Tuesday, June 28, 2011
The Supreme Court continued its flight into First Amendment madness yesterday when it held that retailers had a First Amendment right to sell or rent violent video games to minors. Justice Scalia's majority opinion maintained that categories of unprotected speech such as this could only be justified if they are "historically unprotected" or meet a compelling state interest test. In this respect the Court continues its unprecedented foray in United States v. Stevens where the Court invented the same approach in the process of invalidating a statute proscribing depictions of animal cruelty. Prior to that, it is clear that the Court's categories of unprotected speech were created by balancing the interests in free speech against order, reputation, intellectual property and the like. Last year in Stevens, the Court announced without a scintilla of historical support that this process was "dangerous."
This approach matches the interpretive approach of none of the justices who signed the opinion. Kennedy, Ginsburg, Sotomayor, and Kagan do not confine themselves to historical approaches in other areas of the Constitution or even in other pockets of free speech interpretation. Even Scalia has purported to be bound by the original understanding of the Constitution, but the historic test he employs calls for a long historic tradition that may or may not stretch back to the framers. Moreover, it is doubtful that any of the unprotected categories as now defined match the understanding of the framers. Scalia suggests for reasons he does not disclose that it is permissible to make changes within unprotected categories without a historical basis, but not to create new categories of unprotected speech (despite our history of doing so).
Without a justification in hand for the historical test, the Justices turn to the impossibly high standards of the compelling state interest test. This is an appropriate test for those with a First Amendment fetish and those who are blind First Amendment cheerleaders, so blind that they cannot distinguish between violent video games for children and literary, artistic, scientific, or political speech. In applying the test, the Justices think there is not a sufficient showing of harm despite the conclusions of the American Academy of Pediatrics, the American Academy of Child & Adolescent Psychology, the American Psychological Association, the American Psychiatric Association, and the American Medical Association.
Justice Clark once said that there is no war between the Constitution and common sense. Well the Supreme Court has declared such a war and there is no end in sight.
cross-posted at religiousleftlaw.com
comments open, but I will probably not have time to respond
While so many of my friends were enjoying the congenial company of like-minded scholars last weeks at the Law and Religion Roundtable, I spent two days last week with mostly other-minded scholars at the AALS's Workshop on Women Rethinking Equality, presenting some thoughts on the gender theory of complementarity on a panel entitled "Theorizing Gender." (A glance at the program for this workshop will give you some sense of how well-receive was my suggestion that many women's religious faith will be an important influence on their views on gender theory.)
That experience caused me to appreciate even more getting the announcement yesterday of the posting of a truly extraordinary article on SSRN: Erika Bachiochi's just-published Embodied Equality: Debunking Equal Protection Arguments for Abortion Rights, 34 Harvard Journal of Law & Public Policy 889 (2011). It's a tour de force of pro-life feminism -- a creative and powerful piece of scholarship. This article is truly an invaluable resource for anyone teaching Con Law or feminist legal theory who wants to do justice to all sides of these arguments.
I'm posting the abstract below, but one thing you'll notice if you pull up the article (which you should definitely do) is that Erika lists no "institutional affiliation." Anyone reading MOJ who doesn't know Erika already should get to know her. Erika graduated from Boston University Law School in 2002. (She also has an M.A. in theology from B.C.). Since graduating, even though she hasn't been the member of any law school faculty, she's managed to edit two fantastic books of "new feminist" writings: The Cost of Choice: Women Evaluate the Impact of Abortion (2004) and Women, Sex and the Church: A Case for Catholic Teaching, (2011) and publish a number of articles, including this latest in the Harv. J. of L & Pub. Pol. She lectures & speaks all over the country on these sorts of topics -- see her website. The Murphy Institute has commissioned her to draft a Teacher's Manual for anyone wanting to supplement a course on feminist legal theory with a Catholic perspective, using chapters from Women, Sex and the Church. I just read a draft of this Teacher's Manual, and it is going to an extremely important contribution to Catholic feminism in its own right. We'll publish it on-line and let you know when it's ready.
Oh, and the deadline on her work for the Murphy Institute has been governed this summer by the impending birth of Erika's sixth child......
Here's the article abstract:
Within legal academic circles and the general pro-choice feminist population, it is axiomatic that women’s equality requires abortion. Indeed, pro-choice legal scholars, foremost among them Justice Ruth Bader Ginsburg, have argued that the Equal Protection Clause provides a far more appealing constitutional justification for the abortion right than the roundly criticized right to privacy offered in Roe.
This article seeks to systematically engage, on feminist grounds, the leading pro-choice feminist legal literature, detailing why sexual equality need not—indeed, should not—include a right to abortion. I critique popular scholarly equality arguments from both a constitutional perspective (i.e., why abortion ought not be protected by the Equal Protection Clause) and a philosophical perspective (i.e., how autonomy arguments fail to understand the actual biological dependency relationship that exists between mother and unborn child, and the affirmative duties of care that follow).
I thus challenge the assumptions underlying the idea that pregnancy and motherhood necessarily undermine equality for women. I argue instead that abortion rights actually hinder the equality of women by taking the wombless male body as normative, thereby promoting cultural hostility toward pregnancy and motherhood. In a legitimate attempt to get beyond the essentialist idea that women’s reproductive capacities should be determinative of women’s lives, pro-choice feminist legal scholars have jettisoned the significance of the body. In rightfully arguing that pregnancy is more than just a biological reality, they discount the fact that pregnancy is a fundamental biological reality. I will show that acknowledging this biological reality—that the human species gestates in the wombs of women—need not necessitate the current social reality that women are the primary (and, too often, sole) caretakers of their children or the social arrangements in which professional and public occupations are so hostile to parenting duties.
Easy access to abortion serves to further discharge men of the consequences that sometimes result from sexual intercourse and so places responsibility for unintentional pregnancies solely on pregnant women. Rather than making significant demands on men who sire children, current law encourages women to mimic male abandonment. Concomitant with the proclivity to view male sexual autonomy as the standard for human reproduction is an embrace of a male-centered sexuality that ignores the procreative potentialities inherent in the sexual act. I will conclude by outlining the contours of a pro-woman sexuality and an embodied equality that takes the male and the female body seriously and affirms their shared capacities for full human development.
Monday, June 27, 2011
Speaking of important books coming out in law and religion . . . . Please pardon the (intended) slight immodesty, but a book of possible interest and value to those engaged in matters discussed on MOJ is officially on the way. A number of MOJers and friends of MOJ may recall that, back in January, 2011, at the annual meeting co-sponsored by the Law Professors' Christian Fellowship and the Lumen Christi Institute in San Francisco, I outlined the manuscript on which Bill Brewbaker (U of Alabama) and I were at work: Christian Perspectives on Law: Cases and Materials. I am happy to report that the book will be published by Foundation Press.
The animating principle of the book, which is intended for classroom use (in law schools and beyond), is that Christian theology and philosophy are (at least) every bit as able to provide a critical perspective on law as literary theory, queer theory, analytic jurisprudence, economics, and the rest can offer. Christian thought -- not economic theory or sociological jurisprudence -- is the "lens" Bill and I mean to offer on law and legal practice. We intend, moreover, to make the scope of the Christian perspective we offer as wide as possible, with clear indications of where we discern that individuals and groups across the Christian spectrum agree or disagree.
The comments Bill and I received back in January and shortly thereafter were extraordinarily helpful and encouraging of the value of the project, and we're drafting with all of them in mind. We aim to produce a book that is useful to as many potential teachers in this area as possible. The start-up costs for a course like this are huge, which is why we are not only writing the book but also preparing a teachers' manual that will be quite elaborate.
Please email Bill and/or me with suggestions, ideas, etc. Our devout hope is that a serviceable book of this sort will increase the frequency with which the Christian perspectives on law are offered, both in Christian law schools and elsewhere. We are grateful to the editors of Foundation Press for their willingness to publish a book that Hart & Wechsler, whatever their amazing strengths and contributions, never could have imagined.
I want to echo the comments from others about the interesting Law and Religion Roundtable at Northwestern. Thanks again to Rick Garnett, Paul Horwitz, and Nelson Tebbe for organizing the roundtable and to Andy Koppelman for his generous hospitality. I was struck by the number of important books in law and religion that are in the pipeline and were presented by Brian Leiter, Andy Koppelman, John Inazu, Kathleen Brady, and our own Marc DeGirolami, all of whom are tackling issues--such as toleration, secularism, and tragedy--in law and religion beyond mere constitutional doctrine. Adam Samaha from Chicago also presented a superb set of readings he's assembled for a course in law and religion.
Following on Marc's point about the remarkable pluralism (that's the sanguine term, as Marc says) of views in the field, an offhand thought is that in law and religion, perhaps more than in most fields, the tradition-dependent character (to use Alasdair MacIntyre's term) of one's commitments is squarely on display, whether one is an egalitarian liberal, a Thomist Catholic, an evangelical Protestant, or whatever. So maybe we can set aside our fundamental disagreements when we're talking about the UCC, but that's virtually impossible when we're talking about God, religion, conscience, and toleration--when the quest for a view from nowhere is an idle project. As MacIntyre puts it in Whose Justice? Which Rationality? (p. 346):
The fact that liberalism does not provide a neutral tradition-independent ground from which a verdict may be passed upon the rival claims of conflicting traditions in respect of practical rationality and justice, but turns itself to be just one more such tradition...provides the strongest reason that we can actually have for asserting that there is no such neutral ground, that there is no place for appeals to a practical-rationality-as-such or a justice-as-such to which all rational persons would by their very rationality be compelled to give their allegiance. There is instead only the practical-rationality-of-this-or-that-tradition and the justice-of-this-or-that tradition.
Along with several other MOJ'ers, I attended the Annual Law & Religion Roundtable at Northwestern Law School this past Thursday and Friday. As Steve Shiffrin and Marc DeGirolami's posts (here and here) have already suggested, it was a wonderful conference. The biggest reason for my delay in posting about the gathering was that there is so much one could write about.
Among the presentations was one by Alan Brownstein (UC Davis), who advances an alternative ground for religious liberty, one grounded in love. Arguing that the conventional religious justification for religious freedom, which describes the relationship between the person and God as that of sovereign subject, is unconvincing to unbelievers, he suggests that the theological argument in support of religious liberty be cast in terms of our duty to God being a manifestation of a relationship grounded on love. Brownstein argues that claims for religious liberty based on the relationship between the believer and God being one based on love may be more persuasive and less threatening to nonbelievers than claims based on a relationship of sovereignty.
This argument generated a lot of discussion by the roundtable participants - both regarding the extent to which is mattered to Brownstein's claim whether the love between a human and God and is the same or different as the love between two human beings, and whether a claim based on love make it less easy to distinguish religion as deserving of special protection in the law.
I loved the love argument for two reasons. First, it grounds religious liberty in that which I believe to be most foundational from a spiritual perspective - the love relationship between us and God. Second, love is a much more powerful force for our action than is obedience to a sovereign. Obedience to the law makes us think of doing what we need to do to satisfy the letter of the law. Love as a grounding motivates us to fully actualize the command of hte law.
Hopefully some of the other MOJ'ers in attendance will post some other thoughts.
Like Steve, and Marc, I attended last week the (second) Annual Law and Religion Roundtable, in Chicago, which was organized by Nelson Tebbe, Paul Horwitz, and me, and generously hosted by Andy Koppelman and Northwestern University. It was a great event -- many interesting, provocative, engaging papers; good friends and fellowship; and a beautiful city. I'm sure other MOJers who were there will chime in, too (hint, hint), but I agree with Steve about the two (related) questions / themes that seemed to run through the event: (1) "Is religion special?" and (2) "How should we think about the religious freedom of groups / communities / associations . . . churches?" As you might guess, the upcoming Hosanna-Tabor case came up often.
Two quick thoughts: First, I think we should never be *too* confident in our ability to identify clean lines between "religion" and "the secular" -- let alone "religion" and "nonreligion." I do not know what "nonreligion" is. To be sure, there's no getting around the fact that we have to construct (even if we cannot identify) categories of religion's "free exercise" and "establishment" in order to interpret and apply our Constitution, but the idea that we can distinguish between, say, "religious" reasons for legislation and "moral-but-secular" reasons seems implausible to me.
Second, with respect to Steve's statement that "religious claims for exemptions should clearly be honored over general liberty claims, but I see no good argument for honoring religious claims for exemptions over non-religious claims of conscience." I guess, for me, it depends on what is meant by "over." I think that the First Amendment gives us good reasons for treating "religion" and "religious" claims of conscience (see above, though, re: "religious") over other "conscience"-based claims. The latter category, it seems to me, will be taken seriously by, and accommodated to the extent possible by, a decent political community, not because they are the same as religious claims, but because such a community should, to the extent possible, avoid causing pain and suffering to its members.
From Justice Scalia's majority opinion in today's case involving violent video games, Brown v. Entertainment Merchants Assn.:
California's argument would fare better if there were a longstanding tradition in this country of specially restricting children's access to depictions of violence, but there is none. Certainly the books we give children to read -- or read to them when they are younger -- contain no shortage of gore. Grimm's Fairy Tales, for exmaple, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers "till she fell dead on the floor, a sad example of envy and jealousy." . . . . Cinderella's evil stepsisters have their eyes pecked out by doves. And Hansel and Gretel (children!) kill their captor by baking her in an oven.
High-school reading lists are full of similar fare. Homer's Odysseus blinds Polyphemus the Cyclops by grinding out his eye with a heated stake . . . . In the Inferno, Dante and Virgil watch corrupt politicians struggle to stay submerged beneath a lake of boiling pitch, lest they be skewered by devils above the surface . . . . And Golding's Lord of the Flies recounts how a schoolboy called Piggy is savagely murdered by other children while marooned on an island. FN4
FN4: Justice Alito accuses us of pronouncing that playing violent video games "is not different in 'kind'" from reading violent literature. Well of course it is different in kind, but not in a way that causes the provision and viewing of violent video games, unlike the provision and reading of books, not to be expressive activity and hence not to enjoy First Amendment protection. Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat. But these cultural and intellectual differences are not constitutional ones. Crudely violent video games, tawdry TV shows, and cheap novels and magazines are no less forms of speech than The Divine Comedy, and restrictions upon them must survive strict scrutiny[.]
It is interesting that Justice Scalia cites Canto XXI of Inferno right in the text of the opinion. This is the fifth bolgia of the Eighth Circle, where those guilty of barratry are submerged in boiling pitch, while demons (in this case, the Malebranche) torture them in various horrible ways. Barrators are public servants and officials who sold their offices for money. And barratry in civil law is the bringing of legal claims that are totally meritless, for purposes of harassment. It isn't in Justice Scalia's opinion, but in addition to the cultural and intellectual differences between the Inferno and Mortal Kombat, it may be worth noting that Dante meant to condemn the barrators, not to celebrate them.
UPDATE: Commenter Elena reminds me that there is a rather violent video game (rating 18, just like the rating challenged in Brown) of Dante's Inferno. In the video game, of course, it is the player who can, in his considered discretion, "punish the damned, or absolve them as they are defeated."
I just returned from the Annual Law and Religion Roundtable held at the Northwestern Law School and organized by Nelson Tebbe, Paul Horwitz, Rick Garnett and hosted by Andy Koppelman (who presented chapters from an excellent forthcoming book of his). It was a wonderful conference despite too many of my rambling interventions. Two themes in the many papers particularly interested me. One of them was the question of whether religion is special. Several of the papers focused on this in terms of general free exercise claims. My own view is that religious claims for exemptions should clearly be honored over general liberty claims, but I see no good argument for honoring religious claims for exemptions over non-religious claims of conscience. My only reservation involves the kind of utilitarian who believes as a matter of conscience that she must maximize social welfare in every action she takes. For her, there is no line between conscience and anything else she does. My inclination is not to consider that a conscience claim for legal purposes, but I am not sure.
A subsidiary question is whether religious associations are special and should be so treated under the law in some circumstances. Here I think explaining the special character of religion for legal purposes is easy though the explantion is controversial. More difficult is assessing when religious association should be treated differently from other associations and when not. I will return to this issue in subsequent posts.
cross-posted at religiousleftlaw.com
comments open, but I doubt I will have time to respond
I thought readers might be interested in hearing about what looks to be an important and impressive gathering at the University of Notre Dame:
Some of the world’s leading experts across a variety of relevant disciplines are coming to the Notre Dame Law School for a weeklong “Workshop on Adult and Non-embryonic Stem Cell Research” June 27 – July 1.
In conjunction with the workshop, an afternoon lecture series, “Alternate Visions of Stem Cell Research: Scientific, Ethical, Legal & Theological Dimensions” will be open to the public from 4 – 5 p.m. each day in the Patrick F. McCarran Court Room in the Law School’s Eck Hall of Law.\
Notre Dame Law Professor Carter Snead and Emeritus Professor Phil Sloan (of the Department of History and Philosophy of Science and Notre Dame’s Program of Liberal Studies) will co-lead the workshop and are hosting the week’s public events, which are part of a University-wide effort to develop a center for high-level interdisciplinary work on the various dimensions of human developmental biology. Professor Snead will deliver a public lecture on Thursday, entitled “The Legal and Public Policy Dimensions of Stem Cell Research.” Numerous entities throughout the wider University . . . have endorsed the initiative, which seeks to demonstrate that respect for the equal dignity of every human being (from conception to natural death) and a commitment to excellence and rigor in research are both integral and complementary goods necessary to pursuing the proper ends of biomedical science, most richly understood.
As the premier American Catholic research university, Notre Dame is ideally suited for this work. It has strong departments in biology, engineering, law, theology, philosophy, and the history and philosophy of science with individuals in each component with expertise in all aspects of stem cell research. Moreover, given its distinctive Catholic mission, Notre Dame offers a unique voice to this domain of inquiry.
The university is grateful for the many participants in this inaugural event, including Dr. Donald Landry, M.D./Ph.D. (the Chair of the Department of Medicine at Columbia University) and Dr. Carlos Cordon-Cardo, M.D./Ph.D (Chair of the Department of Pathology at Mt. Sinai Hospital in New York City), as well other top academics from both University of Notre Dame and other elite universities in the U.S. and abroad. Finally, we are thankful for the interest and participation of the Holy See, including especially the involvement of Msr. Melchor Sanchez de Toca, M.A., S.T.D, D.Phil (Undersecretary for the Pontifical Academy for Culture) and Rev. Tomasz Trafny, S.T.D., D.Phil. (Executive Coordinator, Science Theology, and the Ontological Quest (STOQ) Project; Head, Science and Faith Department, Pontifical Academy for Culture).