My Most Recent Article

This is not an assignment. Nor is it about Con Law I.
This is just something you might find interesting. It is a Con Law II article.

I have recently uploaded on SSRN my most recent article, entitled "Just Another Brick in the Wall: The Establishment Clause as a Heckler's Veto."  I mentioned some of these ideas at a Federalist Society event recently, and some of you have asked me about it.

This is an article critiquing the Supreme Court's jurisprudence concerning passive religious displays in the public square, and the true source of the Court's "Wall of Separation Between Church and State." Hint: It is not Jefferson, but rather an organization that Justice Hugo Black once belonged to!

You can download a free copy here: Duncan's Article on Just Another Brick in the Wall.

 

Last Assignments: December 4 & 5

We only have two classes left (since we still have one class that we must cancel). So Wednesday  December 4 and Thursday December 5 are all we have left. So Here is what we will try to read:

Wednesday December 4: 23 Casebook p. 691-730
Thursday December 5: 24 Casebook p. 730-744 plus casebook p. 782-813

I will skip around a bit, and focus on the most important cases in these last two assignments.

Friday December 6 is cancelled (it is our 7th required cancellation). But I will show up for an optional Q & A session.

As Tom Tofurkey always says: Have a great Thanksgiving break. And spend some time with family and loved ones.

Recent Polling on Abortion

From Washington Post:

Guess who likes the GOP’s 20-week abortion ban? Women.

By Aaron Blake, Updated: August 2 at 3:34 pm

The war over the “war on women” rages on these days, as Republicans seek to tar Democrats with the scandals of Anthony Weiner, Bob Filner and Eliot Spitzer.
And the next major front in this “war” — the GOP-led 20-week abortion ban — is likely to be even more contentious.
But while Democrats are sure to use the new proposed restrictions to feed the narrative of Republicans’ “war on women,” polling on the issue actually tells quite a different story.
In fact, of four major polls conducted in recent weeks on the 20-week abortion ban, each one shows women are actually more supportive of the law than men.

A new Quinnipiac poll shows 60 percent of women prefer allowing unrestricted abortions for only the first 20 weeks of pregnancy rather than the Supreme Court-prescribed 24 weeks. Among men, 50 percent support the 20-week law — a 10-point gap.
A Washington Post-ABC News poll showed the gap at seven points, while two other polls (from NBC/Wall Street Journal and National Journal) showed it at six and four, respectively.
And those numbers may actually understate support among women for the new restrictions.
In the Post-ABC poll, rather than choosing between a 20-week ban and the current 24 weeks, 8 percent of women volunteered that abortion should never be legal, and 3 percent volunteered that the window should be smaller than 20 weeks. If you add them to the 60 percent of women who support the 20-week abortion ban, then 71 percent of women would seem to support the effort to increase abortion restrictions.
The Quinnipiac poll, meanwhile, shows 60 percent of women support the 20-week ban and 8 percent volunteer that it should never be legal, which again suggests that two-thirds of women could be supportive.
Support in the other two polls does not show quite as much support among women, but in each case, there are more women who support the ban than oppose it.
Taken as a whole, it’s pretty clear that women are broadly supportive of the ban — and they support it in bigger numbers than men.
It’s also clear that overall support for abortion rights is not a good proxy for opposition to abortion restrictions. People who think abortion should be legal, in many cases, are quite open to new restrictions.
Conventional wisdom on abortion has it that women are more supportive of abortion rights than men — and thus would logically be more opposed to restrictions — but polling shows that’s not necessarily true either.
The Post-ABC poll showed 56 percent of men thought abortion should be legal in all or most cases, while 55 percent of women said the same. Over the past 20 years, there has been little difference between the two genders on this question.
The Quinnipiac poll does show that women support abortion rights more than men — 61 percent to 53 percent — but, again, it also shows women are significantly more supportive of the 20-week abortion ban, with just 25 percent opposed to it.
So what does it all mean?
It means that, if and when Republicans in the Senate push for a vote on the 20-week abortion ban (which already passed in the House), they can credibly make the case that they are doing something that women support.
Of course, that doesn’t mean it will work, politically speaking. That’s because, when it comes to the abortion battle, much of it is about intensity. And as Texas state Sen. Wendy Davis’s (D) filibuster shows us, pro-abortion rights groups and supporters — many of whom are women — will mobilize on this issue and press the idea that Republicans are anti-woman.
Republicans got plenty of heat in the 2012 election for  their position on contraception and for rape-related comments made by some of their candidates. Those kinds of gaffes, which have repeatedly popped up whenever Republicans make an issue of abortion, can damage the GOP by reinforcing Democrats’ argument that male politicians with extremist views are telling women what they can and can’t do with their bodies.
But as of right now, there’s little reason to believe that a 20-week abortion ban is the same kind of issue.
Indeed, it appears to be quite a politically viable move — both with men and women — and possibly even an advantageous one if Republicans play their cards right.
Scott Clement and Juliet Eilperin contributed to this post.

© The Washington Post Company

Constitutional Right to Bestiality? Volokh Blooger Thinks So!

From Volokh Blog:

Brown v. Buhman and Bestiality

By Eugene Kontorovich on December 16, 2013 4:16 am in Constitutional Law, Religion and the Law, Religious Freedom, Sexual Conduct Restrictions, Sexual Orientation

The Utah polygamy-rights decision is truly a courageous civil rights ruling. Most sexual liberties decisions going all the way back to Griswold v. Connecticut come at a time when the relevant practices have won very broad acceptance, especially among the educated elites. Not so with polygamy, which is quite far from the lives of the elites, and is opposed by a Baptists and bootleggers coalition of religious conservatives (bad for the “traditional family,” smacks of Mormonism) and secular liberals (bad for women, smacks of Mormonism). The judge will make few friends with his ruling. Editorialists will not liken it to great civil rights breakthroughs. It will surely be overturned, with conservative judges fearing an expansion of substantive due process, and liberal ones fearing a backlash. And that is what makes it brave, whether right or wrong.
Now seems like a good time to revisit a post on bestiality from earlier this year, which surely seems less radical now. Bestiality bans are [even?] less constitutionally defensible than polygamy bans because the purported harms associated with the practice are lower. It does not undermine families because it is not a substitute for traditional unions (though presumably limits one to unusually broad-minded spouses). Nor does it oppress women, the empirical claim behind bans on polygamy, as well as prostitution. Here is the body of the post:
Most states criminalize zoophilia and in many places the bans have been enacted quite recently. Moreover, the laws are from time to time enforced.
The 14th Amendment has been interpreted to recognize a broad and very valuable liberty interest in sexual autonomy. Constitutional doctrine regards private sexual choices as vastly more important than other kinds of choices, and thus presumptively protected. Homosexual conduct is just a hot-button particular instance of the general principle. Constitutional protection of heterosexual conduct comes from the same source. Thus if laws against premarital heterosexual sex (with or without contraceptives), sodomy, etc. are unconstitutional – and I think it clear that courts would find them to be – this must be justified by some special protection for sexual choice.
Bestiality is private sexual conduct and thus prima facie requires a very good justification to regulate. Given that bestiality taboos existed long before animal rights movements, one can assume their legalization or delegalization is largely based on the old taboos or stereotypes, perhaps in the sheep’s clothing of animal rights. (Similarly in the VMI case, the Court refused to let the state “update” the rationale for an old practice to something that might sound more in line with current thinking.) But insisting that bestiality bans simply regulate animal welfare is insufficient. Those regulations do not typically intrude on protected interests.
Bestiality bans regulate human sexual expression. And in the Supreme Court’s jurisprudence, sex is special. The government can also regulate, even ban, consumer products, but not when they are condoms, because that is also a regulation of sexuality. Cock fighting can be banned not because the animal suffers, but because the government needs little excuse to ban any commercial activity. Sexual activity is different.
Similarly, while government can regulate animal cruelty, the Supreme Court recently struck down a law targeting “crush films” involving weird sexualized animal torture because the statute was not precisely tailored, and could sweep in some cases where animals did not in fact suffer. Blanket bestiality bans are not narrowly tailored. Thus many European countries make zoophilia legal, but punishable under existing animal welfare laws when cruelty can be shown – but it cannot be presumed.
Constitutional protection of sexual conduct is mostly valuable for conduct that is widely perceived as deviant – when it is someone else’s ox getting gored. Otherwise it is itself merely a tool for reaffirming current mores. With bestiality, one assumes that most folks have have no dog in the fight – and that is what makes it interesting to seriously consider the constitutional issues.
The closest analogy would not be gay sex, or straight sex, but rather other kinds of autonomous sexual activity like sex toys. There are still sex toy bans in some states, including some newly enacted ones. But they’ve been getting struck down since Lawrence by courts (including the Fifth Circuit) that read Lawrence as standing for general sexual libertarianism.
One could argue that ick factor aside, bestiality should if anything be more protected than the dominant social paradigm of 2-person sex. Once there are two people involved, it is a social issue, not purely “private.” Thus such laws can be justified by some purported negative social consequences: uncared for kids with heterosexual fornication; unmarried poor men for polygamy; mutation for incest. By these standards, bestiality (or any other kind of one-person sexual activity) is the most innocuous, as it involves only a person and his property. Spill-over effects on other humans are minimal.
The New York Times several years ago had a very sympathetic piece on Washington state men who have sex with horses, which strongly suggested, based on graphic evidence, that the horses were not unwilling, and that the men seemed reasonable people for whom the activity was meaningful. The bans may well be based on (not yet outmoded) stereotypes and biases.
After the sex toy cases, why not go whole hog and extend the protection of idiosyncratic autoerotic conduct to zoophilia? Indeed, Antonio Hayes, a Fellow at Cornell Law School, has a fascinating paper just posted on SSRN critically examining the various rationales for bestiality laws and finding them wanting. He stresses that animals do not necessarily find such practices painful, and may even enjoy them. As a political matter, I’m not bullish on the success of this argument. And I know this post will really get the animal rights folks’ goat, as the sex toy analogy assumes that animals are more like things than like people.

Lawrence and Polygamy

From the NYT (link):

One Big, Happy Polygamous Family

By JONATHAN TURLEY

Washington
SINCE the Supreme Court’s 2003 decision in Lawrence v. Texas, Americans have enjoyed unprecedented freedom in their lifestyles and private relationships. The decision held that states could no longer use the criminal code for social engineering, dictating the most intimate decisions of citizens in their choice of partners and relations. But even as states have abandoned laws criminalizing homosexual and adulterous relations, they have continued to prosecute one group of consenting adults: polygamists.
Last week in Utah, one such family filed a challenge to the state’s criminal law. That family — a man, Kody Brown, and his four wives and 16 children — is the focus of a reality program on the cable channel TLC called “Sister Wives.” One of the marriages is legal and the others are what the family calls “spiritual.” They are not asking for the state to recognize their marriages. They are simply asking for the state to leave them alone.
Utah and eight other states make polygamy a crime, while 49 states have bigamy statutes that can be used to prosecute plural families. And they’re not a small population: the number of fundamentalist Mormon or Christian polygamists alone has been estimated to be as high as 50,000. When Muslim as well as nonreligious plural families are considered, the real number is likely many times greater.
The case of the Browns, for whom I am lead counsel, is a clear example of unacceptable government intrusion. The family has not been accused of child abuse or other crime, in almost a year of being under criminal investigation. With such allegations stripped away, the only thing remaining is a family that does not look like those of other Utah citizens. The question is whether that is enough to declare them criminals.
While widely disliked, if not despised, polygamy is just one form among the many types of plural relationships in our society. It is widely accepted that a person can have multiple partners and have children with such partners. But the minute that person expresses a spiritual commitment and “cohabits” with those partners, it is considered a crime.
One might expect the civil liberties community to defend those cases as a natural extension of its campaign for greater privacy and personal choice. But too many have either been silent or outright hostile to demands from polygamists for the same protections provided to other groups under Lawrence.
The reason might be strategic: some view the effort to decriminalize polygamy as a threat to the recognition of same-sex marriages or gay rights generally. After all, many who opposed the decriminalization of homosexual relations used polygamy as the culmination of a parade of horribles. In his dissent in Lawrence, Justice Antonin Scalia said the case would mean the legalization of “bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality and obscenity.”
Justice Scalia is right in one respect, though not intentionally. Homosexuals and polygamists do have a common interest: the right to be left alone as consenting adults. Otherwise he’s dead wrong. There is no spectrum of private consensual relations — there is just a right of privacy that protects all people so long as they do not harm others.
Others have opposed polygamy on the grounds that, while the Browns believe in the right of women to divorce or leave such unions, some polygamous families involve the abuse or domination of women. Of course, the government should prosecute abuse wherever it is found. But there is nothing uniquely abusive about consenting polygamous relationships. It is no more fair to prosecute the Browns because of abuse in other polygamous families than it would be to hold a conventional family liable for the hundreds of thousands of domestic violence cases each year in monogamous families.
Ultimately, the question is whether polygamy is allowed under the privacy principles articulated in Lawrence. The court did not state exclusions for unpopular relationships. Writing for the majority, Justice Anthony M. Kennedy said the case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter” but rather “two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle.”
The Browns are quite similar. They want to be allowed to create a loving family according to the values of their faith.
Civil libertarians should not be scared away by the arguments of people like Justice Scalia. We should fight for privacy as an inclusive concept, benefiting everyone in the same way. Regardless of whether it is a gay or plural relationship, the struggle and the issue remains the same: the right to live your life according to your own values and faith.

Jonathan Turley is a law professor at George Washington University.

"Personhood"

Consider this post from the Legal Theory blog:

Legal Theory Lexicon 027: Persons and Personhood

Introduction

Are the unborn human persons? What is the difference between legal and moral personhood? What does it mean to say that a corporation is a legal person? Do the most intelligent animals deserve the rights of moral or legal persons? These questions are likely to arise sooner or later for most law students. This entry in the Legal Theory Lexicon explores the idea of personhood, moral, legal, and human. As always, this post is intended as an introduction for law students (especially first-year law students) with an interest in legal theory. 

Persons and Humans

The terms "human" and "person" have related meanings, but as used by most legal theorists, these terms are distinct. Here's one definition of "human":

a bipedal primate mammal (Homo sapiens)

And person is sometimes defined as a "human" or "individual". But "person" has another meaning, one that distinguishes the concept of person from the concept of human. Suppose, for example, an intelligent alien species were to arrive on Earth (or humans were to encounter them elsewhere). If the members of the aliens displayed evidence of human-like intelligence and could communicate with us (e.g. were able to master a human natural language, such as English), then we might be tempted to treat members of this species as morally and/or legally entitled to the same rights as humans.

Consider, for example, the aliens Chewbacca or Yoda in the Star Wars movies. Neither Chewbacca nor Yoda is a member of the species homo sapiens, yet both are treated as the moral and legal equivalents of humans in the Star Wars universe.

Let us stipulate then, that term "human" is a biological term, which refers to all the members of the species homo sapiens and that the term "person" is a normative (legal, moral, or ethical) term, which refers to a moral and/or legal status that creatures or other bearers of human-like capacities can share with normal adult humans.

The categories of human and person are involved in some of the most contentious debates in moral, political, and legal theory. Prime among these is the abortion debate. One move that can be made in the abortion debate is simply to deny the distinction between human and person. So it might be the case that the relevant moral and legal category is "human person" and that all members of the species homo sapiens members of this category. Or it might be argued that "human" and "person" are morally and legally distinction categories. If so, it is possible that "fetuses" are unborn humans, but that they are not yet "persons," although they would be "potential persons."

There is more to be said about terminology, but I will conclude with two observations.  Some of the debates about "persons" and "personhood" may reflect an ambiguity in the word "person."  But it is at least possible that one of the senses of person (roughly the moral sense) is a contested concept--that is, there may be competing conceptions of the concept person.  There is a Legal Theory Lexicon entry on the concept-conceptions distinction.

Legal, Moral, and Natural Persons

So far, I have been treating the category of personhood or persons as a single category, but this need not be the case. We can distinguish between three kinds of persons--natural, moral, and legal. It is possible that the not all legal persons are natural persons and vice versa; the category of moral persons is clearly distinct from that of legal persons, but might be considered identical with the category of natural persons.

Examples will help. Corporations and governmental units are legal persons--they have legal rights and responsibilities and can sue and be sued, but we do not say that corporations are natural or moral persons.  (More precisely, the claim that corporations are moral persons would be controversial.)  A corporation is not a natural person, because it is nonnatural in the relevant sense. Corporations are artificial or nonnatural because they are the creations of the law. Likewise, all humans are usually considered "natural persons," but not all humans have the full bundle of rights and responsibilities associated with legal persons. For example, infants and incompetents may be unable to sue in their own name and may not bear full legal responsibility for their acts.

Legal Personhood

The classical discussion of the idea of legal personhood is found in John Chipman Gray's The Nature and Sources of the Law. He began his famous discussion, "In books of the Law, as in other books, and in common speech, 'person' is often used as meaning a human being, but the technical legal meaning of a 'person' is a subject of legal rights and duties." The question whether an entity should be considered a legal person is reducible to other questions about whether or not the entity can and should be made the subject of a set of legal rights and duties. The particular bundle of rights and duties that accompanies legal personhood varies with the nature of the entity. Both corporations and natural persons are legal persons, but they have different sets of legal rights and duties. Nonetheless, legal personhood is usually accompanied by the right to own property and the capacity to sue and be sued.

Gray reminds us that inanimate things have possessed legal rights at various times. Temples in Rome and church buildings in the middle ages were regarded as the subject of legal rights. Ancient Greek law and common law have even made objects the subject of legal duties. In admiralty, a ship itself becomes the subject of a proceeding in rem and can be found "guilty." Christopher Stone has recounted a twentieth-century Indian case in which counsel was appointed by an appellate court to represent a family idol in a dispute over who should have custody of it. The most familiar examples of legal persons that are not natural persons are business corporations and government entities.

Gray's discussion was critical of the notion that an inanimate thing might be considered a legal person. After all, what is the point of making a thing-- which can neither understand the law nor act on it--the subject of a legal duty? Moreover, he argued that even corporations are reducible to relations between the persons who own stock in them, manage them, and so forth. Thus, Gray insisted that calling a legal person a "person" involved a fiction unless the entity possessed "intelligence" and "will."

Can we say that corporations possess "intelligence" and "will"? The answer to that question is controversial among legal theorists. The orthodox position is that the corporation itself is a legal fiction; the humans who make up the corporation may have intelligence and will, but the corporation itself does not. But some might argue that the properties of the corporation are not reducible to the properties of the individuals who make up the corporation. Corporations may have "a mind of their own," at least according to some theorists.

Moral Personhood

"Legal personhood" is controversial, but "moral personhood" is one of the most contested ideas in contemporary legal, moral, and political theory. This large debate is not easy to summarize, but one of the crucial issues concerns the criteria for moral personhood. What attributes would make some life form (or even a robot) a moral person? Here are some of the possibilities:

Intelligence--One possibility is that the possession of "intelligence" (at some threshold level) is the criterion for moral personhood. Of course, "intelligence" itself is hardly a transparent concept.
Autonomy--Another idea is that persons must be capable of autonomy. But what is autonomy? One notion is that autonomous beings must be capable of second-order beliefs and motivations. That is, autonomy requires that one be able to have beliefs about one's beliefs and desires about one's desires.
Communication--Yet another possibility is that personhood requires the ability to communicate with others or to use language. On this criterion, it is possible that some higher primates might qualify for personhood--although the empirical evidence on primate use of human language is disputed.
Self-Awareness--Finally, some have argued that the criterion for moral personhood should be self-awareness or reflexive consciousness. To be a person, I must be aware of the my own consciousness.

This is not an exhaustive list of the criteria for moral personhood. Moreover, these criteria might be combined in various ways. For example, it might be argued that only an intelligent, autonomous, language-using, self-conscious being would be a full moral person.

Conclusion

"Personhood" is a fundamental notion for legal theorists. "Legal personhood" plays an important role in legal doctrine, and "moral personhood" plays a fundamental role in moral and political theory. The purpose of this post has been to give you a very rough sense of some of the issues that surround these concepts. More reading can be found in the bibliography.

Related Lexicon Entries

Legal Theory Lexicon 028: Concepts and Conceptions

Bibliography

• John Chipman Gray, The Nature and Sources of the Law (Roland Gray ed., MacMillan 1921)
• Lawrence B. Solum, Legal Personhood for Artificial Intelligences, 70 North Carolina Law Review 1233 (1992).
• Christopher Stone, Should Trees Have Standing?--Toward Legal Rights for Natural Objects, 45 S. CAL. L. REV. 450 (1972)
• Richard Tur, The 'Person' in Law in Persons and Personality: A Contemporary Inquiry (Arthur Peacocke & Grant Gillett eds., 1987)

(Last revised on December 26, 2010)

What did Roe decide (if anything) about human life and personhood?

Here is a definition of moral personhood that makes more sense to me:

A person is a living member of a species adult members of which are "intelligent, autonomous, language-using, self-conscious beings."Notice this includes all living members of the human species (unborn and newborn human children, humans in comas or with mental disabilities, etc)  as well as other species (like Chewbacca) that may exist somewhere in the universe and who share these qualities with human beings.

First Six Class Cancellations

As you know, because this course is scheduled for 60-minute hours, we are required to cancel 7 classes. Here are the first six cancellations:

1. Wednesday September 18
2. Thursday September 19
3. Friday September 20 (my wife is having out-patient surgery)
4. Wednesday October 9 (I am speaking at Colorado Law School)
5. Wednesday  October 30) (I will be speaking at Rutgers Law School)
6. Wednesday Nov. 6 

Substantive Due Process and Government By the Judiciary

Here is a question posed by Prof. Steven Calabresi that helps put SDP in focus:

Why on Earth should the citizens of a democracy allow a committee of unelected lawyers to make binding rules on the most sensitive issues of morality and religion on a five-to-four vote based on their own personal moral and religious beliefs?

Parents Right to Direct the Education of their Children

The "tolerant" Swedes are about to pass a new law regulating the curriculum of private religious schools. From the Religion Clause blog:

According to the International Herald Tribune, Sweden's Education Minister Jan Bjorklund is drafting rules that would prohibit private religiously-affiliated schools from introducing religious elements into secular courses such as biology. The new rules, which will need Parliamentary approval in order to become effective, are designed to protect students from all forms of fundamentalism. They will also require private confessional schools to report their financial donations to authorities. The rules were drafted after a county administrative court gave permission to the Exclusive Brethren Christian Fellowship to start a school. The group rejects the theory of evolution.

Would this law be constitutional in the U S of A? In Sweden, who protects children from all forms of state-sponsored, secular fundamentalism?

This reminds me of one of the cases we are reading about next week, Pierce v. Society of Sisters (casebook p. 534). In that case, the Court struck down a law requiring all children to attend government schools, a law that effectively prohibited attendance at private schools (including private religious schools). The Ku Klux Klan supported this Oregon law prohibiting private religious education. Why do you think they supported this law?

By the way, Prof. Jim Lindgren of Northwestern law had a recent post on the Volokh blog that may provide a clue--"How Separation of Church and State Was Read Into the Constitution (Hint: the KKK got its way)"