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Steve Shiffrin
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I may have a limited imagination, but it never occurred to me that anyone would deny that the murders in Charleston's Emanuel African Methodist Episcopal Church were racially motivated. I did not even think Fox News could be so clueless. Similarly, when John Russell Houser opened up fire in a crowded theater showing Amy Schumer's Trainwreak, is it difficult to suppose that his views of women were a major part of his motivation? He kills two women in a theater showing a movie written by and starring a feminist who he would surely find threatening. Is it really all that mysterious? Should we be irretrievably puzzled, or is the hate crime explanation the most plausible? For a strong argument in favor of the view that we need to start enacting and naming hate crimes against women, see this excellent post by Elizabeth Licorish in the Huffington Post. Continue reading
Posted yesterday at ReligiousLeftLaw.com
70 Years after the War Blessed are the peacemakers – Now especially, peace must not depend upon weapons To our Brothers and Sisters in Christ and to All Who Wish for Peace The Catholic Bishops’ Conference of Japan issued messages marking the end of the Second World War in 1995 (Resolution for Peace -- On the 50th. Anniversary of the End of the War) and 2005 (Peace Message After 60 Years From the End of War World II -- The Road To Peace Based On Nonviolence -- Now Is The Time To Be Prophetic). In this year in which we mark the 70th anniversary of the end of the war, we wish to once again declare our commitment to peace. 1. The Church Cannot Remain Silent in the Face of Threats to Human Life and Dignity For the Catholic Church, this is a noteworthy year because it marks the 50th... Continue reading
Posted 6 days ago at ReligiousLeftLaw.com
The press coverage of the same-sex marriage case was not uniformly distinguished. Particularly problematic were reports that evangelical ministers would combat the Court’s decision by refusing to have same sex marriages in their churches. The implication was the Court decision had something to say about what happens in churches. It, of course, had zero effect on the decisions religious leaders are entitled to make and act upon in determining who can and cannot be married in their houses of worship. The Court’s decision had absolutely nothing to say about what happens in any part of the private sector. Only in rare cases, does the Constitution reach beyond the regulation of government action. Nothing in our Constitution prevents a private employer from discriminating on the basis of sexual orientation, let alone dictating to a minister who he or she shall marry. I don’t expect that our law will ever intrude on... Continue reading
Posted Jul 19, 2015 at ReligiousLeftLaw.com
The dissents in the same sex marriage case have been much criticized. But George Will deserves the prize for the most spectacular criticism. Chief Justice Roberts wrongly (see here) maintained that the only case supporting the majority’s decision was Lochner v. New York, a decision in 1905 invalidating a New York law setting maximum hours per day and week for bakers. Lochner has long been recognized as a dirty word. It is the poster child for what can go wrong in constitutional law. A court imposes its own economic theory in ways permitting employers to exploit workers and at the same time overrides the deliberative choices of a democratically elected body by reference to a pseudo-constitutional right. In his syndicated column this week, George Will comes forward to claim that Lochner was rightly decided. (See here). He thinks that “America urgently needs many judicial decisions as wise as Lochner.” As... Continue reading
Posted Jul 15, 2015 at ReligiousLeftLaw.com
This is cross-posted from the Hill with Bob Hockett's permission. Greece's current travails offer many lessons, but they are not those that some seem to believe. This is not a story about corruption or profligacy, even if there has been some of that, as there always is. Nor is it a matter of "Greek vice" and "German virtue." It is a story about incomplete economic — hence political — unity among states. And this is a story that not only Europeans, but Americans and others, all should take heed. ADVERTISEMENT Begin with a fundamental datum: Some European economies — particularly those in the north — have long been commercial and industrialized. Others — particularly those in the south — remain to this day much more traditional and agricultural in character. This means that the northern economies produce and provide more in the way of high value-added, manufactured goods and services,... Continue reading
Posted Jul 10, 2015 at ReligiousLeftLaw.com
The opinions in Obergefell v. Hodges have been much discussed. The dissents claim that Justice Kennedy’s majority opinion violates principles of self-government by imposing its subjective will to resolve an issue that should be resolved in the democratic process. Much commentary rightly observes that the dissenters believe in self-government except when they don’t, e.g., when they override the will of elected representatives who pass affirmative action programs or campaign finance legislation. The dissenters would respond that those instances are different because fundamental constitutional rights were at stake in those cases. But the majority in Obergefell also concluded that fundamental constitutional rights of due process and equal protection are implicated in the state’s denial of same-sex marriage. The dissents deny the existence of a liberty right because same-sex marriage is not deeply rooted in the nation’s traditions. The majority argues that this is the wrong standard. According to Justice Kennedy, the... Continue reading
Posted Jul 5, 2015 at ReligiousLeftLaw.com
Although he agrees with the result, Cornell Law Professor, Michael Dorf exclaims that Justice Breyer’s majority opinion in the recent Texas license plate case (Walker v. Texas Div. Sons of Confederate Veterans) is “so badly reasoned that it cannot be taken seriously.” See here. In that case, Texas refused an application for a license plate with a Confederate flag on the ground that it was offensive. The relevant part of the licensing scheme was one in which “sponsors” submitted proposals for new specialty license plates including a draft design and a nomination for the government agency that would receive funds derived from the plate. The relevant statute provides that the Department of Motor Vehicles Board shall design the license plate in consultation with the applicant. It may refuse the proposal if the contents of the plate would be offensive to any member of the public or if the nominated agency... Continue reading
Posted Jun 21, 2015 at ReligiousLeftLaw.com
The recent case of Elonis v. United States involved the publication by Elonis of threats on a Facebook page (dressed up as rap lyrics) directed against his wife, co-workers, a kindergarten class, and members of law enforcement. Elonis argued that the First Amendment protected his rap lyrics, e.g., “There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, bitch, so I can bust this nut all over your corpse from atop your shallow grave.” But the Court avoided the First Amendment issue by concluding that the jury instructions were defective because they authorized conviction if the communication would cause a reasonable person to believe a threat had been made regardless of the speaker’s intent. The Court ruled that negligence was an insufficient... Continue reading
Posted Jun 10, 2015 at ReligiousLeftLaw.com
What should the word religion mean in the First Amendment? The Pew Forum recently released the results of a survey revealing that nearly 23% of Americans describe themselves as religiously unaffiliated – as atheist, agnostic, or more typically “nothing in particular.” See Pew Forum. Should this mean that this group should receive no protection under the Free Exercise of Religion Clause of the First Amendment? I leave aside the fact that the majority of this group believes in God, but does not affiliate with an institutional church. The Free Exercise Clause should centrally be read to protect freedom of conscience whatever its source. When government forces someone to do something they feel morally obligated not to do or forbids someone not to do something they feel obligated to do, a just system would recognize that this burden on freedom of conscience is at least regrettable and often impermissible. Sometimes burdens... Continue reading
Posted May 25, 2015 at ReligiousLeftLaw.com
U.S. News and World Reports claims to perform a service for students when they rank schools. In fact, the rankings are harmful to students in significant ways. It is not just that the academic rankings are marred by those who game the system and by the fact that everyone who ranks the schools has only fragmentary knowledge of the schools they rank. Much more serious is the impact of the weight the magazine gives to the grade point averages and test scores of the admitted students. In order to compete on these measures, first undergraduate schools and in the last decade law schools are spending millions of dollars throwing money at students who will help their average GPA or test scores in order to hold their U.S. News ranking or to move up in the rankings. The result, of course, is that students who do not get merit scholarships are... Continue reading
Posted May 11, 2015 at ReligiousLeftLaw.com
Saturday, Neesa and I went to watch the St. Louis Cardinals play the Cincinnati Reds with our youngest son Jacob. Around the third inning Neesa turned to me and said: “I have never seen so many white people in one place.” There were many black employees, but it wasn’t until the sixth inning that I saw a single African-American fan. Of course, there were many more, but the largest racial group in St. Louis is African- American, and it was obvious that African-Americans are not supporting the team in the numbers one would expect or that one might see in Chicago, New York, or Los Angeles (the latter having I would argue the most racially diverse crowd in baseball). So what is the problem? Until Neesa spoke, I did not notice what many African-Americans know very well. See here. In 2014 there were no African-American players on the Cardinal team... Continue reading
Posted Apr 19, 2015 at ReligiousLeftLaw.com
Liberals think it obvious that evangelical Christians should not have a constitutional right to discriminate in hiring or in deciding which customers to serve on the basis of sexual orientation. I agree with these conclusions, but I think the question whether good faith religious liberty claims should be respected in the case of customer discrimination should be regarded as a closer question than most liberals would concede. It is not that I have appreciation for the religious position taken by evangelicals. I enjoyed a sermon on Easter by a Methodist minister who said she regarded those who discriminate on the basis of sexual orientation as wolves masquerading as the Lamb of God, and she found it hard to believe that Jesus died on the cross, so that Christians could discriminate against people on the basis of who they love. Nonetheless, religious liberty claims should not be dependent on whether we... Continue reading
Posted Apr 8, 2015 at ReligiousLeftLaw.com
The announcement that Chuck (Mr. Wall Street) Schumer has been tabbed to lead the Democratic Party in the Senate is a vivid reminder that the Democrats have been captured by big money. The Democrats can talk economic populism, but those who bankroll the campaigns call the shots. This is not a new development. Citizens United aggravated the problem, but the Democratic reliance on business financing goes way back. It is certainly more than 30 years old. Indeed, I am looking forward to reading The American Three-Party System: Hidden in Plain Sight which details the intrusion of the Corporate Political Party into the Democratic Party. Robert Kuttner himself has a good account in his 2008 book The Squandering of America of the corruption of the Democratic Party by big money. Kuttner for many years has observed that the Republicans have a natural fundraising advantage. Their deregulation message is just what business... Continue reading
Posted Mar 30, 2015 at ReligiousLeftLaw.com
Much of the time I have thought that Peggy Noonan is a notch above Fox News, but integrity was tossed to the winds in her Saturday column in the Wall Street Journal. There in discussing Hillary Clinton’s use of a private e-mail account instead of a government account, she suggested that this was yet another instance of Hillary Clinton acting as if she were above the law. One wonders if Noonan read the Wall Street Journal’s report on the issue on March 5 which concluded that Clinton’s email arrangement was legal, a conclusion that was reiterated by the Journal the same day as Noonan’s column. On the other hand, Clinton was obligated to retain and hand over documents to the State Department. She did not do this until 2014, a year after she left office. Much has been made by some of this, but Clinton was not alone. When she... Continue reading
Posted Mar 8, 2015 at ReligiousLeftLaw.com
Last week Pulitzer Prize winning reporter James Risen tweeted that the “Obama Administration is the greatest enemy of freedom of press in a generation.” See here. This may well be true. Certainly, the Obama Administration is no friend of the press. In Risen’s case, it used subpoenas to secure his credit-card reports and records, travel records, and bank records to determine who the source of one of his stories might be, and it argued that the First Amendment provided no protection for confidential sources. As I have previously discussed, this harassment of reporters has not been confined to Mr. Risen. See generally here. In addition, the campaign against the leakage of information embarrassing to the Administration extends to the whistleblowers who provide the press with the information. The government recently prosecuted Jeffrey A. Sterling for providing information to Mr. Risen. It claimed that national security was compromised in a story... Continue reading
Posted Feb 22, 2015 at ReligiousLeftLaw.com
Ross Douthat’s New York Times column of February 1 is so clearly wrong that you have to wonder what led him astray. Douthat’s inspiration is an article by Jonathan Chait complaining of a rise in political correctness connected with various forms of identity politics. From this, Douthat takes a leap over a chasm of evidence to the conclusion that the left’s energy is cultural, not economic. He attributes this perceived development to the decline of the Occupy Movement, to the control of Congress blocking liberal economic proposals especially those that involve redistribution, and to the success of the same sex marriage movement which leads those on the left toward the conclusion that cultural efforts based outside of Washington can be successful. What’s wrong with this picture? It isn’t wrong in believing that efforts to combat discrimination on the basis of race and sex are important components of progressives. It is... Continue reading
Posted Feb 8, 2015 at ReligiousLeftLaw.com
When Republicans argue that it is a bad idea for government to spend money on infrastructure except for an oil pipeline, you can be sure that you are hearing the voice of corruption. When you hear Republicans tell you that climate change does not exist, some are presenting the voice of corruption; others are captured by the voice of ignorance. Ross Douthat who is often perceptive (albeit on the wrong side of the political fence) took on the voice of ignorance in the Sunday New York Times. The column was provoked by another essay of ignorance, penned by Jonathan Chait. Chait’s essay on PC (see here) has been pounced upon throughout the blogosphere. Chait objected to the tendency of women and people of color to denounce others as racist and sexist. Some of the examples he parades are worthy of criticism. But he goes awry in fundamental ways. He claims... Continue reading
Posted Feb 4, 2015 at ReligiousLeftLaw.com
A few weeks ago, I wrote a post which addressed the question whether Christianity paved the way for liberalism. See here. I maintained that Christianity in fact played a stronger role than is suggested by the account which grounds liberalism in the Enlightenment rejection of Christianity, but suggested that the relationship between Christianity and liberalism needs fuller exploration. Meanwhile Andy Koppelman has reminded me that Charles Taylor has a subtle account of the relationship in his magisterial A Secular Age. Indeed, Koppelman has an excellent review of the book in Dissent which was published in 2009. See here. As Taylor describes it, the rise of liberalism grew out of the turn of Christianity toward this world and toward an emphasis on human flourishing. With this emphasis, it is easy to see how God might drop out of the picture. As Koppelman puts it, the “this-worldly ethos” did not need God.... Continue reading
Posted Jan 25, 2015 at ReligiousLeftLaw.com
In case you missed Dana Milbank's excellent column, see http://www.washingtonpost.com/opinions/dana-milbank-republicans-inconsistent-attacks-on-obamas-paris-response/2015/01/12/bd223d0a-9aa8-11e4-96cc-e858eba91ced_story.html?hpid=z2 Continue reading
Posted Jan 13, 2015 at ReligiousLeftLaw.com
Typepad HTML Email Mike Thanks again. I think the examples show that the distinction I am using is under inclusive and does not cover enough speech, not that ideas worth preserving are being suppressed (though I admit Matsudas definition could be applied in ways that would be problematic). Many Europeans would say that Matsudas approach is too narrow. For example, Matsudas approach would not reach to cover denials of the Holocaust. I think there are some contexts in which her approach might be too narrow. One might argue in the Skokie case that Jews were historically oppressed, but are no longer oppressed though still an object of discrimination in some quarters. I have forgotten how she handles that. In Skokie, what matters to me is the degree of offense and the potential for violence. Finally, I believe context matters. Despite what I have said, if demonstrators show up outside a Mosque parading images of the prophet, I would think an action for intentional infliction of emotional distress should be countenanced. By the way, I read your post at dorfonlaw. I entirely agree and will share it on facebook.
Typepad HTML Email Mike Thanks for the comment. I wonder what you think of the argument that discussions of religious doctrine filled with hate are different from denunciations of groups on the basis of character traits. So there is a difference between saying the Jews were responsible for the crucifixion of Jesus (wrong-headed and harmful as that position has been) and saying that Jews are greedy etc. I also wonder what you think of the argument that we can be more confident that stigmatizing statements about vulnerable groups on the basis of racial or ethnic background are less valuable than statements about religious doctrine however hateful. I also wonder if my post is consistent with Matsudas view that hate speech is speech with a message of inferiority, that is directed against a historically oppressed group, and that is persecutorial, hateful and degrading I am thinking it might be consistent with it because statements about religious doctrine are not directed against a group. For example, I passionately despise Christian fundamentalism, but I need not harbor hatred for Christian fundamentalists by that fact. My basic intuition is that passionate, hateful statements of religious doctrine may have value, value not shared by criticism of Jews or Muslims in general.
The radical Muslim cleric Anjem Choudary asks in USA Today why France permitted the tabloid to provoke Muslims. He suggests that everyone knows that Muslims are required to impose capital punishment on those who insult Mohammed. See here. Of course, his rendition of the obligations of Muslims is sharply contested. Sarah Harvard has a persuasive retort in Slate. She argues that violence in response to insults of Mohammed are not called for in Islam; indeed, she suggests that blasphemy laws are not called for either. Nonetheless, those who insult Mohammed are surely aware that the possibility of violence by extremist individuals or groups is not trivial. Consider the threats against Salman Rushdie, the killing of Theo Van Gogh in response to his film on women and Islam, and the assassination attempts on the Danish cartoonist Kurt Westergaard. They should also be aware, as Choudary says, that a large segment of... Continue reading
Posted Jan 11, 2015 at ReligiousLeftLaw.com
Larry Siedentop’s new book, Inventing the Individual: The Origins of Western Liberalism is the subject of a provocative review by Samuel Moyn, a Professor of Law and History at Harvard University in the current issue of Boston Review. If much discussion of Anglo American liberalism has focused on some version of the social contract to provide a normative justification and to motivate allegiance to liberalism, Siedentop has been interested in French liberalism which has tried to provide an account of how liberalism came to the fore. So, as Moyn puts it, Siedentop treats “modern individualism as a historical product rather than a natural fact.” And here comes the heart of Siedentop’s claim: He argues that Christianity played a decisive role in making liberalism possible and that historians have wrongly downplayed the roots of liberalism in the Christianity that flourished in the Middle Ages. Moyn’s reaction to this claim is quite... Continue reading
Posted Dec 30, 2014 at ReligiousLeftLaw.com
The Ferguson prosecutor now admits that he presented a witness he knew was lying to the grand jury, but maintains the witness was not taken seriously. Of course, what he did was a breach of professional conduct and it could open the way for the appointment of a special prosecutor. "Under Missouri law (MO Rev Stat § 56.110) the presiding judge of the court with criminal jurisdiction — in this case Judge McShane — can appoint another prosecutor if the prosecuting attorney demonstrates a conflict of interest or bias. Courts have interpreted this provision broadly to include 'conflicts that reveal themselves through the prosecutor’s conduct in the case.'" See here. It seems to me this rule is too narrow. District Attorneys have a daily working relationship with the police. Their failure to aggressively pursue cases against police almost automatically gives rise to the appearance of impropriety. Moreover, there is a... Continue reading
Posted Dec 22, 2014 at ReligiousLeftLaw.com
In her Saturday Wall Street Journal column, Peggy Noonan insists that the Senate torture report should not have been published, but reserved for public officials. She apparently regrets that the world will think less of us. In support of this, she recounts a story in which she and pollster Bob Teeter were puzzled by the fact that Americans do not like the Japanese even more than they do not like the Germans. Then in what apparently was a eureka moment they arrived at the conclusion that the Japanese resort to torture in WWII could account for the distinction between the Japanese and the Germans. But wait, the Germans perpetuated the Holocaust. Is there a moral distinction that makes Japanese torture worse than the Holocaust? It apparently does not occur to Noonan that race might have something to do with the dislike for the Japanese. This is not to deny that... Continue reading
Posted Dec 15, 2014 at ReligiousLeftLaw.com