Tuesday, August 5, 2014
The experience of the past fifty years, culminating in Burwell v. Hobby Lobby Stores, Inc., is grounds for deep skepticism of any sweeping regime of religious exemptions. Part I of this essay locates the problem in the current legal and cultural moment, which includes religious objections to employer-provided contraceptive care for women, and religion-based refusals by wedding vendors and others to facilitate the celebration of same sex marriages. Part II broadens the time frame to analyze the regimes of religious exemption -- federal and state, constitutional and statutory -- in which such disputes play out. Such regimes will tend to be rhetorically strong and experientially weak, with an occasional outburst of religion-protecting vigor. Burwell v. Hobby Lobby, analyzed in Part III, demonstrates yet again that application of vague, general standards for adjudicating religious exemption claims cannot satisfy values associated with the rule of law. The key terms in the Religious Freedom Restoration Act are perpetually contested and subject to infinite, result-oriented manipulability. Part IV concludes with a prediction that Burwell v. Hobby Lobby will suffer the same fate as earlier, apparently strenuous embraces of religious exemptions. Ultimately, it will wither on a malnourished vine.
Tuesday, April 1, 2014
The idea that religion warrants special treatment has been criticized as violating norms of equality and fairness. In response, Andrew Koppelman has argued recently that the American legal tradition of treating religion as a “good thing” is justified on the grounds that when interpreted at a sufficiently high level of abstraction, religion serves as an indispensable legal proxy for a plurality of important goods. In this essay, I argue that using religion as a legal proxy remains vulnerable to charges of unfairness toward those with secular ethical and moral convictions. The case for adopting religion as a proxy turns on arguments against potential substitutes. Even if no category can serve as a complete substitute for religion, however, its use as a proxy can be complemented by protections for the freedom of conscience. The law need not choose between protecting religious and secular convictions. It can and should provide significant protections for both.
Similarly, in the abstratct of Religion, Equality and Public Reason, he writes:
A growing number of critics have asked whether singling out religion for special treatment is morally justifiable. In Religion Without God, Ronald Dworkin sides with those who reject the distinctiveness of religion. In this essay, I situate Dworkin’s argument within the larger debate. I then argue that his view is driven toward replacing a distinction between religious and secular commitments with one that turns on the difference between public and nonpublic values. The latter distinction is central to the idea of public reason. Although Dworkin resisted this idea, his arguments against the distinctiveness of religion lead him inexorably to some conception of it, suggesting the inevitability of a commitment to public reason for those who occupy a certain place in the debate about whether religion is special.
Saturday, December 7, 2013
Federal court hears case alleging the heat on death row in a Louisiana prison is unsafe; civil rights lawsuit filed alleging that a diabetic inmate died because the prison failed to provide adequate medical care; and, civil rights lawsuit alleges the police in a Miami suburb targeted African-Americans.
Fourth Circuit orders gun found on a convicted felon suppressed because it was obtained during an illegal search.
Americans are more deeply divided on gun policy than before Newtown; Plain Dealer columnist contrasts Newtown parents efforts to keep children safe from guns with those of gun-rights activists; and, Georgia man mistakingly kills a man suffering from Alzheimer's.
Iowa Supreme Court upholds law banning non-residents from hunting on property that they own.
December 7, 2013 in Civil Rights Litigation, First Amendment, Fourth Amendment, Freedom of Religion, Freedom of Speech, Gun Policy, Prisons and Prisoners, Theories of Punishment | Permalink | Comments (0)
Wednesday, November 20, 2013
NSA ignored courts on conduct of domestic surveillance; Supreme Court won't hear challenge to NSA domestic surveillance; and, Rep. Sensenbrenner claims NSA's surveillance program threatens America's economy.
Divided Ohio Supreme Court upholds school district's firing of teacher who refused to remove religious materials from his classroom.
Ohio House committee approves new 'stand your ground' law; gun owners in San Fancisco claim city's large-capacity magazine ban violates the Second Amendment; and, Ohio city looks to repeal several gun laws after legal challenge by gun-rights advocates.
Christian Science Monitor explains how voter ID laws affected 2013 elections; PolitiFact Texas labels claims that no problems resulted from state's new voter ID law 'mostly false'; and women are more likely to be disenfranchised under North Carolina's new voter ID law.
Juveniles file a federal lawsuit against Florida county and private prison contractor alleging extremely harsh conditions and overuse of pepper spray.
Governor expected to sign Illinois's law legalizing same-sex marriage later today.
Iowa woman wrongfully terminated for alleging workplace discrimination wants her job back.
Sunday, November 17, 2013
Churches join the NAACP's lawsuit challenging North Carolina's new election laws limiting early voting and same-day registration; and Wisconsin Republicans seek to end weekend voting, while the Wisconsin Assembly passes a new voter ID bill.
United Methodist Church prosecutes Pennsylvania pastor under church law for performing same-sex marriage for his son and his son's partner; and, Wyoming Senate candidate Liz Chaney explains her opposition to same-sex marriage.
NYC Mayor-elect de Blasio meets with NYPD commissioner Kelly, who recently criticized Democrats for opposition NYPD's stop-and-frisk policy.
In Spain, topless women interrupt anti-abortion rally with chants of 'Abortion is sacred.'
November 17, 2013 in Abortion, Civil Rights Litigation, Election Law, First Amendment, Fourth Amendment, Freedom of Assembly, Freedom of Religion, Freedom of Speech, Religion, Right to Vote, Same-sex marriage, Stop-and-frisk, Theories of Punishment, Voter ID | Permalink | Comments (0)
Thursday, November 7, 2013
WaPo breaks down Senate votes for and against Employment Non-Discrimination Act.
Florida Supreme Court rules that the woman who donated her egg to her partner has equal rights to the child after the relationship later dissolved.
Supreme Court hears "unusually testy oral-argument session" over right of a town council to pray before meetings.
Iowa State Bar Assocation president defends judge currently under fire for a recent ruling blocking ban on Planned Parenthood's use of teleconferences to administer abortion pills.
Brown University may punish students who booed NYPD commissioner.
Case Western Law School dean embroiled in scandal over allegations that he sexually harrassed faculty has taken a leave of absence.
Wednesday, November 6, 2013
Supreme Court scheduled to hear arguments over the constitutionality of prayer at public meetings.
Federal judge rules that protesters may occupy state property indefinitely.
Advocates likely to start pushing for adoption rights for LGBT couples.
Does ENDA support demonstrates the evolution of the GOP on LGBT issues?
AG Holder continues advocacy for criminal justice reform at prisoner reentry group's event.
Friday, November 1, 2013
A federal appeals court in Washington joined other courts on Friday by ruling for an employer who raised religious objections to a provision of the 2010 U.S. healthcare law requiring companies to provide insurance that covers birth control.
The U.S. Court of Appeals for the District of Columbia Circuit unanimously ruled in favor of Catholic brothers Francis and Philip Gilardi, owners of Freshway Foods and Freshway Logistics, who do not want to provide insurance coverage for contraception, sterilization and abortion.
The legal question of whether employers can exercise their religious rights under the First Amendment of the U.S. Constitution to avoid complying with the so-called "contraception mandate" is almost certain to eventually be decided by the U.S. Supreme Court.
In Friday's ruling, the court said the corporations did not have First Amendment rights to press a claim but that the two brothers, as shareholders, did.
Monday, October 28, 2013
High school student who dressed as a homeless man pursuant to an assignment gets suspended for failing to identify himself to school officials quickly enough.
Christian school allegedly required black student to attend spiritual retreat glorifying Confederate history and Confederate flag.
ACLU requests that ICE immediately desist arresting people arriving at the courthouse to pay traffic tickets.
New GPS tracking projectile allows police to attach GPS to vehicles reducing the risk of chases.
New report says President Obama did not know about NSA's surveillance of foreign leaders.
Saturday, October 26, 2013
The Tennessee judge who independently changed a baby’s name from Messiah to Martin has been found to have violated Tennessee’s Judicial Code of Conduct. The judge ordered the name changed despite protests from both parents. According to the judge, “Messiah” can only be applied to the one who “earned” it, “and that one person is Jesus Christ.”
Rule 2.3(B) of the Judicial Code of Conduct states:
A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon…religion[.]
The judge’s action clearly violates the requirement of Rule 2.3. By requiring the name-change, the judge’s judicial opinion reflected her religious convictions, and her ordered required the parents’ compliance at the expense of their own beliefs.
Tthe Tennessee Constitution states "that no human authority, in any case whatever, control or interfere with the rights of conscience[.]" Art. 1, Sec. 3. Also, at a minimum, the Establishment Clause of First Amendment prevents coercive state action that compels adherence to a particular religious doctrine. The state has no authority to require religious observance, and requiring the baby’s parents to change their child’s name to meet the judge’s personal religious beliefs clearly does just that.
I’m not particularly familiar with available punishments for judicial misconduct, but this seems like a particularly egregious example that requires more than a meager scolding. To me, the judge's order calls her judgment into question. How can society expect fair and impartial rulings after such an obvious example of judicial disregard for the Tennessee Code of Conduct, the Tennessee Constitution, and the U.S. Constitution?
Sanctions against the judge are pending.
Notably, according to Reuters:
Messiah was the 387th most popular name for boys born in the United States in 2012, based on applications for Social Security cards filed with the U.S. Social Security Administration.
In all, there were 762 applications for boys named Messiah in 2012, more than double the 368 applications made in 2011, the Social Security Administration said.
Air Force Academy cadets no longer are required to recite "so help me God" in Honor Oath.
Illinois bill to impose mandatory minimums for illegal gun possession could be a win-win for Chicago mayor.
University of Pittsburgh Medical Center must wait to pursue civil rights lawsuit against the city and mayor for violation of due process in tax collection efforts.