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Abstract:
In the midst of the countless grotesque inhumanities of the twentieth century, there is a heartening story: the emergence, in international law, of the morality of human rights. The morality of human rights is not new; in one or another version, the morality is very old. But the emergence of the morality in international law, in the period since the end of World War II, is a profoundly important development.

The International Bill of Rights, as it is informally known, consists of three documents: the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social, and Cultural Rights. The UDHR refers, in its preamble, to "the inherent dignity . . . of all members of the human family" and states, in Article 1, that "[a]ll members of the human family are born free and equal in dignity and rights . . . and should act towards one another in a spirit of brotherhood." The two covenants each refer, in their preambles, to "the inherent dignity . . . of all members of the human family" and to "the inherent dignity of the human person" - from which, the covenants insist, "the equal and inalienable rights of all members of the human family . . . derive." As the International Bill of Rights makes clear, then, the fundamental conviction at the heart of the morality of human rights is this: Each and every human being - each and every member of the species Homo sapiens sapiens - has inherent dignity; therefore, no one should deny that any human being has, or treat any human being as if she lacks, inherent dignity. To say that all human beings have inherent dignity is to say that one's dignity inheres in nothing more particular than one's being human; it does not inhere, for example, in one's "race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." According to the morality of human rights, because every human being has inherent dignity, no one should deny that any human being has, or treat any human being as if she lacks, inherent dignity. The conviction that every human being has inherent dignity - and that therefore no one should deny that any human being has, or treat any human being as if she lacks, inherent dignity - is so fundamental to the morality of human rights that when I say, in this Essay, the morality of human rights, I am referring to this conviction. An act (whether of commission or omission) or a policy violates a human being, according to the morality of human rights, if the rationale for the action or policy denies that the human being has, or treats her as if she lacks, inherent dignity. The morality of human rights holds that every human being has inherent dignity and is therefore inviolable: not to be violated, in the sense of "violate" just indicated.

The morality of human rights responds to what is perhaps the most basic of all moral questions: Which human beings are inviolable - all, some, or none? Moreover, the morality of human rights is, for many secular thinkers, problematic, because it is difficult - perhaps to the point of impossible - to align the morality of human rights with one of the secularist's reigning intellectual convictions, what Bernard Williams called Nietzsche's thought: "[T]here is, not only no God, but no metaphysical order of any kind . . . ."

In this Essay, I elaborate a religious ground for the morality of human rights. I then pursue the question whether there is a nonreligious (secular) ground for the morality of human rights. Along the way, I comment critically on the positions of John Finnis, Ronald Dworkin, Martha Nussbaum, and Richard Rorty.

This Essay, which is being published in a symposium issue of the Emory Law Journal, is part of a larger work in progress - a book - tentatively titled "Human Rights as Morality, Human Rights as Law: Toward a Theory of Human Rights."

Abstract:
A growing number of democracies have empowered their judiciaries to enforce constitutional norms, many of the most important of which are human rights norms that, as articulated, serve principally to limit the power of government. The Constitution of the Republic of South Africa (1996) provides a recent important example of such judicial empowerment. This "global expansion of judicial power" - which has been called "one of the most significant trends in late-twentieth and early twenty-first-century government" - has led, in the view of some commentators, to "the judicialization of politics". Some prominent legal scholars - most notably, Mark Tushnet and Jeremy Waldron - have recently argued that such government by judiciary, especially American-style judicial review, subverts the democratic ideal of government by the people and is therefore deeply problematic. Less prosaically, the claim is that government by a politically independent judiciary subverts the democratic ideal of government by the politically dependent, because electorally accountable, representatives of the people.

The question is more broadly relevant than ever, therefore, whether it is appropriate for the citizens of a liberal democracy to cede to their courts the power to oppose, in the name of one or more entrenched human rights norms, choices made by, or actions of, electorally accountable government officials. In pursing this inquiry, two other, related questions inevitably emerge: If some power to protect entrenched human rights should be ceded to the courts, how great ought that power to be in relation to the power of the other, electorally accountable parts of government? And in exercising the power ceded to them - a power to pass judgment on the choices and actions of electorally accountable government officials - should the courts defer as much as possible to those offificials, or to some of them; or, instead, should the courts abjure such deference?

Judicial Review, Human Rights

Abstract:
This essay - which was the basis of my McElroy Lecture at the University of Detroit Mercy in April 2001 - is the final installment in a series of five essays on the proper role of religiously grounded morality in the politics and law of the United States. The contemporary American debate about religion in politics is partly animated and shaped by two large controversies that are at once both moral and political in character: the controversies over same-sex unions and abortion. Addressing the issue of religion in politics without addressing those two controversies would be like staging Hamlet without the prince. In two other essays in the series of which this essay is a part, I focus on the controversy over same-sex unions. In this essay, speaking in particular to religious believers who hold (as I do) that political reliance on religiously grounded morality is neither illegitimate in a liberal democracy nor unconstitutional in the United States, I turn to the moral/political controversy that, in the last generation, has been the most difficult and divisive of all: abortion. To an even greater extent than the controversy over same-sex unions, the abortion controversy looms large in the background of the debate about the proper role of religion in the politics of the United States. More than any other American political controversy in the second half of the twentieth century, the abortion controversy has been a principal, if sometimes unspoken, occasion of the debate about religion in politics. My overarching aim, in this essay, is to address the abortion controversy in a way that is true to each of two propositions. I defend the first proposition in two other essays in the series of which this essay is a part: A citizen's religious faith has a legitimate, important role to play in her politics. The second proposition is at least as well illustrated by the moral/political controversy over abortion as by any other: In the words of Reinhold Niebuhr, "political issues deal with complex problems of justice, every solution for which contains morally ambiguous elements."

Abstract:
Many law professors (Posner, Dworkin, Finnis, Nussbaum, etc.) spend a lot of time these days talking about "morality." The penetration of legal discourse by moral discourse is not surprising. Moral controversy, after all, is often at the center of legal controversy. Nonetheless, it is often obscure what we citizens of the legal academy, and others, are talking about--and often clear that we are not all talking about the same thing--when we talk (argue) about "morality." Using Richard Posner's conception of "morality" in his book, The Problematics of Moral and Legal Theory (1999), as a point of departure, Professor Perry addresses the question that is the title of his essay "What is 'Morality' Anyway?" He sketches the three fundamental questions--or sets of questions--that constitute the heart of "moral" inquiry and argument.

Abstract:
According to the morality of human rights, every human being has inherent dignity and is inviolable. In a paper I posted on SSRN last month, I inquired whether there is a nonreligious ground for the morality of human rights. Here is the URL for that paper: http://ssrn.com/abstract=685550

In this paper, I pursue the implications of the morality of human rights for the issue of capital punishment. Should we who affirm the morality of human rights, because we affirm it, want the law to protect human beings from - by giving them a right to be free from - capital punishment. One of the most prominent and powerful voices against capital punishment in recent years was that of Pope John Paul II, whose position was more radical - more oppositionist - than than the official position of the Roman Catholic Church. In this paper, I present John Paul II's position and then explain why I am unable to embrace it. I then present an alternative position - an alternative reason why we who affirm the morality of human rights should oppose capital punishment.

This paper, which was the basis for a lecture I presented at St. John's University on October 13, 2004, is drawn from a book-in-progress, tentatively titled HUMAN RIGHTS AS MORALITY, HUMAN RIGHTS AS LAW.

Abstract:
There has been growing interest in, and scholarly attention to, issues and questions that arise within the subject matter domain we may call "human rights theory". See, in particular, Amartya Sen, "Elements of a Theory of Human Rights," 32 Philosophy & Public Affairs 315 (2004); James W. Nickel, Making Sense of Human Rights (rev. ed. 2006); Michael J. Perry, Toward a Theory of Human Rights: Religion, Law, Courts (2007); James Griffin, On Human Rights (2008); Nicholas Wolterstorff, Justice: Rights and Wrongs (2008). This essay - a version of which will appear in a multi-authored collection of essays to be published by Oxford University Press in 2009 - is intended as a contribution to human rights theory. These are the principal questions, or sets of questions, I address in the essay:

1. What is the morality of human rights - by which I mean the morality that, according to the International Bill of Human Rights, is the principal warrant for the law of human rights?

2. How does the morality of human rights warrant the law of human rights?

3. Some human-rights-claims are legal claims, but some are moral claims, and some are both. What does a human-rights-claim of the legal sort mean? A human-rights-claim of the moral sort? And when does it make sense to think of a right that only some human beings have - children, for example - as a human right?

4. Is there a plausible secular ground for the morality of human rights?

5. At the end of the proverbial day, what difference does it make - why should we care - if there is no plausible secular ground for the morality of human rights?

Comments and questions welcome.

Abstract:
Jurgen Habermas has remarked that notwithstanding their European origins, . . . in Asia, Africa, and South America, [human rights now] constitute the only language in which the opponents and victims of murderous regimes and civil wars can raise their voices against violence, repression, and persecution, against injuries to their human dignity. Nonetheless - and as philosopher John Searle recently wrote - we [do not] have a clear theory of human rights. On the contrary, . . . the necessary work is just beginning. My new book, Toward a Theory of Human Rights (Cambridge University Press), is an effort to contribute to that necessary work.

In the book, I pursue three inquiries:

1. What is the morality of human rights - and can a secular worldview ground (embed, make sense of) that morality?

2. What is the relationship of the morality of human rights to the law of human rights? In addressing that question, I focus on three controversial issues: capital punishment, abortion, and same-sex unions.

3. What is the proper role of courts in protecting, and therefore in interpreting, the law of human rights - in particular, constitutionally entrenched human rights law? I give special attention to the Supreme Court of the United States.

For a fuller overview of the questions I address in my book, interested readers can download the book's table of contents, introduction, and conclusion.

constitutional interpretation, human rights, religion, morality, rights-talk, Supreme Court, courts, democracy, constitutionality, capital punishment, abortion, same-sex union

Abstract:
This Essay is the basis of a presentation I made to a symposium on religious freedom at the Roger Williams University School of Law in October 2004. I inquire, in the Essay, whether we who affirm (what I call) the morality of human rights should want the international law of human rights to protect a right to religious freedom. Along the way, I offer some reflections on the relevance of cultural relativity to the project of universalizing human-rights-claims.

Abstract:
I have explained why I am skeptical that there is a plausible secular ground for the morality of human rights. See Perry, TOWARD A THEORY OF HUMAN RIGHTS 1-29 (Cambridge, 2007). The blogosphere has recently yielded commentary - mainly, I think, at BALKINIZATION and MIRROR OF JUSTICE - on my argument. However, some of the commentary - in particular, by Brian Tamanaha and Andrew Koppelman - reflects serious misunderstandings of my argument.

1. My argument is not theistic. In the course of making my argument, I articulate a theistic position, which I attribute to someone named Sarah, but Sarah's position is not my argument. My argument is in part *about* Sarah's position - and also about some secular positions. 2. It is not as a theist that I make my argument. Indeed, some non-theists, such as Art Leff and Raimond Gaita, have made similar arguments. 3. Yes, some religious believers have been among the principal violators of human rights, and, yes, some theologies deny the claim that is at the heart of the morality of human rights, namely, that all human beings have inherent dignity. But my argument nowhere presupposes, claims, or hints to the contrary.

I hope that this paper, MORALITY AND NORMATIVITY, helps to clarify my argument. The paper - which I first presented at Fordham Law School as the Natural Law Colloquium Lecture (February 2007) - is my contribution to a symposium on the moral and legal philosophy of John Finnis. The symposium, which includes a response by Finnis, will be published in LEGAL THEORY.

As we all know, there is not just one morality in the world; there are many. By a morality, I mean a claim or set of claims to the effect that human beings, either some or all, should live a certain sort of life - should in the sense of have conclusive reason to. The morality Adolph Hitler espoused is radically different from the morality Mother Teresa espoused; nonetheless, each is a morality. Hitler's 'morality' is not a morality, you reply, because it is, to put it mildly, false. There is only one true morality, and Hitler's - least of all Hitler's - is not it! To say that there are many moralities, however, is to say nothing about whether a particular morality - or indeed any morality - is true. There are many moralities - and the morality Hitler espoused is one of them. Of course, just as one can acknowledge that there are many moralities and reject every one of them as false, one can acknowledge that there are many moralities and affirm a particular morality as true - affirm as true, that is, the claim that one should live, that one has conclusive reason to live, the sort of life the morality claims one should live.

A morality may purport to be true for all human beings, by claiming that all human beings have conclusive reason to live the sort of life it claims all human beings should live. Or a morality may purport to be true only for some human beings. Either way, a morality may be false in one sense but partly true in another: Some, but only some, of the human beings for whom the morality purports to be true may have conclusive reason to live the sort of life the morality claims they should live. Conceivably, two (or more) moralities may both be true, or both be partly true, in this sense: One morality may be true for those, or for some of those, for whom it purports to be true, and another morality may be true for those, or for some of those, for whom it purports to be true.

Notice that it would beg the question to say to someone that the conclusive reason she has for living the sort of life a morality claims she should live is just that that sort of life is (for her) moral: The question is precisely whether the sort of life the morality claims she should live is (for her) truly moral; she wants to know whether in fact she has conclusive reason to live the sort of life the morality claims she should live.

The ground of normativity question - as I call it - can be asked about any morality; to ask it about a particular morality is simply to ask whether (and for whom) the morality is true and, if so, why - in virtue of what - it is true. Again, to say that a particular morality is true (for one) is to say that one should live - that one has conclusive reason to live - the sort of life the morality claims one should live; put another way, it is to say that one has conclusive reason to be(come) the sort of person who lives the sort of life the morality claims one should live. So to ask whether a particular morality is true is to ask what conclusive reason one has, if any, to live the sort of life the morality in question claims one should live. To ask the ground-of-normativity question about a particular morality is to ask what grounds the "should" in the morality's claim that one should live a certain sort of life; it is to ask why - in virtue of what - one should live that sort of life.

In this paper, I elaborate a particular, and particularly important, morality, which I call the morality of human rights (because, as I explain, it is the principal articulated morality that underlies the law of human rights). Next, I ask the ground-of-normativity question about the morality of human rights and proceed to elaborate a religious response. (It bears emphasis, first, that the religious response I elaborate - Sarah's response - specifically *rejects* the divine command conception of morality, and, second, that in the paper I do *not* argue that Sarah's response is [or is not] true or even plausible.) Then, after explaining why one might be skeptical that there is a plausible secular response to the question (i.e., to the question asked about the morality of human rights), I comment critically on some secular responses. Finally, I ask what difference it makes if there is no plausible secular response and if we reject any religious response.

There is no doubt plenty in this paper with which one can reasonably disagree, but the blogospheric commentary to which I referred above has not (yet) engaged - because it has misconceived - my argument.

Abstract:
Whether a law (or other policy) is unconstitutional is one question; whether the Supreme Court (in an appropriate case) should rule that the law is unconstitutional is a different question. Contemporary constitutional theorists are virtually unanimous in ignoring the analytic space between the two questions. That a law is unconstitutional does not entail that the Supreme Court should rule that the law is unconstitutional. In this paper - a revised version of which will be my contribution to a symposium issue of the Georgia Law Review honoring Professor Milner Ball - I explain why we should conclude that capital punishment violates the cruel and unusual punishments clause. (I am inclined to think that we are all originalists now; in any event, my explanation presupposes an originalist conception of constitutional interpretation - although, to be sure, *not* Antonin Scalia's misconceived originalist conception of constitutional interpretation.) I also explain, however, why the Supreme Court (probably) should not rule that capital punishment is unconstitutional.

constitutional law, constitutional theory, originalism, interpretation, capital punishment, constitutionality, cruel and unusual punishment, Supreme Court

Abstract:
This essay is my contribution to the symposium held at the University of St. Thomas School of Law on Oct. 17-18, 2003, honoring Judge John T. Noonan's scholarship, a prominent part of which focuses on questions of religious freedom.

The Constitution of the United States famously declares, in the First Amendment, that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Yet, it is settled constitutional law that not just Congress but the entire national government - and not just the national government but state government too - may not establish religion or prohibit the free exercise thereof. For Americans today, the serious question is not whether the free exercise norm and the nonestablishment norm - the two principal matrices of the constitutional law of religious freedom - apply to the whole of American government, including state government. They do so apply. The serious question is not even whether the free exercise and nonestablishment norms should apply to the whole of American government. In the judgment of most Americans who bother to think about the matter, they should so apply. It is not surprising, then, that the sovereignty of the two norms over every branch and level of American government is constitutional bedrock.

For Americans today, the serious question, regarding the free exercise and nonestablishment norms, is this: What does it mean to say that government, state as well as national, may neither prohibit the free exercise of, nor establish, religion? In particular, what sorts of government action - laws, policies, etc. - do the free exercise and nonestablishment norms forbid? At the risk of understatement: Not every scholar or judge gives the same answer to this question. My aim here is to give the answer that makes the most sense to me.

Abstract:
The question whether in a liberal democracy religion - religious rationales - may serve as a basis of (coercive) lawmaking must be disaggregated into two distinct questions: First, is religion a morally legitimate basis of lawmaking in a liberal democracy? Second, is religion a constitutionally legitimate basis of lawmaking in the United States? I have addressed (elsewhere) the first question - as have many others. In my judgment, the answer is yes; and, again in my judgment, the most powerful defense of that answer is philosopher Christopher Eberle's important book Religious Conviction in Liberal Politics (2002). This Essay addresses the second question. The second question, which is about constitutional legitimacy, should not be confused with the first question, which is about moral legitimacy.

Like other liberal democracies, the United States is committed to the right to freedom of religious practice. Unlike most other liberal democracies, however, the United States is also committed to the nonestablishment of religion. According to the constitutional law of the United States, government - that is, lawmakers and other government officials - may neither prohibit the free exercise of religion nor establish religion. Does the nonestablishment norm (as I like to call it) ban religion as a basis of lawmaking? More precisely, should the nonestablishment norm be understood to ban laws (and policies) for which the only discernible rationale - or, at least, the only discernible rationale other than an implausible secular rationale - is religious?

Is it a good thing that government in the United States is constitutionally forbidden to establish religion? So far as I can tell, there is a virtual consensus among us citizens of the United States, including those of us who are religious believers, that, all things considered, it is good both for religions and for social harmony that our lawmakers may not establish religion. The serious question among us, therefore, is not whether the constitutional law of the United States should include the nonestablishment norm but what the nonestablishment norm should be understood to mean - to forbid - in one or another context. In this Essay I ask what the nonestablishment norm should be understood to forbid in the context of lawmaking. I conclude that the answer to the question whether the nonestablishment norm should be understood to ban laws for which the only discernible rationale is religious, depends: yes with respect to some religious rationales, no with respect to others. I also conclude, however, that insofar as the nonestablishment norm is concerned, lawmakers are free to support laws - to vote to enact laws - on the basis of any religious rationale whatsoever. Those two conclusions may seem to pull in opposite directions; I explain in this Essay why they do not.

Abstract:
La conception Americaine de la laicite consists principally of a constitutional norm - the nonestablishment norm - and of the law that the U.S. Supreme Court has developed in the course of enforcing the norm. The nonestablishment norm forbids government - both the national government and state government - to "establish" religion. American laicite also consists of what we may call "the morality of liberal democracy". My aim in this essay is to explain why religion in politics does not violate American laicite; more specifically, my aim is to explain why political reliance on religiously grounded morality violates neither the nonestablishment norm nor the morality of liberal democracy.

Abstract:
Imagine a legislator who must decide whether to vote to outlaw, or otherwise disfavor, particular conduct - abortion, for example, or same-sex unions. She wonders what weight, if any, she should put on her religiously grounded belief that the conduct is immoral; in particular, she worries that it might not be appropriate for her to disfavor the conduct on the basis of her religiously grounded moral belief. In another essay in the series of essays of which this essay is one, I argue that the morality of liberal democracy does not counsel her against disfavoring the conduct on the basis of religiously grounded moral belief. In this essay, I pursue a different but, for us citizens of the United States, complementary inquiry: Does the United States' constitutional morality of religious freedom - in particular, the requirement that government not "establish" religion - forbid government to disfavor conduct on the basis of a religiously grounded belief that the conduct is immoral? That the morality of liberal democracy does not counsel a legislator or other policymaker against disfavoring conduct on the basis of religiously grounded moral belief does not entail that the Establishment Clause permits government to disfavor conduct on the basis of such belief. The Establishment Clause is, in some respects, more restrictive than the morality of liberal democracy. Nonetheless, I argue in this essay that political reliance on religiously grounded morality does not violate the Establishment Clause.

Abstract:
The proposed Federal Marriage Amendment states:

"Marriage in the United States shall consist only of the union of a man and a woman. Neither this Constitution, nor the constitution of any State, shall be construed to require that marriage or the legal incidents thereof be conferred upon any union other than the union of a man and a woman."

In this paper, which is my contribution to a symposium issue of the San Diego Law Review, I explain - as the title indicates - why the Federal Marriage Amendment is not only not necessary, but a bad idea. This paper is a response to another paper in the symposium: Christopher Wolfe, "Why the Federal Marriage Amendment Is Necessary."

Abstract:
In my new book - Constitutional Rights, Moral Controversy, and the Supreme Court (Cambridge Univ. Press, 2009) - I examine three of the most disputed constitutional issues of our time: capital punishment, state laws banning abortion, and state policies denying the benefit of law to same-sex unions. I explain that if a majority of the justices of the Supreme Court believes that a law (or other policy) violates the Constitution, it does not necessarily follow that the Court should rule that the law is unconstitutional. In cases in which it is argued that a law violates the Constitution, the Supreme Court must decide which of two importantly different questions it should address: (1) Is the challenged law unconstitutional? (2) Is the lawmakers' judgment that the challenged law is *constitutional* a reasonable judgment? One can answer both questions in the affirmative.

By focusing on the death penalty, abortion, and same-sex unions, I aim to provide new perspectives not only on moral controversies that implicate one or more constitutionally entrenched human rights, but also on the fundamental question of the Supreme Court's proper role in adjudicating such controversies.

In this SSRN paper, I reproduce the table of contents and the introduction to the book.

Abstract:
At the Second Vatican Council (1962-65), the celebrated American Jesuit John Courtney Murray played a leading role, as is well known, in persuading the magisterium of the Roman Catholic Church - the bishops and, ultimately, the pope - to embrace the right to religious freedom. Murray was concerned with more than just religious freedom, however; he was also concerned with what we may call moral freedom. In 1960, the year in which the first and, so far, only Catholic was elected to the presidency of the United States, Murray's published *We Hold These Truths: Catholic Reflections on the American Proposition*. Murray wrote, in that now-famous book, that "the moral aspirations of the law are minimal. Laws seek to establish and maintain only that minimum of actualized morality that is necessary for the healthy functioning of the social order." According to Murray, the law should "not look to what is morally desirable, or attempt to remove every moral taint from the atmosphere of society. It [should] enforce[] only what is minimally acceptable, and in this sense socially necessary."

"But why should 'the moral aspirations of the law' be only 'minimal'," we may fairly ask. "Why should 'laws seek to establish and maintain only that minimum of actualized morality that is necessary for the healthy functioning of the social order'? Why should the law 'enforce only what is minimally acceptable, and in this sense socially necessary'?" In this essay I provide an answer, in the course of defending this claim: The case for liberal democracy's affirming the right to moral freedom is analogous to and no less compelling than the case for its affirming, as it does, the right to religious freedom. Liberal democracy should affirm the former right, therefore, as well as the latter; it should affirm moral freedom as well as religious freedom.

This essay is drawn from my book *The Political Morality of Liberal Democracy*, which will be published in 2010 by the Cambridge University Press.

Abstract:
This essay is my contribution to a symposium on originalism, to be held at the University of Western Ontario in October 2008. In the essay, I address the question What does it mean - or, at least, what should it mean - to 'interpret' the constitutional text? I then explain that one's answer to that question - even if one's answer is originalist - does not entail any particular answer to two further, distinct questions:

(1) How large a role, or how small, should the U.S. Supreme Court play in specifying - in rendering more determinate - a constitutional norm that is implicated by, but underdeterminate in the context of, one or another constitutional controversy?

(2) In resolving constitutional controversies, should the U.S. Supreme Court always proceed, at least in part, on the basis of what it believes to be the correct interpretation of the constitutional text?

I conclude this essay with a question I have addressed elsewhere, and to which I will eventually return: In specifying entrenched but contextually underdeterminate human rights norms, should the U.S. Supreme Court take the path of Thayerian deference?

Comments and questions welcome - indeed, invited.

Abstract:
The Roman Catholic Church was famously late to embrace the right to religious freedom. Some have plausibly argued that when the Second Vatican Council, in 1965, overwhelmingly adopted the Declaration on Religious Freedom - known by the first two words of its official, Latin version: Dignitatis Humanae - the Church betrayed one of its most traditional and established theological teachings. Did the Church, at Vatican II, capitulate to, or at least compromise with, "liberalism?"

The right to religious freedom, according to international law, rests in part on respect for the "inherent dignity" of every human being. Thus there is a prima facie link between the liberal-democratic justification and the Church's 1965 justification. But as I argue in this essay, the appeal to human dignity is not an exclusive preserve of modern liberal democracy. Indeed, we can imagine a government that refuses to affirm the right to religious freedom because it wishes to save souls, and this precisely out of respect for human dignity of every human being. Such a view was proclaimed by the the pre-Vatican II Church. Thus the appeal to human dignity is not evidence of a fundamental shift by the Church. What then does account for the Church's undeniable U-turn - its undeniable change of direction?

Respect for human dignity by itself cannot provide the fundamental justification for the right to religious freedom. Another ingredient is needed: distrust, born of long historical experience, of government competence to adjudicate contested questions of religious truth. The Church in Dignitatis Humanae finally came to accept this lesson of history - a lesson available to believers of various faiths, including Catholics, as well as to nonbelievers.

Abstract:
This Essay pursues one of the inquiries begun in my new book, TOWARD A THEORY OF HUMAN RIGHTS: RELIGION, LAW, COURTS (forthcoming, Cambridge University Press): What is the proper role of the United States Supreme Court in protecting constitutionally entrenched human rights?

Some contemporary legal theorists are hostile to judicial review (e.g., Mark Tushnet and Jeremy Waldron). In another Essay, I defend judicial review - but judicial review of a sort different from that with which we are familiar in the United States. I call the sort of judicial review I defend the power of judicial penultimacy. (The sort of judicial review with which we are familiar in the United States is the power of judicial ultimacy.) See Michael J. Perry, Protecting Human Rights in a Democracy: What Role for the Courts? http://ssrn.com/abstract=380283. In this Essay, I argue for a second best: Given that the United States Supreme Court exercises the power of judicial ultimacy, the Court should exercise that power in a Thayerian (deferential) manner.

I then illustrate my position by discussing three constitutional controversies, each of which implicates an issue at the epicenter of the American culture wars: capital punishment, abortion, and same-sex unions. First, I argue that capital punishment violates the Eighth Amendment, but I then explain why the Supreme Court should not so rule. Second, I contend that even if one concludes that state bans on pre-viability abortions violate the Fourteenth Amendment, one should not want the Court to so rule. Third, I argue that state refusals to recognize - state refusals to extend the benefit of law to - same-sex unions violate the Fourteenth Amendment, but that nonetheless, the Court should not - not yet - so rule.

A strong case can be made that the United States Supreme Court should have, not the power of judicial ultimacy, but only the power of judicial penultimacy. For better or worse, however, the Court has the power of judicial ultimacy. Given that the Court has this power, what role should the Court play in protecting constitutionally entrenched human rights? In his classic work, THE LEAST DANGEROUS BRANCH (1962), Alexander Bickel wrote: "The search must be for a function . . . which differs from the legislative and executive functions; . . . which can be so exercised as to be acceptable in a society that generally shares Judge [Learned] Hand's satisfaction in a 'sense of common venture;' which will be effective when needed; and whose discharge by the courts will not lower the quality of the other departments' performance by denuding them of the dignity and burden of their own responsibility." As this Essay indicates, I'm inclined to think that in exercising its power of judicial ultimacy in a Thayerian fashion, the Court would be playing its proper role - it would be serving its proper function - in protecting constitutionally entrenched human rights.

How appealing Thayerian deference is all things considered depends in part on what the implications of Thayerian deference turn out to be for various constitutional doctrines. Although in this Essay I pursue the implications of Thayerian deference for the constitutional controversies over capital punishment, abortion, and same-sex unions, there are many other questions to be answered: Can Thayerian deference accommodate the Supreme Court's most important free speech decisions? Its most important antidiscrimination decisions - including, of course, Brown v. Board of Education? Its most important criminal procedure decisions? Indeed, perhaps we should not generalize across every constitutionally entrenched human right; perhaps there are reasons for thinking that Thayerian deference is appropriate in cases in which certain human rights are at issue but inappropriate in cases in which certain other human rights are at issue - the right to freedom of speech, for example, or the right not to be discriminated against on the basis of a demeaning view about an aspect of one's particularity. In any event, the implications - the consequences - of Thayerian deference surely bear on our estimate of the all-things-considered appeal of Thayerian deference. And, accordingly, my fundamental argument in this Essay, in support of Thayerian deference, is tentative and provisional.

Abstract:
The proper role of religious faith in the public life of a liberal democracy is one of the most important and controversial issues in the United States today. I have addressed the issue - actually, a complex of related issues - before, principally in two books: Love and Power (Oxford, 1991) and Religion in Politics (Oxford, 1997). I revisit the central questions in this book, because my views have continued to develop and, in some important respects, to change.

I argue, in "Under God?," that political reliance on religious faith violates neither the Establishment Clause of the First Amendment nor, more broadly, the morality of liberal democracy. I also argue, however, that religious believers sometimes have good reasons to be wary about relying on religious beliefs in making political decisions. Along the way, I address three subjects at the heart of fierce contemporary political debate: school vouchers, same-sex marriage, and abortion.

Law and Religion, Establishment of Religion, Law and Morality

Abstract:
Many have insisted, and many others have denied, that government aid to religiously affiliated entities, such as elementary and secondary schools and social service providers, would violate the constitutionally mandated separation of church and state. In this essay, I inquire whether the constitutional imperative that government not "establish" religion leaves any room for government to spend money in support of religiously affiliated schools. I begin by elaborating a general understanding of what the Establishment Clause does and does not forbid government to do. I focus in the essay on just one sort of government aid to religiously affiliated schools: school vouchers. However, the logic of my argument extends beyond school vouchers to other forms of government aid to religiously affiliated schools; indeed, it extends even to government aid to social service providers.

Abstract:
Several of the most divisive "moral" conflicts that have beset us Americans in the period since the end of World War II have been transmuted into "constitutional" conflicts -- conflicts about what the Constitution of the United States forbids -- and resolved as such. The most prominent instances include the conflicts over racial segregation, race-based affirmative action, sex-based discrimination, homosexuality, abortion, and physician-assisted suicide, each of which has been resolved -- at least in part, and at least for a time -- on the basis of a claim about what the Fourteenth Amendment does or does not forbid. Which of these conflicts, understood as "constitutional" conflicts, have been resolved as they should have been resolved? This book pursues that inquiry, but only after addressing several prior, fundamental questions: What is "the Constitution"? What does it mean to interpret the Constitution? Is the Supreme Court supreme in interpreting the Constitution? And precisely what norms did "We the People" establish in making the Fourteenth Amendment a part of the Constitution?