Religious Freedom
The Constitutional Paradox of Religious Learning
Marc O. DeGirolami, Columbia Public Law Research Paper No. 08-169 Available at SSRN: http://ssrn.com/abstract=1097578
The constitutional paradox of religious learning is the problem of knowing that religion – including the teaching about religion – must be separated from liberal public education, and yet that religion cannot be entirely separated if the aims of liberal public education are to be realized. It is a paradox that has gone largely unexamined by courts, constitutional scholars and other legal theorists. Though the Supreme Court has offered a few terse statements about the permissibility of teaching about religion in its Establishment Clause jurisprudence and scholars frequently urge favored policies for or against such controversial subjects as Intelligent Design or graduation prayers, insufficient attention has been paid to the nature and depth of the paradox itself. As a result, discussion about religion‘s place in public schools often exhibits a haphazard and under-theorized quality. Yet without a deeper understanding of the relationship between religious learning and liberal public education, no edifying policy solutions are likely in an area so fraught with constitutional complexity and high emotion.
This Article aims to fill that gap by giving the constitutional paradox of religious learning its due. It offers a detailed theoretical account of the relationship between religious learning and the cultivation of the civic and moral ideals of liberal democracies. It draws on that account to develop a unique model of religious learning within liberal learning that takes its cue from the historic purpose of the public school. Since even today it is widely supposed and insisted that public schools still serve a vital role in developing civic and moral ideals in young people, this Article‘s comprehensive examination of the constitutional paradox of religious learning is both timely and necessary if the seemingly intractable skirmishes over religion, education policy, and constitutional law are capable of even a modest rapprochement.
Marriage & Family
The Uncertain Fate of Virtual Child Pornography Legislation
Chelsea McLean, 17 Cornell J.L. & Pub. Pol’y 221 (2007)
Despite these legal battles, child pornography industry continues to develop and to create increasingly realistic images due to advancements in digital technology. In light of these developments, this note will address the increasing complexities facing those prosecuting and adjudging child pornography cases and will argue that computer savvy pornographers armed with budding technology may exploit the Court’s ban on prohibitions of virtual child pornography by arguing that the real children depicted are actually virtual. Specifically, this note will argue, in Part IV, that statutes regulating virtual child pornography as obscenity will and should be upheld by the Supreme Court, and further, that such laws are sufficiently broad to prevent the harmful effects of virtual child pornography. But before delving into that debate, this note provides some background on pornography litigation and legislation. Part I describes the history of obscenity and pornography regulation and jurisprudence. Part II examines the Supreme Court’s opinion in Ashcroft v. Free Speech Coalition. Part III analyzes subsequent Congressional efforts to regulate virtual child pornography, namely the PROTECT Act of 2003. Finally, in Part IV, this note will consider what forms of child pornography are obscene, and if all child pornography can or should be found obscene under the Miller v. California standard, which asks whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest, depicts sexual conduct in a patently offensive way, and lacks serious literary, artistic, politic or scientific value.
Selective Recognition of Gender Difference in the Law: Revaluing the Caretaker Role
Pamela Laufer-Ukeles, 31 Harv. J. L. & Gender 1 (2008)
Gender difference in the context of divorce should be recognized by advocating support for the different and important contribution of caretaking. Such recognition will begin to address the hardships caretakers face at divorce. Primary caretakers should have the presumption of custody at divorce, so as to be freed from the need to bargain for custody in fear of the uncertainty of the discretionary best interest standard. Equally as important, I argue that primary caretakers should be financially supported through alimony or “caretaker support” payments after divorce. I posit that while different family contributions during marriage should be recognized as such, different contributions should result in different, but livable and dignified, consequences upon the dissolution of the marriage.
In part II, I explore in depth the theory of gender neutrality and the effect this theory has had on divorce law. I discuss how gender neutrality has had a devastating affect on primary caretakers who suffer from equal treatment at divorce because they act differently during marriage to care for dependent children.
In part III, I look to alternate theories of how gender difference should be treated in the law to replace the influence of gender neutrality. I consider alternatives to gender neutrality that have been proposed by legal scholars. I discuss the benefits and weaknesses of these approaches, and demonstrate how my own theoretical approach for the legal treatment of gender difference synthesizes and builds upon these approaches. In part IV, I present my own approach and argue that the importance to society of caretaking necessitates that the gendered primary caretaker role be recognized in divorce law. I also argue that this insight into the need to recognize gender difference when the care of children is at stake can be applied more broadly to the need to recognize other biological or socio-cultural gender differences when important societal objectives are at stake.
In the remainder of this article, I apply the focus on valuing gender difference to the law of marital dissolution by emphasizing the need to recognize affirmatively the positive contributions made by primary caretakers. In part V, I argue for instituting the primary caretaker presumption in contested custody proceedings. In part VI, I argue for revamping the alimony system to provide real support to caretakers upon the dissolution of marriage by establishing future-oriented caretaker support. Finally, I explain how recognition of gender difference can alleviate significant hardships women face at divorce by affirmatively recognizing the caretaker role.
