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Steve Shiffrin
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Recently, I proudly presided at the wedding of Jacob Shiffrin and Sarah Olbrantz in Saint Louis, Missouri. It was a wonderful event. But, how you might ask, could I have the authority to marry them. I am not a judge, a clergyman, or authorized by a religious institution of which Jacob or Sarah are members as Missouri law seems to require. The answer, of course, is that I became a pseudo-clergyman on line in a couple of minutes. Missouri accepts such credentials. So do most states (although questions have been raised in Connecticut, Virginia, Tennessee, Alabama, and New York). Although Missouri permits judges to marry couples, some states require that only spiritual leaders preside at weddings. Suppose, however, that a couple want a non-religious social worker to marry them. Is a state law preventing the social worker from marrying the couple constitutional? It strikes me that a law forcing a... Continue reading
Posted Oct 5, 2016 at
From the New York Times to PBS, the media proclaims that Donald Trump is not stable, but he is the change candidate, and Hillary Clinton is not. In other words, she just stands for four more years of Obama. In one sense this is true. It will not be possible to get legislation through the Republican House. At the same time, Trump would not be able to get anything through the Senate which is likely to be controlled by the Democrats. So on the domestic level, whoever is President will govern at the margins by executive order, although appointments to the federal departments are obviously important. In terms of foreign policy, Trump is the change candidate. But change in the hands of an ignorant, reckless, thin-skinned, narcissist is hard to rally around. But Hillary Clinton is the real change candidate. The Supreme Court has been dominated by Republicans since the... Continue reading
Posted Sep 19, 2016 at
Of course, under the circumstances, Hillary Clinton must be elected President, but what can she be trusted to do? I will argue that there is a lot to worry about here, but first, some things she can be trusted to do. First, she will appoint Justices who will transform the Supreme Court from a dream of the Federalist Society to a moderately liberal court that respects equality, principles of criminal justice, and fairness in elections. Second, she will on most issues act like a Democratic President. Third, e-mail carelessness to the contrary, her brilliance, experience and judgment will make her a reliable anchor in foreign policy and national security (though many of us prefer she were less hawkish). Fourth, she will block Donald Trump from ever becoming President of the United States. But there is much to worry about and not because she is more likely to issue false statements... Continue reading
Posted Aug 7, 2016 at
In a well argued facebook post, Patrick O'Donnell maintains that a vote for a third party candidate is morally irresponsible. Here is what he has to say: The upcoming election is a binary choice (i.e., abstention or third party voting is morally and politically irresponsible), and here's my brief argument as to why: If one assumes (and it seems a reasonable assumption given what current numbers suggest and 'experts' are saying about the upcoming presidential election) that this presidential race will be fairly close and, furthermore, believes that Donald Trump is an immeasurably worse candidate than Hilary Clinton, than it would be politically (and I think morally) irresponsible to vote for a third party candidate of any sort, for that would be tantamount to giving your vote to Trump. If one believes a vote for a third party candidate amounts to a salutary or necessary expression of one's ideals or... Continue reading
Posted Jul 20, 2016 at
Apparently, Hilary Clinton over the years has made false statements in order to minimize or deny wrongdoing of one sort or another. It is not right, but millions of people are not truthful when accused of wrongdoing. And, of course, Hilary Clinton has been accused of wrongdoing on many occasions when the charges were entirely trumped up. Donald Trump, on the other hand (leaving aside his regular diet of groundless claims), time and again has made false statements in order to defraud others. There is obviously an important a moral difference between lying to defend oneself and lying to defraud others. Not all lies are equally defective. And now, let’s not put aside Trump’s regular diet of lies about birth certificates, participation in assassinations, and bribery of the Attorney General etc, etc, etc. Here there is good reason to ask whether the man is just a liar or is a... Continue reading
Posted Jul 8, 2016 at
I attended a workshop today in which Nelson Tebbe perceptively discussed the question whether harm to third parties should invalidate government creation of religious exemptions to otherwise valid laws, and, if so, under what circumstances. Many in the audience posed questions that raised the issue whether religion is special. At first glance, one might think that under our Constitution religion must be special. After all, it contains religion clauses. Nonetheless, there is a substantial literature arguing to the contrary, and I take a mixed position. I begin with the proposition that a major purpose of government is to make arrangements assuring that human lives flourish. A major responsibility associated with this is to assure that citizens can lead moral lives. Protecting religion under the Constitution and promoting free exercise exemptions by statute furthers that responsibility. Of course, religious institutions are filled with sinners, and some religions have twisted views of... Continue reading
Posted Jul 6, 2016 at
Lost in the Supreme Court shuffle yesterday was the Court’s drunk driving decision (Birchfield v. North Dakota) on breath and blood tests and the Fourth Amendment. The Court ruled that breath tests whether at the scene or at the station did not require a warrant. On the other hand, blood tests because of their more intrusive character were ruled to require a warrant. The significance of this decision in drunk driving cases is small for two reasons. First, most jurisdictions rely on breath tests administered at the station (the breath test administered in the field, whatever its merits as a screening test is inadmissible). Presumably those jurisdictions using blood tests in drunk driving cases will begin to shift to in-station breath tests. On the other hand, blood tests are the standard test employed to determine whether a motorist has been driving under the influence of drugs other than alcohol, and,... Continue reading
Posted Jun 24, 2016 at
Michael Arnovitz on Facebook has a terrific defense of Hillary Clinton. It is the best I have seen. Well worth reading. See here. Continue reading
Posted Jun 13, 2016 at
Donald Trump has famously contended that a federal judge cannot impartially adjudicate a case involving Trump because the judge’s ethnic background is not French, German, or Italian, but Mexican. According to Trump, the judge has an inherent conflict of interest because of his Mexican heritage. This breathtaking racist display has rightly been condemned, but there is a germ of truth (but just a germ) in his statement that I want to mention. Suppose for a moment, that we focus on the selection of jurors. It is unconstitutional for attorneys to use preemptory challenges when they exclude jurors on the exclusive basis of race or gender. The Court has referred to impermissible stereotypes. Nonetheless, as Justice O’Connor observed in J.E.B. v. Alabama ex rel. T.B., “[O]ne need not be a sexist to share the intuition that in certain cases a person’s gender and resulting life experience will be relevant to his... Continue reading
Posted Jun 8, 2016 at
The cases involving religious freedom and the contraception mandate were decided yesterday. Some of the reporting discussed the case as if it showed the problems of a 4-4 division of the Justices on the Court. I do not agree. Aside from arguments about a perceived lack of justification for exempting some groups and not others from the mandate, the religious employer claimants argued that if government required the insurance companies selected by the employers to provide contraceptives over the employers’ objection, this would constitute a high jacking of the employer’s insurance program and would make them complicit in what they regard as sinful activity. The Little Sisters and other litigants also objected to the notice required by the government. The government required that the litigants inform the government that they objected to providing contraceptives and that they include the names of the insurance companies. At oral argument, counsel for the... Continue reading
Posted May 17, 2016 at
I rarely have trouble determining who to vote for, but deciding between Clinton and Sanders in the New York primary has not been easy for me. For a long time, I supported Clinton. I thought Sanders was helping the cause of the left by moving her to the left, but that he could not accomplish his goals with a Republican House. I thought she was smart, generally Progressive, more qualified, more likely to get things done, unfairly vilified, and I believed it was past time that a woman be elected President of the United States. I still think all of that, but I am voting for Sanders. The easy reason is that Clinton will win New York, and votes for Sanders will send a message that the heart of the party is and should be moving to the left. But there is more. At the moment, the polls show that... Continue reading
Posted Apr 17, 2016 at
The cases involving religious freedom and the contraception mandate took an interesting turn last week. Aside from arguments about a perceived lack of justification for exempting some groups and not others from the mandate, the main arguments of the religious employer claimants were that if government required the insurance companies selected by the employers to provide contraceptives over the employers’ objection, this would constitute a high jacking of the employer’s insurance program and would make the employer complicit with the provision of contraceptives. This is a rather extravagant view of moral complicity particularly given the public moral objection to its provision. It is at odds with standard Catholic teaching on moral complicity as the discussion by Cathleen Kaveny makes clear (cited by Michael Perry on this site here). The claim of the Little Sisters of the Poor might be more attractively stated if it argued that it had religious objections... Continue reading
Posted Apr 6, 2016 at
With the passing of Justice Scalia, and with the nomination of a centrist judge who probably will not be confirmed, we should ask what difference it would make a newly elected Democratic President appointed a liberal judge creating a liberal majority on the Court. Most recognize that the general trend of decisions by the Court in which Justice Scalia played an important role would be quite different than they are now. That Court undermined health, safety, and environmental regulations and otherwise acted in ways celebrated by the Chamber of Commerce. It overturned the Voting Rights Act, and it upheld state regulations designed to make it more difficult for Democrats to vote. It used the First Amendment to overturn campaign finance regulations and was on the verge of using the same amendment to weaken unions. The Court smothered dissent: upholding bureaucrats who sought to censor the speech of public employees, students,... Continue reading
Posted Mar 20, 2016 at
The tale of this election is that those candidates who are running against the “Establishment” are doing very well. There is obviously something to this, but it obscures the actual workings of American politics. Just for starters, Hilary Clinton won Nevada on Saturday propelled by African-American and Latino voters. Those voters would be surprised to learn that they are part of the Establishment. And, of course, except for some of them, they are not. What people mean by the Establishment refers variously to the Washington Establishment, the Business Establishment, and the Media Establishment or all three. What this “description” slides over is that none of these Establishments are monolithic. Is there anyone who thinks that Washington is monolithic? The Media? More interesting is the claim that Business is the establishment. On this theory, Donald Trump is a narcissistic member of the Establishment, and I believe he is precisely that. Bernie... Continue reading
Posted Feb 21, 2016 at
The Republican claim that nominations for the Supreme Court have not been approved during election years is simply false. President Reagan’s nomination of Justice Anthony Kennedy was approved by a Democratic Senate in 1988. Mitch McConnell and Charles Grassley were among those who voted for Kennedy. It is not clear whether Republicans like Ted Cruz have forgotten or are lying. Continue reading
Posted Feb 18, 2016 at
Justice Scalia has rightly been described as an influential Justice, but the nature of that influence needs to be put into perspective, and the desirability of that influence needs to be questioned. Recent commentary mentions Justice Scalia’s influence in advocating for originalism, a theory of constitutional interpretation that would honor the original text of the Constitution and its meaning as understood at the time of the text’s adoption. There is no question that Scalia had a substantial effect on the debate in the academy regarding the proper mode of constitutional interpretation. He did not initiate the debate. His intervention was preceded among other things by the writing of Raoul Berger and the pressing of originalism by Edwin Meese, the Attorney General in the Reagan Justice Department. Nonetheless, Scalia was a great writer and rhetorician. His advocacy had a profound effect on law students and legal scholarship. But his influence on... Continue reading
Posted Feb 18, 2016 at
Last week Chief Justice Roberts delivered a Law Day speech in which, according to the Washington Post, he complained that partisan extremism is damaging the public’s perception of the role of the Supreme Court, recasting the justices as players in the political process rather than its referees. By players in the political process, Roberts does not mean that the Court’s decisions have no impact on the political process. Rather he means that the Court’s decisions are not made in the same fashion as legislators. Instead, he maintains that the Court often makes decisions that are contrary to their policy views. Though he did not say so, presumably his vote upholding the Affordable Care Act would be one such case. He surely would not have voted for the Act if he were in the legislature, but many things are within the power of the legislature, not just those that track the... Continue reading
Posted Feb 10, 2016 at
If you are worried about Trump, you will be happy to read a column by Nate Silver. He says, "Trump is not very popular with general election voters. On the contrary, he’s extremely unpopular with independents and would begin the general election race with worse favorability ratings than any candidate to receive a major-party nomination before." See here. Silver has an intriguing analysis of the difficulties influential Republicans face in stopping him and the implications of a Trump nomination for the Republican Party. Continue reading
Posted Jan 26, 2016 at
Injustice permeates our criminal “justice” system. In theory, our system is not supposed to be an inquisitorial system, but the case law gives the lie to that claim on a daily basis. To be sure, some courts know how to “talk the talk.” The Court of Appeals in New York is one such court. As it said in People v. Anderson, 42 N.Y.2d 535 [1977]: “Ours is an adversarial . . . not an inquisitorial system.” Confessions are to be excluded when Miranda rules are violated (the rules are riddled with police-friendly interpretations that make a mockery of the original decision). Separate and apart from Miranda, a confession must be voluntary. As the Anderson Court explained, a confession is involuntary if it is coerced or otherwise unreliable on the issue of guilt or innocence or obtained or acquired under police methods “so extreme that they violate our notions of fundamental... Continue reading
Posted Jan 25, 2016 at
Guest Post for Religious Left Law by Vincent Ialenti & Meridian 180 In September 2015, Cornell Law School’s virtual think-tank Meridian 180 brought together anthropologists, legal scholars, a literature scholar, a futurist, a geographer, a corporate lawyer, and philosopher for a lively online conversation about Pope Francis’s 2015 encyclical Laudato Si: On Care for Our Common Home. The goal was to spark more global, intellectual, and frank reflection on how the pope’s environmental thinking could help us re-imagine how ecologies and theologies interrelate in the twenty-first century. Cornell postdocs translated the conversation into Korean, Japanese, English, and Chinese as it took place. We believe Religious Left Law’s readers may be interested in some of the insights, skepticisms, and questions that emerged from our discussions. 1) More careful attention must be paid to the powerful institutions, histories, and thinkers that have served as foundations for Laudato Si’s (progressive) points about Earth’s... Continue reading
Posted Jan 18, 2016 at
Should the First Amendment be interpreted to protect workers who ideologically object to paying fees to unions who represent them in the collective bargaining process? The question was explored before the Supreme Court in oral argument on Monday in the case of Friederichs v. California Teachers Association, and it appears the Court is about to overrule Abood v. Detroit Board of Education which ruled that the First Amendment provided no protection in these circumstances. As my colleague Michael Dorf observes in his excellent column yesterday, a key moment in the argument occurred when Justice Sotomayor asked the plaintiff’s attorney whether the state could simply fund unions from tax revenues to assure adequate representation for workers in the collective bargaining process. For Dorf, the point of the question is if government can tax to support unions (or, more precisely, tax employees to support unions without violating the First Amendment), why can’t... Continue reading
Posted Jan 13, 2016 at
Sarah Betsy Fuller, a clinical professor at the Cornell Law School devoted much of her life to combating unjust prison conditions. See here. At her funeral service in 2004, a close friend quoted her as saying that a society should be judged not by its artistic or scientific contributions, but by how it treats its prisoners. Even before Betsy’s death, the Prison Litigation Reform Act (PLRA) imposed burdensome restrictions on getting access to court to challenge unjust prison conditions. As it stands today, a promising alternative to lawsuits is to get the media to shine a spotlight on prison practices. What stands in the way of this is an excessively restrictive interpretation of press rights under the First Amendment. Of course, it makes sense that there is no general public right of access to prisons to interview prisoners. But the public loses when the press does not have such a... Continue reading
Posted Dec 30, 2015 at
In a recent post at First Things, Mark Movsesian makes some observations about Roger Scruton’s The Future of European Civilization: Lessons for America. Movsesian is particularly interested in human rights which Scruton views as a European religion replacing Christianity, at least for European elites. Scruton faults human rights for lacking grounding and for being indeterminate because of that lack of grounding. That is, there is wide disagreement as to what is and is not a human right. To this, Movsesian observes that Christians disagree about what Christianity teaches in a wide variety of important circumstances. So on this ground, Christianity has no advantage. Movsesian imagines that Scruton might respond that the dominant strand of secular human rights thought denies any objective truth claims, so there can be no objective basis for adjudicating between varying human rights claims. If this were true, however, human rights thought would be indefensible. If there... Continue reading
Posted Dec 22, 2015 at
One of the great differences between progressives and libertarians is that progressives favor economic regulation and libertarians oppose it. As a constitutional matter, it has long been settled that economic regulation is ordinarily not subject to any serious due process objection. One of the disquieting developments of recent years has been the misuse of the First Amendment to disrupt economic regulations involving speech. Many years ago, Kenneth Karst, one of the great progressive scholars of his generation, argued that some economic regulations involved important human rights that deserved to be subject to serious scrutiny under the due process clause. He had in mind the right to pursue an occupation, and he objected in particular to unnecessarily burdensome occupational licensing requirements. To my mind, the California Bar examination is an outstanding example of an excessively burdensome requirement. It is not just that fewer than half of the applicants passed the examination... Continue reading
Posted Dec 6, 2015 at