Daily Archives: August 23, 2010

“High unemployment rates, hate crime, poverty, poor housing, lack of access to health care and discriminatory hiring practices are among the challenges the report identified as affecting blacks, Latinos, Muslims, South Asians, Native Americans and gays and lesbians in the United States.”

MercuryNews.com (Oakland Tribune): “Even as a federal appeals court prepares to weigh same-sex marriage as an issue of man’s law, a Bay Area minister is about to face trial for performing such weddings in violation of what her church says is God’s law. After 36 years as a Presbyterian minister, the Rev. Jane Adams Spahr, 68, of San Francisco, could face censure, a suspension from pastoral duties, or — unlikely, but possible — even revocation of her ordination after proceedings starting Tuesday at the Presbytery of the Redwoods in Napa.”

Catholic News Agency: “The Conference of Catholic Bishops of Brazil expressed its desire last week that the presidential debate set for today will inform the public, allowing citizens to vote responsibly.”

Family Research Council: “Family Research Council President Tony Perkins applauded today’s preliminary injunction that for now stops taxpayer funded embryonic stem cell research. Judge Royce Lamberth noted that the imposition of an injunction required that those challenging the government’s funding demonstrate a substantial likelihood of success on the merits for their arguments. Apparently, they succeeded.” For more information see this post: U.S. district court rules against federal stem cell funding policy

“A federal court Monday issued an order that prevents the Obama administration from carrying out its embryonic stem cell research policy while a lawsuit against it proceeds in court. The court concluded that the policy, which allows such research, is likely to be in violation of a federal law known as the “Dickey/Wicker Amendment” that prohibits federal funds from being used on research that involves the destruction of human embryos.”

ACLU: “The U.S. government today submitted its first-ever Universal Periodic Review (UPR) report to the U.N. Human Rights Council (HRC). As part of the UPR process, nations report to the HRC on their efforts to strengthen human rights commitments and comply with international human rights standards.”

Washington Post / Virginia Politics: “Virginia Attorney General Ken Cuccinelli II, who is anti-abortion, has issued a legal opinion allowing greater restrictions on abortion clinics, drawing swift criticism from providers who say it could cause some of the facilities to close.” The opinion is here: PDF / Google Viewer (Va. AG Opinion #10-067)

LifeSiteNews: “The independent, non-governmental polling and sociological research agency, Levada Analytical Center, reported that a recent survey of 1,600 Russians found 41 percent of those polled support introducing nationwide restrictions on abortion.”

Liberty Counsel: “Tomorrow Liberty Counsel will meet the Collier County, Florida, School Board in the Fort Myers federal courthouse. This lawsuit challenges the board’s recent ban on Bibles during Religious Freedom Day on school campuses in Collier County, Florida.”

Human Events: “‘We tend to forget, in the West, that the United States has more Muslim blood on its hands than al-Qaeda has on its hands of innocent non Muslims,’ Feisal Abdul Rauf said at a 2005 lecture sponsored by the University of South Australia.”

Lambda Legal: “Today, Lambda Legal announced the settlement of its lawsuit on behalf of a lesbian couple against Countrywide Financial in the Southern District of New York federal court after the Federal National Mortgage Association, known as Fannie Mae, announced policy changes allowing homeowners to add their domestic partners to their home’s deed without penalty.”

The complaint alleges: “[T]he State of Wyoming denies its gay and lesbian residents access to marriage by providing in its state law that only a civil marriage ‘between a man and woman’ is ‘valid or recognized in Wyoming.’”

“A Ninth Circuit panel issued three very interesting opinions on this subject today . . . in Spencer v. World Vision, Inc. . . .

Maureen Downey writing at the Atlanta Journal-Constitution / Get Schooled: “The AJC has [quite a story] about the new $578 million public school complex opening next month in LA. When schools are cutting days and teachers, this seems a terrible moment to unveil an architectural wonder of a campus. Yes, I think children deserve to learn in comfortable settings, although I don’t know of any research that shows kids learn more in so-called ‘state-of-the art’ classrooms. The more important investment to me would be ‘state-of-the art’ teachers.”

Christian Post: “The new principal of International Christian College says the end of Christendom is the biggest challenge facing the church in the West. Richard Tiplady . . . spoke of the need to re-think church in a post-Christendom and increasingly plural context. ‘The biggest challenge we have to face in the West in our mission is to accept that Christendom is over.’”

Washington Times: “The Military Culture Coalition hopes the survey by a Republican pollster will help persuade moderate to conservative Democrats to oppose President Obama’s campaign promise to lift the ban as final votes in Congress loom. The question is, is the poll too late? The House as well as the Senate Armed Services Committee have passed repeal legislation. That leaves the full Senate vote, a House-Senate conference bill, and then Mr. Obama’s signature to end the 1993 law that states that open homosexuality is a threat to combat readiness.”

Christian Post: “A U.K.-based Christian human rights group is urging Europe’s foreign ministers to add their support to a U.N. inquiry into crimes against humanity committed in North Korea. Christian Solidarity Worldwide has written to foreign ministers of all EU member states asking them to support the establishment of a U.N. Commission of Inquiry into the secluded communist country when the European Union introduces its annual resolution on the North Korean human rights situation to the U.N. General Assembly in October.”

Associated Press: “A member of Kansas’ Westboro Baptist Church has agreed to drop federal lawsuits challenging the constitutionality of a law that made it illegal to defile or deface the U.S. flag.”

ADF’s Weekly Update is on YouTube here: http://www.youtube.com/watch?v=oMIhmMjXkZs

American Constitution Society Convention panel: “On June 18, at the 2010 ACS National Convention, a panel of experts discussed ‘Marriage Equality: An Update and Preview.’ The panel featured: Christopher Hayes, Washington, D.C. Editor, The Nation, Moderator; Mary Bonauto, Civil Rights Project Director, Gay & Lesbian Advocates & Defenders; Brian W. Raum, Senior Counsel, Marriage Litigation Center, Alliance Defense Fund; Therese M. Stewart, Chief Deputy City Attorney, City of San Francisco; Camilla B. Taylor, Senior Staff Attorney, Lambda Legal.”

ACLJ: “As you also know, we represent Tim Brown, a New York City firefighter who survived the 9-11 terrorist attacks, and filed a lawsuit on his behalf against the NYC Landmarks Preservation Commission (LPC) in New York State Supreme Court in New York on August 4th – the day after the LPC denied the proposed mosque site landmark status. In the weeks ahead, our suit will be amended to name the site’s owners, as well as the New York City Department of Buildings, Con Edison, and the New York State Public Service Commission. With every new question that surfaces, it is increasingly clear this mosque must not be built at this site . . . The revelation that a public utility owns part of the site raises a whole host of new legal questions and requires the involvement of a new public agency and possibly additional public hearings . . . ”

Associated Press: “A proposal to build a 145,000-square-foot monastery and coffee-roasting barn on a remote Wyoming ranch drew so many opponents and supporters to a public hearing that a second session had to be scheduled.”

“A U.S. district court issued a preliminary injunction on Monday stopping federal funding of human embryonic stem cell research, saying it involves the destruction of human embryos.”

Associated Press: “The ACLU of Virginia is asking the U.S. Supreme Court to review a federal appeals court ruling that bans alcohol advertising in Virginia’s college newspapers.” | Petition for a write of certiorari | ACLU press release

Findlaw (AP): “The nude women on the DVD cover in a Baghdad street stall say it all: Change, whether you like it or not, is afoot in Iraq . . . The porn, in an odd way, has told the story of Iraq’s security and political situation since Saddam Hussein’s ouster in 2003. It emerged in the anything-goes atmosphere that erupted in the vacuum immediately following the U.S. invasion – then went back into hiding amid the anarchy when armed militias roamed the capital through 2008, targeting those they saw as immoral . . . The openness with which porn is sold in some of Baghdad’s streets is almost unheard of in the Arab world.”

Michael C. Dorf writing at FindLaw: “In this column, I share four lessons that I have learned in nearly two decades of law teaching. The Most Important Skill You Can Acquire: Distinguishing Hard From Easy Questions . . . The Right Kind of Confusion . . . Don’t Just Read; Write and Discuss . . . Have Fun.”

SCOTUSblog: “The Supreme Court on Monday released the schedule of oral arguments to be heard in the two-week session that begins on Monday, Nov. 1 . . . Tues., Nov. 2: . . . Sossamon v. Texas (08-1438) — immunity of state officials to money damage lawsuits for violating prison inmates’ religious freedom (J. Kagan recused) . . . Wed., Nov. 3: . . . Arizona Christian School Tuition Organization v. Winn (09-987) and Garriott v. Winn (09-991) — constitutionality of state tuition tax credit for private school tuition; also, issue on standing to sue (cases consolidated for 1 hour of argument)”

At Townhall, W. Thomas Smith, Jr. interviews Retired U.S. Army Lt. Gen. William G. ‘Jerry’ Boykin: “Boykin: I am so disappointed [about the response to the "Ground Zero mosque"]. I’m also angry that there are those who are so uninformed and intimidated by these people that they are willing to allow this. We need to remember that Islam is not a religion, but a totalitarian way of life with a religious component. Yet we protect the entire thing under the first amendment. Stop and think about it. Islam is a legal system, a political system, a financial system, a dress code, a moral code, and a social structure, yet we protect it as a first amendment issue. That’s our fundamental mistake. The second thing is, people have no understanding of Islam’s history or its basic tenets.”

Harry R. Jackson, Jr. writing at Townhall: “Today we are gathering in front of the greatest symbol of American power – the Capitol. We come here today to express our confidence in the institution of marriage. More specifically, we have also come to say to the residents of Washington, DC; our two houses of Congress, the Supreme Court, and the President of these great United States that marriage (in its traditional form) is one of the nation’s richest treasures. At the same time, we have come to voice extreme displeasure with the fact that there is a concerted effort by same-sex marriage advocates to steal the people’s right to vote on this issue.”

Catholic News Agency: “Responding to an American Civil Liberties Union (ACLU) request for a government investigation into and action against Catholic hospitals which refuse to provide abortions, the Becket Fund for Religious Liberty has said it will offer pro bono legal help to any hospital or individual threatened for refusing to perform an abortion.”

9 News: “Eric Smith says he’s always been fascinated by the Gadsden flag. On a yellow background, the flag features a rattlesnake poised to strike and the statement: ‘Don’t Tread on Me; . . . Last week, he received a letter from the East York Villas Homeowner’s Association stating: ‘Tea Party flags are not permitted. Please Remove.’ The letter threatened a fine of up to $100 per month if the flag is not removed.”

Los Angeles Times: “Many Muslims abroad are miffed by the stateside debate, largely conducted by non-Muslims, that has grown so loud as to become a topic of discussion on talk shows and newspapers from Bali to Bahrain, from Baghdad to Berlin. The proposed Cordoba House has become a symbol of America’s fraught relations with the world’s 1.5 billion Muslims.”

Rasmussen: “A new Rasmussen Reports national telephone survey finds that 85% of U.S. voters say they are now following news stories about the mosque planned near Ground Zero. That’s a 34-point jump from a month ago when only 51% said they were following the story . . . Now 62% oppose the building of a mosque near where the World Trade Center stood in Lower Manhattan, compared to 54% in the previous survey. Twenty-five percent (25%) favor allowing the mosque to go ahead, and 13% more are not sure.”

Rasmussen: “Vaccinations are common requirements for children all over the country in order to attend public school and college. However, half of American adults (52%) say they are concerned about the safety of vaccinations for children, including 27% who are Very Concerned.”

Miami Herald: “The U.S. Department of Justice has filed a complaint in South Florida alleging that an anti-abortion protester violated federal law prohibiting the blockage of clinic entrances.” | Complaint in Holder v. Pine, 9:10-cv-80971-KLR

Doug Giles writing at Townhall: “Given Islam’s enslavement of women and the Sharia erection of the Cordoba Initiative’s chief con man, Abdul Rauf, you’d think N.O.W. and their ilk would now be raising more Cain about this Ground Zero Mosque than they are about Sarah Palin . . . Nope, the fems’ fixation remains on Palin. Palin is the threat. Palin is the She Devil. Palin is the one who gets the nasty jabs—and not Islam and the potential spread of Sharia from sea to shining sea.”

Houston Chronicle: “Over the past five years, the number of Texans opting to home school has grown about 20 percent to an estimated 120,000 families and 300,000 children, according to the Texas Home School Coalition. ‘The economy does have an impact on folks,’ said Tim Lambert, president of the coalition. ‘We saw families last year who had their kids in a private school, times were tough and they couldn’t afford to do that anymore, but they didn’t want to put them in a public school.’”

LifeSiteNews: “Thursday, President Obama announced his intent to recess appoint four nominees to various administration posts; Richard Sorian, one of the appointees, is openly homosexual. Sorian, a former senior advisor at the U.S. Department of Health and Human Services (HHS), will be the Assistant Secretary for Public Affairs at the HHS. He has previously served in the Clinton administration and worked on AIDS-related issues . . . According to the homosexualist Gay and Lesbian Leadership Institute (GLLI), President Obama has appointed a record number of homosexual individuals to administration positions.”

Dick Morris and Eileen McGann writing at Townhall: “The proposed mosque near to ground zero is not really a religious institution. It would be — as many mosques throughout the nation are — a terrorist recruitment, indoctrination and training center. It is not the worship of Islam that is the problem. It is the efforts to advance Sharia law, with its requirement of jihad and violence, that is the nub of the issue.”

LifeNews: “A national pro-life student group is seeking a federal or state investigation into a situation it exposed about how students who attend public universities in North Carolina may have been forced to pay for abortions under the required health insurance plan.” | For more information see this ADF Alliance Alert compound tag: http://www.alliancealert.org/tag/state-north-carolina+topic-education+topic-abortion/

Associated Press: “Gay rights activists and a group of Roman Catholics in Mexico have yelled insults at each other during dueling demonstrations over same-sex marriage.”

Associated Press: “Hundreds of impassioned demonstrators – all waving American flags, but separated into two groups by police – descended on the site of the proposed mosque near ground zero, with opponents chanting, ‘No mosque, no way!’ and supporters shouting, ‘We say no to racist fear!’”

Religion Clause: “Talk To Action reported Thursday on a series of Commanding General’s Spiritual Fitness Concerts at Fort Eustice and Fort Lee, both Army bases in Virginia. Supposedly attendance is voluntary, but soldiers feel pressured to attend.”

Joshua Kors writing at The Huffington Post: “The Rapture is coming, says Pastor Fred Phelps, and the country is drowning in the sin of homosexuality. For 55 years, Phelps has led the Westboro Baptist Church of Topeka, Kansas, which gained notoriety in recent years for picketing the funerals of soldiers who died in Iraq and Afghanistan . . . Phelps spoke with me about hell, homosexuality, the Supreme Court and the mission of the Westboro Church.”

New York Times: “The punishment is rooted in Islamic legal traditions, known as hadiths, that designate it as the penalty for adultery. While the penalty may seem savage to Western eyes, scholars say it is consistent with the values of Arabian society at the time of Muhammad, Islam’s founding prophet . . . The move to implement severe penalties like stoning — known collectively as ‘hud’ after the Arabic word for limits — is ultimately a matter of policy, not religious orthodoxy. Even under the Ottoman empire, when secular and religious authority were combined, stoning and other penalties were viewed at times as crude remnants of the past . . . Iranian leaders are clearly uneasy about stoning, which has helped to darken their country’s reputation . . . In Afghanistan, by contrast, stoning seems to be on the rise, despite its unpopularity.”

Santa Rosa’s Press Gazette: “The Federal lawsuit brought by Pastor Larry Webb on behalf of the First Apostolic Church seeks to prohibit Sheriff Wendell Hall of Santa Rosa County, from barring the Church’s faith based alcohol substance abuse program from the Santa Rosa County Jail.” | Via Religion Clause.

The National: “Last month, the emerging central Asian oil giant dropped plans to issue a US$750 million (Dh2.75 billion) eurobond, while proceeding with plans to issue a $500m Islamic bond – its first sovereign issuance in a decade.”

Washington Post: “On May 3, the court decreed that as of the next day, visitors would no longer be allowed to ascend the 44 marble steps, pass under the grand promise chiseled on the pediment — Equal Justice Under Law — and enter through the court’s massive, ornamental bronze doors . . . Rep. Anna Eshoo (D-Calif.) has joined the ranks of dissenters, but perhaps her dissent will carry more weight. Late last month, she introduced a resolution calling on the Supreme Court to change its mind and reopen the iconic doors. She has more than 30 co-sponsors. She is seeking more allies and says she will reintroduce the resolution in the next Congress if need be.”

The Washington Post: “The cross, a version of which has sat atop Sunrise Rock since World War I veterans erected it more than 75 years ago as a memorial, disappeared May 9. Nothing but bolts remained where the 6 1/2 -foot cross, made of welded white pipes, once stood . . . All of this raises the legal question: If there’s no cross, is there still a case? . . . “You would hope some vandal could not come in and alter the direction of a case that raises important constitutional issues,” said Hiram Sasser, a lawyer at Liberty Institute.”

Beaufort County Now: “As [Douglas Napier], an attorney with the Alliance Defense Fund who defended Proposition 8, commented: ‘The whole nation is watching, and the whole nation should be quaking to think that a single judge sitting in California can reverse the will of 7 million voters.’”

ADF Attorney Roger Kiska writing at The Christian Post / Advancing Religious Liberty: “A couple months ago in June, attorneys with the Alliance Defense Fund and the Home School Legal Defense Association filed Johansson v. Sweden with the European Court of Human Rights so that that the Swedish government will return a seven-year-old homeschooled boy to his parents. Dominic Johansson was forcibly seized by Swedish authorities from his parents in June 2009 after they had boarded a plane in their move to India. The reason? He was homeschooled . . . So, could Europe’s degree of intolerance and crackdown on homeschooling reach American shores anytime soon? It all depends on how vigilant we are in opposing decisions like the one in New Hampshire—and it’s precisely why ADF is fighting to protect parental rights in that case and abroad so that a very nasty cancer is not allowed to grow.

OneNewsNow: “The Alliance Defense Fund (ADF) has received assurance from the Alabama Community College System that it will no longer make demands on Bethany Divinity College and Seminary to cease offering its associate and bachelor programs in religion, ministry, theological studies, and Bible. ‘The Alabama Board of Education was requiring a purely religious school to become licensed with the state . . . ” explains ADF’s [Daniel Blomberg], the attorney handling the case.”

New York Daily News: Mayor Bloomberg was eloquent in his defense of religious freedom when he spoke up for the mosque near the World Trade Center site. We wish his fervor extended to the small church congregations that only want to rent vacant public school auditoriums in New York City for Sunday services . . . The Bronx Household of Faith got its start in 1971, in a poor neighborhood not far from Yankee Stadium. Its dogged attorney, [Jordan Lorence] of the Alliance Defense Fund, has represented the church since 1995, and states the purpose of the congregation this way: ‘to demonstrate how the Gospel of Christ could transform the community – reducing crime and drug use, rebuilding families and ultimately benefiting the entire neighborhood’ . . . some 60 congregations have taken root in city school auditoriums across the city, their future anything but secure.”

The Christian Century: “‘At bottom, our strategy here is, and has always been, that in this country we should respect the rights of the people when they do what they have always done: vote based on their religious and moral convictions,’ [ADF Attorney Jim Campbell] said. Abolitionists, antiabortion activists and civil rights activists have all been motivated by personal faith, Campbell argued. ‘To be blunt, we felt [Walker's decision] was an all-out attack on religion.’”

WJBK Fox 2: “A Federal appeals court says large crosses along roads in memory of Utah state troopers killed in the line of duty are unconstitutional . . . The Alliance Defense Fund, a coalition of Christian attorneys released a statement shortly after the decision, saying, ‘One Atheist group’s agenda shouldn’t diminish the sacrifice made by Utah Highway Patrol Officers and their families. The families of the fallen should be allowed to honor their loved ones as they wish.’”

Timothy Tracey, Naples/Associate Professor of Law, writing at the Naples Daily News: “Yet for all her furor over the military’s use of Harvard’s Office of Career Services, Kagan never overturned the law school’s decision to allow the Christian Legal Society to advertise religiously-restricted jobs. Both the military and the society are unquestionably discriminatory (albeit on different grounds). Kagan ousted the military but kept the Christian Legal Society . . .  Tracey began his legal career working in the field of commercial litigation and bankruptcy. He then moved on to work for the Center for Law and Religious Freedom, where he worked on First Amendment religious liberty cases. He then worked for the Alliance Defense Fund in Washington. His course offerings include Torts I and Torts II, as well as Professional Responsibility. Professor Tracey holds a B.A. in Christian Thought from Grove City College and a J.D. from Wake Forest School of Law.

Milwaukee Journal Sentinel: “Supporters of Wisconsin’s ban on same-sex marriage and civil unions are seeking for the second time to have the state’s domestic partnership registry declared unconstitutional . . . The plaintiffs, who are being represented by the Alliance Defense Fund, argue that they’re harmed by the registry because it costs taxpayer money to administer.”

Orin Kerr writing at The Volokh Conspiracy: “I just wanted to remind lawprof readers that several sections of the AALS have a Call for Papers out for its January 2011 Meeting in San Francisco.”

Eugene Volokh writing at The Volokh Conspiracy: “So 46% of Americans believe Islam is more likely than other faiths to encourage violence against nonbelievers — which, as best I can tell, is an accurate belief. I don’t think most Muslims support violence against nonbelievers. But it seems to me that Islam as we see it in the world today is more likely than most other major faiths to encourage violence against nonbelievers, at least if we focus on encouragement that actually makes the violence materially likely (which is the sort of encouragement that I suspect most people are worried about). This observation is hardly evidence of a ‘phobia’ in the sense of ‘irrational fear’ or ‘irrational prejudice’ (it’s quite rational), or even in the sense of ‘hatred or hostility towards the group’ (which is how I think ‘-phobia’ tends to often be used in terms such as ‘Islamophobia’ and ‘homophobia’ are used).”

Race and Education at a Crossroads: How Parents Involved in Community Schools v. Seattle School District No. 1 and Wisconsin v. Yoder Shed Light on the Potential Conflict Between the Black Homeschooling Movement and K-12 Affirmative Action Programs
Consuelo Valenzuela Lickstein, 13 J. Gender Race & Just. 835 (2010)

“This Note analyzes the constitutional issues involved in the hypothetical described above. Part II.A discusses some of the reasons why black parents elect to homeschool their children. Parts II.B and II.C review the case law addressing a parent’s fundamental right to direct his or her child’s upbringing and diversity as a compelling state interest. Parts III.A and III.B set forth some of the arguments that the black parents who seek to homeschool their children and school district would make before the Supreme Court. Part III.C discusses how the Court is likely to analyze the arguments set forth by each party and predicts that the Court will rule in favor of the school district.”

Patrick Macklem, Guarding the Perimeter: Militant Democracy and Religious Freedom in Europe (August 17, 2010). Available at SSRN: http://ssrn.com/abstract=1660649

“This essay tracks the concept of militant democracy in the jurisprudence of the European Court of Human Rights, where it has migrated from a principle that authorizes a state to act in a militant manner to preserve democratic processes to one that entitles a state to establish perimeters and guard against threats of a different kind. Militant democracy now authorizes a state to assume a militant stance toward the exercise of religious freedom that threatens substantive conceptions of democracy instantiated in its constitutional order. The essay identifies four substantive conceptions of democracy – liberal democracy, secular democracy, republican democracy, and conservative democracy – to which militant democracy has migrated in recent years. It argues that militant democracy’s migration signals an ominous shift in the way in which the European Court of Human Rights comprehends the relationship between religion and state power.”

South Carolina’s Sexual Conduct Laws After Lawrence v. Texas
Marghretta Adeline Hagood, 61 S.C. L. Rev. 799 (2010)

“In Lawrence, the Supreme Court found that a Texas law criminalizing consensual homosexual sodomy violated the right to privacy, which is a subset of substantive due process. This Note will show how, in the wake of the Lawrence decision, South Carolina’s criminal laws proscribing private consensual adult sexual activity are unconstitutional because they intrude into a constitutionally protected zone of individual liberty.”

Geoffrey P. Miller, Consent of the Governed in the Hebrew Bible (August 20, 2010). NYU School of Law, Public Law Research Paper No. 10-56. Available at SSRN: http://ssrn.com/abstract=1662575

“This article analyzes the concept of consent of the governed in the Hebrew Bible with special reference to the covenant on Mount Sinai. The author recognizes consent as a source of legitimate authority and deals in a sophisticated way with problems that have troubled later consent theories: whether parties must actually consent; the impact of a social compact on future generations; the information set needed for informed consent; the problem of framing the issue; the need for unanimity; and the question of whether the social compact is conditional or absolute. A remarkable feature of the Sinai episode is its similarity to the original position in Rawls’ Theory of Justice: the Israelites in the wilderness at Sinai, like Rawlsian subjects behind the veil of ignorance, make fundamental constitutional choices while shielded from knowledge as to their future positions or endowments.”

Mary Jean Dolan, Government Identity Speech and Religion: Establishment Clause Limits after Summum (August 1, 2010). William & Mary Bill of Rights, Vol. 19, 2010. Available at SSRN: http://ssrn.com/abstract=1660795

“This Article offers in-depth analysis of the opinions in Pleasant Grove v. Summum. Summum is a significant case because it expands ‘government speech’ to cover broad, thematic government identity messages in the form of donated monuments, including the much-litigated Eagles-donated Ten Commandments. The Article explores the fine distinctions between the new ‘government speech doctrine’ – a defense in Free Speech Clause cases that allows government to express its own viewpoint and to reject alternative views – and ‘government speech’ analyzed under the Establishment Clause, which prohibits government from expressing a viewpoint on religion, and from favoring some religions over others. The Court’s decision, to characterize all public monuments as expressing ‘government-controlled’ messages which reflect municipal identity, should impact the Establishment Clause calculus. Using social meaning theory, I show how the Culture Wars have transformed the message of governmental religious displays, and how Summum has eliminated the donor’s ambiguating role, which played a part in Justice Breyer’s Van Orden concurrence.”

Maternal and Joint Custody Presumptions for Unmarried Parents: Constitutional and Policy Considerations in Massachusetts and Beyond
Bernardo Cuadra, 32 W. New Eng. L. Rev. 599 (2010)

“This Note examines the statutory custodial presumptions that distinguish the unmarried father from the unmarried mother, as well as from divorcing parents, with a focus on Massachusetts legal custody awards. Given the gender-based distinction built into these statutes and the distinctions drawn between the putative father and the divorcing father, this Note first asks if these statutes are subject to constitutional challenge. Second, this Note questions if these statutes reflect sound policy decisions by evaluating the benefits of joint custody arrangements. Third, this Note focuses on the Massachusetts custody statute to determine if it can be more narrowly crafted to protect the interests of willing and involved unwed fathers, especially those similarly situated to their child’s unwed mother. This Note ultimately argues that the Massachusetts statutes should be amended to ensure equal treatment of unmarried fathers in custody disputes.”

Peter G. Danchin, Defaming Muhammad: Dignity, Harm, and Incitement to Religious Hatred (August 18, 2010). Duke Forum for Law & Social Change, Vol. 2, pp. 5-38, 2010; University of Maryland Legal Studies Research Paper No. 2010-34. Available at SSRN: http://ssrn.com/abstract=1661764

“The Danish cartoons controversy has generated a torrent of commentary seeking to define and defend competing conceptions of the normative implications of the affair. This Article addresses the question of how liberal democratic states ought to respond to visible manifestations of hatred, especially speech that constitutes incitement to religious hatred. Taking the publication of the Danish cartoons as its point of departure, the Article interrogates the complex historical and normative relationship between free speech and freedom of religion in the liberal democratic order and discusses the two critical questions of whether the cartoons give rise to a genuine conflict of rights and how we should understand the notion of harm. An argument is advanced which intervenes in the extant literature by suggesting two dialectical moves, each premised on the distinction between internal and external reasons in philosophical argument, which have the capacity to unsettle the static secular-religious binary and purportedly incommensurable divide between liberal and Islamic values. The Article concludes by asking what a more robust, reflexive account of toleration might look like premised on notions of mutual justification and peaceful coexistence between rival ways of life and on recognition of the need to pay close attention to how legal restrictions seem from the internal point of view of a religious tradition.”