First Amendment Scholarship Update

Here is this week’s collection of First Amendment scholarship:

1. Charlton C. Copeland (Tulane University Law School), God-Talk in the Age of Obama: Theology and Religious Political Engagement, 86 Denv. U. L. Rev. 663-691 (2009). The abstract states:

   Discussions of the role of religion in political life usually take one of two forms. In popular depictions, the focus is on the role that religious affiliation plays in determining how individual support of or opposition to a number of hotly contested issues, including the Presidency, ballot initiatives on same-sex marriage, the use of federal funds in stem-cell research, restrictions on the availability of abortion, or the role that religious evangelicals play in American political life. In academic treatments, the focus is usually on the extent to which religious adherents should be required to ground their public, political positions on reasons that can be accepted by all rational participants. Despite the fact that religion played a sensational role in the historic 2008 Presidential campaign, the 2008 election did not give rise to a discussion over the role of religion in public life, as it had in past elections.

   Although the 2008 Presidential campaign did not produce a signal moment that sparked an evaluation of the place of religious discourse in American political life, it delivered a candidate onto the national stage who has thought seriously about the role of faith in politics—Barack Obama. Perhaps betraying his roots as a law professor, Obama has been remarkably open about what he takes to be the appropriate role of faith in politics. Perhaps more significantly, however, he has been even more open about his path to religious faith. Obama is arguably the most theologically serious politician in modern American political history. Through his descriptions of his religious experience Obama displays a sophisticated engagement with the central ideas of Christian theology—the meaning of the life and work of Jesus, the nature of sin, the role of the Christian community—that provide a conception of the relationship between religious faith and the social order. Obama's openness raises the hopes of those who see in Obama the possibility of forging a relationship between religion and liberal democracy that might transcend the distrust of the other that exists on each side.

2. Robin Fretwell Wilson (W&L University School of Law), Same-Sex Marriage and Religious Liberty: Life After Prop 8, 14 NEXUS 101-111 (2008-2009). The abstract states:

   The recent, contentious campaign surrounding California's Proposition 8 was dominated by wild claims and doomsday predictions from supporters and opponents alike. Supporters claimed that if Proposition 8 “doesn't pass then our churches cannot teach our children . . . what we really believe,” and “[p]eople's ability to believe in marriage as a divine institution of God and to preach that . . . is very much at risk.” Opponents responded with ads depicting Mormon missionaries forcibly entering the home of a lesbian couple to “take away [their] rights.” Despite the hype, the actual text of Proposition 8--approved by 52% of California voters in November --simply states that California will recognize only those marriages between a man and a woman. Now that the din has died down, we have an opportunity to step back and critically evaluate the conflicts that are likely to arise between same-sex marriage (and other relationships) and religious liberty. This Essay argues that the moral clashes over same-sex relationships certainly exist but are not resolved by Prop 8--far from it. Tensions over same-sex relationships have erupted across the world and the United States as more and more governments have recognized not just same-sex marriage but civil unions and same-sex adoptions. Regardless of how the California Supreme Court rules on the challenges to Prop 8 now before it, California still allows civil unions and same-sex adoption and bans discrimination on the basis of sexual orientation in places of public accommodation. As Part I shows, whatever happens with Proposition 8, Californians will have to navigate a rising tide of moral clashes over same-sex relationships. These moral clashes range from lawsuits over refusals to serve same-sex couples to cancelled social services contracts to firings and resignations. Part II suggests that an equally deep moral divide emerged in our recent past over abortion and that our collective experience with navigating that divide can point the way to live-and-let-live solutions to the collisions over same-sex relationships.

3. Elizabeth Burleson (USD School of Law), From Nondiscrimination to Civil Marriage, available online at http://ssrn.com/abstract=1436757. The abstract states:

   As William Faulkner explained, we must be free not because we claim freedom, but because we practice it. This article analyzes the continuing constitutional struggle for civil rights on the basis of sexual orientation, concentrating on the constitution state's critique of its constitution. Connecticut is currently at the forefront of recognizing civil rights. Connecticut has ruled that discrimination against gay and lesbian persons is subject to intermediate scrutiny, which has historically been used to review laws that employ quasi-suspect classifications such as gender. Civil marriage for same sex couples is legal in Connecticut, Iowa, Maine, Massachusetts, New Hampshire and Vermont. New York recognizes marriages by same sex couples legally entered into in another jurisdiction. California’s Proposition 8 renders the Californian Constitution in conflict with itself. This analysis addresses the federal Defense of Marriage Act's impact on same sex couples that marry in Connecticut. It also considers comparative constitutionalism and the evolution of nondiscrimination measures.

4. Ian C. Bartrum (Yale Law School), Pleasant Grove v. Summum: Losing the Battle to Win the War, 95 Va. L. Rev. (forthcoming 2009). The abstract states:

   This short essay explores the potential doctrinal implications of the Supreme Court's recent decision.

5. Stephanie Farrior (Vermont Law School), Human Rights Advocacy on Gender Issues: Challenges and Opportunities, 1 J. Hum. Rts. Prac. 83 (2009). The abstract states:

   This article reviews recent developments in human rights law on gender issues, and identifies upcoming challenges and opportunities for advocates on these issues.

   Recent years have seen notable progress on issues of gender and human rights in standard-setting. Progress can also been seen to some extent in the application of these standards through international and domestic legislation, jurisprudence, and institutional programming and development. Some international and regional human rights bodies now go beyond just including 'women' in a list of 'vulnerable' groups, and have begun to incorporate women's experiences and perspectives into recommendations for structural changes needed to bring about full enjoyment of human rights by women and girls. In addition, the human rights of lesbian, gay, bisexual, transgender, and intersex people are being taken up beyond the first human rights bodies that addressed them.

   Despite this progress, many challenges remain. Violence against women continues at a staggering rate. Gender-based discrimination persists in the workplace, housing, education, disaster relief, health care, and countless other areas. Access to justice continues to be hindered by a range of obstacles. Religion, tradition, and culture continue to be used as a shield for violating women's rights. Same-sex conduct is still criminalized in scores of countries, and it carries the death penalty in seven states. The traditional human rights law paradigm, with its focus on the state, may be obsolete in dealing with human rights abuses by such diverse non-state actors as powerful militias and global corporations. This article reviews both recent developments and upcoming challenges in advocacy on gender issues.

6. Francis Joseph Mootz III (William S. Boyd School of Law, UNLV), Faith and Politics in the Post-Secular Age: The Promise of President Obama, available at SSRN: http://ssrn.com/abstract=1433545. The abstract states:

   If the modern era is properly characterized as the 'age of secularism' - a time when constitutional democracies finally have shed the last vestiges of church authority from the political realm and embrace a rationalist and humanist perspective - then the United States appears to be outside the Western mainstream. In this paper I explore how the relationship between politics and religious faith in the United States might be seen as part of the narrative of secularism that defines most other Western countries, even as the differences in the American experience might suggest an evolution of this narrative. My thesis is that President Obama might embody a means for faith and politics to co-exist in the post-secular age. I explore this paradoxical thesis in three parts. First, I analyze the concept of 'secularism' and recover an understanding of our 'secular' age that does not entail rejecting religious belief as a source of public values. Second, I discuss how Barack Obama is a secular politician in this sense, and argue that he may help to define a break from the traditional religious approach to politics exhibited by fundamentalist movements. Finally, I discuss the central question for a post-secular constitutional democracy: the role of religion in the public sphere. I conclude that the United States has the potential to be a secular state grounded in both religious belief and toleration, but this presents a continuing challenge for our polity rather than an accomplishment to be celebrated.

7. Diane Leenheer Zimmerman (New York University - School of Law), Money as a Thumb on the Constitutional Scale: Weighing Speech against Publicity Rights, B.C. L. Rev. (forthcoming 2009). The abstract states:

   Although they have differed in their approaches, courts deciding right of publicity cases have almost uniformly assumed that the appropriate way to test the constitutionality of the claim is to weigh the plaintiff's publicity interest against the defendant's free speech claim. The question left unanswered is what could possible give sufficient weight, in particular to a nonadvertising publicity claim, to allow it plausibly to outweigh the first amendment. The paper argues that no plausible jurisprudential predicate for this practice exists unless one is willing to accept the argument that interests expressed in economic terms are inherently weightier than traditional liberty interests. If this argument is unattractive, then the premise behind applying a balancing test for publicity claims is also flawed, leaving the tort The paper suggests that, at least outside the area of advertising uses, traditional first amendment analysis leave only the smallest of spaces for publicity rights.

8. Josh Goodman, Divine Judgment: Judicial Review of Religious Legal Systems in India and Israel , 32 Hastings Int'l & Comp. L. Rev. 477-528 (2009).

   No online abstract available

JFB