Thursday, April 5, 2018
Monday, April 2, 2018
It's been 13 years. I remember the moment, sitting in a classroom at the Indiana University during a conference about the jurisprudence of William Rehnquist, when I learned that the man whose work, thought, writing, and life I admire more than pretty much anyone had gone to his reward. Here is a link to a link to a whole bunch of "John Paul II and jurisprudence" posts at MOJ.
Saturday, March 31, 2018
Because the country's greatest NCAA men's basketball program is not competing in the Final Four, and notwithstanding my beloved spouse's attachments to the great state of Kansas, I'm cheering for Loyola and Villanova tonight. (Catholic opposition to Michigan is, of course, overdetermined. Sorry, Prof. Moreland.) This NYT article -- despite a cringe-inducing, clunky line about "dogma-tinged" charisms -- is a good read about the many reasons why urban Catholic schools have excelled at basketball. And, of course, how about the Irish?
Friday, March 23, 2018
Ryan Anderson has posted a new paper, "Disagreement is not always discrimination: On Masterpiece Cakeshop and the Analogy to Interracial Marriage," here. Abstract:
This Article first argues that Colorado misapplied its antidiscrimination statute, a misstep partly caused by Colorado’s misinterpretation of Obergefell v. Hodges. Colorado is part of a larger national trend in which authorities are using antidiscrimination statutes as swords to punish already marginalized people (such as supporters of the conjugal understanding of marriage), rather than as shields to protect people from unjust discrimination (such as African Americans in the wake of Jim Crow and today). Second, this Article argues that support for marriage as the union of husband and wife is essentially different from opposition to interracial marriage, and that the status of African Americans is importantly different from that of Americans who identify as gay. As a result, First Amendment protections for people who act on the belief that marriage unites husband and wife differ in critical ways from hypothesized First Amendment protections for racists—and the courts can distinguish the two cases. Third and finally, this Article argues that protections for citizens who support the conjugal understanding of marriage bear much more similarity to protections for pro-life citizens. Just as protections for pro-life citizens have not been deemed “discriminatory” on the basis of sex or otherwise anti-woman because pro-life medicine is not sexist, so too should pro-conjugal marriage actions be treated as non-discriminatory because such actions are not anti-gay.
Wednesday, March 14, 2018
Sunday, March 11, 2018
Wow. I suppose we should welcome the candor, when a celebrity atheist and the former Archbishop of Canterbury (i.e., a prelate of a religious institution founded in order to suppress and expropriate the Roman Catholic Church) oppose allowing Catholic schools to open and expand. You know, because it would be "divisive" to respect religious freedom.
There's a new paper posted on SSRN, that's forthcoming (sigh) in the Yale Law Journal, called "The New Law of the Child." Here's the abstract:
This Article sets forth a new paradigm for describing, understanding, and shaping children’s relationship to law. The existing legal regime, which we term the “authorities framework,” focuses too narrowly on state and parental control over children, reducing children’s interests to those of dependency or the attainment of autonomy. In place of this limited focus, we envision a “new law of the child” that promotes a broader range of children’s present and future interests, including children’s interests in parental relationships and nonparental relationships with children and other adults; exposure to new ideas; expressions of identity; personal integrity and privacy; and participation in civic life. Once articulated, these broader interests lay the foundation for a radical reconceptualization of the field of children and law. We propose a new tripartite framework of relationships, rights, and responsibilities that aims to transform how law treats children and their interactions with others. The framework addresses children’s needs for state and parental control in many instances while also moving beyond those concerns to foster children’s interests in the here and now.
So far, it's (basically) the same move we've encountered before, perhaps most notably from James Dwyer, which involves expanding the basket of rights and "interests" the pursuit and protection of which is invoked to justify expanding state power over children's lives at the expense of parents' natural rights. I hope all those who read the paper will also read Melissa Moschella's new book, "To Whom Do Children Belong?" or, if they are pressed for time, this golden-oldie of mine:
Many States exempt religious parents from prosecution, or limit their exposure to criminal liability, when their failure to seek medical care for their sick or injured children is motivated by religious belief. This paper explores the question what, if anything, the debate about these exemptions says about the state's authority to override parents' decisions about education, particularly religious education. If we accept, for example, that the state may in some cases require medical treatment for a child, over her parents' objections, to avoid serious injury or death, should it follow that it may regulate, or even forbid, a child's religious training or religious-school education to prevent an analogous, though perhaps less tangible, harm?
The Supreme Court famously proclaimed, in Pierce v. Society of Sisters, that parents enjoy a fundamental right to direct and control the education of their children, but do we really accept, or even understand, the premises, foundations, and implications of this pronouncement? Recent calls for a thicker liberalism and for the harnessing of education to create truly liberal citizens make it all the more important that we take Pierce seriously. And if we do, it is suggested that state functionaries, guided and restrained by a proper humility about their authority and competence, should override parents' educational decisions only to prevent harm, carefully defined, to a child. The problem is, how do we define harm. This paper proposes that the content of religious instruction, traditions, or beliefs should not be viewed as harmful in the sense necessary to justify government second-guessing or supervention of parents' decisions about such instruction. In a free society, one that values religious freedom, the state should not entertain, let alone enforce, a belief that children would be better off without religious faith.
Saturday, March 10, 2018
Friday, March 2, 2018
I have to admit, when I first clicked on, and then started reading, this review of Clare Chambers's Against Marriage (OUP 2017), I was confident that it was a kind of Larry-Solum-level-genius parody of contemporary Rawlsian political-liberalism moves. Alas, it's not. Both the review (and, assuming the review is accurate, the book) take what I can only regard as a dangerous, even tyrannical turn. For example, "Chapter 6 distinguishes the marriage-free state from the marriage-free society and considers the circumstances under which the state might be justified in intervening in private marriages. Here Chambers clearly distinguishes her own position from a libertarian one by focusing on the state's role in preventing harm to vulnerable populations and to ensuring discriminatory practices are prohibited in the private sector." And, "[t]he latter chapter balances the need to protect women's (and children's) rights with the need to protect religious freedom, deftly arguing that religious freedom cannot include the right of religious leaders to discriminate against members of their own religion." Is this really what's coming? Is this what "liberalism" is coming to (or, perhaps, as Patrick Deneen would argue, it's always what it was or was on the way to becoming).