Posted on by Marc O. DeGirolami

Wardle on Abortion, Same-Sex Marriage, and Education

Another paper by Lynn Wardle (BYU), The Impacts on Education of Legalizing Same-Sex Marriage and Lessons From Abortion Jurisprudence.  The abstract follows.

One of the most contentious issues to arise in public policy debates concerning the legalization of same-sex marriage is whether legalizing same-sex marriage has a significant detrimental impact on education, particularly public education. However, legal scholarly and professional consideration of this issue is scarce and one sided. This article reviews the evidence that legalizing same-sex marriage has had a serious, profoundly controversial, and arguably detrimental impact on public education. It then explains why legalization of same-sex marriage must have some impact on educational curriculum. When the meaning of marriage changes it must be reflected in the curriculum that covers that subject. Next, the existing constitutional protections against detrimental impacts upon parents’ rights and family integrity interests of legalizing same-sex marriage are reviewed. The article also presents an analogy from abortion jurisprudence that may provide some protection for parental rights to control the education of their children and protect them against some detrimental effects on education from legalizing same-sex marriage. Finally, the article provides some recommendations for legal remedies and community action that may address these concerns.

Posted on by Mark Movsesian

Tillman on the Religious Test Clause

Seth Tillman (National University of Ireland, Maynooth) has posted Interpreting Precise Constitutional Text: The Argument for a “New” Interpretation of the Incompatibility Clause, the Removal and Disqualification Clause, and the Religious Test Clause — A Response to Professor Josh Chafetz’s “Impeachment and Assassination”, on SSRN. The abstract follows.

This article is a response to Professor Josh Chafetz’s Impeachment & Assassination, Minnesota Law Review, Vol. 95, p. 347, 2010. According to Professor Josh Chafetz, “impeachment maintains the link between removal and death, but attenuates it…. Impeachment is … a political death – a President who is impeached and convicted is deprived of his continued existence as a political officeholder. And, like death, impeachment and conviction may be permanent.” In this response, it is my purpose to show that Chafetz’s proposed metaphor does not work and, indeed, that inferences drawn from this metaphor lead Chafetz far afield from the Constitution’s original public meaning.

This paper is largely a response to Professor Chafetz’s Minnesota Law Read more

Posted on by Mark Movsesian

Wardle on Marriage and Religious Liberty

Lynn Wardle (BYU) has posted Marriage and Religious Liberty: Comparative Law Problems and Conflict of Laws Solutions, on SSRN. The abstract follows.

The purpose of this paper is to consider how the legal regulation of marriage impacts upon religious liberty, and vice versa, and how to reconcile conflicts between religious liberty and state marriage regulations. It is an area of increasing conflicts in a growing number of nations. Using comparative law, this article presents the range and complexity of state-versus-religion conflicts and of systemic legal approaches concerning the regulation of marriage that exist in the world today, focusing specifically on two issues: the formation/celebration of marriage generally, and the legalization of same-sex marriage. Having shown the scope of the conflicts between religious and political communities regarding the regulation of marriage, this article argues that the body of law known as “conflict of laws” provides a valuable model for the resolution of church-state disputes regarding the regulation of marriage.

This paper focuses on two communities that claim sovereignty over individuals: the State and religion. Conflicts between religions and states concerning their respective regulatory policies may create internal cognitive dissonance for religious communities and for states. Thus, there would seem to be internal harmony incentives to find a solution to avoid disputes. However, these incentives may be offset, neutralized, or overcome if there are communities within the state that wish to harm or reduce the influence of the religious community

Posted on by Mark Movsesian

Nichols on Marriage

Joel Nichols (University of St. Thomas – Minnesota) has posted Misunderstanding Marriage and Missing Religion on SSRN. The abstract follows.

This Essay is part of a Symposium that considered the virtues and vices of “E-marriage.” That idea, proposed by Professors Adam Candeub and Mae Kuykendall, seeks to “modernize marriage” by using a variation on older notions of proxy marriage, where a couple need not be physically present in order to be “married” in a state. In essence, the Symposium challenged the assumption of presence in a state dictating decision-making about who may marry and under what procedures (infused with an element, at times, of using electronic means to be “present” in another jurisdiction).

Candeub and Kuykendall’s article and, even more so, the Symposium are notable both for their assumption of state control and for their lack of discussion about religion. This Essay offers correctives to both matters. Read more

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Imago Dei & the (Forgotten) Roots of Human Rights

Campbell Law Review (Regent University Law) recently published Looking For Bedrock: Accounting for Human Rights in Classical Liberalism, Modern Secularism, and the Christian Tradition by Professor C. Scott Pryor, also of Regent Law. 33 Campbell L. Rev. 609 (2011).

Professor Pryor argues that the corresponding rights and duties of prototypical Western “human rights” were not free floating:  In Christian, Hebraic, and even Roman civil law traditions they originated in grounded conceptions of human nature.  These notions defined the human being and the rights others owed to him or her and the corresponding duties he or she owed to others.  While the Western conception of human rights has continued to develop, Pryor asserts that knowledge of these rights’ foundation has eroded; as memories fade, consensus as to what are human rights and their implications becomes harder to reach.  When this consensus becomes more remote, human-rights-based arguments lose their salience.  Pryor’s discussion of the weakening of rights discourse is analogous to Alasdair MacIntyre’s bleak premise in  After Virtue (3d ed. 2007) that, over time, “the language of morality [has reached a] state of grave disorder.”  Id. at 2.  (In my post criticizing Richard Dawkins’ overly bellicose rhetoric, I discuss After Virtue in greater depth.)

For further discussion of this problem and Pryor’s solution, please follow the jump. Read more

Posted on by Mark Movsesian

Mootz on Fundamentalist Rhetoric

Francis Joseph Mootz III has posted Right Rhetoric: What Lawyers May Learn from the Study of Rhetoric, on SSRN. The abstract follows.

This paper was written for a Festschrift honoring Guy Haarscher of the Free University of Brussels. It addresses Haarscher’s analysis of the rhetorical efforts by religious fundamentalists to limit the scope of rhetorical exchanges, and particularly their use of psuedo-argument. I commend Haarscher’s analysis, but question his conclusions about the famous Scopes trial. William Jennings Bryan was justifiably offended by the racist eugenics in the biology book being used by Scopes, and so we should not be too quick to brand the Christian perspective as unsuitable to contemporary rhetorical exchange. Haarscher is correct that rhetorical argumentation must have integrity and rise above sophism, a thesis that he demonstrates clearly in challenging the politically correct rhetoric of some on the left. I conclude that Haarscher’s balanced and thoughtful approach to public discourse is precisely what contemporary society requires.

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Aziz on Terror(izing) the Muslim Veil

Sahar F. Aziz (Texas Wesleyan University School of Law) has posted Terror(izing) the Muslim Veil. The abstract follows.

The September 11th terrorist attacks transformed the meaning of the Muslim headscarf. No longer is the crux of the debate whether the “veil” is used to oppress women by controlling their sexuality, and by extension, their personal freedoms and life choices. Rather, a Muslim headscarf “marks” her as a representative of the suspicious, inherently violent, and forever foreign “Terrorist other” in our midst.

In the post-9/11 era, Muslim women donning a headscarf find themselves trapped at the intersection of bias against Islam, the racialized Muslim, and women. In contrast to their male counterparts, Muslim women face unique forms of discrimination not adequately addressed by Muslim civil rights advocacy organizations, women’s rights organizations, or civil liberties Read more

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Nawi on Family Mediation in Malaysian Muslim Society

Nor Fadzlina Nawi (La Trobe University) has posted Family Mediation in Malaysian Muslim Society: Some Lessons for the Civil Family Law in Malaysia. The abstract follows.

Malaysia’s justice system is exceptional in that it reflects the country’s multi-racial and multi-religious culture. Malaysia has a two-tier legal system, including family law. Family law matters relating to Muslims are administered separately from those of non-Muslims. Muslims are dealt with under the jurisdiction of the Syariah courts, while non-Muslims are dealt with under the jurisdiction of the civil courts. It is significant to note that, since 2002 there has been a mandatory family mediation service also known as Sulh for Muslims but a similar service is yet to be established under the civil legal system for the non-Muslims in Malaysia. The Sulh process is reported to be successful in dealing with the backlog of cases in the Syariah Courts. It is claimed that the benefits of making mediation mandatory generally prevail over the potential harms for families, even when violence is an issue, provided that its design and realizations are carefully thought of. Hence, it could be argued that it is only fair and equitable that an equivalent form of process be made available to non-Muslims in the civil family law system.

Thus, the current paper is not concerned with whether or not mediation should be made mandatory in family disputes, but rather the best way in approaching its application and implementation in the civil legal system Malaysia. Considering that the Islamic family law system has already been progressively establishing a form of mandatory mediation for Muslims in Malaysia, the paper briefly describes and reflects on the development and implementation of the Sulh program and highlights some of the lessons for the civil legal system towards establishing a mandatory family mediation program for non-Muslims in Malaysia.

Posted on by Mark Movsesian

Delahunty on Trade and Islamist Terrorism

In attempting to come to grips with Islamist terrorism, some observers, particularly in the West, have suggested that poverty provides the ultimate explanation. Islamist terrorism thrives, the argument goes, because Muslim societies are poor; if Muslim societies experienced economic growth – through trade with the outside world, for example – terrorism would be much less a problem. In an excellent new paper, Terrorism and Trade: A Reply to Professor Bhala, Robert Delahunty (St. Thomas – Minnesota) debunks this argument. He notes that studies repeatedly fail to show a significant empirical link between terrorism and poverty, particularly the poverty which results from a lack of trade with the outside world. In fact, Islamist terrorism in the twenty-first century, like communist terrorism in the nineteenth century, is principally a middle-class phenomenon. Both the leadership and ranks of jihadist movements are made up of educated, upwardly-mobile professionals with ties to the global economy. Like other economic explanations, Delahunty suggests at the end of his paper, the “counter-terrorism through trade” argument may be a way for secular-minded Westerners to avoid coming to terms with the ultimate explanation for religious and ideological terrorism, namely, that its motivations are primarily religious and ideological. There is much more in the paper which, as usual with Delahunty, is remarkably erudite and lucid.

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Religion, Testamentary Documents, & End-of-Life Decisions

Wendy S. Goffe, an attorney in trusts and estates at Graham & Dunn PC in Seattle, has published Should I Stay or Should I Go? What Religion Says About Pulling the Plug,  a short piece detailing the ways in which religious convictions can affect end-of-life decisions.  The article addresses the potential religious obstacles that arise when, say, a believer drafts a living will.  For example, to insist doctors  not resort to extraordinary measures may or may not be religiously permissible. (How the title’s reference to The Clash’s hit single—a song describing confusion in a romantic relationship—from their 1982 album Combat Rock, informs this topic is a small mystery.)

The article also addresses the religious dilemmas that might face bereaved families whose loved ones have not left behind clear instructions as to what to do should they become brain dead, or even how to dispose of their bodies in the event of death—an often religiously fraught question.  Absent clear direction, families may be powerless to make the decisions they know the injured person would have preferred—or that, according to their own beliefs, they would prefer.  Even more complications can arise when end-of-life issues encounter religious belief—some of these are detailed in the abstract, which follows the jump.  Likewise, you can read the article in its entirety at Forbes.com here.

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