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Abstract:
Yale Law Professor Jack Balkin didn’t win friends when he announced that (1) he is now a constitutional originalist and (2) the original meaning of the Fourteenth Amendment protects the right to abortion. His claim to membership in the originalist club brought forth a small army of eager bouncers, who were sure that originalism couldn’t possibly defend the paradigmatic departure from the Constitution’s original meaning.

Balkin has indeed posed a radical challenge to the vision of law that drives the originalists – more radical than he is willing to admit. His theory is in such deep tension with a commonly held vision of the rule of law that his argument is, to put the point precisely, disgusting. But that doesn’t mean that he is wrong.

Balkin, Jack, Disgusting, constitutional, originalist, Fourteenth Amendment

Abstract:
The "originalist" interpretations of the Establishment Clause by Supreme Court Justices William Rehnquist, Antonin Scalia, and Clarence Thomas are remarkably indifferent to the original purposes of that clause. Their arguments are a remarkable congeries of historical error and outright misrepresentation. This is not necessarily a criticism of originalism per se. However, the abuse of originalist scholarship that these judges have practiced raises questions about what originalist scholars are actually accomplishing.

Religion, Establishment

Abstract:
In two recent papers, Brian Leiter argues that there is no good reason for law to single out religion for special treatment, and that religion is not an apt candidate for respect in the “thick” sense of being an object of favorable appraisal. Both arguments depend on a radically impoverished conception of what religion is and what it does. In this paper, I explain what Leiter leaves out, and offer an hypothesis about why. I also engage with some related reflections by Simon Blackburn and Timothy Macklem, both of whom influence, in different ways, Leiter’s analysis.

Brian Leiter, religion, religious exemption, Establishment Clause, First Amendment

Abstract:
Is pornography within the coverage of the First Amendment? A familiar argument claims that it is not. This argument reasons that (1) the free speech principle protects the communication of ideas, which appeal to the reason (the major premise); (2) pornography communicates no ideas and appeals to the passions rather than the reason (the minor premise); (3) therefore pornography is not protected by the free speech principle. This argument has been specified in different ways by different writers. The most prominent and careful of these are Frederick Schauer and John Finnis. Both founder on the attempt to distinguish pornography from art, which both would protect. If art, film, and literature should be protected, then this protection should extend to the pornographic subsets of these genres.

Free Speech, Consitutional Law

Abstract:
Part I of this Article will describe the secular purpose doctrine and the objections that have been offered against it. It will then describe the counterarguments of Justice Sandra Day O?Connor, the only member of the Court who has responded to these objections, and show how Justice O'Connor's defense of the doctrine fails. Part II will explain that there must be a secular purpose requirement, because government may not declare religious truth.

This part will examine the idea that some laws are only intelligible within a particular sectarian tradition and thus implicitly declare religious truth. These are the paradigmatic violations of the secular purpose requirement. If the basis of the secular purpose requirement is understood in this way, then it is easy to answer most of the objections that have been raised against it.

Part III will address the deepest of the objections to the secular purpose requirement, which claims that it forces the government to treat religion with callous indifference. The answer, I will argue, is to define the secular purpose requirement as permitting government to favor religion in general, so long as its support does not violate the axiom that government may not declare religious truth. Part IV will show that the theory of secular purpose that I offer fits the case law well. In particular, it will show how the theory of the Establishment Clause developed in Part III can explain the perennial puzzle of tax exemptions for churches. It will conclude by reexamining the secular purpose cases and showing how my account makes sense of most of them.

The cases that the theory cannot defend, I argue, are in fact wrongly decided.Part V will consider the implications of this argument for other areas of religion clause doctrine and for constitutional law generally.

Abstract:
This essay will reconsider the fundamentals of obscenity law: the harm that the law addresses and the means by which the law tries to prevent that harm. Strangely, even though an enormous amount of scholarship examines this doctrine, these fundamentals have not been adequately addressed. The harm that the doctrine seeks to prevent is not offense to unwilling viewers. It is not incitement to violence against women. It is not promotion of sexism. Rather, it is moral harm - a concept that modern scholarship finds hard to grasp.

Liberals have not even understood the concept of moral harm, and so their arguments have often missed the point of the laws they were criticizing. Conservatives have understood the concept quite well, but have thought that it straightway entailed censorship. This essay is, to my knowledge, the first presentation of the liberal argument that does justice to the conservative case for censorship.

I will argue that the concept is a coherent one and that obscenity law tries to prevent a genuine evil. But I will conclude that the law is too crude a tool for the task. A sound understanding of obscenity law's ambitions reveals that the doctrine is unworkable and should be abandoned.

Abstract:
Government neutrality toward religion is based on familiar considerations: the importance of avoiding religious conflict, alienation of religious minorities, and the danger that religious considerations will introduce a dangerous irrational dogmatism into politics and make democratic compromise more difficult. This paper explores one consideration, prominent at the time of the framing, that is often overlooked: the idea that religion can be corrupted by state involvement with it. This idea is friendly to religion but, precisely for that reason, is determined to keep the state away from religion.

If the religion-protective argument for disestablishment is to be useful today, it cannot be adopted in the form in which it was understood in the 17th and 18th centuries, because in that form it is loaded with assumptions rooted in a particular variety of Protestant Christianity. Nonetheless, suitably revised, it provides a powerful reason for government, as a general matter, to keep its hands off religious doctrine. It offers the best explanation for many otherwise mysterious rules of Establishment Clause law.

Religion, Constitutional Law, Establishment Clause

Abstract:
All antidiscrimination laws are unconstitutional in all their applications. Citizens are allowed to disobey laws whenever obedience would be perceived as endorsing some message. Both of these propositions are absurd. However, the Supreme Court's opinion in Dale v. Boy Scouts of America stands for at least one of them, and perhaps both. The already voluminous commentary on Dale is too polite, because almost all of it fails to notice the sheer lunacy of what the Court said. The Court's disastrous opinion offers a useful cautionary lesson in First Amendment jurisprudence: determinations of what is protected speech cannot defer either to individual speakers or to the culture as a whole, because such deference produces bizarre results.

Abstract:
Same-sex marriage is here. Massachusetts now recognizes such marriages, and increasing numbers of same-sex couples have married. Other states have virtually the same status: Vermont recognizes "civil unions," and California recognizes "domestic partnerships," that have virtually all the rights of marriage. Are these statuses exportable? Will same-sex unions be recognized in other states?

The answer should not be mysterious. There is a well developed body of law on the question of whether and when to recognize extraterritorial marriages that are contrary to the forum's public policy. Assuming that courts decide to follow that law, the answer is, it depends. This article will offer a short overview. The answer is somewhat complex, but there are large areas of clarity.

civil liberties

Abstract:
Many Americans think that homosexual sex is morally wrong and oppose same-sex marriage. Philosophers trying to defend these views have relied on two strategies. One is to claim that such sex is wrong irrespective of consequences: there is something intrinsic to sex that makes it only licit when it takes place within a heterosexual marriage (in which there is no contraception or possibility of divorce). Patrick Lee and Robert P. George have developed and clarified this claim. The second strategy focuses on consequences: the baleful effects on heterosexual families of societal tolerance for homosexuality. Amy Wax (who is not a clear opponent of same-sex marriage, but who is worried by it) has tried to array evidence to support the second. Mary Geach has developed a novel hybrid, relying on the second argument to support the first one. Both strategies fail. The first cannot show that the intrinsic goodness of sex is at once (a) derived from its reproductive character and (b) present in the coitus of married couples who know themselves to be infertile, but not present in any sex act other than heterosexual marital coitus. As for evidence of bad consequences of tolerance of homosexuality, the evidence is all the other way.

Patrick Lee, Robert P. George, Amy Wax, Mary Geach, gay rights, same-sex marriage, sexual ethics

Abstract:
Phyllis Schlafly's preeminent concern is to preserve a pattern of gender-specific roles and relations that, she thinks, have helped protect women and children from desertion and abuse. She wants to suppress pornography because it helps to reinforce a vernacular masculine culture that is indifferent or hostile to the needs of women and children. Schlafly's worries about this culture are legitimate and valid. But the suppression of pornography is the wrong solution to the problem, because no workable legal rule can properly delimit the material that concerns her. The antecedents of Schlafly's views on gender, in Rousseau's political theory and the nineteenth century ideology of domesticity, and their contemporary applicability are examined.

Public Policy

Abstract:
The strategy for coping with value pluralism that Rawls has proposed is to permit political decisions, at least with respect to basic rights, to depend only on those goods that can be inferred from the bare requirements of respectful relations between persons. His account offers such a parsimonious conception of the good that it cannot cognize some atrocities. I focus on one extreme human rights case: the practice of female genital mutilation (FGM), which, it is well established, violates basic human rights. Doubtless Rawls was appalled by the practice. Yet his theory cannot generate a basis for condemning it. A satisfactory conception of human rights must draw upon some normative source beyond that offered by constructivism.

Constructivism, Rawls, Female, Genital, Mutilation

Abstract:
The model of marriage equality litigation that has dominated discussion to date is the carefully planned public interest lawsuit. In this model, gay rights organizations try to figure out which courts are most likely to be receptive to their claims, then recruit plaintiffs to challenge the laws on the books, and file suit.

There is, however, another model that will be increasingly relevant. That is the situation in which parties who had no interest whatever in being public interest plaintiffs find themselves unexpectedly trapped in an evil legal system that threatens to treat them in a viciously arbitrary and unfair way.

The next major wave of marriage equality litigation will involve substantive issues of choice of law. The most powerful choice of law claims will be those involving unfair surprise. And they can't be planned for.

Abstract:
Kent Greenawalt claims that one rationale for nonestablishment of religion is personal autonomy. If, however, the law is barred from manipulating people in religious directions (and thus violating their autonomy), while it remains free to manipulate them in nonreligious directions (and thus violate their autonomy in exactly the same way), autonomy as such is not what is being protected. The most promising alternative is to understand religion as a distinctive human good that is being protected from government interference.

Religious, Establishment, Autonomy, Greenawalt, Personal Autonomy

Abstract:
Many recent works on the Thirteenth Amendment break new ground, deploying the amendment in new and creative ways. This is not one of them. I here restate an argument I made twenty years ago, defending abortion rights on the basis of the amendment. I then consider how the work was received, offer some amendments to the argument, and conclude with some reflections on how, perhaps, it can have more influence in the future.

Thirteenth Amendment, Abortion

Abstract:
This article offers a critical examination of the First Amendment expressive association arguments that law faculty pressed in suits challenging the constitutionality of the Solomon Amendment - the federal statute that requires educational institutions that receive federal funds to grant fully equal access to military recruiters despite the recruiters' inability to comply with law school non-discrimination policies. The article argues that these First Amendment claims were flawed, constituted a threat to important progressive values, and were deeply inconsistent with the ideal that should underlie an institution of higher learning.

expressive association, freedom of association, first amendment, solomon amendment, military, recruitment, don't ask don't tell, university, dale, boy scouts

Abstract:
American civil religion has been changing, responding to increasing religious plurality by becoming more abstract. The problem of increasing plurality is not only an American one. It is also presented in Italy, where civic identity has been centered around a Catholicism that is no longer universal. Perhaps Italy has, in this respect, an American future.

Civil, Religion, American, Lessons, Italy