Daily Law Review Watch - March 11th
Religious Freedom
Unconstitutional Entanglements: The Religious Right, The Federal Government, and Abstinence Education in the Schools
Naomi Rivkind Shatz, 19 Yale J.L. & Feminism 495 (2008)
The continuing debate over sex education is currently being played out in school districts, state legislatures, and the federal government. Critics of abstinence education argue that it is ineffective in preventing teens from having sex, that it teaches students inaccurate scientific and medical information, and that it promotes homophobia and harmful gender stereotypes. In addition, other critics have argued that some abstinence-only programs violate the Establishment Clause of the First Amendment. This Comment will demonstrate the broader constitutional problem with abstinence education: it is not merely, as previous scholars and litigators have argued, that certain curricula contain overtly religious teachings or that religious groups use abstinence funds to proselytize to students. Rather, the ideological nature of abstinence-only education pervades even the federal statute defining funding eligibility. The federal definition of abstinence, which all states and groups who receive funding must teach, offers a unique view of “permissible” sex that is, itself, a religious view of human sexuality. Unlike authors who have argued that the religious terminology of certain curricula may violate the Establishment Clause, I argue that the very foundation of abstinence-only policy is unconstitutional, and that it can only be remedied by a complete overhaul of the federal abstinence-only education system.
Part I of this Comment gives an overview of the history of Establishment Clause jurisprudence and the cases that have challenged school curricula and abstinence education as violating the Establishment Clause. Part II offers a description of abstinence-only education, the current federal laws funding it, and empirical studies of its effectiveness. Part III analyzes the constitutionality of abstinence-only education, focusing on two factors that have been largely ignored in challenges to abstinence-only education under the Establishment Clause: the lack of a secular purpose to these programs, and the religious nature of the very message of abstinence itself.
Changing the Rules of Establishment Clause Litigation: An Alternative to the Public Expression of Religion Act
61 Vand. L. Rev. 261, (2008)
Like PERA, this Note recognizes that plaintiffs have an inordinate amount of leverage when they bring an Establishment Clause claim. Part II of this Note examines the two main factors contributing to this leverage. The first factor is the unsettled state of Establishment Clause jurisprudence. Part II first introduces the debate concerning the original purpose of the Establishment Clause. It then discusses the many tests the Supreme Court has applied in Establishment Clause cases and examines two recent cases that scholars cite as exemplifying the muddled state of Establishment Clause jurisprudence, Van Orden v. Perry and McCreary County v. ACLU. Part II then examines the second factor, 42 U.S.C. §§ 1983 and 1988, the federal fee-shifting statutes that enable successful plaintiffs in Establishment Clause cases to receive attorneys’ fees from the defendant government.
Part III of this Note introduces PERA. It discusses the background of the bill, presents its provisions in detail, and examines the debates surrounding the bill. Part IV critically appraises PERA and the solution it proposes. Although this Note concludes that PERA is fundamentally flawed, it also asserts that a legitimate aim can and should be extracted from the bill. This aim is to protect a government’s ability to defend the acknowledgment of its religious heritage. Part IV demonstrates that the Supreme Court’s Establishment Clause jurisprudence allows for the acknowledgment of religious heritage and explains why this acknowledgment needs protection. Part IV concludes by examining why PERA’s approach to this problem is flawed.
Finally, Part V proposes an alternative to PERA that would make it easier for governments to defend acknowledgments of their religious heritage without reducing the incentives for governments to avoid behavior that clearly violates the Establishment Clause. This alternative exempts governments from having to pay a plaintiff’s attorneys’ fees in Establishment Clause cases unless the challenged conduct violates clearly established law. This “clearly established law” standard is similar to the standard used in the Supreme Court’s qualified immunity jurisprudence, which this part outlines. Part V concludes by examining how courts could apply this standard in Establishment Clause cases.
Sanctity of Life
The Gendered Politics of Embryonic Stem Cell Research in the USA and Canada: An American Overlap and Canadian Disconnect
Maneesha Deckha, 16 Med. L. Rev. 52 (2008)
What about Canada? The Assisted Human Reproduction Act (AHRA) came into force on 28 March 2004, and, among other things, legislated on the topic of embryonic research. Have abortion politics affected (infected?) the issue in Canada as they appear to have in the USA? Although the increasing erosion of abortion rights in the USA correlates with the conservative position adopted by the Americans on ESCR, there is a disconnect between Canadian abortion jurisprudence and politics and its stem cell research regime. I argue that unlike the USA that demonstrates a tight correlation between abortion laws and ESCR policy, the Canadian position on embryonic research is more conservative than its abortion jurisprudence. After explaining the science behind the ESCR in Section II, Section III of this paper elaborates upon the American stem cell debate and the related federal law to reveal the close extent to which abortion laws and politics infect the federal law. The American context is a useful point of comparison to assess the contrary situation in Canada, which is the topic taken up in Section IV.
Prospective Abolition of Abortion: Abortion and the Constitution in 2047
Michael Stokes Paulsen, University of St. Thomas Journal of Law and Public Policy, Vol. 1, No. 57, 2007 Available at SSRN: http://ssrn.com/abstract=1104528
What if those who fashioned the Missouri Compromise of 1820, instead of drawing a geographical line in the sand, had drawn a ‘time’-line instead, prohibiting slavery at a then-seemingly-distant date of 1860, forty long years into the future? Might the events of 1860 (and thereafter) played out much differently? Is it possible slavery would have been abolished sooner, and without the loss of 600,000 lives in the Civil War?
This short essay asks the question of whether abortion might be prohibited by constitutional amendment, effective some forty years in the future. Might it be possible to reach consensus that an absolute, unrestricted right to abortion should not exist forever?
Unleashing or Harnessing Armies of Compassion?: Reflections on the Faith-Based Initiative
Linda C. McClain, Loyola University Chicago Law Journal, Vol. 39, p. 361, 2008 Available at SSRN: http://ssrn.com/abstract=1104646
A central tenet of President George W. Bush’s faith-based initiative, launched in 2001, is that the federal government, by entering into more partnerships with religious and community organizations, should put the power of faith to work to solve pressing social problems. Proponents of the initiative have invoked the eighteenth-century French writer Alexis de Tocqueville’s famous observations about the American propensity to join various voluntary associations as well as the Catholic principle of subsidiarity. Seven years into the faith-based initiative, challenging questions remain about what, exactly, it means to put faith to work. Such questions deserve attention, given the institutionalization of the initiative at the federal and state level and given that the unfolding presidential campaign for the 2008 election reveals varying degrees of support by both the Republican and the Democratic candidates for continuing the initiative. Questions concerning the expanded use of partnerships with religious organizations by the government are, in a sense, questions about separation of powers - not the conventional tripartite division within government of executive, judiciary, and legislature, but the relationship between governmental power and that of religious organizations. The faith-based initiative invites consideration of the place of religious institutions in society, especially as proponents of the initiative seek to enlist them, as partners with government, to shore up other parts of civil society, such as the family, because of their unique capacity to do so.
This article reflects on the faith-based initiative by using the contrasting images of unleashing and harnessing the power of faith. Unleashing armies of compassion appeals to government setting free the unique power of faith so that, unfettered, faith-based groups may proceed in their own way, so long as they get the results that government wants. By contrast, harnessing connotes utilizing, in the sense of yoking or attaching some mechanism to steer or control. The tension between these images reflects ongoing disagreement about the proper place and scope of such partnerships in our constitutional democracy. This Article contends that unleashing and harnessing both have a role to play in public-private partnerships between government and religious groups, but that the faith-based initiative, as championed and implemented to date, has emphasized unleashing at the expense of harnessing. These contrasting images help to get at whether faith matters primarily as motive, or as method or message. The article raises a series of questions about why faith matters in social-service provisions, drawing on some recent empirical studies. It also examines the place of public values and purposes in public-private partnerships and addresses subsidiarity and issues of institutional design.