In the midst of revelations that the Federal Government has been indiscriminately spying on who millions of Americans call on their telephones and how often, President Obama said yesterday, “If people can’t trust not only the executive branch but also don’t trust Congress and don’t trust federal judges to make sure that we’re abiding by the Constitution, due process, and rule of law, then we’re going to have some problems here.” The problem is that federal judges ran away from the Constitution years ago on this very issue, and the President’s characterization of this program as a “modest encroachment” on privacy shows that he either lacks integrity or he has an impoverished conception of privacy. Surely, it is a serious privacy intrusion to collect information about the associations of millions of Americans without probable cause. This is an area where privacy and the First Amendment guarantee of freedom of association... Continue reading

I am guessing you did not know that the First Amendment was designed to keep workers ignorant of their rights under labor law. Neither did I, but the District of Columbia Court of Appeals in National Association of Manufacturers v. NLRB discovered this heretofore unknown nuance of First Amendment law earlier this month. The Court held that the NLRB could not require employers to post notices calling attention to the rights of workers. According to the court, this was akin to compelling a school child to salute the flag or forcing motorists to carry a slogan on their license plates to which they are ideologically opposed. In the next breath the court noticed that there might be a difference between compelling the disclosure of fact and forcing one to support an ideology. But the court was reassured by the Riley case in which charitable fundraisers could not be compelled to... Continue reading

Is it unreasonable to suppose that groups who are ideologically committed to the proposition that taxes are too high are more likely than other groups to play fast and loose with the tax laws? If so, would it not make sense for the IRS to pay special attention to these groups to make sure they comply? Is this significantly different than paying special attention to those who meet a drug courier profile or to those who match a dangerousness profile upon entering the country? Of course, it is possible that the IRS paid special attention to conservative groups because of distaste for their politics. But it is also possible that the IRS paid special attention to these groups without regard to their own feelings about the politics of the groups they looked at. I cannot say that about the Republicans or the Democrats. The Speaker of the House is ready... Continue reading

I do not know, but the law seems to treat religion as less important. If a law is not aimed at speech, but hits communicative conduct (law outlaws destruction of a draft card which might or might not be done in the presence of another), the law can be constitutionally applied only if it furthers a substantial state interest by means no greater than is essential to the furtherance of that interest. But if a statute prohibiting particular conduct (eg., ingesting peyote) whether religious or not religious, hits religion (e.g., a Native American religious ceremony involving the ingestion of peyote), no First Amendment test applies unless another constitutional right is also burdened or the government is singling religion out for special treatment. But suppose a First Amendment test is warranted in a statute directed at the content of a communication or in a statute primarily aimed at a form of... Continue reading

April’s Harper’s Index reports that only 42% of American women believe they have a personal responsibility to help the poor. The report is even more disappointing for American men. Only 27% believe they have a personal responsibility to help the poor. The source for these statistics is Environics Research. I am not sure what to make of this. In any given year approximately three quarters of American families give money to charities though it is not clear what percentage of these families give money to the poor. We do know that 75 million American give no money to charities of any kind. In any event, most politicians obviously think the public does not care much about the poor. The poor are denigrated by Republicans and largely ignored by Democrats. I have no confidence that political leaders will cultivate concern about the poor. And such leadership certainly will not come from... Continue reading

On Saturday, Ross Douthat wrote about the conflict between a neutral and impartial press and a press out to advocate for social justice. I was reminded of those who have what I think is a shriveled sense of the role of academics and the nature of scholarship. There are many, but Larry Alexander (77 U.Colo.L.Rev. 883 (2006)) has an excellent statement of what might be the dominant view (though his essay is marred by a myriad of unsupported or thinly supported conclusions about political advocacy in the contemporary university, conclusions that may or may not be correct). Alexander maintains that an academic follows arguments and evidence where they lead regardless of whether they support his political goals. He contrasts this with the political advocates who know the conclusions they wish to reach and cast about only for arguments and evidence that supports their views. These characterizations are framed by a... Continue reading

When Justice Kennedy suggested that he might vote to invalidate DOMA on the ground that the Constitution does not give the Congress the power to define the family, many liberals were cautioned to be careful of what you wish for. In the current political constellation, liberals favor a strong Federal government with generous interpretations of the powers conferred by the Constitution. This is understandable given the conservative attempt to block the New Deal and the Southern emphasis on state’s rights which served as a proxy to enable continued race discrimination. Of course, it is integral to liberalism to support strong legislative power to enforce the Civil Rights Amendments. And the Court’s stingy interpretation of section five of the fourteenth amendment strikes me as a betrayal of clear constitutional principles. (You would almost think the Civil War was never fought). But the favoring of strong commerce power seems to me to... Continue reading

With permission from George Conk, I am posting his review of From Enemy to Brother first posted at Blackstone Today here. There is one other event which transcends the limits of the year, since it is measured in centuries and millennia in the history of this city and of this Church. I thank Divine Providence that I was able to visit our "elder brothers" in the faith of Abraham in their Roman Synagogue! Blessed be the God of our fathers! The God of peace! Pope John Paul, II December 31, 1986 How did this epochal change of understanding and its particular expression of brotherhood come to pass, this official, and personal Papal renunciation of centuries of Christian disparagement of Jews and Judaism? John Connelly, UC Berkeley historian, finds its roots in the efforts of Catholic intellectuals - largely converts - from the border regions of northern and central Europe. In... Continue reading

Last week I went to Santa Fe to see the New Mexico Supreme Court oral argument in a case where I had filed an amicus brief. Elane Photography, LLC v. Willock. The case involved a commercial photographer (more precisely her company) who refused to photograph a same sex commitment ceremony on the ground that she and her husband (the other member of the closely held company) were politically and religiously opposed to such ceremonies. The New Mexico Human Rights Commission and the New Mexico Court of Appeals concluded that she had violated the New Mexico Human Rights Act which prohibits discrimination on the basis of sexual orientation. The Commission and the appellate court rejected the argument that the act as applied violated free speech rights or freedom of religion rights. My brief (on behalf of Mike Dorf and I) argued that the act as applied did not violate free speech... Continue reading

Jonathan Sacks, the Chief Rabbi of the United Kingdom, was once asked what he thought about the Anglican Church being the Established Church of England. He responded that an established church was a good thing because it emphasized the importance of spirituality in our lives. So too, whether we are Catholic or not, religious or not, we should care about who is selected as the next Pope. The Pope has the platform to be a strong voice for spirituality against materialism, for care of others as opposed to self-serving egoism, for peace as opposed to war, for harmony with and stewardship of the earth as opposed to environmental degradation, for gratitude of creation as opposed to unremitting despair. Of course, the next Pope will have to do much to show that the Church is serious about the sex scandal. Eliminating mandatory celibacy would address the lack of access to the... Continue reading

Many pundits have rightly deplored Justice Scalia’s characterization of voting rights as “entitlements.” Less focus has been devoted to his blatant interpretive hypocrisy. Scalia claims to follow the original understanding of the Constitution. He, therefore, should be following the original understanding of the Fifteenth Amendment which gives Congress the power to enforce the right to vote without racial discrimination. Opponents of the Voting Rights Act argue that states with a prior record of discrimination are demeaned by a requirement that they submit any changes to their voting law to the Justice Department. Justice Breyer had the short answer to this inappropriate appeal to federalism, “What do you think the Civil War was about? Of course, it was about treating some states differently than others.” Justice Scalia’s walk into outer darkness was triggered by the fact that the House had overwhelmingly supported the bill and the Senate had been unanimous. In... Continue reading

A friend sent me the poem at this link thinking I would like it. Go here. I do. Continue reading

I would like to welcome Charles Reid to Religious Left Law. We are fortunate to have him. Continue reading

Ronald Dworkin died last Thursday. I met him twice, but I doubt he could have picked me out of a lineup. Nonetheless, he had an enormous influence on my scholarship. Simply put, much of my scholarship has been directed against his. I do not mean this as a cheap shot. Dworkin was a scholarly giant writing squarely in the Kantian tradition, but I rebel against that tradition, or more precisely, a significant part of it. It was Dworkin who first drew me into an interest in political theory. He wrote an essay on liberalism many decades ago in which he argued that liberalism was committed to the view that the state should be neutral about the good life. My reaction was that this was not the liberalism I knew and appreciated. The state had never been neutral about the good life, never would be, and never should be. Even more... Continue reading

American universities are more European than Europe when it comes to religion. They are generally secular to the core. American academics typically believe that science shows that religion is silly superstition – it certainly has nothing to contribute to law and politics. I leave aside the extent to which major religious faiths accept the conclusions of modern science. It seems to me that universities are filled with ignorance about the intellectual contributions of theologians to various issues in ethics, politics, and law. That is one of the reasons I assign Karen Lebacqz’s book Six Theories of Justice in my seminar on Constitutional Law and Political Theory. The book has an accessible summary of the views of Rawls and Nozick together with an account of the critical literature. And, for readers unacquainted with their writings, an account of this character is not easy to find. More important, the book brings theologians... Continue reading

I have previously argued that the Supreme Court’s holding that the intentional infliction of emotional distress of funeral mourners is protected speech is a special form of First Amendment madness. The Court suggested that place restrictions on speech near a funeral might be constitutional, and the Eighth Circuit Court of Appeals has upheld that position. Earlier this month, Creve Coeur, Missouri passed an ordinance forbidding picketing within 300 feet of a funeral during the time period an hour before and an hour after the event. See here. Why is Creve Coeur passing this ordinance? It is obviously in reaction to the Westboro Baptist Church, the one organization specializing in funeral protests, the same organization that inflicted intentional infliction of emotional distress in Snyder v. Phelps. Passing even a content-neutral ordinance with the intention of squelching the speech of a particular speaker or organization is clearly an illicit purpose. My concern... Continue reading

A few years ago I was invited to a conference on law and religion at St. John’s. One of the highlights of the conference for me was a dinner with Mark Movsesian and Perry Dane. Mark has expertise in the role of law in the Islamic tradition and Christianity; Perry in Judaism. I was raised as a Catholic, albeit bereft of expertise. During the dinner, Mark and Perry argued that the law played a stronger role in Islam and Judaism than it does in Catholicism. I fought them off, arguing that this argument downplays the role of canon law, the myriad classifications of what to do and what not to do, the determinations of what was a venial or mortal sin, and the theorizing of what was an appropriate penalty. What can I say? Perry and Mark showed me that the aspects of human activity regulated by Catholicism were dwarfed... Continue reading

Martin Luther King Day and the anniversary of Citizens United fall on the same day this year. Some might think the two have nothing to do with each other. After all, King was concerned about race and Citizens United has to do with the role of corporations in American society. This perspective, however, depends on a sanitized version of Martin Luther King. It focuses on I Have a Dream and ignores Beyond Vietnam (see here). It is well known that King opposed the war in Vietnam, but few remember why. It was not just because the war gobbled up resources that could have been used to help the American poor or that it brutalized our soldiers (with disproportionate impact on blacks) and the Vietnamese or that it violated basic principles of Christianity. King argued that our foreign policy was consistently on the wrong side of a world revolution. We had... Continue reading

Cookie Roberts in her typically dismissive cynical tone mocked the trillion dollar coin solution tiis morning on NPR. As is so often the case, her tone substituted for argument. Yet, as Larry Tribe has argued, the proposal is constitutional, and as Paul Krugman has argued, the proposal makes economic sense in these times where inflation is not a serious issue. Minting coins is nothing new, and it is a superior alternative to shutting down the government. Roberts succeeds in mocking this because a trillion dollar coin sounds silly. The packaging is not great, but NPR could use a journalist who sees beyond the packaging. Continue reading

I have recently read two books that shed considerable doubt on scientific assumptions that the supernatural does not exist. The first is by Kyriacos C. Markides, The Mountain of Silence: A Search for Orthodox Spirituality (2001). The book explores the beliefs and practices of Orthodox monasterial life as practiced by monks and hermits. In particular, he follows a remarkable larger-than-life priest named Maximos to the island of Cyprus and reports on his actions, his views, and his spiritual practice. Most important for this post, he reports on numerous phenomena that can only be called miracles. I read this book in a reading group. One of our members knows the author and vouches for his integrity. After reading the book, I became convinced that scientific materialism could not possibly explain the events reported, and I very much doubt that the events were concocted, were dreams, or were otherwise fictitious. That said,... Continue reading

The Catholic Bishops will not endorse the theology embedded in Colm Toibin’s novel, The Testament of Mary. Nor will any Protestant bodies. Indeed, religious conservatives such as Mark Shea (see here) are particularly defensive about the book’s depiction of a decidedly non-traditional Mary. He derides the book as “Catholic-hating detritus,” a “viciously dishonest little screed,” “a torrent of invective against the gospel through his Marian sock puppet,” that does for Mary what Dan Brown did for Jesus. The comparison with Dan Brown is inapt in many respects. Most significantly, Toibin is an outstanding writer, twice shortlisted for the Man Booker prize, not the kind of writer who produces one-damn-thing-right-after-another page turners, however inventive. I would think that anyone less defensive than a Christian conservative would recognize that the book’s heretical views make for a better novel: surprising, independent, unpredictable, and fresh. Most important as Susan Stabile argues in an excellent... Continue reading

The common understanding is that Catholics emphasize community and Protestants emphasize the individual. From the Catholic perspective human beings are social animals rooted in a community that begins with the family. Catholic support for the poor is rooted in the recognition that we are all made in the image of God, are all part of the human family, and that the option for the poor is a part of what it means to be a Christian. On the other hand, the common understanding is that Protestants emphasize the individual. One common path from that is a strong endorsement of the capitalistic system (where traditional Catholic doctrine emphasizes the perils of unregulated capitalism) though quite different conclusions follow from Protestant individualism for evangelicals and mainline Protestants (though there are differences within those groupings. The former tend to limit support of the poor, for example, to the “worthy” poor; the latter tend... Continue reading

Rabbi Michael Lerner writes that Christmas and Chanukah share a spiritual message: that it is possible to bring light and hope in a world of darkness, oppression and despair. With regard to Christmas in particular, he says: “Christianity took the hope of the ancients and transformed it into a hope for the transformation of a world of oppression. The birth of a newborn, always a signal of hope for the family in which it was born, was transformed into the birth of the messiah who would come to challenge existing systems of economic and political oppression, and bring a new era of peace on earth, social justice and love. Symbolizing that in the baby Jesus was a beautiful way to celebrate and reaffirm hope in the social darkness that has been imposed on the world by the Roman empire, and all its successors right up through the contemporary dominance of... Continue reading

On Monday on behalf of Mike Dorf and myself, I filed an Amici Curiae brief in the New Mexico Supreme Court and a motion describing our interest and why we believed the motion would assist the Court. The case involves a photography business (co-owned by a conservative Christian couple) that refused to photograph a same-sex commitment ceremony on religious and public policy grounds. Elane Photography, L.L.C. v. Willock. New Mexico law prohibits discrimination on the basis of sexual orientation. The company argues that it has not violated the law and that, if it has, the law’s application to it violates free speech and freedom of religion rights. Elane Photography lost before the New Mexico Human Rights Commission and in the New Mexico Court of Appeals. Our brief speaks exclusively to the free speech issue. It argues that free speech is not violated in this context and that even stronger arguments... Continue reading