Daily Law Review Watch - March 4th
Religious Freedom
Justice Thomas and Partial Incorporation of the Establishment Clause: Herein of Structural Limitations, Liberty Interests, and Taking Incorporation Seriously
Richard F. Duncan, 20 Regent U. L. Rev. 37 (2008)
Here is something the average guy in America cannot understand. Why is it constitutionally permissible for a public school to decorate the halls with posters celebrating “gay pride” month even over the reasonable objections of persons (including persons of faith) offended by that government-sponsored ideology, but unconstitutional for a public school to celebrate Christmas by putting up a crèche if even one person is offended? Is this confounding result really required by the Constitution of the United States? If so, is it required by the written Constitution as originally understood, or is it part of the living, breathing, intelligently-designed Constitution crafted by the Justices of the Supreme Court of the United States?
Although one possible answer is to point out that the Establishment Clause imposes a structural limitation on government disabling government from endorsing or sponsoring religion, that merely substitutes one question for another. How does a structural limitation on “Congress” extend to define the structural powers of state and local government? In other words, under the doctrine of incorporation, how is a structural limitation on the power of Congress an individual “liberty” incorporated against the states by the Due Process Clause of the Fourteenth Amendment? If we take the prevailing theory of incorporation seriously, why should we think that the structural component of the Establishment Clause may “legitimately be read into the liberty protected by the Fourteenth Amendment?”
Prophetic Speech and the Internal Revenue Code: Analyzing I.R.C. S 501(C)(3) in Light of the Religious Freedom Restoration Act
Zachary Cummings, 20 Regent U. L. Rev. 151 (2008)
On October 31, 2004, the very eve of the 2004 national elections, the Rev. Dr. George F. Regas, a Rector Emeritus of the Episcopal Church, delivered a guest sermon, containing the four paragraphs quoted above, before All Saints Episcopal Church, a liberal Episcopalian church in Pasadena, California. Regas went on to hold President Bush and his tax cuts responsible for enlarging the gap between the rich and the poor in the United States. “All of that would break Jesus’ heart,” he stated. Regas also bemoaned the quiescence of Christian churches in regard to current social and political issues, stating that “[p]rophetic Christianity has lost its voice.” In response to Regas’s sermon, the Internal Revenue Service (“IRS”) began an investigation of the eighty-year-old parish and delivered a summons demanding the surrender of all materials containing political references, including newsletters and sermons, produced during the 2004 election year. The rector of the parish, Rev. J. Edwin Bacon, Jr., was also informed that he must testify in person before IRS investigators to answer for All Saints Church’s activities during the 2004 election year. The IRS acted pursuant to I.R.C. § 501(c)(3), a provision of the Internal Revenue Code, which forbids all tax-exempt religious institutions, like All Saints Church, from engaging in any partisan campaign activity. During an interview conducted in the midst of the controversy, Rev. Bacon justified the events at All Saints Episcopal Church by stating that the Episcopal faith “calls [the Church] to speak to the issues of war and poverty, bigotry, torture, and all forms of terrorism ….” After the news of the IRS investigation went public, Dr. Regas sent a letter to the editor of the Los Angeles Times, stating that “[a]n IRS audit [would] not diminish the prophetic ministry of All Saints Church.”
Marriage & Family
Autonomy to Choose what Constitutes Family: Oxymoron or Basic Right?
June Carbone, 1 IUS Gentium 11 (2007)
This paper will address these issues by, first, examining the debate about the regulation of morality and distinguishing the control of individual behavior from the selection of basic institutions. Second, it will examine the polarization now taking place on the definition of family values among the states and argue that these differences reflect different challenges produced by the nature of the interaction among marriage, childbearing, and the adult life cycle. Third, it will maintain that these differences, while the product of different approaches to family institutions consistent with historic efforts at secular family regulation, interact with religious, as well as secular beliefs. Finally, the paper will consider what some measure of autonomy and respect for others might entail in a system in which different states adopt fundamentally different approaches toward the definition and regulation of family values.
The paper will conclude that in an era of polarization the state cannot remain neutral in the choice of basic values, and it should be able to choose, on a majoritarian basis, to promote one set of values over another. Autonomy in the constitution of family as a state-sanctioned status thus becomes impossible. In these circumstances, the obligation of a liberal state then becomes one of minimizing the “moral affront” to the views of the rejected minority, and preserving individual autonomy in the expression of contrary views or private conduct.
The Right Responsibility: Does the Right to Procreate Include the Responsibility to Parent?
A. Felecia Epps, 34 Ohio N.U. L. Rev. 85 (2008)
This article will explore these questions. It will start by discussing the process by which children are removed from a home due to maltreatment as background for a discussion of the two New York cases. Next, the two cases will be discussed and the analysis used in each case will be compared. The history of the right to privacy as it relates to freedom in procreation decisions, parental rights, and family rights will provide additional background. I will demonstrate that cases dealing with the right to privacy in procreation decisions are applicable to the “no more kids” condition, while parental right and family rights cases miss the point. Consequently, parental and family rights cases are not adequate support for the New York court’s decisions.
This article argues that United States Supreme Court precedent in the area of procreation rights shouldbe considered when evaluating the “no more kids” condition. Such precedent does not support the position that the freedom to make procreation decisions is somehow conditioned on the ability or desire to care for a child. Restrictions on the right to make procreation decisions, like all restrictions on fundamental freedoms, are subject to strict scrutiny. Thus, they are permissible only if they are narrowly tailored to meet a compelling government interest and are not overly broad. Additionally, such restrictions must be effective to accomplish the stated goal. The government clearly has at least one compelling interest at stake in this situation-protecting the children involved. Arguably, it has a second compelling interest in protecting society from the dangers of parents who give birth to children but lack the means or desire to care for them. Faced with children in jeopardy and increasing state budgets, the state must somehow respond. However, we must consider whether the imposition of a “no more kids” condition is a narrowly tailored means to further those interests.
This article will argue that adding the “no more kids” condition is not only ineffective, it is unnecessary. Consequently, the condition does not pass the constitutional test and cannot be lawfully imposed. Instead, a carefully developed case plan, that includes support services necessary to protect the child and help the parent resolve their issues, is a more narrowly tailored and more effective way to address the compelling state interests involved. Even in situations involving parents who cannot or will not care for a child, the right to procreate should be treated as fundamental and be entitled to constitutional protection. To do otherwise places us on a slippery slope towards further procreation limitations on those who are deemed by others in our society to be unfit to procreate.