October 6, 2011 - LAW AND RELIGION FORUM

Bruce MacDougall (UBC Faculty of Law) and Donn Short (University of Manitoba – Faculty of Law) have posted Religion-Based Claims for Impinging on Queer Citizenship. The abstract follows. –JKH

Competing claims for legal protection based on religion and on sexual orientation have arisen fairly frequently in Canada in the past decade or so. The authors place such competitions into five categories based on the nature of who is making the claim and who is impacted, the site of the competition, and the extent to which the usual legal and constitutional norms applicable are affected. Three of the five categories identified involve a claim that a religion operate in some form in the public area so as to impinge on the usual protection of equality on the basis of sexual orientation. The authors examine the basis of claims for such religion based exceptionalism and argue that acceptance of the religion claim in these three public-area categories would involve unjustifiable curtailment of citizenship for queer people and could undermine the equality gains that have been made by this group.

My sister-in-law (and St. John’s Law School alum!!) kindly sent me Justice John Paul Stevens’s new book, Five Chiefs: A Supreme Court Memoir (Little, Brown, and Co. 2011), and this morning I read through it (we wake up early in my parts). For Supreme Court memoirs by former Justices, it’s not bad at all, containing several interesting historical details. The mechanics of the way the Court operates, and the changes that Justice Stevens witnessed over the years — from his days as a clerk for Justice Rutledge to his appointment beginning in 1975, with a tenure of more than thirty years — are fun to read about. I also learned that Chief Justice Roberts was a high school wrestler, which elevates him even further in my estimation (his weight class was 126 — light!).

Along the way, Justice Stevens discusses all manner of cases: race, equal protection, affirmative action, antitrust, environmental, speech (it seems as though Justice Stevens would have voted with Justice Alito’s dissent in Snyder v. Phelps), capital punishment (like Justice Stevens, I admire C.J. Roberts’s concurrence in Graham v. Florida), abortion, Second, Fourth, Fifth, and Eleventh Amendments, separation of powers (Morrison v. Olson in particular), Commerce Clause, minimum wage cases, and Bush v. Gore.

The only comment directly about the religion clauses really isn’t about them at all, but is part of and couched within a larger criticism of originalism. Justice Stevens writes: Read more