First Amendment Scholarship Update

Here is this week's collection of newly available scholarship on speech and religion topics: 

1. Brian Leiter (University of Chicago Law School), The Law of Religious Liberty in a Tolerant Society. The abstract states:

This is a draft of the final chapter of my forthcoming book WHY TOLERATE RELIGION? Earlier versions of material in the first part of the book appear on SSRN as "Why Tolerate Religion?" (Constitutional Commentary, 2008) and "Foundations of Religious Liberty: Toleration or Respect?" (San Diego Law Review, 2010) (the account of religion has changed somewhat since these two papers). The two main conclusions from earlier in the book that are presupposed in this draft chapter are that: (1) the moral value of liberty of conscience is not specific to claims of "religious" conscience; and (2) there are claims of conscience that are not "religious" in character (however precisely religion is understood). "Principled toleration" requires that a dominant group, with the means to stamp out or repress disfavored beliefs of others, nonetheless recognize that there are good moral reasons to permit such beliefs to be held and expressed (subject to the limits imposed by the Harm Principle). The draft chapter explores the question: what should become of the law of religious liberty in light of these conclusions? Should we opt for a scheme of universal exemptions for claims of conscience, or are there reasons to think that no exemptions for claims of conscience, religious or otherwise, are justified? The relation between toleration and religious establishment is also discussed.

2. Faisal Kutty (Valparaiso University - Law School ), The Myth and Reality of 'Shari'a' Courts in Canada: A Delayed Opportunity for the Indigenization of Islamic Legal Rulings,  7 University of St. Thomas L. J. ---. The abstract states:

The Ontario government’s passage of the Family Statute Law Amendment Act, 2005 ostensibly precluding the enforcement of faith-based decisions issued by arbitration panels pursuant to the Arbitrations Act, 1991, in the area of family law, brought to the fore a debate that has been raging in liberal democracies for some time.

Those opposed to allowing the use of religious principles in resolving family disputes using the Arbitrations Act, 1991, raised some legitimate concerns about gender rights within religious communities. They also questioned the role of religion in secular society and opposed what they saw as privatization of the legal system. Opponents contended that religious groups should be able to govern their lives according to their conscience within the parameters of law if the constitutional right to freedom of religion and association is to have any real value. Consenting and informed adults, they argued, must be able to make religious choices even if others do not believe these are “correct” choices.

The issues, of course, transcend dispute resolution and tug at fundamental tensions surrounding multiculturalism and national identity, the limits of accommodation and legal pluralism within a liberal democracy and the separation of church and state. I argue that Ontario lost a timely opportunity to devise a way to balance these competing rights and interests in a manner that respects all parties and protects the vulnerable.

The controversy was a prime case to examine whether Islamic law and liberal democracy can co-exist within a liberal constitutional framework. Moreover, I also argue that Ontario also delayed an opportunity to indigenize or Canadianize Islamic law rulings in a manner that would help in the integration process of its Muslim citizens.

3. Wilson Ray Huhn (University of Akron - School of Law), A Higher Law: Abraham Lincoln's Use of Biblical Imagery.  The abstract states:

This article describes Lincoln’s use of biblical imagery in seven of his works: the Peoria Address, the House Divided Speech, his Address at Chicago, his Speech at Lewistown, the Word Fitly Spoken fragment, the Gettysburg Address, and the Second Inaugural. Lincoln uses biblical imagery to express the depth of his own conviction, the stature of the founders of this country, the timeless and universal nature of the principles of the Declaration, and the magnitude of our moral obligation to defend those principles. Lincoln persuaded the American people to embrace the standard “all men are created equal” and to make it part of our fundamental law. This goal was formally accomplished as a matter of law in 1868 when the Equal Protection Clause was added to the Constitution as part of the Fourteenth Amendment, but it is approached in fact only through our constant application of this ideal to our society and in our daily lives. The principle of equality is a higher law, but it need not exceed our grasp. As Lincoln called upon us – “let it be as nearly reached as we can.”

4. Edward Fallone (Marquette University - Law School), Funding Stem Cell Research: The Convergence of Science, Religion & Politics in the Formation of Public Health Policy, published in Marquette Elder's Advisor, Vol. 12, 2011.  The abstract states:

The controversy over the funding of stem cell research by the federal government is used as a case study for examining how policy choices are made in the field of public bioethics. This article examines the manner in which the decision to fund stem cell research has been influenced by the convergence of evolving scientific knowledge, conflicting religious values, and the role of elected officials in a representative democracy. The article begins by reviewing the current state of scientific knowledge concerning adult stem cells, embryonic stem cells, induced pluripotent stem cells, and the process of direct cell re-programming. Because each of these four areas of regenerative medicine possess advantages and disadvantages as a potential source of medical treatment, it appears that non-scientific considerations explain the decisions of policymakers to favor or disfavor particular types of research. Next, the article surveys the official positions of major religious faiths in the United States in regards to stem cell research, and concludes that there are a variety of differing religious perspectives concerning both the moral status of the embryo and our society’s affirmative obligation to heal the sick. In addition, the article discusses the bifurcated funding landscape for stem cell research, whereby individual states and the federal government both currently provide some measure of research support. Finally, this article concludes by asserting two neutral principles that should guide elected officials in the future when they consider whether to fund medical research in controversial areas: 1) the federal government should be the preferred source of funding for basic medical research and 2) government funding decisions should not favor one religious perspective over another.

 5. Joshua Golombik , (University of New South Wales - School of Banking and Finance) , Alok Kumar (University of Miami - School of Business Administration) and Jerry T. Parwada (University of New South Wales (UNSW) - School of Banking and Finance), Does Religion Affect Stock Markets and Institutional Investor Behavior? . The abstract states:

Socially responsible (SR) investing based on religious beliefs is experiencing robust growth. While the prior literature has related investment behavior to investors’ religious backgrounds, whether a religious authority’s stock preferences affect equity markets is far less understood. In this paper we study the relevance of a well known religiously motivated stock index, the MSCI US Catholic Values Index (CV400), which is based on opinions of the Catholic Church, to stock market activity and to mutual fund manager behavior. We examine the price and comovement effects of additions and deletions to the index and hypothesize that fund managers located in predominantly Catholic regions (1) show preferences for CV400 stocks relative to the rest of the market and (2) actively trade on changes to the index. We find that generally, CV400 index changes have no impact on constituent stocks’ prices and comovement with their index peers. Catholic managers tilt more towards CV400 stocks than Protestant managers. However, Catholic managers only actively trade in reaction to index changes instigated by a religious authority in a similar manor as they trade in stocks with corresponding financial characteristics. Taken together, our results suggest that institutional investors value the SR attribute of a stock only if the asset would have been chosen on its financial merits alone.

6. Mike Madden (Dalhousie University), Second Among Equals? Understanding the Short Shrift that Freedom of Religion is Receiving in Canadian Jurisprudence , 7 Journal of Law and Equality 55 (2011).  The abstract states:

Decisions of the Supreme Court of Canada seem to indicate that freedom of religion is not protected to the same extent as other fundamental human rights, even though the text of the Canadian Charter of Rights and Freedoms suggests that all rights are equal, and that there is no “hierarchy of rights.” This article will demonstrate, through analysis of leading and recent Supreme Court decisions, that a judicial tendency of affording reduced protection to freedom of religion exists in Canada, and that this tendency possibly reflects the relatively weak philosophical justifications for inclusion of freedom of religion within human rights instruments.

7. Lorin Geitner (Chapman University School of Law), Merry Season’s Controversy, forthcoming in Orange County Lawyer, Forthcoming  The abstract states:

Discussion of the infamous "Christmas Controversy" – the legality of religious symbols in holiday displays on public land. This issue is examined both from the viewpoint of an attorney and a scholar of religion: From a legal point of view, the article examines the holdings of three major Supreme Court cases which have addressed this issue. From the viewpoint of religious scholarship, the article examined the relevant sociology of religion, which is also an important factor in accounting for why, in spite of settled precedents, this issue remains controversial.

8. Lorin Geitner (Chapman University School of Law), Law and Religion – the First Amendment and the Problems of Alienation, forthcoming in Orange County Lawyer.  The abstract states:

A survey of the different patterns of the relationship between of law to religion (and vice versa) in the course of world history, in order to provide historical and legal context and argue for the notion that the United States, truly, a secular society, but rather a religiously pluralistic one.

9. Mark Rienzi (Catholic University of America - Columbus School of Law), The Constitutional Right to Refuse: Roe, Casey, and the Fourteenth Amendment Rights of Healthcare Providers. The abstract states:

The Fourteenth Amendment rights of various parties in the abortion context – the pregnant woman, the fetus, the fetus’ father, the state – have been discussed at length by commentators and the courts. Surprisingly, the Fourteenth Amendment rights of the healthcare provider asked to provide the abortion have not. Roe and Casey establish a pregnant woman’s Fourteenth Amendment right to decide for herself whether to have an abortion. Do those same precedents also protect her doctor’s right to decide whether to participate in abortion procedures?

The Court’s substantive due process analysis typically looks for rights that are “deeply rooted” in our history and traditions. Accordingly, this article addresses the historical basis for finding that providers do indeed have a Fourteenth Amendment right to refuse to perform abortions. This historical analysis shows that the right to refuse passes the Court’s stated test for Fourteenth Amendment protection. In fact, the right to refuse actually has better historical support, and better satisfies the Court’s stated tests, than the abortion right itself.

Beyond this historical case, a healthcare provider’s right to make this decision also fits squarely within the zone of individual decision-making protected by the Court’s opinions in Casey and Lawrence v. Texas, and protects providers from the types of psychological harm that the Court recognized in Roe and Casey. For these reasons, under Roe and Casey, a healthcare provider has a Fourteenth Amendment right to refuse to participate in abortions.

10. Christopher Weber and Matthew Thornton  (Louisiana State University), Culture Warriors: How Political Candidates Activate Religious Considerations in Campaign Ads. The abstract states:

Religion plays an important role in American politics. From being an impetus behind numerous political movements, to shaping how political candidates are considered, scholars and pundits alike have emphasized the role of religion for political behavior and attitudes. Yet, there has been a scarcity of empirical work examining the consequences of religious appeals in campaigns. Drawing on recent work, which contends that views about religious traditionalism have replaced many of the inter-denominational differences in vote choice and issue attitudes, we argue that religious cues activate religious traditionalism, which subsequently influences how political candidates are considered. In a priming experiment administered to a representative cross-section of adults, we examine whether religious priming occurs. By manipulating the participant’s information environment, we also examine whether there are bounds to priming. We find strong evidence that religious traditionalism is activated when religious cues are embedded in campaign ads, but we find that priming effects are reduced when participants are provided information about the candidate. While religious cues have the potential to shape how candidates are evaluated, we argue that the consequences of religious cues are dampened among those who learn more about political issues and candidates.

11. Carlton F. W. Larson (University of California, Davis - School of Law), Naming Baby: The Constitutional Dimensions of Parental Naming Rights . The abstract states:

This Article provides the first comprehensive legal analysis of parents’ rights to name their own children. Currently, state laws restrict parental naming rights in a number of ways, from restrictions on particular surnames to restrictions on diacritical marks to prohibitions on obscenities, numerals, and pictograms. Yet state laws do not prohibit seemingly horrific names like “Adolf Hitler,” the name recently given to a New Jersey boy.

This Article argues that state laws restricting parental naming rights are subject to strict scrutiny under both the Due Process Clause of the Fourteenth Amendment and the Free Speech Clause of the First Amendment. This Article concludes that although many restrictions are constitutional, prohibitions on diacritical marks, such as that employed by the state of California, are unconstitutional. If parents wish to name their child Lucía or José, they have a constitutional right to do so. Similarly, current laws restricting parental choice of surnames fail strict scrutiny. This Article also considers the constitutionality and desirability of statutory reforms that would address certain harmful names not prohibited by current law.

Along the way, readers will encounter heavy metal bands with unusual umlauts, boys named Sue, the history of birth certificates, false implications of paternity, and dozens of truly awful, but very real, names given by parents to their children.

 12. Antonio Mortez Haynes (Cornell University - School of Law),  Note -The Age of Consent: When Sexting is No Longer Speech Integral to Criminal Activity.  The abstract states:

This Note argues that after United States v. Stevens, the First Amendment prohibits the prosecution of minors for sexting once the minor has passed its state's age of consent. If the First Amendment no longer has "child pornography exception," but instead only a "speech integral to criminal conduct" exception, where the underlying sexual act is itself legal, than depictions of the act that are not obscene must be fully protected by the First Amendment. Part I briefly discusses "sexting," its prevalence among today’s teenagers, and sexting has resulted in a surprising number of recent prosecutions of teens under various child pornography statutes. Part II explores the growth and development of child pornography law in the United States and explains why using child pornography statutes to go after what may be nothing more than high-tech flirting, was probably impermissible even before Stevens. Prior to Stevens, Court noted that child pornography that was neither obscene nor the product of actual child abuse was fully protected by the First Amendment. While what constitutes obscenity may differ based on the particular community in which the speech is prosecuted, it is difficult to see how today's sexting teens are appealing to prurient interests in sex. In Part III, I explain that since there is no longer a child pornography exception to the First Amendment, but instead a "speech integral to criminal activity exception," to survive constitutional scrutiny, child pornography statutes must necessarily be tied to another "valid criminal statute." With respect to older teens' sexting, the most logical starting point is state statutory rape laws, which generally set the age of consent. Because the states have wide latitude in determining the age of consent, in Part IV, I critically examine the potential consequences of tying First Amendment protections to underlying state criminal statutes. I then suggest that an entirely different analytical framework may be appropriate when scrutinizing activities like sexting. Part V briefly concludes.

13. Larry Alexander (University of San Diego School of Law), There is No First Amendment Overbreadth (But There are Vague First Amendment Doctrines); Prior Restraints Aren’t ‘Prior’; and ‘As Applied’ Challenges Seek Judicial Statutory Amendments, forthcoming in Constitutional Commentary. The abstract states:

In this short paper I argue that there are no overbroad statutes, and that the worry about overbreadth is really a worry about the vagueness of some First Amendment doctrines. I further argue that there is nothing “prior” about prior restraints; the temporal worry about injunctions is due to the judicially-created collateral bar doctrine, and the temporal worry about licensing schemes is that of the delay occasioned by the license requirement. Finally, I argue that “as applied” constitutional analysis is an exercise in judicial statutory amendment. I conclude with an Appendix discussing two recent prominent articles that are inconsistent with some of my arguments.

JFB