"No Religious Liberty Please, We're French"

French Move To Reinforce Secular State

Here is the report:

A panel appointed by the French government has produced a charter that aims to keep public institutions, including hospitals, the armed forces, schools and government offices, free from religious influence.

The document comes in the wake of an assault on a doctor by a young Muslim who objected to his wife being examined by a man when she developed complications after childbirth.

The High Council on Integration is recommending to Prime Minister Dominique de Villepin that rules protecting the nation’s secular society be even more strictly enforced. The Council is recommending that France recognise a proposed charter that would clearly indicate how church and state should be kept separate in such public spaces. The proposed charter on secular life attempts “to define the rights and obligations of public servants as well as those of users of such
government-provided services”.Plans to draw the line on what is considered unacceptable behaviour in hospitals – behaviour that put patients at risk – were first raised three years ago during the debate over Muslim head scarves. The then-Prime Minister Jean-Pierre Raffarin said that hospitals would be the next target.

Male doctors, particularly in maternity wards, say they are increasingly subject to insults and physical attacks. These are perpetrated mostly by men opposed to nudity or physical contact with their wives and daughters. The conviction last week of Fouhad BenMoussa highlighted the issue. He had attacked
Dr Jean-Francois Oury, the head of the maternity ward of Robert Debre Hospital in Paris after the doctor manually examined his wife, who had hemorrhaged after giving birth.

“In my religion, a man doesn’t touch a woman,” Ben Moussa screamed, as he slapped and pulled the doctor, according to the testimony. In court, Ben Moussa then claimed his real motivation was modesty, not religion. He was sentenced to a six-month jail term which can be served in part at home.

“I think the Oury case was the straw that broke the camel’s back,” said Emile Darai, secretary general of the National Congress of French Gynecologists and Obstetricians. The group, unusually, issued a statement in October asking, “Do gynecologists and obstetricians now need police protection to practice?

”The statement affirmed that male and female doctors would treat patients “whatever their sex,” and that a woman has the freedom “to determine contraception, abortion, sterilisation without the permission of her husband.

”The recommendation affirms the rights of patients, but stresses the need for a “balanced approach.” The report said there was no need to legislate on the issue, but highlighted that respect for the functioning of the hospital was vital. It suggested a charter laying out the constitutionally guaranteed principle of secularism be adopted and that pertinent sections be put on display at the relevant institutions.

The charter will remind government-agency employees that while the “freedom of conscience is guaranteed” while they’re on the job, the “constitutional principle of secularism requires [of all citizens] the obligation of [maintaining] strict neutrality” and “equal treatment of all individuals” and the “respect of the freedom of conscience” of others. In other words, no religious proselytising at work, even in subtle ways.

The proposed charter adds that, when a public servant “manifests” his or her “religious convictions during the carrying-out of his or her functions,” in effect that employee’s behaviour “constitutes a dereliction of his or her obligations."

Similarly, the text of the proposed charter also reminds those who use
government agencies’ services that they “must abstain from all forms of proselytising” if or when they avail themselves of such services.

The proposed charter advises members of the public to be cooperative when public servants need to verify a person’s identity. The clear implication of this is that anyone who has their head or face covered will have to uncover if identification is required. The charter would also be distributed at key events, including ceremonies where immigrants are granted French citizenship.

In an editorial, Le Monde says that it is useful to reaffirm the basic
principles of the republican agreement that all French citizens are supposed to share in, which establishes their secular way of life. But “to be obliged to codify some of the rules of communal life in society that should come naturally in a document that comes from the state [itself] – even if it is not a law – reveals the limits of integration policies in a country that [has become] more and more multicultural.

”The fact that the High Council on Integration’s proposed charter has
emerged at all, Le Monde concludes, suggests “a failure of ‘living together,’ a sort of civic fracture that a charter, however useful, will not be enough to diminish."

Hat tip Religion Clause blog

School Race Cases

From How Appealing:

"And finally, "SCOTUSblog" reports that "Chief announces schools cases. Decided jointly. Plans reversed. 5-4, Kennedy concurs in judgment." Denniston's post on the decision is titled "Court strikes down school integration plans." Therein, he writes that "Chief Justice John G. Roberts, Jr., wrote the majority opinion in the combined cases. Justice Anthony M. Kennedy did not join all of the majority opinion, but joined in the result." In early news coverage, The Associated Press reports that "Supreme Court Rejects School Race Plans." You can access the decision in Parents Involved in Community Schools v. Seattle School District, No. 05-908, decided together with Meredith v. Jefferson County Bd. of Ed., No. 05-915, at this link."

Hein and Morse

From How Appealing:

"The second opinion in an argued case issued in Hein v. Freedom From Religion Foundation, Inc., No. 06-157. You can access the opinion here and the oral argument transcript here. Justice Alito announced the judgment of the Court on behalf of a three-Justice plurality. Justice Antonin Scalia issued an opinion concurring in the judgment, in which Justice Clarence Thomas joined. The remaining four Justices dissented in an opinion by Justice David H. Souter.

....

The fourth opinion in an argued case issued in Morse v. Frederick, No. 06-278. You can access the opinion here and the oral argument transcript here. The Chief Justice delivered the opinion of the Court."

Will the Real Jane Roe Please Stand Up

The New York Daily News has an article written by the real Jane Roe, Norma McCorvey, the woman who was the acrtual plaintiff in Roe v. Wade." Here is an excerpt:

As the plaintiff in that infamous Supreme Court case Roe vs. Wade, my life has been inextricably tied to the abortion issue. I once told a reporter, "This issue is the only thing I live for. I live, eat, breathe, think everything about abortion."

Thirty-four years later, I am 100% pro-life.

The Supreme Court's recent decision to uphold the federal ban on partial-birth abortion is the first step in overturning Roe vs. Wade. Banning the procedure - an act of infanticide where a scissors is jammed into the base of the infant's skull, a tube inserted and its brain sucked out - is a sign the court has finally come to its senses.

The case of Roe vs. Wade (I took the pseudonym of Jane Roe to protect my identity) took three years to reach the United States Supreme Court, so I never had the abortion. In fact, I have given birth to three children, all of whom were placed for adoption.

The core of the landmark Roe vs. Wade decision is that abortions are permissible for any reason a woman chooses, up until the "point at which the fetus becomes 'viable,' that is, potentially able to live outside the mother's womb, albeit with artificial aid. Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks."

It might bother some that the story of my actual conversion does not mimic the intellectual engagement of Augustine's "take and read," Pascal's wager or C.S. Lewis' famous motorcycle ride. My disposition is somewhat simple.

I became very close to the young daughter of a friend who had considered abortion and I realized that "my law" (as I once fondly referred to Roe vs. Wade) could have snuffed out the life of this amazing little girl whom I had grown quite fond of. That, to me, was unacceptable.

If you are interested in McCorvey's personal journey concerning the abortion issue, you can read the rest if her piece here.

May City Government Require a Fire Fighter to March in a "Gay Pride" Parade?

Update: According to news reports, the Fire Chief has apologized and agreed to launch an internal investigation of the fire fighters complaint. I doubt if the city will ever again compel a fire fighter to march in a controversial parade.

This reminds me that sometimes even a weak case can be won outside of court when the facts of the litigation are published in local (or national) media. If the facts are embarrassing and outrageous, government officials are often anxious to make amends in order to make you and your complaint go away.

Dean Willborn questions the ethics of filing a frivolous lawsuit merely to embarass the governmental defendant. The key words there are "frivolous" and "merely." No?

By the way, here is a link to the complaint filed by the fire fighters.


There is a recent case in San Diego involving 4 city firemen who were ordered to march in a "gay pride" parade. Here is an excerpt from the press release put out by the Thomas More Law Center, which is representing the firemen:


Four respected San Diego firefighters were ordered, against their wishes, to participate in uniform on their city fire truck in the city’s annual “Gay Pride” parade. During the course of the ensuing three hour long ordeal, the firefighters were subjected to vile sexual taunts from homosexuals lining the parade route. This included the following statements: “show me your hose,” “you can put out my fire,” “you’re making me hot,” “give me mouth-to-mouth,” “you look hungry, why don’t you have a twinkie (from a man wearing a “Girth and Mirth” t-shirt),” and “blow my hose.” These firemen are devoted husbands and fathers. When they refused to respond to the crowd, some in the crowd turned hostile and started shouting, “F—k you firemen” and others began “flipping them off.”

San Diego area attorney, Charles LiMandri, the West Coast Director of the Thomas More Law Center, a national public interest law firm based in Ann Arbor, Michigan, is representing the firefighters in their legal claims against the city. LiMandri was also the lead counsel in the successful Mt. Soledad Cross case in San Diego. A 52 year native San Diegan, LiMandri stated: “What happened to these dedicated public servants was inexcusable. The City should have known from past experience the kind of offensive activities that go on at this event. This was a clear case of sexual harassment in violation of state and federal law as well as the City’s own code of conduct.”

Richard Thompson, President and Chief Counsel of the Thomas More Law Center added, “These firefighters dedicated their lives to save the lives of others. They did not sign on to become unwilling props to a controversial political and social agenda.”

Continued Thompson, “The constitutional right to free speech also protects the right not to speak. These men should not have to explain to their families, friends and church congregations that their presence at a celebration of lewdness and obscenity in support of the homosexual agenda was because they were forced there by way of a direct order. This is a clear violation of their constitutional rights, and the City must be held accountable. It should never happen again to any city employee.”


May city government compel its employees to march in a parade designed to endorse a controversial ideological position? Would the Free Exercise Clause protect a fireman whose objections were based on sincerely held religious beliefs? What about the right of religious belief? What about the right not to be compelled to affirm a belief with which you disagree?

Polygamy and Lawrence

Over at Concurring Opinions, there is a great post about Utah's law banning bigamy. Check it out!

Dorf on Standing

"The Supreme Court Oral Argument in the Global Warming Case Reveals What's Wrong with the Standing Doctrine"

Friday's Class: Focus on Three Cases

We are finishing the list of assignments right on schedule, but we will need to limit our focus somewhat concerning assignment number 22.

For Friday, December 1, 2006, please read all of assignment 22, but we will spend our class time on 3 cases:City of Cleburne (p.918), Romer(p.926), and Bruning(re-read your printout from link supra).

This Term's Racial Affirmative Action Cases

Today's USA Today has this article that includes this key passage:

The school districts in Louisville and Seattle are at the heart of a pair of legal disputes, now before the U.S. Supreme Court, that test whether public schools can use race as a factor in determining where students go to school. The cases, to be heard by the court Dec. 4, have drawn national attention because they could affect policies in districts across the country.

The key legal question in the Louisville and Seattle lawsuits — which were filed by parents of white students who weren't allowed to attend the schools of their choice — is whether school-assignment plans that use students' race as a factor violate the Constitution's guarantee of equality.

It's an emotionally charged issue that gives the court its first chance to weigh in on racial policies since Chief Justice John Roberts and Justice Samuel Alito joined the nine-member court last term. The new justices are former government lawyers who, early in their careers, showed reluctance toward government race-based policies.

Alito's actions in the cases could be especially significant because he replaced the retired Sandra Day O'Connor, who often joined the court's four-member liberal wing to form a majority in favor of affirmative action policies. In 2003, her vote in a case involving the University of Michigan law school ensured that colleges could consider applicants' race to achieve diversity.

The Court and Partial Birth Abortion: Two Views

New York Times

Washington Times

Partial Birth Abortion Cases to be Argued This Wednesday

Update: Howard Bashman has a preview of the partial birth abortion cases (which will be argued today) here. His prediction: "I expect that the Supreme Court will uphold the constitutionality of this federal law by a vote of 5–4, and in the aftermath of such a ruling states too will be free to ban the procedure by enacting similarly worded statutes."


Today's Chicago Trib has this article.

I will post the transcript of the oral argument as soon as I get a link.

Michigan Voters Abolish Racial Preferences

Not to be lost among all the results from yesterday's election returns is the Michigan ballot issue that would "prohibit the University of Michigan and other state universities, the state, and all other state entities from discriminating against or granting preferential treatment based on race, sex, color, ethnicity or national origin." That initiative won by a 58-42 vote of the people despite almost unanimous opposition from the powers that be in that state.

Here is today's coverage on the issue from the Detroit Free Press.

Lawrence Questions

1. Did Lawrence apply a kind of "medium rare scrutiny" to the Texas sodomy law?

2. After Lawrence, may a state criminalize prostitution or do consenting adults have a right of sexual autonomy that includes exchanging sex for money or money's worth?

3. May a state prohibit same sex marriage after Lawrence? In other words, may a state make it a crime for same-sex couples to cohabit as a "married" couple? What about a man who cohabits with more than one woman and holds himself out as "married" to both? Is there a difference between formal recognition of some new form of "marriage" and criminal proscription of that type of "marriage?"

4. What is the holding (the constitutional doctrine) of Lawrence? Is Lawrence basically Lochner with Mr. Vatsyayana's Kama Sutra substituted for "Mr. Herbert Spencer's Social Statics?"

5. Suppose the state of Texas re-enacts its sodomy law and bases its defense of the law on public health rather than public morality? Is public health a legitimate government interest? Is male on male anal sex associated with any rational public health concerns?

Lawrence and a Sexual Autonomy Right to Obscenity

Eugene Volokh analyzes "whether Lawrence v. Texas means that obscenity laws are unconstitutional, on a sexual rights theory even if not a speech rights theory." His analysis is available here at his blog The Volokh Conspiracy.

Racial Preferences on Ballot in Michigan

The NYTimes has a story today that begins:

Three years after the Supreme Court heard Jennifer Gratz’s challenge to the University of Michigan’s affirmative action policy, she is still fighting racial preferences, this time in a Michigan ballot initiative.

“We have a horrible history when it comes to race in this country,” said Ms. Gratz, 29, a white applicant who was wait-listed 11 years ago at the state’s flagship campus here. “But that doesn’t make it right to give preference to the son of a black doctor at the expense of a poor student whose parents didn’t go to college.”

The ballot initiative, Proposition 2, which would amend Michigan’s Constitution to bar public institutions from considering race or sex in public education, employment or contracting, has drawn wide opposition from the state’s civic establishment, including business and labor, the Democratic governor and her Republican challenger. But polls show voters are split, with significant numbers undecided or refusing to say where they stand.

Passage would probably reinvigorate challenges to a variety of affirmative action programs in other states.

We will read the Michigan racial preference cases that triggered this initiative later this semester. Initiatives like this tend to poll under the radar, because many people fear saying they support a measure against the wishes of the ruling establishment and the shapers of what is politically correct. I think it will pass because people tend to vote their true conscience in the privacy of the voting booth. And most people do not believe that racial preferences are consistent with the promise of racial equality under the 14th Amendment.

Scalia on Judicial Independence vs. Judicial Activism

Here is an excerpt of what Hizzoner had to say:

Scalia, during a talk on the judiciary sponsored by the National Italian American Foundation, dismissed the idea of judicial independence as an absolute virtue. He noted that dozens of states, since the mid-1800s, have chosen to let citizens elect their judges.

"You talk about independence as though it is unquestionably and unqualifiably a good thing," Scalia said. "It may not be. It depends on what your courts are doing."

Scalia added, "The more your courts become policy-makers, the less sense it makes to have them entirely independent."

Here is a link to the AP article.

More on Partial Birth Abortion case

Gonzales v. Carhart: The Supreme Court Once Again Considers "Partial-Birth Abortion" by Sherry Colb is online at Findlaw.

Religious Liberty in the UK--Not!

Here is a link to an article about religious persecution directed against Muslim women by UK government officials. Here is a key excerpt:

A British government minister joined an increasingly bitter debate about the rights of Muslim women to veil their faces, saying a teaching assistant should be fired for insisting on wearing one in school.

Phil Woolas, the government's Race and Faith minister, was quoted by the Sunday Mirror newspaper as demanding that Aishah Azmi, a Muslim teaching assistant, be fired for refusing to remove her veil at work.

"She should be sacked. She has put herself in a position where she can't do her job," Woolas said.

....

The debate on the veils began earlier this month, when Jack Straw, the former foreign secretary who now serves as leader of the House of Commons, said Muslim women visiting his office should remove their veils.

Lochner and the Liberty of Consenting Adults

Notice that Lochner views Substantive Due Process as protecting the liberty of consenting adults to enter into any contract that pleases them, so long as no third party is harmed by their conduct. The decision protects the right of adults to choose--to make economic choices and to enter into economic relationships with other consenting adults.

Should laws that restrict the right of consenting adults to agree to wages, hours, rents, and other terms and conditions of their economic lives be held to violate the "liberty" protected by the Constitution? Does government have the right to impose a particular view of social justice and public morality on consenting adults who wish to enter into "unfair" or "immoral" or "unhealthy" agreements?

If you think the right of consenting adults to agree to labor on terms of their choosing is not a protected constitutional liberty, what about the liberty of consenting adults to engage in various types of sexual conduct and relationships? Should the state be allowed to regulate consensual sexual conduct under the police power--the power to pass laws to advance public health, safety, morals or the general welfare?

In other words, if you believe that the Constitution protects the "liberty of the citizen to do as he likes [in the bedroom] so long as he does not interfere with the liberty of others to do the same," (Holmes opinion at p. 520), then shouldn't adult citizens also have the right to do as they please in their economic lives? If your answer is no, why is paternalism and public morality a legitimate basis for legislation in the conference room, but not in the bedroom?

Why should we think SubstantiveDue Process protects the sexual autonomy and right of choice of adults, but not the economic autonomy and right of choice of adults? Is it because the one liberty is "fundamental" and the other is not? How do you know this? Which language or principle in the written Constitution supports your analysis?

"Moderate" Justices and Ideological Decisionmaking

Are so-called "moderate" Justices, such as O'Connor and Kennedy, less (or more) likely to engage in ideological judging? Over at the Volokh Conspiracy, Ilya Somin says perhaps more:

Indeed, in two important ways moderate jurists may be more prone to ideological judging than more extreme ones. First, moderate judges such as Justices O'Connor and Kennedy, are more likely to favor complex balancing tests than strong liberals and conservatives, who are more likely to favor bright line rules. Balancing tests tend to leave more scope for judicial discretion (and thus ideological decisionmaking) than rules do.

Second, I suspect that moderates are less likely than comparative extremists to realize that their political preferences are the products of a contestable ideology rather than of simple, nonideological "common sense." Indeed, Garrow's own article partially endorses this fallacy, to the extent that he assumes that moderate views are, by nature, less "ideological" than extreme ones. Of course, if you believe that your views are just common-sense truths that only extremist wingnuts/moonbats could disagree with, you are less likely to be hesitant about imposing them on others through the use of judicial power.

Hmmm. What do y'all think?