Maine: Letter 1 and (UPDATE) Letter 2

Our letters and our proposed statutory language have been revised since we wrote memo letters earlier concerning New Hampshire and Connecticut.  Because the legal developments have often happened fairly quickly, the most recent letters, reflecting our revisions, should be taken as constituting our proposals and arguments.  But if you want to look at earlier letters, you can find links to the New Hampshire letters here and the Connecticut letters here.

Open Letter on "No Clothes" Athletes

Here's a deftly written open letter to ESPN Magazine on the news that it is considering publishing an issue of "no clothes" pictures of athletes in an effort to one-up the Sports Illustrated swimsuits.

And here, by the same author, an open letter to possibly-returning quarterback Brett Favre: a letter of less relevance to Catholic social thought, although maybe of more interest to fans of the Vikings, Packers (Sisk!), or Bears (Berg).