November 18, 2013
What Is Marriage?
MOJ readers will recall the important article-turned-book: What Is Marriage? Man and Woman: A Defense (2012), by Sherif Girgis, Ryan T. Anderson, and MOJ’s Robert P. George. Andrew Koppelman, in an article in a forthcoming issue of the University of Illinois Law Review—an article in which in he criticizes the book—has described the book as “the leading statement of the case against same-sex marriage . . .” (The Koppelman article is here.) University of St. Thomas law prof Chuck Reid has just posted, over at ReligiousLeftLaw, some comments on the central argument of the book. The comments begin with this: “Does love make a marriage? Or does sex? And if sex makes a marriage, then what kind of sex? These were central themes of a debate I participated in at the University of Notre Dame on November 9th, where I discussed these questions with two proponents of a highly traditional understanding of the marriage relationship, Ryan Anderson and Sherif Girgis.” Reid’s comments are available in full here.
October 21, 2013
In response to Kevin: A clarification
I hope I have not (but perhaps I have) misunderstood Kevin's comments. My reading of the comments leads me to make this clarifcation:
My position is not that whether a punishment is "unusual" is a criterion (much less the criterion) of whether the punishment is "cruel". It is easy to imagine punishments that are "unusual" but not "cruel".
Rather, my position is that whether a punishment is "unusual" is probative of whether the judgment--the possibly controversial judgment--that a punishment is "cruel"--a judgment reached entirely without regard to whether the punishment is "unusual"--is a sound judgment.
October 16, 2013
Where Magisterial Morality and Constitutional Morality Converge: The Case of Capital Punishment
I just posted to SSRN a paper titled Why Capital Punishment Violates the Constitutional Law of the United States. The paper is available here. If my argument misfires, where does it misfire?
This is the abstract:
I explain in this paper why we are warranted in concluding
that capital punishment—punishing a criminal by killing him—is both “cruel” and
“unusual” within the meaning of the Eighth Amendment’s ban on “cruel and
unusual punishments” and therefore violates the constitutional law of the
United States. In setting the stage for
that explanation, I discuss the internationally recognized human right not to
be subjected to any punishment (or other treatment) that is “cruel, inhuman or
degrading”. When I turn to the question
of the original understanding of the Cruel and Unusual Punishments Clause of
the Eighth Amendment, I discuss the important work of John Stinneford,
explaining why I concur in Stinneford’s conclusion about the original understanding
of “cruel” but dissent from his conclusion about the original understanding of
October 03, 2013
RFRA Exemptions from the Contraception Mandate: An Unconstitutional Accommodation of Religion
That's the title of a very interesting, thoughtful, and provocative piece recently posted to SSRN by BYU law prof Fred Gedicks and co-author Rebecca Van Tassel. Downloadable here. The abstract:
surrounding use of the Religious Freedom Restoration Act to exempt
employers from the Affordable Care Act’s “contraception mandate” is
moving steadily towards eventual resolution in the U.S. Supreme Court.
Both opponents and supporters of the mandate, however, have overlooked
the Establishment Clause limits on RFRA exemptions,
The fiery religious-liberty rhetoric surrounding the mandate has obscured that RFRA is a “permissive” rather than “mandatory” accommodation of religion — that is, a voluntary government concession to religious belief and practice that is not required by the Free Exercise Clause. Permissive accommodations must satisfy Establishment Clause constraints, notably the requirement that accommodation not impose material burdens on third parties who do not believe or participate in the accommodated practice.
While there is little doubt that RFRA facially complies with the Establishment Clause, there is also little doubt that it violates the Clause’s limits on permissive accommodation as applied to the mandate. RFRA exemptions from the mandate would deny the employees of an exempted employer their ACA entitlement to contraceptives without cost-sharing, forcing employees to purchase with their own money contraceptives and related services that would otherwise be available to them at no cost beyond their healthcare insurance premium.
Neither courts nor commentators seem aware that RFRA exemptions from the mandate violate settled permissive accommodation doctrine, by shifting material costs of accommodating anti-contraception beliefs from the employers who hold them to employees who do not. One federal appellate court has already mistakenly dismissed this cost-shifting as irrelevant to the permissibility of RFRA exemptions from the mandate.
The impermissibility of cost-shifting under the Establishment Clause is a threshold doctrine whose application is logically prior to all of the RFRA issues on which the courts are now focused: If RFRA exemptions from the mandate violate the Establishment Clause, then that is the end of RFRA exemptions, regardless of whether for-profit corporations are persons exercising religion, the mandate is a substantial burden on employers’ anti-contraception beliefs, or the mandate is not the least restrictive means of protecting a compelling government interest.
October 01, 2013
Another, and Equally Remarkable, Interview with Pope Francis ...... on "how the Church will change." This interview is in In the Italian publication La Repubblica. Read the enitre interview here.
September 24, 2013
Gerson on the Pope, Part 2
Thanks to Tom Berg for his post on "Gerson on the Pope". It is is worth noting that Rev. Kevin O'Brien, S.J., Georgetown University's vice president for mission and ministry, tweeted: "... best take on Pope Francis thus far."
September 02, 2013
Francis hails late Cardinal Carlo MartiniThis, here, is an important statement by our brother Francis.
August 31, 2013
Torture as a Human Rights Issue
As many MOJ readers know, the position of Christians on torture--the position, that is, of those self-identified Christians who have declared a position on torture--has been quite mixed. It is not the case that religious believers are generally unconditionally opposed to interrogational torture. Evangelical Christian scholar David Gushee has lamented “the formation of a sizable and apparently permanent American Christian constituency for torture.” David P. Gushee, “The Contemporary U.S. Torture Debate in Christian Historical Perspective,” 39 Journal of Religious Ethics 589, 595-96 (2011). On the implications of Christian teaching for torture, see, in addition to the article by Gushee, Jeremy Waldron, “What Can Christian Teaching Add to the Debate about Torture?,” 63 Theology Today 330 (2006); Jean Porter, “Torture and Christian Conscience: A Response to Jeremy Waldron,” 61 Scottish Journal of Theology 340 (2008).
I have just posted to SSRN a paper that may be of interest to some MOJ readers: "Interrogational Torture as a Human Rights Issue: A Brief Further Reflection on the Morality of Human Rights". The paper is available for download here. This is the abstract of the paper:
The morality of human rights consists not only of various rights recognized by the great majority of the countries of the world as human rights, but also of a fundamental imperative that directs “all human beings” to “act towards one another in a spirit of brotherhood.” The imperative — articulated in the very first article of the foundational human rights document of our time, the Universal Declaration of Human Rights (UDHR) — is fundamental in the sense that it serves, in the morality of human rights, as the normative ground of human rights. I have explained all this at length in an earlier paper, “The Morality of Human Rights” (2013), which I have posted to SSRN: http://ssrn.com/abstract=2274381.
In the earlier paper, I addressed (inter alia) this question: Why should one take seriously the normative ground of human rights; that is, what reason or reasons does one have, if any, to live one’s life in accord with the imperative to “act towards all human beings in a spirit of brotherhood”? In this brief paper — which serves as a kind of addendum to the earlier paper — I address a version of a related, followup question: Should we want governments always to “act towards all human beings in a spirit of brotherhood”, no matter what the consequences? Specifically, I address this question: Should we want governments never to subject a human being to torture, no matter what the likely consequences of not subjecting him (or her) to torture?
In the earlier paper, I explained that as the concept “human right” is
understood both in the UDHR and in all the various international human rights
treaties that have followed in the UDHR’s wake, a right is a human right if the
rationale for establishing and protecting the right — for example, as a
treaty-based right — is, in part, that conduct that violates the right violates
the imperative to “act towards all human beings in a spirit of brotherhood”.
Each of the human rights articulated in the UDHR and/or in one or more international
human rights treaties is a specification of what, in conjunction with other
considerations, the imperative is thought to forbid or to require. The right at
issue in this paper — the right not to be tortured — is a specification of what
governments must refrain from doing lest they violate the “in a spirit of
brotherhood” imperative — lest they, in short, treat a human being inhumanely.
Torturing a human being is an instance — indeed, a paradigmatic instance — of
treating a human being inhumanely. The question-in-chief in this paper: Should
we want governments never to subject a human being to torture, no matter what
the likely consequences of not subjecting him (or her) to torture?
The conclusion I reach: Even if we assume that in some imaginable and sufficiently extreme circumstances it would be morally permissible — even, perhaps, morally obligatory — for government officials to subject a human being to interrogational torture, there are nonetheless conclusive reasons for lawmakers and treaty-drafters to make bans on torture exceptionless. It is optimal, all things considered, that laws and treaties do just what both the International Covenant on Civil and Political Rights and the Convention against Torture do: make the right against torture, even interrogational torture, nonderogable. There are conclusive reasons, that is, for laws and treaties to require that governments never violate the normative ground of human rights — that governments never violate the "in a spirit of brotherhood" imperative, that they never treat any human being inhumanely — even if we assume that it is not the case, as a moral matter, that governments should never violate the normative ground of human rights.
August 23, 2013
"A Catholic's Case for Same-Sex Marriage" [UPDATED]
[UPDATE: The "Beliefs" column in today's--Saturday's--NYT is about Bottum's Commonweal essay: here.
Let me add, while I'm at it, that calling Bottum's essay to the attention of MOJ readers does not entail that I concur--or that I do not concur--in all or part of the essay. My own position on the "jurisprudential" issue--more precisely, on the constitutional issues--is elaborated in my new book.]
August 13, 2013
"Religious Liberty and the Culture Wars"
That's the title of a new piece by Doug Laycock, forthcoming in the University of Illinois Law Review, downloadable here. The abstract:
Religious liberty has become much more controversial in recent years. A principal reason is deep disagreements over sexual morality. On abortion, gay rights, same-sex marriage, and contraception, conservative religious leaders condemn as grave evils what other Americans view as fundamental human rights. Somewhat hidden in the battles over permitting abortion or same-sex marriage lie religious liberty issues about exempting conscientious objectors from facilitating abortions or same-sex marriages. Banning contraception is no longer a live issue; there, religious liberty is the primary issue. These culture-war issues are turning many Americans towards a very narrow understanding of religious liberty, and generating arguments that threaten religious liberty more broadly.
I argue that we can and should protect the liberty of both sides in the culture wars, and that conservative churches would be well advised to concede the liberty of the other side, including on same-sex marriage, and concentrate on defending their own liberty as conscientious objectors.
I offer a detailed analysis of the recently published Final Rules seeking to insulate objecting religious institutions from having to “contract, arrange, pay, or refer for” contraception. These Rules offer very substantial protection to religious institutions, and they are likely to satisfy most judges. Religious institutions should claim victory or perhaps seek to negotiate minor adjustments. The cases of for-profit employers remain to be litigated. Those cases are more difficult, but it is at least clear that Congress understood the Religious Freedom Restoration Act to apply to for-profit employers.