Monday, July 06, 2015
Sunday, July 05, 2015
Vallier on liberal politics and public faith
One of the smartest young philosophers working in the area of law and religion is Kevin Vallier, who has just published his first book, Liberal Politics and Public Faith: Beyond Separation. It is an important and distinctive argument,with which even those who disagree will need to engage. Here is the jacket description:
Friday, July 03, 2015
The Remarkable Disappearance of State Justifications in Obergefell
Over at the Slate "Breakfast Table," I have a post describing the handful of biggest surprises in what was in fact (or so I argue) a Supreme Court Term in which the Justices generally acted according to predictable form.
Thursday, July 02, 2015
Dignity and same-sex marriage
What is a Legislature?
Wednesday, July 01, 2015
A Telling Substitution
Gerard N. Magliocca
I want to make a small observation about the Court's opinion on same-sex marriage. In West Virginia State Board of Education v. Barnette, Justice Robert H. Jackson made this famous observation about the Bill of Rights:
Obergefell on Conscience
Douglas NeJaime & Reva Siegel
Fragile Democracies: An Interview with Sam Issacharoff
Fragile Democracies: Contested Power in the Era of Constitutional Courts (Cambridge University Press, 2015).
Tuesday, June 30, 2015
Hobby Lobby’s Bitter Anniversary
The Kennedy Problem
Over at Concurring Opinions Ronald Collins asks why none of the four "liberal" justices wrote a separate concurring opinion in Obergefell and he notes the same phenomenon in Romer, Lawrence, and Windsor. I have a theory. My guess is that there has long been in place an agreement among the "liberal" justices not to do anything that might upset Kennedy in hot-button cases in which he is in their camp and has taken the majority opinion for himself. A concurring opinion that tilts further left than Kennedy's own opinion risks his rethinking his vote: thus it is best not to write anything at all. (O'Connor in Lawrence didn't have this problem: she concurred in that case on more narrow grounds.) I suspect the agreement among the "liberal" justices extends also to feedback on the draft opinions Kennedy circulates. (And it's quite possible Kennedy's law clerks are in on the game.) My guess is that by agreement such feedback is limited to "Good job, Tony! The only thing I have is that it looks like there is a typo at page 27, line 11." Again, anything more serious or substantive would risk losing the Kennedy vote. Obergefell is just the latest bit of evidence for my theory. It is impossible for me to believe that the amateurish, clunking majority opinion is the product of significant back and forth among five seasoned jurists (and their clerks). Justice Ginsburg is among the best writers in the history of the Court; Justice Kagan, the former Dean of Harvard Law School, knows dreadful prose and half-baked arguments when she sees them. Could these two justices possibly have read without cringing such sentences as "[t]he lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life" and "marriage responds to the universal fear that a lonely person might call out only to find no one there?" Knowing one's own limits is a virtue. It is a real shame that Kennedy didn't have the good judgment to assign the majority opinion in Obergefell to a colleague who could produce a tight, well-reasoned opinion informed by critical feedback.
Gay rights, religious accommodations, and antidiscrimination law
A symposium on "Religious Accommodations in the Age of Civil Rights" has just been published in the Southern California Law Review. My contribution,"Gay Rights, Religious Accommodations, and the Purposes of Antidiscrimination Law," is available here. This is the abstract:
Monday, June 29, 2015
Obergefell and the End of Religious Reasons for Lawmaking
Micah Schwartzman, Richard Schragger, and Nelson Tebbe
A Note to Append to Justice Scalia's Dissent in Arizona Redistricting