Mirror of Justice

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Wednesday, January 29, 2014

Brief of Amici Curiae Church-State Scholars in Support of the Government in Sebelius v. Hobby Lobby Stores, Inc. & Conestoga Wood Specialties Corp. v. Sebelius

The brief is available here.

Amici on the brief are Frederick Mark Gedicks (Brigham Young University Law School), Vincent Blasi (Columbia Law School); Caitlin Borgmann (CUNY School of Law), Caroline Mala Corbin (University of Miami School of Law), Sarah Barringer Gordon (University of Pennsylvania Law School & Dept. of History), Steven K. Green (Willamette University College of Law), Leslie C. Griffin (William S. Boyd School of Law, University of Nevada, Las Vegas), B. Jessie Hill (Case Western Reserve University School of Law), Andrew M. Koppelman (Northwestern University Law School & Dept. of Political Science), Martha C. Nussbaum (The University of Chicago Law School & Dept. of Philosophy); Eduardo Peñalver (The University of Chicago Law School); Michael J. Perry (Emory University School of Law); Frank S. Ravitch (Michigan State University College of Law), Zoë Robinson (DePaul University College of Law), Lawrence Sager (University of Texas at Austin School of Law), Richard Schragger (University of Virginia School of Law), Micah Schwartzman (University of Virginia School of Law), Elizabeth Sepper (Washington University School of Law), Steven H. Shiffrin (Cornell University Law School), Nelson Tebbe (Brooklyn Law School) & Laura Underkuffler (Cornell University Law School).

This brief argues that permissive religious accommodations violate the Establishment Clause and conflict with Free Exercise Clause and Title VII accommodation decisions when they impose significant costs of practicing the accommodated religion on those who do not believe or participate in it. For-profit employer exemptions from the Affordable Care Act contraception mandate under the Religious Freedom Restoration Act would constitute congressional and federal judicial action that violates the Establishment Clause, by shifting significant costs of observing religious beliefs against contraception from the employers who hold them to employees who don't. The brief concludes that keeping federal government action within the structural limits set by the Establishment Clause is a compelling interest that justifies denial of for-profit employer exemptions from the mandate under RFRA.

January 29, 2014 in Perry, Michael | Permalink

Friday, January 17, 2014

Harvard Law Review on Hobby Lobby

127 Harvard Law Review 11025 (2014)


The concluding paragraph:

The Tenth Circuit in Hobby Lobby pierced the veil between the corporate plaintiffs and their shareholders, not to protect third parties, as veil piercing is meant to, but to protect the corporations’ expression of the Greens’ religious beliefs, even while the Greens maintained the benefits of limited liability. If for-profit corporations do merit RFRA protection, such protection should be limited to the corporations’ own religious expressions. In this case, failing to limit the protection imposed the costs of the Greens’ freedom of religious exercise on any of their more than 13,000 full-time employees who choose forms of contraception that violate the Greens’ religious beliefs; those employees must now pay out of pocket, despite having had only a statement of commitment to biblical principles to warn them that they might bear those costs.

January 17, 2014 in Perry, Michael | Permalink

"May a Man Marry a Man?" Medieval Canon Lawyers Analyze Same-Sex Unions

That's the title of a new paper--which may interest some MOJ readers--by University of St. Thomas law prof Charles Reid.  The paper is available here.  The abstract:

This Article has two principal purposes.  The first is to examine the logic and limits of a medieval debate over same-sex unions.  The medieval lawyers who engaged in this debate were no friends of same-sex unions.  The debate, rather, seemed to take the form of an academic exercise by which the lawyers involved defined more rigorously the boundaries of what counted as marriage and also imported into the jurisprudence of marriage a deeply-hostile homophobia.  I do not assert that same-sex marriage was an actual social reality in the Middle Ages.  The existence of this debate, however, is quite remarkable in its own right.  The Article’s second major purpose, then, is to reconsider the origins of homophobia.  By connecting the canon law of marriage with homophobic rhetoric, the medieval lawyers reinterpreted marriage as an institution that not only served certain ends in its own right but existed to defeat the perceived threat of same-sex relations.  This linkage, first articulated in the thirteenth century, unfortunately remains a feature of the contemporary debate over same-sex unions.

January 17, 2014 in Perry, Michael | Permalink

Wednesday, January 15, 2014

Exemptions from the ‘contraception mandate’ threaten religious liberty

That's the title of an op-ed by BYU law prof Fred Gedicks--who is a good friend to many of us here at MOJ.  You can read Fred's op-ed, which appears in the Washington Post, here.

January 15, 2014 in Perry, Michael | Permalink

Monday, 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.

November 18, 2013 in Perry, Michael | Permalink

Monday, 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 21, 2013 in Perry, Michael | Permalink | Comments (1)

Wednesday, 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 “unusual”.


October 16, 2013 in Perry, Michael | Permalink | Comments (3)

Thursday, October 3, 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:

Litigation 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 3, 2013 in Perry, Michael | Permalink | Comments (5)

Tuesday, October 1, 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.

October 1, 2013 in Perry, Michael | Permalink | Comments (2)

Tuesday, 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 24, 2013 in Perry, Michael | Permalink | Comments (0)