Mirror of Justice

"If you're going to San Francisco, be sure to wear some flowers in your hair ..."

[Apologies to Scott McKenzie.]

The University of San Francisco, that is, on February 26, 2010.  (In case anyone doesn't know, USF is a Jesuit institution, as is my, and Robert Araujo's, alma mater, Georgetown, and my wife's alma mater, the University of Detroit.)

University of San Franciso Law Review Symposium

The University of San Francisco Law Review's Spring Symposium will feature prominent scholars and practitioners considering the future of same-sex marriage from legal, political, and cultural perspectives. Five plenary panels will examine: empirical data regarding the material consequences of denying or recognizing same-sex marriage; recent federal constitutional challenges to state bans of same-sex marriage; the role of competing social movements in shaping marriage; the emerging focus on questions about parenting children and securing families; and, the intersection of religion and anti-discrimination law in the context of same-sex marriage.

Panels

8:00am Visitor Registration and Continental Breakfast

9:00am Opening Remarks by Dean Jeffrey S. Brand and Commencement of Symposium

Crunching the Numbers: Examining empirical data regarding the material consequences of denying or recognizing same-sex marriage.

Moderated by Prof. Bruce Price, University of San Francisco School of Law

Participants:

• Prof. Patricia Cain, Santa Clara Law
• Prof. Kimberly Richman, University of San Francisco
• Brad Sears, Executive Director, The Charles R. Williams Institute on Sexual Orientation Law and Public Policy, UCLA
• Therese Stewart, Chief Deputy City Attorney, City of San Francisco

Analyzing the Federal Challenge: Discussing the federal constitutional challenge to California's Proposition 8 and similar litigation.

Moderated by Prof. John Adler, University of San Francisco School of Law

Participants:

• Prof. Calvin Massey, University of California, Hastings
• Molly McKay, National Media Director, Marriage Equality USA
• Vincent McCarthy, Senior Counsel, American Center for Law and Justice
• Prof. Julie Nice, University of San Francisco, School of Law

Mobilizing Movements: Exploring the roles of competing social movements in shaping the future of marriage.

Moderated by Prof. Josh Davis, University of San Francisco School of Law

Participants:

• Shauna Fisher, Ph.D. candidate, University of Washington
• Prof. Darren Hutchinson, American University, Washinton College of Law
• Prof. Anna-Maria Marshall, University of Illinois College of Law
• Prof. Jane Schacter, Stanford Law School

Lunch

Protecting Families: Examining the emerging focus on questions about parenting children and securing families.

Moderated by Prof. Maya Manian, University of San Francisco School of Law

Participants:

• Prof. Annette Appell, Washington University School of Law
• Prof. June Carbone, University of Missouri-Kansas City School of Law
• Prof. Courtney Joslin, UC Davis School of Law
• Prof. Melissa Murray, UC Berkeley, School of Law

Exercising Religion: Considering the intersection of religion and anti-discrimination law in the context of same-sex marriage.

Moderated by Prof. Maria Ontiveros, University of San Francisco School of Law

Participants:

• Prof. Alan Brownstein, UC Davis, School of Law
• Prof. Dale Carpenter, University of Minnesota Law School
• Prof. Doug Ne Jaime, Loyola Law School

What is stare decisis?

 

 

Thanks to Michael P. for offering his thoughtful commentary on the recent Supreme Court decision in Citizens United. The decision has recently been critiqued on the ground that the majority did not follow precedent and undermined stare decisis.

Readers and contributors to the Mirror of Justice may recall that I have, in the past, addressed stare decisis in previous discussions, most recently [here].

The subject of stare decisis and what it is—that is, what is its essence, what is its nature, how is it to be explained and understood—is a topic that requires a robust and extended study. Nevertheless, the recent interest in and debate about stare decisis brought about by the decision in Citizens United merits a concise thought today.

I have expressed the view in the past that what is constitutive of stare decisis often reflects the likes or the dislikes of the speaker. For example, if one likes the decision and reasoning in Bowers v. Hardwick, then Lawrence v. Texas ignored stare decisis. If one is attached to Roe v. Wade, we can imagine forthcoming criticism of a decision that abandons Roe to a footnote in judicial decision-making.

Today I would like to suggest that stare decisis cannot be a doctrine supported by personal or political preferences where the will of the majority or the will of the most influential—be it on a court or in the res puclicae—is determinative of the legal principle to which adherence is expected. Stare decisis—if it is to mean anything to the making and enforcing and interpreting of sustainable, righteous, and moral legal norms—must be coherent with the intellect and the right reasoning that promote norms that are sustainable, righteous, and moral. When stare decisis betrays this coherence, the law is what the law-maker wants it to be, not what it should and must be. Without this formula in mind, stare decisis is a mere political tool that eschews the coherence essential to the vitality of laws that distinguish between right and wrong, truth and falsehood and to the rule of law indispensable to the legal enterprise.

Any thoughts on this?

 

RJA sj

Personal Reflection on Abortion and Equality

MOJ friend, St. Thomas law professor, OU law graduate, and candidate for Congress, Teresa Collett reflects here on the misguided notion that equality for women requires that abortion be legal.

Ralph McInerny RIP

Our readers might be interested in Joseph Bottum's blog post on Ralph McInerny (1929-2010).

Eternal rest grant unto him O Lord, And let perpetual light shine upon him.

Citizens United

Something fundamental is being overlooked in all the brouhaha about SCOTUS’s decision in Citizens United, and it is this:

 

Unless one assumes—arrogantly assumes—that there is only one reasonable position on the First Amendment issue in the case, namely, one’s own position (“Be reasonable.  Think like I do.”)—if one acknowledges that rational, well informed persons of good faith can *reasonably* disagree about the First Amendment issue—then SCOTUS should have left the federal legislation alone.  Why?  For the compelling reasons famously expressed by James Bradley Thayer in his classic article in the 1893 Harvard Law Review:  “The Origin and Scope of the American Doctrine of Constitutional Law”.

 

That point constitutes a powerful rebuke--indeed, probably the most powerful rebuke--to those members of the majority in Citizens United who claim to be apostles of judicial self-restraint.

 

Look, I'm consistent:  I think there's no excuse for the Court's truly imperial decision in Roe v. Wade!  See my Constitutional Rights, Moral Controversy, and the Supreme Court (Cambridge, 2009).)

Who is David Novak ... and why does it matter?

David Novak, who taught at the University of Virginia and now teaches at the University of Toronto, is an acclaimed Jewish scholar; he is also, inter alia, a sometime contributor to First Things (e.g., here and here).  It bears mention that Novak dedicated his recent book on religious liberty--which in December Rick Garnett reviewed for First Things (here)--to Robert George.

Yesterday, my copy of Martha Nussbaum's new book arrived in the mail:  From Disgust to Humanity:  Sexual Orientation and Constitutional Law (Oxford, 2010).   I was interested to see a blurb by David Novak on the back of the book:

"Those of us holding more traditional views of marriage need to take this book very seriously because in it [Nussbaum] makes the best case for the innovation of same-sex marriage I have ever seen or heard.  And here again she argues in a civil, rational manner that in no way demeans or dismisses those of us who are very much on the other side of the issue, an issue that will still be publicly debated long into the foreseeable future."

Here is how Publisher's Weekly describes Nussbaum's book:

"A meticulous consideration of the legal issues surrounding same-sex relations grounded in a far-reaching investigation of how the notion of disgust has determined both civil legislation and public opinion. Identifying a politics of disgust that centers on irrational fears of contamination, penetrability, and loss of social solidarity, Nussbaum (Hiding from Humanaity) opposes such problematic foundations for legislation with her own notion of a politics of humanity, based on the need for imaginative engagement with others. Linking imagination with America's founding principles of equality and respect, the author vindicates sexual orientation rights as instrumental to the pursuit of happiness, before engaging with contentious rulings on same-sex marriage, sodomy, and discrimination. An elegant and eloquent defender of sexual freedom, the author is at her best describing the insidious role of disgust in law. However, her frequent recourse to John Stuart Mill would seem to demand a more detailed defense of his ideas on harm, and her reflections on marriage add little to the debate. Nonetheless, as the recent public discourse about empathy among Supreme Court judges indicates, Nussbaum's passionate advocacy of the power of imagination is profound and timely."

So much to read:  Vischer, Keenan, Nussbaum, ...  I guess that's what summers are for.

Conscience and the Common Good

For those of you unwilling to commit to buying a book unless you've had the opportunity to read an overview of its argument, I've posted an essay that lays out my book's thesis.  The essay is taken from a mini-symposium on the book to be published in the Journal of Catholic Legal Studies.  Here is the abstract:

Our longstanding commitment to the liberty of conscience has become strained by our increasingly muddled understanding of what conscience is and why we value it. Too often we equate conscience with individual autonomy, and so we reflexively favor the individual in any contest against group authority, losing sight of the fact that a vibrant liberty of conscience requires a vibrant marketplace of morally distinct groups. Defending individual autonomy is not the same as defending the liberty of conscience because, while conscience is inescapably personal, it is also inescapably relational. Conscience is formed, articulated, and lived out through relationships, and its viability depends on the law’s willingness to protect the associations and venues through which individual consciences can flourish: these are the myriad institutions that make up the space between the person and the state. This essay is taken from my new book, Conscience and the Common Good: Reclaiming the Space Between Person and State (Cambridge Univ. Press 2010). The book seeks to reframe the debate about conscience by bringing its relational dimension into focus.

Fordham Announces Celebration of Penalver and Katyal's New Book

The spring 2010 Natural Law Colloquium will take place on Thursday, February 4, at 6:00 pm in the McNally Amphitheatre of Fordham Law School.  Our speakers will be Professor Eduardo Penalver (Cornell Law School) and Sonia Katyal (Fordham Law School), and our topic will be: "Property Outlaws: On Ownership, Law, Morality, and Disobedience".  With this event, we aim to celebrate the recent release of a new book by Professors Penalver and Katyal ("Property Outlaws: How Squatters, Pirates, and Protesters Improve the Law of Ownership"), and also address a host of issues raised in that book (e.g., the nature and limits of private property ownership, the imperatives of social justice, the possible justifications for civil disobedience and stealing, etc.).  This event is free and open to the public. 

Difficult Realities of Engaging the Abortion Debates

Some of the comments on Rob's post about the reaction to the pro-life ad at the Superbowl touched on a reality about the abortion debate of which I am always acutely aware whenever I'm speaking about abortion -- the fact that, statistically, so many people in the audience are likely to have had abortions.  It's also something that I always think about when I see an odd reaction by someone when I'm out and about with my son, who has Down Syndrome.  Are those odd reactions hurtful expressions of discomfort with his condition or his "otherness", or are they instead expressions of hurt based on a decision that person may have made in his or her own life?  Those are such difficult realities to accommodate when figuring out how to engage in the abortion debate.

So here's something more positive:  A website that my brother brought to my attention, as a resource for parents faced with a prenatal diagnosis of a disability:  Be Not Afraid!

Christian Realism Presentations Now Available On-line

Video and audio of the excellent presentations at the Murphy Institute's November symposium on "Christian Realism and Public Life:  Catholic and Protestant Perspectives", are now available online here.  They include the plenary presentations by Jean Bethke Elshtain, Gerry Bradley, James Johnson, John Carlson, Robin Lovin, Jeanne Heffernan Schindler, David Skeel, and Bill Cavanaugh, as well as many of the interesting concurrent sessions.