Daily Law Review Watch - March 5th
Religious Freedom
Funeral Protest Bans: Do They Kill Speech or Resurrect Respect for the Dead?
Kara Beil, 42 Val. U. L. Rev. 503 (2008)
The main legal issue in this Note centers around whether recent funeral protest bans violate the First Amendment. Part II.A provides an overview of WBC and its tactics, as the WBC largely provided the impetus for the legislation at issue. Part II.B examines current and proposed state funeral protest bans. Part II.C provides the analytical framework and precedent for First Amendment analysis. Finally, since no court has ruled on the newly passed bans, Part II.D examines similar speech restrictions in the abortion context, as well as older church related cases, to examine how they fared in the court system and to provide guidance as to how to draft a constitutional speech restriction. However, since neither the WBC nor mourning families will willingly compromise their rights in this conflict, a constitutionally drafted ban is the best way to resolve this conflict that the WBC began when it protested its first funeral.
All Saints Church and the Argument for a Goal-Driven Application of Internal Revenue Service Rules for Tax-Exempt Organizations
Kara Backus, 17 S. Cal. Interdisc. L.J. 301 (2008)
The scope and purpose of this Note is threefold. Part II will provide a brief historical overview of the emergence of churches and nonprofits as a social, economic, and sometimes political presence in America, and will present six policy goals that underlie the tax rules for exempt entities. It will conclude that the IRS has not completely or successfully comprehended the modern-day convergence of social, religious, and political activity among exempt entities and those entities’ need for clear rules and guidance. Part III of this Note will review the law, rules, and guidance, specifically the recent steps taken by the IRS to better inform exempt organizations as to their rights and responsibilities with regard to political campaigns. It will conclude that these efforts are on the whole a positive improvement in clarifying the boundaries of political speech for exempt organizations. Part IV of the Note will review information pertaining to IRS enforcement of the tax rules, including its Political Activities Compliance Initiative (“PACI”). Through the lens of the policy goals, it will evaluate the referral process, investigations into political activities, and what is known of the substance of IRS decisions. It will argue that a “case-by-case” analysis of political activities is proper, but that insufficient communication, loose systems, and tedious investigations erode the ability of the IRS to realize such policy goals.
Religion and the American Founding
Ellis Sandoz, 20 Regent U. L. Rev. 17 (2008)
In justifying union under the Constitution, Publius (Madison) later appeals “to the great principle of self-preservation; to the transcendent law of nature and of nature’s God, which declares that the safety and happiness of society are the objects at which all political institutions aim and to which all such institutions must be sacrificed.” Publius thus invokes Aristotle, Cicero, and salus populi, suprema lex esto, as often was also done by John Selden, Sir Edward Coke, and the Whigs in the 17th century constitutional debate. This was understood to be the ultimate ground of all free government and basis for exercise of legitimate authority (not tyranny) over free men–the liber homo of the Magna Carta and English common law. James Madison and the other founders knew and accepted this as a fundamental to their own endeavors.
Republicanism and Religion: Some Contextual Considerations
Ellis Sandoz, 20 Regent U. L. Rev. 57 (2008)
Despite the Enlightenment’s concerted project of doing away with the Bible as the basis of political and social order in favor of “Reason,” religion today continues to condition politics as an undergirding belief foundation: Men always have God or idols, as Luther long ago said. The present war against terrorism, with its religious dimensions evident to even the most blinkered secularist, underlines the point. Perhaps less evidently, this phenomenon can be seen in the context of a global revival of traditional religiosity, including Christianity, as a major event of the present–following the era of the death and murder of God proclaimed by Hegel and Nietzsche–now called “the revenge of God” by such scholars as Gilles Kepel, Philip Jenkins, and Samuel Huntington.
Marriage & Family
Space, the Final Frontier - Expanding FCC Regulation of Indecent Content onto Direct Broadcast Satellite
John C. Quale and Malcolm J Tuesley, 60 Fed. Comm. L.J. 37 (2007)
The vast majority of viewers today receive video programming from multichannel video programming providers-mostly cable television or direct broadcast satellite (“DBS”)-rather than directly over-the-air from broadcast stations. While the FCC has not hesitated to sanction broadcasters for what it deems to be indecent content, it consistently has found that it lacks the authority to regulate indecency on subscription services like cable television. Citizens groups and some in Congress now seek to extend indecency restrictions to DBS services under existing law or through the enactment of new legislation. It is true that DBS, because of its use of radio spectrum to deliver programming to consumers, does share some similarities with broadcasting. Although the Supreme Court has not considered the issue, we believe that the nature of the DBS service more closely resembles cable television than broadcasting. Assuming that the FCC has statutory authority to regulate indecency on DBS (which is itself doubtful), Supreme Court precedent regarding the regulation of content on cable and the Internet strongly suggests that any restriction on DBS indecency would contravene the First Amendment.
Self-Produced Child Pornography: The Appropriate Societal Response to Juvenile Self-Sexual Exploitation
Mary Graw Leary, 15 Va. J. Soc. Pol’y & L. 1 (2007)
This article explores this issue and argues that juvenile prosecution should be considered, although not mandated, as a viable response to juvenile self-exploitation. Part One examines the scope of the child pornography problem and identifies the severe social harms caused by these images regardless of their source. Part Two introduces the immeasurable social ill of self-exploitation whose breadth demands a considered policy in response. Part Three reviews the significant doctrinal basis for governmental intervention. Both parens patriae and the state police powers allow for intervention in analogous juvenile self-destructive criminal behavior. By analyzing the statutory rape model, the child prostitution model, and child pornography by adult offenders model this Part concludes that significant basis exists for juvenile prosecution. Part Four proposes that the proper societal response to the production, possession, and/or distribution of child pornography by minors include the possibility of prosecution in the juvenile court system. This Part grounds its conclusion in the reality that social harms caused by child pornography extend beyond the child depicted, the critical need to eradicate the existence of all images of child pornography, the significant precedence for prosecuting juveniles for crimes in which they have victimized themselves, and the purpose of juvenile court. Recognizing the complexity of this issue, this article proposes parameters for implementing a protocol to address such criminal, yet complex, behavior.
Sanctity of Life
Terminal Ambiguity: Law, Ethics and Policy in the Assisted Dying Debate
Ruth C. Stern and J. Herbie DiFonzo, 17 B.U. Pub. Int. L.J. 99 (2007)
This essay examines, and rejects, several closely-held notions in the discourse on assisted suicide and euthanasia. The concept of a legal right to end one’s life must yield to the pragmatic assessment of medical factors affecting the dying and the treatment options available to them. The legal entitlement framework has fostered a misperception that we must choose between assisted dying and a drawn-out, painful demise. Rather, this essay posits that end-of-life decisions–including, but not limited to, assisted suicide and euthanasia–properly belong within the matrix of competent, compassionate medical care. Patients, aided by physicians and loved ones, can be helped to make informed medical choices based on a range of treatment and life alternatives. In presenting these options, we outline the central legal and ethical arguments for and against assisted dying, elaborating on the merits and inconsistencies of each position.