ADF Alliance Alert

Religious Freedom

Speaking of Evolution: The Historical Context of Kitzmiller v. Dover Area School District
Joan DelFattore, 9 Rutgers Journal of Law & Religion 3 (2007)

In addressing these questions, this Article discusses Kitzmiller in the context of the ongoing debate over teaching evolution in public schools. Section II presents the testimony, arguments, and decision in the case, while subsequent sections divide its historical background into three phases. Section III deals with early conflicts over evolution, including attacks and defenses by Darwin’s contemporaries as well as the first lawsuit over the teaching of evolution in American public schools: Scopes v. State. Section IV discusses attempts to exclude evolution or to include creationism after the Supreme Court had declared that the Establishment Clause applies not only to Congress, but also to the states. The cases considered in this section are Epperson v. Arkansas, Daniel v. Waters, McLean v. Arkansas, and Edwards v. Aguillard. Section V focuses on the claim that it is possible to include the concept of a creator or designer in a formulation that qualifies as science. This section discusses two lawsuits regarding antievolution disclaimers — Freiler v. Tangipahoa Parish and Selman v. Cobb County–as well as the (as yet) unlitigated dispute over state standards and tests in Kansas. Based on the material thus presented, Section VI explores the three issues listed above: the identification of ID as science or as religion and the feasibility of proposals for compromise.

Ten Tortured Words (Book Review)
David K. DeWolf, 85 Denv. U. L. Rev. 443 (2007)

Although some savage attacks have been directed at the book, they can be ascribed more to the overarching thesis of the book than to a concern that, for example, the date for the adoption of the First Amendment is accurate. Mansfield’s overarching thesis is that the popular understanding of the adoption of the First Amendment has been badly distorted. In this Mansfield resembles the boy who points out that the emperor is wearing no clothes. Even if the boy’s shirt-tail is hanging out, the question is not what he is wearing but whether or not the emperor has any clothes on and whether that ought to cause us concern. As Mansfield demonstrates, the official interpreters of the Constitution (the United States Supreme Court), with no significant objection from mainstream scholars, have maintained an image of the Establishment Clause of the First Amendment that is not only wrong, but so obviously wrong that it is difficult to understand how it could have been maintained for so long with such success. To put it in a nutshell, the commonly accepted notion is that our Founding Fathers, having had a bad experience with established churches, enacted the First Amendment in order to place a wall between church and state; accordingly, so it goes, both the letter of the law and our unbroken tradition compel fidelity to this core principle of the “American experiment.”

Marriage & Family

Reconceptualizing Anti-LGBT Hate Crimes as Burdening Expression and Association: The Case for Expanding Federal Hate Crime Legislation to Include Gender Identity and Sexual Orientation
Jordan Blair Woods, Journal of Hate Studies, Vol. 6, Spring 2008

The purpose of this essay is to bring an important point regarding the harms that hate crimes inflict upon lesbian, gay, bisexual, and transgender (LGBT) victims to the attention of researchers, scholars, and politicians that is ignored, and in my view, relevant to the justifications for laws that allow bias crime victims to obtain legal compensation for being victimized on the basis of their sexual orientations and gender identities. More specifically, this essay critiques the current framing of anti-LGBT hate crimes in scholarship and empirical research and reconceptualizes these crimes as systemic inhibitors to expressive and associative opportunities on the basis of gender identity and sexual orientation. I argue that federal government should expand federal hate crime laws to include gender identity and sexual orientation in order to address the current inadequacies in state and local hate crime laws that fail to account for these inequitable expressive and associative opportunities. I explain how specifically reconceptualizing anti-LGBT hate crimes as burdening LGBT expression and association increases the federal government’s constitutional justification for expanding federal hate crime law to include gender identity and expression by means of its commerce power. I further contend that it is politically desirable for the federal government to become involved in rectifying inequitable expressive and associative opportunities created by anti-LGBT hate crimes because expression and association are vital democratic tools of self governance, truth-discovery, and autonomy.

Morse v. Frederick’s New Perspective on Schools’ Basic Educational Missions and the Implications for Gay-Straight Alliance First Amendment Jurisprudence
Jordan Blair Woods, 18 Columbia Journal of Gender and Law (Forthcoming)

To date, no court has addressed how the Supreme Court’s recent decision in Morse v. Frederick affects the First Amendment analysis in gay-straight alliance cases. In Morse, the Supreme Court adopted a new rule permitting schools to limit student expression that is reasonably viewed to promote illegal drug use. Although Morse was not an optimal decision for free speech advocates, this article emphasizes the laudable aspects of Morse that have been ignored. Prior to Morse, the Supreme Court was progressively deferring to schools’ educational missions to grant schools more authority to limit student speech. However, in Morse, the Court rejected that schools may limit student speech merely because they viewed it as antithetical to their basic educational missions. I argue that the Morse Court’s rejection of the basic educational mission argument is a new constraint on schools’ authority to limit student speech. Since Morse is a relatively recent decision, the implications of the Court’s new approach on student free speech rights is not entirely clear. However, schools have recently prohibited gay-straight alliances by alleging that they violate their educational missions and self-defined values. Therefore, the Court’s rejection of the basic educational mission argument should make it easier for students to prove that prohibitions on gay-straight alliances violate the First Amendment and may even increase protected student speech overall.

Sanctity of Life

Revealing Your Sources: The Case for Non-Anonymous Gamete Donation
Michelle Dennison, 21 J.L. & Health 1 (2007)

This article argues that both legislating the end of anonymous gamete donation and allowing current children of anonymous gamete donation the ability to access identifying information about their donors is in the best interests of all parties involved in the donation process. Recipient-parents and donor-conceived children will benefit from having increased access to their donor’s health information. Records access, including access to a donor’s identifying information, will help donor-conceived children avoid potential incest and what is sometimes termed in adoption cases “genealogical bewilderment.” Finally, banning anonymous donation will give potential gamete donors the ability to make a truly informed decision before donating, because, as evidenced by the teenager and his DNA kit, it is nearly impossible for anonymity contracts to truly guarantee that anonymity.

Part I of this article begins with a discussion of why the use of donor gametes for reproduction has historically been enveloped in such secrecy, and how that secrecy has gradually begun to erode. Part II looks at the movement towards non-anonymous donation in other countries and examines how this movement has taken hold in this country. Part III considers the interests of the donor-conceived children, the recipient-parents, and the donors. It makes the comparison between donor-conceived children and adoptees, and also discusses how a donor’s right to privacy is potentially diminished by the very act of donating. The article will conclude with a proposal for legislation that would prevent future donor anonymity, mandate better record-keeping, and extend the “for good cause” standard that many states currently apply to adopted children in records access cases to donor-conceived children.

Of Panjandrums, Pooh Bahs, Parvenus, and Prophets: Law, Religion, and Medical Science
George P. Smith, CUA Columbus School of Law Legal Studies Research Paper No. 2008-11 SSRN

This Monograph derives from a Lecture, under the same title, given in Sydney, Australia, honoring Michael D. Kirby, AC, CMG, Justice of The High Court of Australia. The first part of the Monograph analyses the significant contributions that Justice Kirby has made as a compassionate champion of human rights and acknowledges what is styled as the Kirby Ethic which, in turn, is seen as the foundation for the body of work of the Justice as well as the moving force in his private life as well. Building upon a theory of transcendent idealism which interprets God’s purpose as safeguarding the dignity and promoting the salvation of each human soul, the Kirby Ethic embraces eloquently the principle of Love as set forth in St. Paul’s Letter to the Corinthians. This, then, becomes not only the cornerstone of the Ethic, itself, but also the yardstick by which the effectiveness of any discourse or implementation of human rights is measured. Without its recognition and acceptance, any coordinate effort to advance the values of honesty, compassion, justice, human goodness and dignity-together with the nobility of life’s purpose and the need for tolerance of diversity would be unattainable. The impact of the Kirby Ethic, in a very real way, is tied to an acceptance of moral and ethical values and principles rooted in religion. It is an Ethic of necessity tied, as well, to interdisciplinary approaches to shaping and testing normative values codified in law. The Monograph proceeds to test the extent to which religion impacts, clarifies and shapes the medico-legal deliberative process. Specifically, the Monograph focuses on a comparative (jurisdictional) analysis of the extent to which law, religion, and medical science interact when biomedical conflicts arise. The conclusion drawn is that all three disciplines are, indeed, compatible and not antagonistic this, because both biomedicine and religion respond to the enigma of human suffering. The law, then, serves as a construct through the passage of wise and humane legislation, fair administrative policy making and judicial interpretations designed to assure both distributive and corrective justice in the delivery of health care resources and in the advancement of medical science. This, in turn, promotes an efficient delivery of health care and, thus, combats human suffering as well.

Bench and Bar

Parker v. The District of Columbia and the Hollowness of Originalist Claims to Principled Neutrality
William G. Merkel, 18 Geo. Mason U. Civ. Rts. L.J. 251 (2008)

From the standpoint of an academically trained historian, this line of reasoning is objectively untenable, in that it elevates the current Court’s fixation with libertarian individualism over the Framers’ civic republican focus on the organized militia as a preferred alternative to a dangerous army establishment. From the perspective of constitutional theory, the impending triumph of a historically unsupportable appeal to interpretive fidelity will mark a significant victory for results-oriented jurisprudence, and point to the shallowness of originalist claims to neutrality. The Court’s anticipated embrace of an individual right to own guns for purely private purposes reflects the larger symbolic significance of the right to arms in popular constitutional culture, and the long range tendency of that popular culture to drive (through the appointments process) the jurisprudence of the Court. The image of the gun as a central icon of American liberty taps into a powerful national obsession mythologizing the revolutionary generation as supposed originators of libertarian norms that few of the Framers actually would have recognized as their own. In this Age of Originalism, the nation worships and the Court reifies what never before existed, and fidelity to false history elevates an imaginary constitutionalism of the past into a new modeled higher law of the present. The driving engine of this revolution is the predictable capacity of the imagined past to harmonize with the normative vision of those inside and outside the judiciary and academy who are most active in imagining that fictive past into existence. As a consequence, the originalist project first celebrated by Judge Robert Bork, Edwin Meese, and Justice Antonin Scalia as a means of restoring neutral principles to constitutional adjudication and supplanting the value-laden judging of the process theorists and living constitutionalists now stands on the brink of a colossal failure to abide by its own credo.

International

A Tangled Web We Weave: Enforcing International Speech Restrictions in an Online World
Gregory S. Cooper, 8 U. Pitt. J. Tech. L. & Pol’y 2 (2007)

This paper will explore this question, suggesting the need for a coherent set of principles of jurisdiction and enforcement that recognize the rights of states to set standards for speech within those states. As the development of geo-location technology has made it more feasible to confine Internet regulation to a particular location, the factors cited by the French court to justify jurisdiction — the effect of Internet speech in a particular country, and whether an Internet provider targeted users within the country — make both theoretical and practical sense. Such an approach requires sufficient ties to the state where the offense is realized, and also puts Internet Service Providers (ISPs) on notice regarding potential liability. Once such jurisdiction has been properly exercised, foreign courts facing enforcement actions must resist the temptation to impose their own domestic legal (constitutional or otherwise) standards on the foreign judgment, as the District Court did in Yahoo!. While courts in the United States and elsewhere should not be cornered into enforcing judgments repugnant to fundamental notions of justice, they must also not impose their cultural values upon other sovereign states. As Internet borders become increasingly possible, the law should adjust to permit greater regulation of Internet activity affecting a particular state’s polity. Rhetoric about the “global” nature of the Internet should not be permitted to trump the realities of state sovereignty.

Share This