The Vatican Adjusts Its Child-Sex-Abuse Policies Again: A Reminder of How Statutes of Limitations Play a Nefarious Role
FindLaw columnist and Cardozo law professor Marci Hamilton comments on the Vatican's new policies regarding clergy-child-sex-abuse claims. The new policies would require an internal Church trial and call for compliance with civil reporting statutes. But Hamilton points out that internal trials will not protect children outside the church, who still may unknowingly face abusers; and that the Church has lobbied hard for clergy and confessional exceptions to the very civil reporting statutes it now says it will follow. Hamilton also takes issue with those who have opposed statute-of-limitations "windows" allowing a short period during which abuse claims that would have been time-barred are considered timely. Hamilton contends that the suggestion that plaintiffs will fabricate false claims, and that judges and juries won't know the difference, flies in the face of empirical realities.
CLS v. Martinez: The Supreme Court Rightly Holds that Public Law Schools Can Deny Affiliation and Funding to Religious Groups that Discriminate Against Gay Students
FindLaw columnist and Cardozo law professor Marci Hamilton comments on the Supreme Court's decision, issued this Monday, June 28th, in the case of CLS v. Martinez. As Hamilton explains, the case was brought by the Christian Legal Society (CLS) against Hastings, a public law school within the University of California system. CLS argued that Hastings infringed the constitutional rights of students who belonged to CLS's Hastings-based chapter when it denied the group law-school affiliation and the same funding other student groups enjoy. The reason the law school denied CLS the affiliation and funding was that CLS bars gay persons from being full members or leaders of CLS. Hamilton contends that the Court was correct to rule in favor of Hastings, and explains how the case fit into the Court's jurisprudence regarding public fora.
Reforming the Statute of Limitations for Child Sex Abuse: New York's Child Victims Act Shouldn't Be Political, But It Is
FindLaw columnist and Cardozo law professor Marci Hamilton comments on a bill that would have altered New York law on criminal and civil statutes of limitations for child sex abuse, but that was defeated in New York's Senate Codes Committee. As Hamilton explains, the bill would have extended criminal and civil statutes of limitations for child sex abuse by five years, and would have opened a year-long statute-of-limitations window, during which past victims could bring suit even if the applicable statute of limitations had previously expired. Hamilton sharply criticizes the legislators whose votes killed the bill. In particular, she faults them for going after the vandalism of church property aggressively, while at the same time opposing statute-of-limitations changes that would have aided in the prosecution of clergy child sex abuse.
A Reply to Von Keetch's Comments on Clergy Child Sex Abuse and the Church of Jesus Christ of Latter-day Saints
FindLaw columnist and Cardozo law professor Marci Hamilton continues the dialogue that she began with her April 15 piece on the Church of Jesus Christ of Latter-Day Saints's handling of claims of clergy child abuse, which argued that the LDS Church has much work to do in this area. After Hamilton's column appeared, FindLaw posted a responsive column by Von Keetch -- who has worked closely with the LDS Church on child abuse issues for twenty years, and has served as an ecclesiastical leader in the Church -- defending the LDS Church's positions and actions on this issue. Here, Hamilton responds to Keetch, explaining why -- in light of Keetch's response, the Church's lobbying efforts, and a number of emails from readers belonging to the Church -- she still believes the LDS Church must change its stance.
A Cartoonist Faces Backlash, in Sweden and the U.S., for Depicting Mohammed as a Dog: The First Amendment Lessons
FindLaw columnist and Cardozo law professor Marci Hamilton weighs in on the controversy over violent reactions to cartoons that depict Mohammed in ways that Muslim believers see as sacrilegious. In particular, she discusses a recent peaceful protest over the work of Swedish artist Lars Vilks, who had depicted Muhammad as a dog, which turned violent; and the plot against Vilks by a Pennsylvania woman, Colleen LaRose, who has since been nicknamed "Jihad Jane." Hamilton counsels that the United States -- and other countries -- must not back down from free-speech ideals, and must protect the writers and artists of controversial works. In support of her point, she cites a line of Supreme Court precedent that draws clear lines between permitted speech and illegal violence.
How Other Religious Organizations Echo the Roman Catholic Church's Rule Against Scandal, A Precept that Entrenches and Perpetuates Cycles of Child Sex Abuse: Orthodox Judaism, Part Two in a Two-Part Series
FindLaw columnist and Cardozo law professor Marci Hamilton continues her series on how the precepts of religious institutions other than the Catholic Church affect those institutions' ability to respond effectively to clergy child sex abuse. In this column, Hamilton focuses on institutions within the Orthodox Jewish community, commenting on the way in which particular principles may inhibit those within the community from reporting abuse to outside authorities. Hamilton praises the Orthodox community for seemingly moving quickly toward the conclusion that child victims' needs must trump religious institutions' preferences, but notes that the ultra-Orthodox Jewish community still has a very long way to go on the reporting issue.
More on the Supreme Court's CLS v. Martinez Case, Which Asks Whether a Public Law School Can Deny Funding and Recognition to a Student Christian Organization that Excludes Gay Students: A Response to Mr. Baylor
FindLaw columnist and Cardozo law professor Marci Hamilton continues a dialogue regarding the constitutional issues raised by the case of CLS v. Martinez -- which was argued before the Supreme Court this week. The case raises the issue whether a public law school can require that -- to gain official recognition and funding -- student groups essentially accept all comers. The group at issue was the Christian Legal Society (CLS), which sought to exclude gay law students from becoming officers or prayer leaders. Hamilton defended the law school's stance in an earlier column for this site; CLS attorney Gregory Baylor responded; and Hamilton now replies to the points Baylor raised, while also commenting on the oral argument before the Court.
How Other Religious Organizations Echo the Roman Catholic Church's Rule Against Scandal – A Precept that Entrenches and Perpetuates Cycles of Child Sex Abuse: Church of Jesus Christ of Latter-Day Saints, Part One in a Two-Part Series
In Part One in a two-part series of columns, FindLaw columnist and Cardozo law professor Marci Hamilton contends that children doubtless are being, and have been, sexually abused within large, mainstream religious organizations other than the Catholic Church, and yet their stories have never been told. Hamilton blames the situation on a combination of theological rules of secrecy and -- in some states -- secular legal rules that allow the protection, in litigation, of certain intra-church communications. In this column, Hamilton describes the internal reporting rules of the Church of Jesus Christ of Latter-Day Saints ("LDS") and the law governing reporting in Utah, where LDS is headquartered, and elsewhere.
Reflections, and an Update, on Justice Sandra Day O'Connor As She Approaches Five Years After Having Retired from the Court
FindLaw columnist and Cardozo law professor Marci Hamilton updates readers on the projects upon which Justice Sandra Day O'Connor -- for whom Hamilton clerked -- has embarked before and since O'Connor ended her tenure on the Supreme Court. Hamilton first describes O'Connor's efforts, while on the Court, to instill an ethic of judicial independence in Eastern Europe. She then goes on to chronicle O'Connor's current projects, which focus on urging states to appoint, not elect, their judges; and educating young Americans about the way our country's courts work.
The Holy See's Promoter of Justice Grants an Interview About Clergy Sex Abuse: An Ally in the Church Is Found on Statutes of Limitations of Reform
FindLaw columnist and Cardozo law professor Marci Hamilton comments on a very interesting development in the continuing conflicts over legal accountability for clergy child sex abuse: The Holy See's Promoter of Justice, Monsignor Charles J. Scicluna, has voiced striking positions on the statute of limitations for such abuse. In particular, Msgr. Scicluna opined that in canon law, the statute of limitations would not be triggered until victims reached the age of 28 -- first reaching adulthood at 18, and then having 10 more years to file suit. Even more strikingly, Hamilton notes, Msgr. Scicluna added his view that there should be no statute of limitations at all on a crime this grave and that, indeed, Pope John Paul II had had the power to revoke the statute of limitations, and had done so. Hamilton calls for the Catholic Church in America to follow this precedent as well.
Must a Public Law School Recognize a Christian Group That Bars Gay Persons From Being Officers or Prayer Leaders? The Supreme Court Will Decide
FindLaw columnist and Cardozo law professor Marci Hamilton comments on a case that the Supreme Court will resolve this Term. As Hamilton explains, the case raises the question whether a public law school must extend official recognition and funding to a student Christian group, even though that group excludes gay persons from being among its officers or prayer leaders. Hamilton argues that the law school is within its rights to decline to grant recognition or funding to the group, contending that the major relevant free-speech precedents cut against the group's claims. She also contends that the legal issues raised by the case mirror key political issues that are troubling the Republican Party.
Thursday, March 4, 2010
The Pieces of the Puzzle Are Falling into Place: Catholic Officials, a Global Web of Childhood Sexual Abuse, and the Judgment of History
FindLaw columnist and Cardozo law professor Marci Hamilton argues that ever since the Boston clergy child sex abuse scandal broke in 2002, an error has repeatedly been made: Instances of clergy child sex abuse, and related cover-ups, have been characterized as isolated and geographically-limited phenomena. Hamilton contends -- and adduces evidence to prove -- that, in reality, these instances together form a national and ultimately global pattern and problem, and should be treated as such. She points to the numerous victims who have come forward in disparate cities, here and abroad, as support for her conclusion, and praises the organization Voice of the Faithful for bringing Catholics together to acknowledge the realities of the clergy child sex abuse problem. But Hamilton also warns that the media have, in many ways, collaborated with Church attempts to convey that abuse was localized and has been fully addressed.
Thursday, February 18, 2010
Children in Peril: From Haiti's Dubious Adoptions, to the Vatican's Continuing Cover-up
FindLaw columnist and Cardozo law professor Marci Hamilton counterposes two controversies -- the recent conflict involving the planned transport of Haitian children to the Dominican Republic by a religious organization involved with adoption; and the ongoing conflict over the extent of Catholic Church higher-ups' knowledge of, and action with respect to, clergy child sex abuse. Hamilton points out that it was Haiti's legal intervention that ensured that the children at issue would be reunited with their families if possible, and she calls for more aggressive legal action with respect to the Church -- particularly in light of recent evidence about the Vatican's role.
Thursday, February 4, 2010
The Election of Scott Brown, the Newfound Power of Independents, and Why the Framers Would Be Smiling
FindLaw columnist and Cardozo law professor Marci Hamilton argues that any surprise that Americans may be experiencing over the election of Scott Brown as a Massachusetts Senator is misplaced. She contends that just as the election of President Obama demonstrated the new power of independent voters in American politics, so too does the election of Brown. Hamilton contends that the Framers of our Constitution would be proud to see this shift in our politics, for she argues that President Obama has failed to live up to his promise of serving Americans' true needs, and instead has been captured by the allure of politics and power, and that his healthcare plan is a mistake. She concludes that Independents are thus justified in supporting a candidate like Brown.
Thursday, January 21, 2010
The 2009 Holidays and the War Against Islamic Religious Zealots
FindLaw columnist and Cardozo law professor Marci Hamilton comments on the series of terrorist acts committed over the 2009-2010 holiday season -- including a planned attack on a Danish cartoonist who penned a controversial sketch of Muhammad with a turban drawn to resemble a bomb with a fuse, as well as the famous Christmas Day bombing attempt on a plane headed for Detroit. Hamilton argues that -- unlike the millions of peaceable Muslims the world over -- zealots like these attackers are the true enemy in the ongoing war. She contends, as well, that while the Obama Administration's term "war on Al Qaeda" is preferable to the Bush Administration's term "war on terror," the current conflict is really a war on Islamic religious zealots, whether they happen to belong to Al Qaeda or not.
Thursday, January 7, 2010
The Constitutional Fight Over Holiday Symbols, and the So-Called "War on Christmas"
FindLaw columnist and Cardozo law professor Marci Hamilton comments on the recent controversy in Scranton, Pennsylvania over the placement of a creche and menorah on the courthouse lawn over the holidays, which sparked protest from the ACLU and others. Hamilton argues that a proposed solution -- under which a private college in the area volunteered to host the creche and menorah over the holidays -- should have been adopted, as it would have mooted the constitutional issue here. She also notes that the Supreme Court has previously decided a series of creche cases, which underline why Scranton's display is problematic. Finally, she comments more generally on the contention that there is a "War on Christmas," responding in essence that the only real battle here is one to ensure religious diversity is respected.
Thursday, December 10, 2009
The Case for Instituting Healthcare Reform at the State, Not Federal, Level
Invoking principles of constitutional federalism, FindLaw columnist and Cardozo law professor Marci Hamilton argues that it would be wiser to embark on health care reform at the state level, rather than attempting a one-size-fits-all federal solution. Hamilton contends that Republicans in the House and Senate should be making this very argument -- and would be, she suggests, if the party had stayed with its key tenets, rather than departing from them in the Bush era. Drawing on the "laboratory of the states" with respect to healthcare reform, Hamilton notes, would have the advantage of showing which approaches do, and do not, work in practice.
Thursday, December 10, 2009
Why the Stupak Amendment to the Healthcare Reform Bill Is Unconstitutional
FindLaw columnist and Cardozo law professor Marci Hamilton contends that the controversial Stupak Amendment, excluding abortion from the coverage of the federal healthcare reform bill's insurance plans, is not only bad policy but also unconstitutional. Hamilton begins by describing the status quo -- as established by the Hyde Amendment -- and how the Stupak Amendment would change it. She then argues that the Stupak Amendment violates the Establishment Clause, unconstitutionally discriminates against women, and violates substantive constitutional due process and privacy rights.
Thursday, November 12, 2009
Are "Hate Crimes" the Same Thing as "Thought Crimes"?: Opponents of the Federal Hate Crime Bill Invoke Free Speech
FindLaw columnist and Cardozo law professor Marci Hamilton argues that it was a mistake for the Obama Administration, through Secretary of State Hillary Clinton, to endorse a recent UN Resolution on the topic of religious defamation, and for Secretary Clinton to say, according to reportage, "that the United States was opposed to negative depictions of specific faiths." Hamilton contends that taking such a position is inconsistent with the U.S.'s obligation to speak out, and to allow its people the freedom to speak out, when religious groups/or and their members commit grievous wrongs, ranging from terrorism, to statutory rape, to clergy child abuse, to the murder of doctors who perform abortions. Hamilton contends that such groups and persons should not be held to be above criticism, any more than secular groups and persons should.
Thursday, October 29, 2009
Why Oprah Should Be Obama's Children's Czar – and the Priorities She Should Set
FindLaw columnist and Cardozo law professor Marci Hamilton argues that, given that there are so many "czar" positions in the federal government targeting a range of specific issues, it is anomalous and disturbing that there is no czar to focus on children's rights and issues. Hamilton outlines the ways in which children's issues have a national or federal dimension, focusing in particular on issues such as sex-trafficking, sex abuse, and children's healthcare -- including the need for healthcare for children of parents who believe in "faith healing." Hamilton suggests that Oprah Winfrey would be an ideal candidate for a Children's Czar position in light of her longstanding passion for the subject, her visibility, and her gift for effective communication.
Thursday, October 15, 2009
From Polanski to "Big Love": Hollywood's Twisted View of Child Sex Abuse
FindLaw columnist and Cardozo law professor Marci Hamilton argues that Hollywood's elite should be ashamed of its members' sympathy for director Roman Polanski, who fled the country years ago after pleading guilty to statutory rape based on his giving a thirteen-year-old girl quaaludes and alcohol, and then having sex with her. Hamilton parallels the Polanski case with the Catholic Church child sex abuse scandal, and argues that there is other evidence, too, that Hollywood is failing to take statutory rape as seriously as it should, such as the show "Big Love." She also points out that child predators are all too often charming and attractive; that is why they succeed. When power is added into the mix, she argues, children have no chance unless society affirms the seriousness of the crime.
Thursday, October 1, 2009
The NEA and Political Propaganda
FindLaw columnist and Cardozo law professor Marci Hamilton discusses the recent controversy over film producer Patrick Courrieche's charge that, during a recent phone call with representatives of the National Endowment for the Arts, he and other artists were encouraged to create works that will further the Obama Administration's policy priorities. Hamilton describes a similar charge, leveled against a Republican Administration in the past. She also covers the Supreme Court decision that rejected a facial challenge to NEA policies, but left open the way for possible as-applied challenges to NEA actions in the future. Ultimately, Hamilton contends, the best solution is to abolish the NEA entirely.
Thursday, September 17, 2009
Sen. Ted Kennedy's Legacy of Disdain for the Separation of Church and State
FindLaw columnist and U. Richmond law professor Carl Tobias argues that the Senate ought to confirm three recently-nominated candidates for spots on California's U.S. District Courts: Los Angeles County Superior Court Judge Jacqueline Nguyen; attorney Dolly Gee; and United States Magistrate Judge Edward Chen. Tobias notes that all three are highly-qualified, and contends that the fact that they are also Asian-American means that their confirmation would add needed diversity to the federal bench. Tobias's statistics show that -- despite the recent, high-profile Supreme Court confirmation of Justice Sonia Sotomayor -- the federal courts, especially in California, are still a long way from reflecting the population they serve. In particular, despite the numerous gifted Asian-Americans practicing law in California, Tobias points out, Asian-Americans federal judges in the state remain exceedingly rare.
Thursday, September 3, 2009
The Health Care Bill: Opposition May Be Rude, But It Is Hardly "Un-American"
FindLaw columnist and Cardozo law professor Marci Hamilton argues that there are very good reasons for Americans to carefully scrutinize the House health care bill, and that adamant protest that may drown out other voices is not "un-American," as Speaker Pelosi has deemed it. Hamilton contends that the sponsors of a bill that is over 1000 pages long should have expected vociferous and prolonged debate, and points out that they could have chosen a more modest measure. She also encourages Congress to disclose which interest groups are behind the bill's provisions, in order to better inform Americans of the motivations behind the bill.
Thursday, August 20, 2009
The Healthcare Bill and Its Troubling "Religious Conscience" Exemption
FindLaw columnist and Cardozo law professor Marci Hamilton argues that while much of the House healthcare bill has been hotly debated, there is one provision within it that deserves far more scrutiny than it has gotten thus far. The provision, Hamilton explains, would allow a "religious conscience" exception for families that believe in faith-healing, rather than medical care -- meaning that these families could withhold care not just for their adults, but for their children as well. Hamilton argues that several aspects of the exemption are highly problematic: It is unconstitutionally restricted only to established religions, and it puts children in serious peril of dying from treatable conditions such as diabetes.
Thursday, August 6, 2009
The New York Catholic Conference's Aggressive Bid to Stop Reform of Child Sex Abuse Laws
FindLaw columnist and Cardozo law professor Marci Hamilton takes very strong issue with the tactics recently used by the New York Catholic Conference with respect to proposed legislation that would extend the criminal and civil statutes of limitations for child sex abuse by five years, and also create a one-year "window" during which previously time-barred claims could be brought to court. Hamilton details the hardball tactics that have been employed, including threats to close local parishes and schools, and arguments that suggest inaccurately that the current legislation would bankrupt the Church or that the bill is no longer live in the legislature.
Thursday, July 29, 2009
The Two P's of Gender Inequality: Prostitution and Polygamy – How the Laws Against Both Are Underenforced to Protect Men and Subjugate Women
FindLaw columnist and Cardozo law professor Marci Hamilton comments on the scandal over news reports that Villanova's Law School Dean, Mark Sargent, was allegedly a customer at a brothel raided by the police. Sargent has since resigned, but Hamilton argues that this is not enough: He and other high-profile men such as Eliot Spitzer, she contends, should also face criminal charges for being "johns." Hamilton parallels prosecutors' reluctance to go after johns with its reluctance to go after the adult men who, by being involved in polygamous marriage, commit statutory rape. Both types of resistance, she contends, are symptoms of lingering, deep-rooted gender inequality.
Thursday, July 9, 2009
The Folly of the Federal Religious Freedom Restoration Act – and Texas's Too
FindLaw columnist and Cardozo law professor Marci Hamilton points to two recent judicial decisions as strong evidence supporting her argument that the passage of federal and state Religious Freedom Restoration Acts (RFRAs) was a mistake. In one decision, a tiny town was forced to accept a religious group's halfway house for ex-convicts despite its contrary zoning regulation. In the other decision, a fire department was forced to allow firefighters' religiously-motivated wearing of facial hair, despite safety risks. Hamilton contends that both cases should have come out the other way, and that both show that RFRAs ask courts to go outside their proper role.
Tuesday, June 23, 2009
The Maturing of a Movement: Statute of Limitations Reform for Sex Abuse Victims
FindLaw columnist and Cardozo law professor Marci Hamilton discusses the progress of the movement seeking statute-of-limitations (SOL) windows for past child sex abuse victims, whose claims against abusers and the institutions that turned a blind eye to them otherwise could not be heard in court. Hamilton tracks the beginning of the movement via the Boston Globe's reporting on abuse within the Catholic Church, and the movement's subsequent unfolding in California. Then she focuses upon the arguments currently being made in New York, as abuse survivors seek SOL legislation, and upon the current political situation there.
Thursday, June 11, 2009
How a Supreme Court Case Tore the Republican Party in Two
FindLaw columnist and Cardozo law professor Marci Hamilton contends that the roots of the current split in the Republican party -- as exemplified by Senator Arlen Specter's defection to the Democratic Party and Senator Olympia Snowe's recent editorial criticizing the party -- can be traced back to Roe v. Wade. However, Hamilton also argues that the fault for the split lies not with the Supreme Court and its controversial decision, but rather with the Republican Party itself, for giving a single issue the lion's share of its attention and focus.
Thursday, April 30, 2009
Taking Stock of the 2008 Intervention at the Texas Fundamentalist Latter-Day Saints Compound On Its One-Year Anniversary: The Lessons We Must Learn to Effectively Protect Children in the Future
FindLaw columnist and Cardozo law professor Marci Hamilton reflects on the fallout from, and lessons from, last year's decision by Texas's Child Protective Services (CPS) to enter a Fundamentalist Latter-Day Saints (FLDS) compound in the state, and to remove children from the compound based on evidence that statutory rapes and bigamous marriages involving underage girls were occurring there. Hamilton takes strong issue with much of the press coverage of the intervention -- contending that CPS was simply following its usual procedures after receiving a hotline call, finding evidence of abuse, and removing children who might otherwise suffer further abuse from the situation. She also argues that the Texas courts, in this instance, ignored blatant evidence of violations of state criminal statutes, and let down the children at issue. Moreover, she notes that there are now voices from within CPS itself indicating that two of its attorneys were disappointed that the children were eventually returned, feeling that there was a strong case for termination of parental rights that was not considered.
Thursday, April 16, 2009
The Recent Federal District Court Decision Regarding the "Morning After" Pill:
How It Reveals Evidence of the Bush White House's Interference with the FDA, Where Religion Displaced Science to the Detriment of the Public Good
FindLaw columnist and Cardozo law professor Marci Hamilton discusses a recent, controversial decision by an Eastern District of New York federal judge, which held that that the Bush FDA violated administrative law's prohibition against arbitrary and capricious agency action when it banned the sale of the emergency contraceptive "Plan B" over the counter to women under 18. Hamilton details the facts that convinced the judge that the Bush FDA's actions had violated the law, and contends that this case is an instance in which a decision that should, by law, have been made based on science, was made based on religion instead.
Thursday, April 2, 2009
"Civil Liberties" and Uncivil Lies: What the New York Civil Liberties Union and the Catholic League for Religious and Civil Rights Have in Common – An Agenda to Keep Child Predator Identities Secret
FindLaw columnist and Cardozo law professor Marci Hamilton argues that the New York Assembly should pass the bill, now pending before the full Assembly, that proposes to extend the criminal and civil statute of limitations for child sex abuse by five years, and to open a one-year window during which past child sex abuse victims can sue despite the fact that the civil statute of limitations otherwise would have expired. Hamilton responds to the objections that two prominent foes of the bill -- the New York Civil Liberties Union, and the Catholic League for Religious and Civil Liberties -- have raised. In particular, she focuses on their arguments that child abuse allegations may be fabricated, and that there is typically little evidence for such claims other than the accuser's say-so. In response, Hamilton points to the scant number of such claims to have been proven false, and notes that corroborating evidence can often be found in third-party evidence of the psychological and other damage the accuser suffered after the abuse, and in the records kept by the institution (often, the church) to which the abuse was reported at the time.
Thursday, March 19, 2009
Getting Justice for "Justice Denied: What America Must Do to Protect Its Children":
A Response to Martin and Melissa Nussbaum's Indefensible Review of My Book on Preventing Child Sex Abuse Within Religious Institutions and Outside Them
FindLaw columnist and Cardozo law professor Marci Hamilton takes very strong issue with a recent review of her book advocating legal reform in the wake of the Catholic Church clergy abuse scandal and of reports of widespread child sexual abuse in both religious and secular contexts. Hamilton recounts and responds to specific charges by the review's authors, Martin and Melinda Nussbaum -- focusing in particular on the subject of the efforts, which Hamilton strongly supports, to create statute-of-limitations "windows" during which abuse survivors can bring claims.
Friday, March 13, 2009
Pleasant Grove City v. Summum: The Supreme Court's Puzzling, Fascinating New Free Speech Decision
FindLaw columnist and Cardozo law professor Marci Hamilton discusses the Supreme Court's recent decision holding that Pleasant Grove City, Utah, was not constitutionally required to display in one of its public parks a monument that the Summum religious group offered to donate. As Hamilton explains, the monument honored the group's beliefs, The Seven Aphorisms, and part of the basis for the challenge was the fact that a Ten Commandments monument was already in place at the park. As Hamilton explains, though the Justices reached a unanimous result, they did not agree on the reasoning behind that result -- in part because the case involved three complex strands of doctrine and precedent.
Thursday, March 5, 2009
Why British Authorities Made an Error When They Refused Entry to Dutch Legislator Geert Wilders, Based on His Extremist Views on Islam and Terrorism
FindLaw columnist and Cardozo law professor Marci Hamilton takes strong issue with the British government's decision to bar Dutch legislator Geert Wilders from entering Britain, based on his extremist views regarding Islam. Britain says Wilders's presence poses a threat to public safety; Hamilton criticizes this rationale as, in effect, allowing a heckler's veto as to Wilders, because his views will anger and offend many British readers and listeners. Hamilton explains the limits of the "heckler's veto" under United States law and the First Amendment. She also raises another problem with Britain's decision:
It tends to entangle government and religion, for the government is protecting a particular religion and its adherents from a critic who, while his views are deeply offensive and inaccurate, should have the right to be heard.
Thursday, Feb. 19, 2009
The Federal Investigation into the Catholic Church's Los Angeles Archdiocese Based on Allegations of a Coverup of Child Sex Abuse: Why the Grand Jury Probe Should Be Welcomed, Not Criticized
FindLaw columnist and Cardozo law professor Marci Hamilton argues that the Los Angeles U.S. Attorney's Office's investigation into the city's archdiocese -- for alleged involvement in a cover-up of child sex abuse by priests -- is the right step to take. Whereas others have argued that the Archdiocese's civil settlements with hundreds of victims should make criminal charges unnecessary, Hamilton argues that criminal charges are still vital. She cites, for instance, the scant information that has reached the public about the charges, despite a promise of disclosure by the Archdiocese, and strong evidence that the Church -- and in particular, the Los Angeles Archdiocese -- has not abided by its touted "zero tolerance" policy for abusers.
Thursday, Feb. 5, 2009
Reflections Upon President Obama's Inaugural Address
FindLaw columnist and Cardozo law professor Marci Hamilton comments on the descriptions of our constitutional history given by President Barack Obama in his inaugural address. In particular, Hamilton notes that -- rather than castigating the Framers of the Constitution for their decision to accept slavery and to count each African slave as only three-fifths of a person for representation purposes -- Obama focused upon the greater ideals the Framers embraced, which allowed him to send a unifying message to Americans. Hamilton also notes that Obama's address took seriously the Constitution's separation of church and state by recognizing not only the adherents of four major American religions, but also nonbelievers.
Thursday, Jan. 22, 2009
What Does It Mean, in 2009, to Be a Political or Judicial Conservative? In the Midst of a National Paradigm Shift, Defining the Term Is Increasingly Challenging
FindLaw columnist and Cardozo law professor Marci Hamilton considers the changing definition of "conservative" within the arenas of both politics and law. In politics, Hamilton points out the striking diversity of viewpoints among the sets of people who all claim the
label "conservative." Meanwhile, on the Supreme Court, Hamilton questions how strongly conservative the right wing of the Court can truly be, when it has largely preserved abortion rights, and when swing justice Anthony Kennedy has authored two landmark pro-gay-rights opinions. She also notes that it is no longer the case that the Court's federalism divides the Justices neatly along political lines; to the contrary, a recent case about the "presumption against preemption" illustrated that states' rights federalism and judicial conservatism can no longer be equated.
Thursday, Jan. 15, 2009
A Roundup of 2008's Developments Relating to Harms Suffered By Children in Religious Settings: Our Disturbing Current Status, and Some Signs of Progress
FindLaw columnist and Cardozo law professor Marci Hamilton considers a sobering topic: the instances, in 2008, in which children suffered harm in religious settings. Hamilton cites (1) instances in which it is alleged that children died because of their parents' religious beliefs forbidding medical treatment; (2) a study showing that abstinence-only sex education, supported by the Bush Administration for religious reasons, decreased condom use and thus exposed young people to STDs; (3) evidence of sexual abuse and neglect at a Texas FLDS compound, which led to a report by Texas Children's Protective Services detailing widespread abuse; and (4) credible allegations of child sex abuse within the ultra-Orthodox Jewish community, which so far have caused some of the community's religious leaders to suggest internal remedies, rather than calling in the civil authorities.
Hamilton contends that each set of incidents is disturbing in itself and that, together, they form a pattern where children are harmed in religious settings and civil authorities must step in to remedy the situation.
Thursday, Jan. 8, 2009
How the Bush Administration's Approach to Healthcare Providers' "Conscience Rights" Illustrates Its Troublingly Unilateral Exercise of Power
FindLaw columnist and Cardozo law professor Marci Hamilton discusses the Bush Administration's recent decision to put into place a "conscience rights" policy. The policy gives healthcare providers the option of refusing to provide -- or even provide information about -- healthcare options that go against the provider's own conscience, including the option of abortion and probably also options involving contraception. Hamilton argues that the decision fits into a disturbing pattern showing the Administration's willingness to act unilaterally, even if its decisions clash with those of Congress and the States and with constitutionally-mandated church/state separation.
Tuesday, Dec. 23, 2008
The Controversy Over the Tactics that Can Be Used to Protest California's Anti-Gay-Marriage Proposition 8: What's Right, and Wrong, About a Recent High-Profile Ad By Religious Leaders
FindLaw columnist and Cardozo law professor Marci Hamilton argues that the religious leaders who signed the recent "No Mob Veto" advertisement in the New York Times, taking issue with the tactics of certain Proposition 8 protesters, deserve both praise and blame. She contends that the signatories are right to condemn tactics such as disrupting church services or spraying graffiti, but wrong to threaten to "expos[e]" and "publicly sham[e]" those who employ "the rhetoric of anti-religious bigotry." Drawing on comparisons to the anti-abortion movement, Hamilton contends that the right line to draw here permits speech but not illegal or disruptive action.
Thursday, Dec. 11, 2008
The Five Religion-Related Issues that Should Most Concern the Future Obama Administration
FindLaw columnist and Cardozo law professor Marci Hamilton isolates five issues, all touching on the relationship between the federal government and religion or religious groups and organizations, that she argues should be top priorities for the incoming Obama Administration. Hamilton focuses on stopping government funding to social-service programs that discriminate based on religion; choosing Justice Department officials and Supreme Court Justices with a strong belief in church/state separation, while abolishing the Department's religion chair; supporting states' prosecutions of child sex abuse, including in religious communities and institutions, and conditioning federal funds on abolition of the sex-abuse statute of limitations; lend resources for investigations of instances of child sex-abuse connected to polygamy; and revoking laws that give religious entities a strong edge in local zoning disputes.
Thursday, Nov. 13, 2008
Can Religious Groups Receiving Federal Funds Hire Only Co-Religionists? An Issue that Divides Obama and McCain Is the Subject of a Newly-Released Department of Justice Memorandum
FindLaw columnist and Cardozo law professor Marci Hamilton comments on a controversial issue: When religious organizations receive government funds to support their social-service programs, can they staff those programs with only their co-religionists, or must they hire staffers without regard to religious belief? Hamilton explains how each presidential candidate can be expected to address this issue if elected. She also describes the Bush Administration's position on the issue -- relying on a memorandum on this topic from the Department of Justice's Office of Justice Programs that was written in 2007 but released only recently, and that invokes the Religious Freedom Restoration Act (RFRA).
Thursday, Oct. 30, 2008
The Rise and Fall of John McCain, As Explained By the Principles the Framers of the Constitution Embraced
FindLaw columnist and Cardozo law professor Marci Hamilton contends that presidential candidate John McCain once might have fit the Framers' key criterion for virtuous service in public office -- the ability to put one's own interests aside for the greater good -- but that is no longer the case. Hamilton contends that McCain once showed the ability to keep higher ideals in mind -- by, for example, fighting corruption in the Senate by insisting upon ethics rules and opposing earmarks. However, she argues that, since McCain selected Alaska Governor Sarah Palin as his running mate, he has been conducting the kind of win-at-all-costs campaign that betrays his past record.
Thursday, Oct. 16, 2008
The Financial Crisis from the Viewpoint of a Constitutional Scholar: How Today's Debacle Recalls James Madison's Nightmare at the Founding that None Would Have the Virtue to Lead
FindLaw columnist and Cardozo law professor Marci Hamilton offers an interesting point of view on the financial crisis, from her position as a constitutional scholar. Hamilton notes that the Framers of the Constitution equipped the President -- not Congress -- to be able to act quickly and univocally in this kind of emergency; Congress was meant to be relatively slow and deliberative in comparison. She thus faults President Bush for not taking decisive action. Hamilton also faults Speaker Pelosi and members of Congress for indulging their self-interest -- another fear of the Framers' -- by devoting significant time and focus to placing blame on others, rather than addressing the problem. However, Hamilton expresses the hope that the current Congressional deliberations will serve one of the Framers' key goals, by allowing the people to be heard and preventing interest groups from dominating.
Thursday, Oct. 02, 2008
Recent Developments Regarding Clergy Child Abuse: How They Reveal Both Good and Bad News About the Chances of Getting Justice for Abuse Survivors and Preventing Future Abuse
FindLaw columnist and Cardozo law professor Marci Hamilton discusses recent developments relating to the Catholic Church clergy child abuse scandal. In Delaware and California, Hamilton notes, civil statutes of limitations have been abolished so that victims can come forward to press their claims. Yet in Los Angeles, Chicago, and Portland, she contends, bishops have not kept victims foremost in mind; instead, they have used aggressive litigation strategies against victims or refused to name known abusers in their dioceses.
Thursday, Sept. 18, 2008
John McCain's Choice of Sarah Palin: What It Says About Him and What It Tells Moderates
FindLaw columnist and Cardozo law professor Marci Hamilton analyzes John McCain's choice of Alaska Governor Sarah Palin as his running mate, in terms of what that choice says about McCain himself. Hamilton contends that the choice of Palin -- as opposed to, for instance, Joe Lieberman or Tom Ridge -- means that McCain has sacrificed his maverick nature in order to move decisively rightward. In particular, Hamilton sees the Palin pick as a sign that McCain will continue Bush policies that threaten the Constitution's church/state line. She also contends that by choosing Palin, McCain gave up the chance he might have had to woo moderates after Barack Obama picked Joe Biden as his running mate.
Thursday, Sept. 04, 2008
The Ninth Circuit, Sitting En Banc, Attempts to Clarify the Definition of "Substantial Burden" Under the Religious Freedom Restoration Act (RFRA): The Navajo Nation Decision
FindLaw columnist and Cardozo law professor Marci Hamilton discusses a recent Ninth Circuit en banc decision, ruling against Navajo tribes that claimed a right to halt the creation of artificial snow for ski slopes on federally-owned land, on the ground that the snow was interfering with the exercise of their religion. Hamilton contends that, while the dissent's view is a sympathetic one, the majority was correct in ruling against the tribes, in light of Supreme Court precedent in this area. She also argues that the Religious Freedom Restoration Act, which the tribes invoked, should not apply in the context of federal lands.
Thursday, Aug. 21, 2008
In Colorado Christian University v. Weaver, the U.S. Court of Appeals for the Tenth Circuit Adopts the Incorrect Theory that Religious Individuals Are Entitled to Exemptions from Generally Applicable Laws
FindLaw columnist and Cardozo law professor Marci Hamilton discusses a recent decision from the U.S. Court of Appeals for the Tenth Circuit, authored by Judge Michael McConnell. The decision held that the State of Colorado cannot give scholarships to Colorado college students generally, yet exclude those students attending a school that is "pervasively sectarian," as defined by the state. Hamilton puts the decision in the context of both related Supreme Court precedent and the evolution of American conservatism, and contends that the related claim that religious institutions are entitled to receive funding whenever secular institutions do is both politically mistaken and legally wrong.
Thursday, Aug. 7, 2008
The United States Senate Judiciary Committee Holds Hearings on Polygamy Crimes: What Needs to Be Done at the Federal Level to Protect Children from Abuse and Neglect
FindLaw columnist and visiting Princeton law and public affairs professor Marci Hamilton draws upon written testimony she recently submitted to Congress to present a set of concrete, innovative proposals of ways the federal government can change the law to better protect children from abuse and neglect. Hamilton's proposals range from an alteration of the RICO laws to reach institutions that foster child abuse, to the denial of tax-exempt status to such institutions, to Congress' putting pressure on the states to abolish the statutes of limitations for criminal and civil abuse complaints.
Thursday, Jul. 24, 2008
Senator Obama's Endorsement and Promised Expansion of Faith-Based Funding: Repeating Past Mistakes, and Jeopardizing the Separation of Church and State
FindLaw columnist and visiting Princeton law and public affairs professor Marci Hamilton contends that Senator and presidential candidate Barack Obama's recent statements belie his earlier claim that he is strongly committed to upholding the Establishment Clause's separation between church and state. Hamilton notes that it may have been a political necessity for Obama to take the position that, if elected, he will continue the White House Office of Faith-based and Community Initiatives, but strongly criticizes his plan to expand it. She also questions his unclear stance on whether religious organizations receiving government funds for social services can decline to hire social services professionals due to religion alone -- noting that this stance is currently the subject of conflicting news accounts.
Thursday, Jul. 10, 2008
Why The Costs of Sexual Abuse and the Costs of Non-Enforcement of Anti-Sexual-Abuse Laws Are Too High
FindLaw columnist and Cardozo law professor Marci Hamilton discusses the costs of sexual abuse, and the related costs of failing to zealously enforce the laws against it. In particular, Hamilton responds to recent coverage of the financial costs of the Texas Child Services and court proceedings regarding the children taken out of the Fundamentalist Latter Day Saints (FLDS) compound in Eldorado. She argues that the coverage seriously erred in leaving out the costs on the other side -- which are steep, and which can be partially monetized in terms of lost productivity and the need for the treatment of abuse's consequences, such as addiction and mental illness. Hamilton also suggests ways our society can decrease the heavy costs of child sexual abuse.
Thursday, Jun. 26, 2008
The Southern Baptist Convention's Unconvincing Claims as to Why It Cannot Effectively Report or Prevent Clergy Child Abuse – and How Insurance Companies Can Exert Pressure to Ensure Better Systems
FindLaw columnist and visiting Princeton law and public affairs professor Marci Hamilton strongly contests the Southern Baptist Convention's recently-voiced position that its churches are too autonomous to come together to form a common system for reporting and preventing clergy child abuse. Hamilton outlines the dangers of relying on individual churches or solely upon federal databases such as Megan's List, argues that the SBC is perfectly capable of creating a common reporting system, and urges the insurance industry to make premiums contingent on whether such systems are in place to reduce the risk abuse will occur.
Thursday, Jun. 12, 2008
Why The Texas Supreme Court's Ruling Regarding the FLDS Mothers Is Significantly More Protective of the Children Involved than the Media Have Painted It To Be
FindLaw columnist and visiting Princeton law and public affairs professor Marci Hamilton discusses the recent, controversial Texas Supreme Court ruling regarding the power of the state's Child Protective Services (CPS) agency to remove children from a Fundamentalist Latter Day Saint (FLDS) compound where polygamy was
practiced, including with underage girls. Hamilton contends that the Texas Supreme Court's decision -- while not, she argues, entirely the right one -- does offer the children some significant protection, by affirming CPS's continuing jurisdiction in the matter, and by leaving open the possibility that abuse claims may be made against the FLDS adults from the compound.
Tuesday, Jun. 3, 2008
Why a Texas Appellate Court Seriously Erred In Concluding that Texas Child Protective Services Should Not Have Rescued All of the Children at the FLDS Compound
FindLaw columnist and visiting Princeton law and public affairs professor Marci Hamilton argues that a Texas intermediate appellate court was very wrong to hold that the recent raid on a Fundamentalist Latter Day Saints compound within the state was illegal -- in a decision authorities are appealing to the Texas Supreme Court. Hamilton contends that evidence of felonies committed within the compound, including polygamy and child rape, provided a solid legal basis for the authorities to act.
Thursday, May 29, 2008
An Evangelical Manifesto: How One Subgroup of Evangelical Christians Is Attempting the Redefine the Very Term "Evangelical"
FindLaw columnist and visiting Princeton law and public affairs professor Marci Hamilton comments on the "Evangelical Manifesto," a statement written by a group of evangelical Christians seeking to change the meaning of the term "evangelical" from the one it has acquired during first the Clinton and then the Bush Administrations. Hamilton lauds some aspects of the statement -- including its emphasis on solving social problems with a careful consideration of the common good, and its acknowledgment that the public square properly includes many voices, not only religious ones. However, she criticizes the statement's attempt to redefine a word it did not mint.
Thursday, May. 15, 2008
The Rescue of Children from the FLDS Compound in Texas: Why the Arguments Claiming Due Process Violations and Religious Freedom Infringement Have No Merit
FindLaw columnist and visiting Princeton law and public affairs professor Marci Hamilton takes on critics of the Texas authorities' handling of the raid on the Fundamentalist Latter Day Saints compound there -- which revealed evidence of multiple instances in which adult men had impregnated underage girls. Hamilton contends that critics of the raid are flat-out wrong to claim the raid was invalid because the authorities relied upon a source who, unbeknownst to them, may not have been who she claimed; the question, she says, is whether the authorities knowingly erred, and there is no evidence of that. in addition, Hamilton argues that there is no genuine religious freedom issue because religious motivation is no defense to criminal behavior.
Thursday, May. 01, 2008
The Supreme Court Considers Whether Imposing the Death Penalty for Child Rape Is Constitutional: The Arguments For and Against the Penalty
FindLaw columnist and visiting Princeton law and public affairs professor Marci Hamilton discusses a case in which the Supreme Court heard oral argument yesterday, April 16. The Court must decide whether a defendant convicted of raping an eight-year-old can constitutionally receive the death penalty. Hamilton argues that the offense of child rape may be seen as as grave as murder, in that it destroys a child's life and future. However, she also warns that allowing the death penalty for child rape will not be a panacea for America's problem with child sexual abuse. For that problem to be solved, she contends, repeat perpetrators must be brought to justice, and for that to happen, statutes of limitations must be lengthened or abolished.
Thursday, Apr. 17, 2008
Two Lawsuits Draw Attention to the Abuse Suffered by Troubled U.S. Teenagers Sent to Boot Camps Abroad: Why the State Department Should Push for an International Prohibition
FindLaw columnist and visiting Princeton law and public affairs professor Marci Hamilton discusses the legal repercussions of a recent instance of a teen's being sent abroad by his parents to a "boot camp" where he allegedly faced physical and emotional abuse. Hamilton applauds the actions of the lawyer who sued the State Department to push it to act; of the State Department officials who intervened; and of 140 other alleged victims who have joined together, in a separate suit, to challenged what they allege are abusive boot camps. However, she contends that more action by the State Department is necessary, and that presidential candidates and parties should address this issue (as well as other important issues regarding child abuse) and propose solutions.
Thursday, Apr. 03, 2008
A Recent Conflict Over Affirmative Action Underscores The Problem with State Initiatives and Other Forms of Direct Democracy
FindLaw columnist and visiting Princeton law and public affairs professor Marci Hamilton cites a protest at a recent Federalist Society syposium as providing a strong illustration of how direct democracy can sometimes fail. Protesters expressed their opposition to the views of Ward Connerly, who has prominently supported initiatives at the state level to ban affirmative action. One of their key points was that the Michigan's initiative's wording was misleading, and thus easily misunderstood by voters. Hamilton argues that, due in part to this potential for misunderstanding, direct democracy is very often a poor substitute for representative democracy.
Thursday, Mar. 20, 2008
Why Barack Obama and John McCain Face Similar Challenges, Based Upon Endorsements by Controversial Religious Leaders Who Preach Hate
FindLaw columnist and visiting Princeton law and public affairs professor Marci Hamilton discusses a challenge faced by presidential candidates John McCain and Barack Obama: how to handle the endorsement of religious leaders whose preachings including messages of hate. Hamilton calls upon both McCain and Obama to reaffirm First Amendment values by emphasizing all Americans' freedom of speech and religion, yet exercising their own freedoms by decrying and repudiating messages of hate.
Thursday, Mar. 06, 2008
How to Solve the Appalling Problem of Child Sex Abuse: Why Catholic Priest Andrew Greeley Is Very Wrong to Suggest Church Self-Policing Is the Answer
FindLaw columnist and visiting Princeton law and public affairs professor Marci Hamilton takes strong issue with a recent Op Ed by Catholic priest Andrew Greeley that stated that the problem of clergy child sex abuse "will be solved only when priests assume full responsibility for self-policing." Hamilton argues that not only is self-policing doomed to fail, but that sweeping change is needed to truly work to solve child sex abuse throughout society -- both within the Catholic Church and in many other contexts. Most important of all, Hamilton contends, is to abolish the relevant statute of limitations that prevent victims from confronting their abusers and seeking justice.
Thursday, Feb. 21, 2008
The Connecticut Supreme Court Reaches the Right Decision In a Case Under the Religious Land Use and Institutionalized Persons Act
FindLaw columnist and Princeton visiting law and public affairs professor Marci Hamilton argues that the Connecticut Supreme Court made the right decision when it recently ruled against a religious landowner who was attempting to invoke the federal Religious Land Use and Institutionalized Persons Act (RLUIPA). The court held that the particular decision at issue was not the kind of "individualized assesment" that triggers strict scrutiny under RLUIPA, even though it was applied in an individual case. Hamilton applauds the decision as a victory for common sense, and praises the court for including in its decision the point that, before RLUIPA, the idea of religious exercise did not encompass church building projects.
Tuesday, Feb. 05, 2008
The Supreme Court's Recent Opinion in New York State Board of Elections v. Lopez Torres: A Wise Decision to Stop Meddling in the States' Primary Systems
FindLaw columnist and visiting Princeton law and public affairs professor Marci Hamilton applauds the Supreme Court for its decision this month declining to interfere with New York's primary system. Indeed, she argues that the Court should have gone further, by overruling or strictly limiting a 2000 precedent that had opened the way for such challenges. Ideally, Hamilton argues, the Court should refrain from micromanaging states' primary systems, especially in light of the constitutional federalism concerns that are implicated when the nation's highest federal court intervenes in state elections.
Thursday, Jan. 24, 2008
The Questions That Each Presidential Candidate Should Be Asked Regarding His or Her Views on the Constitutional Line Between Church and State
FindLaw columnist and visiting Princeton Law and Public Affairs professor Marci Hamilton details the probing questions she would ask each of the eight leading Democratic and Republican Presidential candidates regarding their views on what our Constitution's separation of church and state will specifically require from them, in practice, if they become President. Hamilton both challenges the candidates on their prior church/state records, and raises issues that, she argues, they still must publicly address regarding their willingness to separate religion from government.
Thursday, Jan. 10, 2008
Toward the Future: The Lessons of the U.S. Conference of Catholic Bishops Report, and the Ways in Which We Can Protect All Children From Sex Abuse
FindLaw columnist, visiting Princeton Law and Public Affairs professor, and Cardozo law professor Marci Hamilton discusses the recently-released report of the U.S. Conference of Catholic Bishops. Hamilton explains why she had mixed feelings after reading the report and reflecting on the past five years and the clergy child abuse scandal. In the end, she contends that private institutions, public institutions, and legislatures must all take action if we are to end child sex abuse.
Thursday, Dec. 27, 2007
Facts and Faith: Evaluating Mitt Romney's Recent Speech Regarding His Presidential Candidacy and His Religion, and the Press's Anemic Coverage of the Topic
FindLaw columnist, visiting Princeton Public Affairs professor, and Cardozo law professor Marci Hamilton discusses what was said, and not said, in presidential candidate Mitt Romney's recent speech about his religious faith. Hamilton contends that the press has failed to thoroughly and factually cover the subject of Romney's beliefs and how they might affect his service as President, and specifies three areas in which further inquiry is needed. She also suggests Romney must answer two crucial questions: What are the facts of his faith? And, how do these facts relate to his presidential ambitions?
Thursday, Dec. 13, 2007
How the Push for Religious Accommodation Can Go Too Far: Two Important Recent Examples
FindLaw columnist and Cardozo law professor Marci Hamilton contends that while legislators have the power to go beyond what the Free Exercise and Establishment Clauses require to accommodate the exercise of religion, to do so can sometimes be a mistake. Hamilton offers two detailed examples: The first is the federal government's decision to offer religious "comp time" to employees and pay them for unused hours upon retirement. The second is a bishop's proposal to revive the doctrine of charitable immunity, which once held that the Church could not be held liable for torts.
Thursday, Nov. 29, 2007
Why A Federal District Court Was Wrong to Apply Strict Scrutiny to a Washington State Law Requiring Pharmacies, But Not Individual Pharmacists, to Fill "Plan B" Prescriptions
FindLaw columnist and Cardozo law professor Marci Hamilton takes strong issue with a recent decision by a U.S. District Court in Washington State that indicated that pharmacies have a Free Exercise Clause right to seek exceptions to a law that requires them to fill prescriptions for the emergency contraception method "Plan B." Hamilton argues that Washington State's law, as a matter of policy, is a reasonable compromise, as it leaves individual pharmacists free to refuse to fill Plan B prescriptions, even as pharmacies must do so. She also contends that the decision contravenes strong Supreme Court precedent regarding both the right to procure contraception and the government's power to enforce neutral, generally-applicable laws despite their effect on religious exercise.
Thursday, Nov. 15, 2007
Religious Liberty, Same-Sex Marriage, and the Coming Pressure on Legislatures to Reach An Appropriate Permissive Accommodation of Religious Entities That Discriminate Against Gay Couples
FindLaw columnist Marci Hamilton predicts an upcoming battle, as same-sex married couples eventually challenge the way they are treated by religious organizations. Hamilton contends that religious organizations have no consitutional right to seek an exclusion from generally-applicable laws such as laws against discrimination in employment, fair-housing laws, and public accommodation laws. However, she notes that legislatures have the power, if they so choose, to carve out exceptions for religious entities, and predicts this may be a major future battleground for debate and litigation.
Thursday, Nov. 01, 2007
Rudy Giuliani and His Moment to Stand Up for Child Sex Abuse Survivors
FindLaw columnist and Cardozo law professor Marci Hamilton calls on Presidential candidate and former New York mayor Rudy Giuliani to fire his friend and employee Alan Placa, a priest whom a grand jury has accused of both molesting boys and covering up abuse committed by others. Hamilton contends that, rather than protecting Placa, Giuliani should be leading the charge for justice for survivors of childhood sexual abuse.
Thursday, Oct. 18, 2007
Did the Six Supreme Court Justices Who Chose to Attend the 54th Annual "Red Mass" Exercise Bad Judgment?
FindLaw columnist and Cardozo law professor Marci Hamilton discusses the recent decision by six Supreme Court Justices to attend the annual Catholic "Red Mass." Hamilton contends that the Justices' decision to attend the Mass is highly questionable in light of their ethical obligation to avoid not only impropriety, but also the appearance of impropriety, and the fact that the homily that was delivered alluded to the Court's positions on issues such as abortion that frequently come before the Court. Hamilton also considers the charge that some Justices' Catholic religious beliefs may have altered the outcome of a recent abortion decision, Gonzales v. Carhart, especially since the decision departed from past precedent and, she contends, accepted some highly dubious legislative findings at face value.
Wednesday, Oct. 03, 2007
In a Decision Involving O'Hare Airport's Planned Expansion, the U.S. Court of Appeals for the Seventh Circuit Rightly Rejects a Religious Land Use Claim
FindLaw columnist and Cardozo law professor Marci Hamilton discusses a recent decision by the U.S. Court of Appeals for the Seventh Circuit, upholding the new plan for expansion of O'Hare airport even though it will involve the government's exercising the eminent domain power with respect to a church cemetery. Hamilton argues that the decision was the correct one, for neither Illinois' Religious Freedom Restoration Act, nor the U.S. Constitution, nor the Religious Land Use and Institutionalized Persons Act poses an impediment to the taking.
Thursday, Sep. 20, 2007
Three Important Developments Involving Law and Religion During The Summer Of 2007
FindLaw columnist and Cardozo law professor Marci Hamilton reviews three major developments in law and religion from the summer of 2007. Looking at the Supreme Court's taxpayer standing decision in Hein v. Freedom from Religion, Hamilton notes that Justice Alito appears to be an "incrementalist" in chipping away at the separation of church and state. In the L.A. Archdiocese clergy abuse settlement, Hamilton notes that the settlements are benefiting far more than the immediate survivors, it protects children and empowers other victims to come forward. And finally, Hamilton explains that the L.A. Archdiocese settlement was made possible by "window" legislation she supports, extending statutes of limitations for victims of childhood sexual abuse.
Thursday, Sep. 06, 2007
States Move to Enact Laws Allowing the Death Penalty for Pedophiles: A Good Sign with Respect to Public Dedication to Protecting Children, But Potentially Not the Most Effective Way to Do So
FindLaw columnist and Cardozo law professor Marci Hamilton assesses the impact of a growing trend: the passage of state laws allowing the death penalty to be imposed upon those convicted of child sexual abuse. Hamilton argues that while these laws show that the public is properly focusing on a grievous social problem, they will have only a limited impact, especially since, currently, only about 10% of victims report their abuse. More effective, Hamilton predicts, would be the abolition of civil and criminal statutes of limitations regarding these crimes (which are also torts), or at least the institution of "windows" during which suits can be brought. Without these limits, Hamilton argues, a number of past perpetrators may be fingered by those courageous enough to step forward, and thus prevented from acting against future victims.
Thursday, May. 31, 2007
Making Law Enforcement a Political Enterprise: Key Examples from the U.S. Attorney Scandal and the So-Called "First Freedom Project"
FindLaw columnist and Cardozo law professor Marci Hamilton argues that not only the scandal over U.S. Attorney firings, but also another ongoing Department of Justice project, indicates that Attorney General Alberto Gonzales has improperly politicized the enforcement of justice. The project is the First Freedom Project, and its stated purpose is to fight religious discrimination, but Hamilton contends that its real motivation is to privilege the interests of religion and religious institutions above secular interests.
Thursday, May. 17, 2007
A Recent Opinion Shows a Clear Split Between Chief Justice Roberts and Justice Alito On Federalism Issues - With Roberts Displaying Justice O'Connor's Respect for the States, and Alito Lacking that Respect
FindLaw columnist and Cardozo law professor Marci Hamilton discusses what a recent Supreme Court opinion on Dormant Commerce Clause doctrine reveals about the views of the Court's two newest Justices -- Chief Justice Roberts and Justice Alito. Hamilton contends that, as Justice Thomas argues, Dormant Commerce Clause doctrine has always been illogical and misguided. She takes issue, in particular, with Justice Alito's views on the doctrine -- contending that Justice Alito thus far seems to lack the respect for the states' role in the constitutional system that his predecessor, Justice O'Connor, possessed. Indeed, Hamilton suggests that, based on the recent partial-birth abortion ban decision, Alito may well hold views opposed to O'Connor's not only as to federalism, but also as to abortion rights, as well.
Thursday, May. 03, 2007
It's Time for the Supreme Court's Sony Betamax Decision to Be Reversed: The Latest in Online Copyright Infringement-- Offering Menus of Links to Illegal Video Copies of Television Shows and Movies
FindLaw columnist and Cardozo law professor Marci Hamilton discusses the legal remedies that may be available against "video guerrilla" sites that host and curate a collection of links to pirated television episodes and movies. Hamilton contends that what the linking sites are doing is clearly contributory copyright infringement -- and explains that any legal uncertainty about the legal status of such activity may stem from the Supreme Court's 1984 decision in Sony, which she argues should be reversed.
Thursday, Apr. 19, 2007
The Dangers of Accommodation of Religion Based on Religious Status, As Opposed to Religiously Motivated Practice, And the Duty of Religious Individuals to Obey the Law
FindLaw columnist and Cardozo law professor Marci Hamilton discusses instances in which, she argues, individuals and institutions have gone beyond the constitutionally-protected requirements of their religious practice, to defy the law. Hamilton points out that while one oft-cited Supreme Court case did allow the Amish not to send their children to school as the law requires, other Supreme Court cases clearly affirm religious individuals' duty to follow generally-applicable laws. She cites a range of examples of instances in which she contends that, despite this duty, individuals or institutions have tried to use their religious status to place themselves in a privileged position, above the laws and regulations with which everyone else must comply.
Thursday, Apr. 05, 2007
The Supreme Court Hears Oral Argument in the First Amendment Case in Which A High School Student Was Penalized for Unfurling a "Bong Hits 4 Jesus" Banner
FindLaw columnist and Cardozo law professor Marci Hamilton analyzes the "Bong Hits 4 Jesus" case on which the Supreme Court this week heard oral argument. The case asks whether it violated the First Amendment for a high school principal to penalize a student for unfurling a "Bong Hits 4 Jesus" banner at an Olympic parade for which students had been excused from school for the afternoon. Hamilton, drawing on the comments the Justices made at oral argument, contends that the principal should prevail, for the student's First Amendment case is weak. She also considers what significance it may have to the case if the Court views the banner's message as advocating illegal drug use, as opposed to simply being a nonsense statement.
Thursday, Mar. 22, 2007
When Churches Seek to Host Tent Cities of Homeless Persons, Can Localities Deny a Permit? The Controversy in Washington State, and What State Legislators Should Do About It
FindLaw columnist and Cardozo law professor Marci Hamilton discusses the controversy and litigation surrounding Washington State churches' decision to host a travelling "tent city" of homeless persons on their grounds. Hamilton explains how a federal statute, the Religious Land Use and Institutionalized Persons Act (RLUIPA), gives an edge to religious landowners in cases like this one, and argues that Washington State legislators should insist that the tent cities cannot move into a neighborhood without checks to ensure none of the persons within them have criminal records.
Thursday, Mar. 08, 2007
San Diego Bishop Robert Brom Uses the Threat of Bankruptcy to Push for a Settlement in Consolidated Clergy Child Abuse Cases: How the Diocese Is Wrongly Trying to Triangulate A Simple Issue of Accountability
FindLaw columnist and Cardozo law professor Marci Hamilton argues that it's wrong for San Diego Bishop Robert Brom to have invoked the possibility of the Diocese's bankruptcy as a bargaining chip regarding the 143 consolidated, pending clergy child abuse cases against the Diocese. Hamilton argues that the Diocese has plenty of non-religious property it could sell off to avert bankruptcy; that there is no reason, here, to pit abuse victims against parishioners; and that the bankruptcy may well not be in good faith, as is legally required. She also contends that what the Diocese is really doing is working hard to prevent the truth from emerging in court, by using protracted bankruptcy proceedings to evade accountability for its role in the cover-up of the abuse.
Thursday, Feb. 22, 2007
Should Religious Organizations Be Exempt from a Rule that Adoption Agencies May Not Discriminate Against Potential Parents Based on Sexual Orientation? How a U.S. Supreme Court Case Can Inform a British Debate
FindLaw columnist and Cardozo law professor Marci Hamilton discusses the British controversy as to whether Catholic organizations should be exempt from a law requiring that adoption agencies treat straight and gay potential parents equally. Hamilton explains, as well, how U.S. law would address this kind of a clash of values -- focusing, especially, on the Bob Jones University case, in which the university lost federal funding based on its racially discriminatory policy, which prohibited students of different races from dating each other.
Thursday, Feb. 08, 2007
Clergy Abuse Developments, in Denmark and California, Regarding the Jehovah's Witnesses, the Catholic Church, and an Oscar-Nominated Documentary
FindLaw columnist and Cardozo law professor Marci Hamilton discusses very interesting recent developments in the fight over allegations of clergy abuse, and of religious organizations' complicity in hushing up that abuse. Hamilton discusses a case in Denmark in which the Jehovah's Witnesses -- precedent-setters in favor of free speech in the U.S. -- took an anti-free speech, anti-freedom of the press position, and lost. She also discusses developments in California, such as the Oscar nomination given to a clergy abuse documentary, and a court fight over whether the priest-penitent privilege can stop certain discovery requests in alleged abuse cases.
Thursday, Jan. 25, 2007
Two Recent Federal Appellate Decisions on Prisoners' Religious Exercise Claims:
Illustrations of the Application of the Religious Land Use and Institutionalized Persons Act to the Prison Context
FindLaw columnist and Cardozo law professor Marci Hamilton discusses two recent, significant decisions of the U.S. Court of Appeals for the Fourth Circuit regarding the part of the Religious Land Use and Institutionalized Persons Act (RLUIPA) that applies to prisons. As Hamilton explains, RLUIPA requires courts to specially scrutinize prisoners' claims of violations of their right to freely exercise their religion. One of the Fourth Circuit cases concerns the question whether a prison must provide alternatives to Ramadan fasts, and the other concerns possible Eleventh Amendment defense to award of damages under RLUIPA.
Thursday, Jan. 11, 2007
The Age of Intolerance: Its Consequences for America and the World
FindLaw columnist and Cardozo law professor Marci Hamilton offers an end-of-the-year "big picture" perspective on intolerance, at home and abroad. Hamilton argues that the results of Election 2006, and the switch in Congressional control, indicated that Americans are tired of intolerance, and want to seek ways to end it. On the international scene, Hamilton focuses on radical jihadist terrorism. On the national scene, she focuses on attempts to compromise the U.S.'s fundamental church/state division, even to the point of rejecting the best-qualified workers when they do not belong to the "right" faith.
Thursday, Dec. 28, 2006
A Report Card for 2006 on Efforts to Protect Children from Sexual Abuse
FindLaw columnist and Cardozo law professor Marci Hamilton reviews postiive and negative developments in 2006 with respect to efforts to combat childhood sexual abuse -- ranging from major prosecutions and civil settlements, to new laws, to the disclosure of abusers' names, to the Foley committee report. Hamilton explains why some of these measures are less effective than they seem, and outlines what else should be done.
Thursday, Dec. 14, 2006
The Circus That Is RLUIPA: How the Land-Use Law that Favors Religious Landowners Is Introducing Chaos into the Local Land Use Process
FindLaw columnist and Cardozo law professor Marci Hamilton discusses three recent incidents in which, she argues, the Religious Land Use and Institutionalized Persons Act (RLUIPA) has been invoked in unfortunate ways. The incidents range from the antics a group of fraternity brothers who've called themselves Apostles of Peace and Unity to try to get around Georgetown limits on the number of unrelated persons who can live together; to the invocation of RLUIPA in a synagogue-expansion project where compromise, Hamilton suggests, could easily have been reached; to the use of RLUIPA to protect non-religious land use such as uses for day-care centers or catering facilities.
Thursday, Nov. 30, 2006
Representative Nancy Pelosi's Smart Proposal to Reform the Earmarking of Appropriations:
How Democrats Have Turned Republican, and Vice-Versa, When It Comes to Spending
FindLaw columnist and Cardozo law professor Marci Hamilton discusses soon-to-be House Leader Nancy Pelosi's proposal to reform the earmarking of appropriations, by disclosing the sponsor of each piece of "pork" included in legislation. Hamilton applauds Pelosi's proposal, and argues that it fits into a recent trend in which Republicans -- who've historically stressed fiscal responsibility -- have become the big spenders, and Democrats have worked to curb spending and increase accountability. Hamilton draws on history from the Framers' time to put this flip-flop in constitutional context.
Thursday, Nov. 16, 2006
Can Religion-Affiliated Organizations Opt Out of Laws Mandating that If Their Employee Insurance Covers Prescription Drugs, It Must Also Cover Contraception?
New York's Highest Court Says No
FindLaw columnist and Cardozo law professor Marci Hamilton discusses an important decision by New York's highest court regarding the interpretation of the right to the free exercise of religion, as it exists in both the U.S. and New York constitutions. In the lawsuit at issue, a number of religion-affiliated organizations argued that they should be exempt from a New York law mandating that employers who offer heath insurance to their employees for prescription drugs, must also offer coverage for contraception. Hamilton argues that the New York court was correct to reject the organizations' argument, and to leave the legislatively-defined religious exemption as is.
Thursday, Nov. 02, 2006
Bringing the Fight for Clergy Child Abuse Victims to an International Arena:
Cases Show that California/Mexico Priest Shuffling Also Occurred
FindLaw columnist and Cardozo law professor Marci Hamilton discusses several recent cases in which it is claimed that Catholic Church child predator priests were moved -- despite knowledge of their abuse -- between California and Mexico. She also discusses Mexico's unusual step of banning the attorneys in one of the cases from visiting Mexico for the next five years.
Thursday, Oct. 19, 2006
Congressman Mark Foley's Disgrace and Resignation:
What Congress Should Have Learned - And Didn't - From the Catholic Church Clergy Abuse Scandal
FindLaw columnist and Cardozo law professor Marci Hamilton parallels the scandal over Congressman Mark Foley's communications with teenage congressional pages, with the scandal over Catholic Church clergy abuse. Hamilton points out, for example, that in both scandals, the evidence was cleared, but ignored by the relevant higher-ups; in both scandals, the press and law enforcement also knew but for a long time, failed to act; and in both scandals, children's welfare was treated as if it were last on the list of institutional priorities. Hamilton argues that Congress should have had -- and should now have -- hearings on clergy abuse, and that the hearings would have the benefit of educating Congress on an important child welfare issue as to which it is plainly currently ignorant.
Thursday, Oct. 05, 2006
President Bush's "Third Awakening" and the Mixing of Church and State: The Responses He Has Provoked From Believers, As Well as Non-Believers
FindLaw columnist and Cardozo law professor Marci Hamilton discusses ways in which, she argues, the Bush Administration has improperly mixed church and state -- noting the President's recent comment that since 9/11, there has been a "third awakening" of religious devotion in America. Hamilton notes, in particular, one interesting response:former Nevada State Senator and law professor Lori Lipman Brown's web-based "Secular Score Card for the Senate" and "Secular Score Card for the House," but argues that "secular" here may be a misnomer.
Thursday, Sep. 21, 2006
Two Arrests Signal a Giant Step Forward for the Civil Rights Movement for Children
FindLaw columnist and Cardozo law professor Marci Hamilton discusses two recent arrests in cases in which adults in positions of religious authority and trust are alleged to have sexually abused children. The arrested parties were Warren Jeffs of Utah's polygamous Fundamentalist Church of the Latter Day Saints of Jesus Christ, and monks from Texas' Christ of the Hills Monastery. Hamilton argues that arrests like these are signs of progress in the movement to protect children's civil rights.
Thursday, Sep. 07, 2006
A Clash Between Two Cases Involving Equality and Religious Speech: How the U.S. Court of Appeals for the Fourth Circuit's Decisions Are Inconsistent
FindLaw columnist and Cardozo law professor Marci Hamilton argues that two recent decisions of the U.S. Court of Appeals for the Fourth Circuit, regarding religion and speech, are inconsistent with each other. Moreover, she urges that each of the decisions was, individually, wrongly decided. One decision held that a public school had to distribute religious flyers; another held that a local government could exclude a Wiccan preachers from the many other preachers from different denominations it had allowed to give its prayer.
Thursday, Aug. 24, 2006
Churches and Eminent Domain: A Move in Congress to Once Again Make Churches Privileged Landowners
FindLaw columnist and Cardozo law professor Marci Hamilton discusses Senator Kennedy's recent proposal -- via a "Dear Colleague" letter to other Senators -- to grant churches and other religious landowners special protection from the exercise of the government's eminent domain power to take their land. Hamilton argues that the proposal ought to be shelved -- for it is both bad policy, and a violation of the Establishment Clause.
Thursday, Aug. 10, 2006
Congress Passes the "Adam Walsh Bill" to Protect Children from Abuse: It Is a Good Start, But More Needs to Be Done to Make It Effective
FindLaw columnist and Cardozo law professor Marci Hamilton discusses the "Adam Walsh Bill" -- a law that would create a national database of child predators. Hamilton praises the law, but argues that more must be done to make it effective. Specifically, she cautions that resources are needed to make the database accurate and easily searchable, and, more fundamentally, that any such database will miss serious predators unless child-abuse statutes of limitations are abolished. She encourages Congress to give the states financial incentives to abolish them.
Thursday, Jul. 27, 2006
A Court Rules That Privately Editing Films for Content Violates Studios' Copyright: The Decision in Clean Flicks v. Steven Soderbergh and Its Cultural Context
FindLaw columnist and Cardozo law professor Marci Hamilton comments on a Utah federal district court's decision in Clean Flicks v. Soderbergh, a case in which Hollywood studios and directors alleged copyright infringement companies that performed "family values" editing on the studios' and directors' movies and then sold "sanitized" versions of the movies. Hamilton argues that the court's decision in favor of the studios was not only right, but virtually a no-brainer -- and considers a possible sociocultural explanation for why the defendants could have though their "fair use" argument might succeed.
Thursday, Jul. 13, 2006
The Public Expression of Religion Act of 2005: A Bill That Is Intended to Eviscerate the Establishment Clause
FindLaw columnist and Cardozo law professor Marci Hamilton takes strong exception to the proposed Public Expression of Religion Act of 2005 (PERA) -- which would end the award of damages and attorneys' fees in cases based on Establishment Clause challenges to public religious displays. Hamilton explains how, rather than being antithetical to Christianity, the Establishment Clause actually arose from the principles of a variety of Christian organizations -- and parallels PERA to the Religious Land Use and Institutionalized Persons Act (RLUIPA).
Thursday, Jun. 29, 2006
Religion's Financial Windfalls in the Bush and Clinton Eras: An Important Recent Federal Court Decision Recognizes The Threat to the Constitutional Separation of Church and State In the Prison Context
FindLaw columnist and Cardozo law professor Marci Hamilton argues that fourteen years of the Clinton and Bush Administrations have made pernicious inroads into our Constitution's separation of Church and State. Hamilton focuses, in this column, on three major issues, each of which involves the transfer of wealth to private religious entities: government subsidies for religious programs in prisons; the federal statute giving religious landowners advantages when it comes to getting zoning variances; and funding for "faith-based" charitable enterprises.
Monday, Jun. 12, 2006
A Tribute to Judge Edward R. Becker (1933 - 2006)
FindLaw columnist and Cardozo law professor Marci Hamilton offers a heartfelt tribute to Judge Edward R. Becker, for whom she clerked, and who recently passed away. Becker, initially a federal district judge, later served on the U.S. Court of Appeals for the Third Circuit; his thirty-five year tenure as a judge earned him a reputation of very high distinction. Hamilton provides a look at the man behind the sterling reputation.
Thursday, Jun. 01, 2006
How the Push for Religious Consensus Is Putting Academic Freedom At Risk: What the Law Allows, and Forbids, in This Area
FindLaw columnist and Cardozo law professor Marci Hamilton discusses the constitutional differences regarding the restrictions private and public colleges and universities can put on academic freedom. Hamilton explains the legal lines -- statutory and constitutional -- that cannot be crossed, and focuses in particular on the issue of private donors' attempts to put constraints on their endowments of chairs at public colleges and universities.
Thursday, May. 18, 2006
How the Laws Look the Other Way When It Comes to the Financial Improprieties of Religious Institutions, And How They Should Be Amended to Make Them Accountable
FindLaw columnist and Cardozo law professor Marci Hamilton discusses instances in which, she argues, laws should apply equally to religious institutions, but do not. Citing examples ranging from employee pension fund depletion, to abuse of the charitable deduction, to questionable statements to parishioners about church finances, Hamilton contends that lawmakers need to stand up to -- not offer automatic exemptions from the law to -- religious institutions that do harm.
Thursday, May. 04, 2006
Twenty-first Century Religion and the Backlash Against Women's Autonomy: Three Recent Events that Show that Women's Freedom Is Imperiled
FindLaw columnist and Cardozo law professor Marci Hamilton cites three recent events in the news as evidence of threats to women's autonomy both at home and abroad. Hamilton argues that '50s-era concepts of women as "treasures" to be cherished, and possessions to be protected, but not persons entitled to freedom, are making new headway -- and that women should vigilantly protect their autonomy, particularly at a time when it's become plausible that Roe v. Wade might be overruled.
Thursday, Apr. 20, 2006
A Federal Bankruptcy Judge Issues an Important Ruling in the Portland Archdiocese Bankruptcy:
Why the Judge Was Right, and Why the Ruling Matters So Much For Clergy Abuse Victims
FindLaw columnist and Cardozo law professor Marci Hamilton discusses the recent ruling, by a federal bankruptcy judge, that the assets of parishes count are not separate from the assets of the Portland Catholic Archdiocese. The importance of this ruling, Hamilton notes, is that there will now be more money available to satisfy the claims of clergy abuse victims. Hamilton, who was an attorney in the case, argues that the court reached the right result -- and contends that the application of canon law, not secular law, here, would have been a major mistake.
Thursday, Jan. 12, 2006
The Year in Review: Law and Religion in 2005,
From "Intelligent Design," to the Ten Commandments, to Supreme Court Staffing Changes, to Clergy Child Abuse Developments
FindLaw columnist and Cardozo law professor Marci Hamilton picks out ten key times when law and religion intersected, in high-profile ways, in 2005. She addresses, among other points, the question of how changes in the composition of the Supreme Court may affect its decisions regarding the Constitution's religion clauses in the future.
Thursday, Dec. 29, 2005
Kudos to the Bush Administration for Putting the Happy in Holiday -- by Sending Out Holiday Cards and Having a National Holiday Tree
FindLaw columnist and Cardozo law professor Marci Hamilton delves into the religious history of the Founding to support her argument that the President's decision to opt to have a holiday card and a National Holiday Tree, rather than a Christmas card and tree, was clearly the right one. Hamilton draws analogies to the early Puritans and Baptists to explain why Bush was right to opt away from divisiveness and toward tolerance.
Thursday, Dec. 15, 2005
Must Public Schools Allow Worship if They Allow Social and Civic Meetings?
A New York Federal Court Says Yes, But The Establishment Clause Says No
FindLaw columnist and Cardozo law professor Marci Hamilton argues that a New York federal district court judge erred in holding that a public school could not constitutionally forbid a church to hold its weekly meeting there on Sundays, in light of its allowing secular organizations to hold their meetings at the school. Hamilton discusses Supreme Court precedent in the area -- and argues that this is a case where the Establishment Clause justifies treating religious and secular speech differently, for, she contends, the school will likely be perceived by students as endorsing the church that it is hosting.
Thursday, Dec. 01, 2005
Has the Catholic Church Put the Clergy Abuse Problem Behind It?
Not By a Longshot: What We Have to Do To Truly Get Past the Issue
FindLaw columnist and Cardozo law professor Marci Hamilton discusses recent events at the Catholic Conference of Bishops in Washington, and argues that the Church's response to clergy child sex abuse in general -= and two families' stories of sons murdered to cover up abuse, in particular -- is far from enough. In suggesting solutions, Hamilton focuses on making public the names of alleged or confirmed abusers whose names now reside in secret archives.
Thursday, Nov. 17, 2005
The Supreme Court Hears Its First Religion Case with Chief Justice Roberts at the Helm
FindLaw columnist and Cardozo law professor Marci Hamilton discusses the recent Supreme Court oral argument in a case that asks if the Religious Freedom Restoration Act (RFRA) compels the government to allow the religious use of hoasca, which contains the illegal drug DMT. Since hoasca is imported from South America, the government cites, among its interests, an interest in complaince with an international anti-trafficking treaty. Hamiton discusses quetions such as: Will this interest prevail? And how does RFRA change the interaction between courts and legislatures? And how does the case intersect with Justice Roberts's claimed opposition to judicial activism?
Thursday, Nov. 03, 2005
The Harriet Miers Nomination: What Does Religion Have to Do With It?
FindLaw columnist and Cardozo law professor Marci Hamilton discusses a question that many have been asking with respect to the Harriet Miers Supreme Court nomination: Will she overrule Roe v. Wade, in light of her strong religious convictions? Hamilton points out that even if -- as conservatives have suggested -- Miers oppose a right to abortion, that stance is very different from the stance that Roe should be overruled. The latter stance, Hamilton explains, involves the legal doctrine of stare decisis -- which governs when precedent should stand even in the event that later Justices feel it was mistaken.
Tuesday, Oct. 18, 2005
The Harriet Miers Nomination: How It Shows President Bush Has Turned Full Circle
FindLaw columnist and Cardozo law professor Marci Hamilton considers the Harriet Miers nomination in the context of the rest of President Bush's two terms in office. Drawing on Miers's record, she argues that the nomination signifies that Bush is returning his earlier stance of pragmatic centrism, and once again is working to unite those from the Republican and Democratic parties, rather than dividing them. She points out that Miers seems like to become, if confirmed, a Justice more like O'Connor or even Souter, than like Scalia.
Thursday, Oct. 06, 2005
The Philadelphia Grand Jury's Report on Clergy Child Sex Abuse in the City's Archdiocese: A Lesson for All States
FindLaw columnist and Cardozo law professor Marci Hamilton discusses the Philadelphia D.A.'s Office's report -- resulting from a grand jury investigation -- regarding child sex abuse claims relating to the Catholic Church's Philadelphia Archdiocese. Hamilton -- who served as the grand jury's constitutional law advisor -- notes that the D.A.'s decision not to bring criminal charges is based on expired statutes of limitations, not lack of evidence. She finds copious evidence of abuse, cover-ups of abuse, and aiding and abetting of abuse in the report, and argues that Pennsylvania -- like all states -- should abolish criminal and civil statutes of limitations to avoid ever again having its hands tied in the face of evidence of child sex abuse.
Thursday, Sep. 22, 2005
Republicans Face a Fork in the Road: To Remain Credible, the Party Must Be Consistent on the Crucial Issues of Federalism, Gay Marriage, and Roe v. Wade
FindLaw columnist and Cardozo law professors Marci Hamilton discusses what she argues are serious contradictions in recent Republican legal positions. Hamilton, herself a Republican, contends that the Party cannot have its cake and eat it too, by favoring states' exclusive power when it comes to abortion rights, but denying that power when it comes to gay rights, medical marijuana, and assisted suicide.
Thursday, Sep. 08, 2005
How Senator Rick Santorum, In Acting for His Church, Persistently Fails to Consider the Larger Public Good
FindLaw columnist and Cardozo law professor Marci Hamilton argues that Senator Rick Santorum, in representing the interests of the Catholic Church, has disserved the greater public good. In support of her claim, Hamilton cites examples ranging from Santorum's blaming the culture of the Northeast for the Boston clergy abuse scandal; to his aid in passing legislation that prevented the Soldiers' Home from receiving market value for its property, and ensured its trasfer to the Catholic University of America instead; to his attempt to get "intelligent design" taught in public schools.
Thursday, Aug. 11, 2005
The Wisconsin and New Hampshire Supreme Courts Rule Against Clergy Abuse Victims:
Two Decisions That Illustrate Why the Law in This Area Must Change
FindLaw columnist and Cardozo law professor Marci Hamilton discusses two recent, important state Supreme Court rulings that rejected claims by plaintiffs who alleged they had been victims of child sexual abuse, and that their religious institution had known, and either failed to intervene or helped to cover up the abuse. Hamilton carefully examines each case, and points out that now, it is time for the relevant state legislatures -- Wisconsin's and New Hampshire's -- to act if the law is to change.
Monday, Jul. 25, 2005
The Remarkable Legacy of Justice Sandra Day O'Connor
FindLaw columnist, Cardozo law professor, and former clerk to Justice Sandra Day O'Connor Marci Hamilton discusses the Justice's legacy, now that she is retiring. Hamilton discusses both O'Connor's position on the Court -- as the first woman justice, and a frequent "swing vote" -- and her distinctive contribution to its jurisprudence, particularly in the areas of constitutional federalism, and the Establishment Clause.
Thursday, Jul. 14, 2005
The Supreme Court Draws the Correct Ten Commandments Line:
Why the Texas Display Was Constitutional, and the Kentucky Display Was Not
FindLaw columnist and Cardozo law professor Marci Hamilton argues that, in the two recent Ten Commandments display decisions -- one by a Kentucky county, the other on the Texas state capitol grounds -- the Supreme Court drew the correct Establishment Clause line. Hamilton notes and explains an interesting feature of the two companion cases: In each, Justice Stephen Breyer -- not, as expected, Justice Sandra Day O'Connor --held the swing vote.
Wednesday, Jun. 29, 2005
The Laws We Need To Pass to Properly Punish Child Abuse
FindLaw columnist and Cardozo law professor Marci Hamilton discusses laws and amendments to laws -- both state and federal -- that, she argues, would much more effectively penalize child abuse and institutional complicity in child abuse than the current system does. In some cases, Hamilton contends that reforms now confined to a few states should spread nationwide; in others, she counsels that both states and the federal government ought to take a new approach entirely.
Thursday, Jun. 16, 2005
The Supreme Court's New Ruling on the Religious Land Use and Institutionalized Persons Act's Prison Provisions: Deferring Key Constitutional Questions
FindLaw columnist and Cardozo law professor Marci Hamilton discusses the Supreme Court's recent ruling in Cutter v. Wilkinson -- upholding, against an Establishment Clause challenge, the prison provisions within the Religious Land Use and Institutionalized Persons Act (RLUPIA). As Hamilton explains, these provisions impose a "strict scrutiny" standard of review on courts assessing prisoners' challenges to prison regulations that they say affect their right to free exercise of their religion. But the Court, she notes, made clear that in the RLUIPA context, this standard must include deference to prison administrators' judgment. Hamilton also covers the controversial questions about RLUIPA that the Court's decision left open.
Thursday, Jun. 02, 2005
The Long and Difficult Road to Protecting Children from Sexual Abuse:
A Tale of Three States, and How They Revised Their Statutes
FindLaw columnist and Cardozo law professor Marci Hamilton contrasts the situation in three states -- Florida, Ohio, and California -- when it comes to laws relating to child sexual abuse, including abuse by clergy. Hamilton applauds initiatives to force clergy to report abuse, and to extend (or to suspend for one-year) statutes of limitations on this crime. But she notes that religious institutions' lobbyists have been an obstacle to states' changing their statutes in these ways.
Thursday, May. 19, 2005
Is the Solomon Amendment Constitutional?
The Supreme Court Looks at the Law that Prohibits Federal Aid If a School Refuses to Permit Military Recruiters on Campus
FindLaw columnist and Cardozo law professor Marci Hamilton discusses a First Amendment case the U.S. Supreme Court just agreed to review, and will decide next term. The case asks whether it violates the First Amendment rights of law schools and professors to require them to allow military recruiters on campus, or lose their federal funds. The schools and professors argue that to ask them to accept these on-campus recruiters, is to ask them to endorse sexual-orientation discrimination, in the form of the "don't ask, don't tell" policy. But Hamilton argues that the military recruiter's message will never be imputed to the law school -- for the law school and its professors may speak out as much as they like, in support of their own views.
Thursday, May. 05, 2005
Senator Frist and Representative DeLay's Claims of Supreme Court Judicial Activism and Anti-Religion Bias: Why They Aren't Persuasive
FindLaw columnist and Cardozo law professor Marci Hamilton draws on current and past attacks on the judiciary, and recent events in the Terri Schiavo case, to present a set of arguments about the current Supreme Court: Far from being "activist," Hamilton contends, the current Court is moderate (indeed, moderate Republican). And far from being anti-religion, she adds, the current Court is simply hewing to the Constitution.
Thursday, Apr. 21, 2005
The Supreme Court Considers Legislation on Prisoners' Religious Requests:
Interpreting the Religious Land Use and Institutionalized Persons Act
FindLaw columnist and Cardozo law professor Marci Hamilton discusses Cutter v. Wilkinson, a case recently argued before the Supreme Court that asks the Court to decide what legal standard applies when a prison considers a prison inmate's religion-related request. As Hamilton explains, while the Court has traditionally granted significant deference to prison officials' judgments, a federal statute -- the Religious Land Use and Institutionalized Persons Act -- purports to change that. But does RLUIPA itself violate the Establishment Clause? That is what the Court must decide.
Thursday, Apr. 07, 2005
Kentucky's Ten Commandments Display at the Supreme Court:
Part Two of a Two-Part Series on This Term's Ten Commandments Cases
FindLaw columnist and Cardozo law professor Marci Hamilton discusses a case, just argued before the U.S. Supreme Court, involving a Kentucky county's Ten Commandments display. As Hamilton explains, oral argument illuminated divisions between Justice Scalia and Justice Souter, in particular, and raised the interesting question of how a county can cure what has already been ruled to be an Establishment Clause violation: Does putting an illegal display in the context of a larger display solve the unconstitutionality, or does the original unconstitutional motive taint the new display, too?
Tuesday, Mar. 22, 2005
The Texas State Capitol's Ten Commandments at the Supreme Court:
Part One of a Two-Part Series on This Term's Ten Commandments Cases
FindLaw columnist and Cardozo law professor Marci Hamilton discusses two cases currently before the U.S. Supreme Court, involving public displays of the Ten Commandments. Hamilton argues that religious freedom is better promoted when such displays are allowed to occur on private, not public property. She also compares and contrasts these cases with other recent Ten Commandments cases that, she argues, presented more blatant Establishment Clause violations.
Thursday, Mar. 10, 2005
The Supreme Court Hears an Important Constitutional Case That Asks If Private Property Is Truly Taken For "Public Use" When It Is Given to a Private Developer
FindLaw columnist and Cardozo law professor Marci Hamilton discusses an interesting case the Supreme Court heard this week, which relates to the intersection of constitutional law and property law. As Hamilton explains, the Fifth Amendment allows the government to take property "for public use" from private citizens, as long as it provides just compensation. But what counts as a "public use"? The municipality in the case before the Court claims that it's a public use to transfer homeowners' property to a private developer; the homeowners passionately disagree.
Thursday, Feb. 24, 2005
Virginia's Bizarre Claim to the Supreme Court: Asserting that the Establishment Clause Does Not Constrain the States
FindLaw columnist and Cardozo law professor Marci Hamilton discusses the State of Virginia's claim, in a friend-of-the-court brief submitted to the U.S. Supreme Court, that the U.S. Constitution's Establishment Clause does not wholly apply to the states. Hamilton explains the genesis of this claim -- in a dissenting opinion by Justice Clarence Thomas in last year's Pledge of Allegiance case -- but argues that it does not accord with the Constitution's history.
Friday, Feb. 11, 2005
A Federal Trial Court Dismisses a Nun-Priest Sexual Harassment Claim:
A Dubious Case for Invocation of the "Ministerial Exception"
Is it illegal for a priest to sexually harass a nun? FindLaw columnist and Cardozo law professor Marci Hamilton discusses the court-made "ministerial exception" to the federal anti-discrimination laws, and argues that a recent Pennsylvania decision takes it much too far. Hamilton contends that the exception Congress has already created is sufficient, and courts should not broaden it -- especially in cases like this one, where, she argues, religious beliefs are not at issue.
Thursday, Jan. 27, 2005
What Will the Justice Department's Church/State Stance Be Under Alberto Gonzales?
The Future of Religious Land Use and Institutionalized Persons Act Enforcement
FindLaw columnist and Cardozo law professor Marci Hamilton comments on John Ashcroft's perspective on church/state issues during his tenure as U.S. Attorney General, and argues that it would be wise for Alberto Gonzales not to follow in his predecessor's footsteps. In particular, Hamilton faults Ashcroft for intervention in a number of cases brought under the Religious Land Use and Institutionalized Persons Act (RLUIPA) -- which requires courts to apply heightened scrutiny to land use decisions that affect religious groups. Hamilton focuses on a recent RLUIPA case litigated in Maui, Hawaii.
Thursday, Jan. 13, 2005
The Legal System and Clergy Abuse in 2004:
Reasons for Victims to Be At Least Somewhat Optimistic
FindLaw columnist and Cardozo law professor Marci Hamilton chronicles, and comments on, the developments in 2004 relating to clergy child abuse and the litigation that has arisen from it. Hamilton cites a number of judicial decisions by state courts that should make victims more optimistic about the hope of getting justice -- but she also contends that much is left to do, including abolishing statutes of limitations and charitably immunity, and getting federal prosecutors involved.
Thursday, Dec. 30, 2004
Public Servants and the First Amendment:
The Cases of the Porn-Selling Police Officer, and the Ten-Commandments-Wearing Judge
FindLaw columnist and Cardozo law professor Marci Hamilton discusses two cases -- one resolved by the Supreme Court, another in the news recently -- in which public servants have, she argues, exploited their offices to further their own personal views. One involves a police officer who wore his uniform in porn videos, which he sold over the Internet. Another involves a judge who embellished his robe with a conspicuous version of the Ten Commandments. Hamilton argues that, in both cases, the public officials went over the line -- and their actions are not protected by the First Amendment's Free Speech or Free Exercise Clauses.
Thursday, Dec. 16, 2004
The Supreme Court Hears Oral Argument on a Possible California "Medical Marijuana" Exception
to the Federal Controlled Substances Act
FindLaw columnist and Cardozo law professor Marci Hamilton contends that while the California "medical marijuana" case has made headlines because of the policy issues it raises, it is at heart a case not about marijuana, but about federalism. Hamilton notes that the case represents the clash of a federal law making all marijuana use illegal, with a California law that permits the doctor-prescribed use, for medical purposes, of in-state marijuana. Hamilton predicts a possible victory for the California law and the patients who seek to invoke it -- a victory that, she observes, would show that federalism benefits the left as well as the right.
Thursday, Dec. 02, 2004
A Federal Appeals Court Says A Religious Group Can Import Illegal Drugs:
The Religious Freedom Restoration Act Shows Its True Colors
FindLaw columnist and Cardozo law professor Marci Hamilton discusses a recent ruling by the U.S. Court of Appeals for the Tenth Circuit that implicates both the Constitution's Free Exercise Clause, and the Religious Freedom Restoration Act (RFRA) -- which purports to change the way federal courts must analyze free exercise questions. Hamilton argues the decision -- which enjoined the government from going after a church that imports an illegal drug into the U.S. from Brazil for its ceremonies -- was wrong, and illustrates the folly of RFRA.
Thursday, Nov. 18, 2004
The Supreme Court Without Rehnquist?
The Difference He Has Made, and What the Court Might Look Like Without Him
FindLaw columnist and Cardozo law professor Marci Hamilton discusses what will happen if Chief Justice Rehnquist leaves the Supreme Court during the next Bush Term -- a move that may have been made more likely by the Chief Justice's cancer diagnosis. Hamilton assesses Rehnquist's contributions over a more than thirty-year career on the Court, focusing on the areas of federalism and the Free Exercise Clause. She argues that critics who term him a conservative ideologue should look to his record, for they will see he is better characterized as a principled moderate.
Thursday, Nov. 04, 2004
Two Important Establishment Clause Issues The Supreme Court Will Decide This Term,
Relating to The Ten Commandments and a Key Federal Statute
FindLaw columnist and Cardozo law professor Marci Hamilton discusses two key church/state issues the Court will address this Term. One involves public displays of the Ten Commandments -- in two cases, one from Texas and one from Kentucky. The other involves the Religous Land Use and Institutionalized Persons Act (RLUIPA) -- and concerns a challenge to prison regulations that have an impact on the religious practices of prisoners. Hamilton explains the three pertinent cases, and indicates how the Court may resolve them.
Thursday, Oct. 21, 2004
A Massachusetts District Attorney's Clever Tactic in the Child Sex Abuse Wars:
Bringing, then Dismissing, a Child Rape Indictment Against a Catholic Bishop
FindLaw columnist and Cardozo law professor Marci Hamilton discusses a series of prosecutorial decisions in Massachusetts, and what they mean. A Massachusetts DA indicted a bishop for alleged child rape, and then withdrew the indictment on the ground that the statute of limitations had expired. Was the indictment a mistake? Or was the issuance and withdrawal of the indictment a clever way to set forth the evidence against the bishop, and call attention to the injustices that may be causes by statutes of limitations for child sexual abuse? Hamilton suggests the answer is the latter.
Thursday, Oct. 07, 2004
The Pledge Protection Act:
The Lunacy of Letting Only State Courts Interpret the First Amendment
FindLaw columnist and Cardozo law professor Marci Hamilton discusses the Pledge Protection Act -- a bill that the House Judiciary Committee recently voted to send to the full House for consideration. As Hamilton explains, the Act would purport to strip all federal courts -- even the Supreme Court -- of jurisdiction to consider constitutional challenges to the "under God" Pledge of Allegiance. Hamilton contends that the Act should not become law -- because, among other reasons, its vision of religion in America is contrary to that of the Framers of our Constitution.
Thursday, Sep. 23, 2004
An Award of Punitive Damages Against A Religious Institution:
Is It a Constitutional Violation?
FindLaw columnist and Cardozo law professor Marci Hamilton considers a new constitutional argument that has been advanced in the context of civil litigation relating to alleged Catholic Church clergy child abuse. The argument urges that when a religious institution is the defendant, the First Amendment's Free Exercise Clause prohibits a court from awarding punitive damages even if the defendant is found liable. Hamilton contends the argument is contrary to Supreme Court precedent --and particularly inappropriate in clergy abuse cases, where she argues such damages are not only constitutional, but necessary to do justice.
Thursday, Sep. 09, 2004
The Pennsylvania Mandatory School Pledge of Allegiance Law:
Why A Federal Appeals Court Was Right to Strike It Down
FindLaw columnist and Cardozo law professor Marci Hamilton discusses an important recent federal appellate decision concerning the First Amendment. As Hamilton explains, after the attacks of September 11, the Pennsylvania legislature passed a law requiring all private and public schools in the state to lead children in a mandatory pledge of allegiance -- with any child who refused to participated being reported to his or her parents. Hamilton applauds the court's decision to strike the law down, explains the relevant Supreme Court precedents, and fits the case into the Supreme Court's doctrine that compelled speech violates the First Amendment as surely as censorship does.
Thursday, Aug. 26, 2004
A Michigan Supreme Court Decision Supports Private Landowners' Rights:
Its Reasoning and Possible Nationwide Ramifications
FindLaw columnist and Cardozo law professor Marci Hamilton examines a recent Michigan Supreme Court decision relating to property rights that may reverse an important legal trend -- and thus may have nationwide implications, if other states find the decision persuasive. The decision, interpreting the Michigan Constitution, found that the government cannot take private property if its only purpose is to hand it over to private developers -- for there is no "public use" implicated that would justify the exercise of the power of eminent domain.
Thursday, Aug. 12, 2004
The Marriage Debate and Polygamy:
Several Utah Cases Challenge Whether Anti-Polygamy Laws Are Constitutional
Does the Constitution protect polygamists? FindLaw columnist and Cardozo law professor Marci Hamilton notes that this very argument is now being made in a number of Utah cases -- and assesses the merits of the argument. Hamilton contends that neither the Constitution's protection of the free exercise of religion, nor its protection of a substantive due process right of privacy, applies to polygamy. She also argues that in the end, the best way to define marriage is to leave the definition to each State -- rather than imposing a single definition drawn from the U.S. Constitution, or drafted by Congress.
Thursday, Jul. 29, 2004
Did the Portland Catholic Archdiocese Declare Bankruptcy To Avoid or Delay Clergy Abuse Suits?:
The Risk of Bad-Faith and Noncooperative Church Bankruptcies
FindLaw columnist and Cardozo law professor Marci Hamilton discusses the recent move by some Catholic Archdioceses to consider, or actually opt for, federal bankruptcy in the wake of clergy abuse litigation. Hamilton notes that bankruptcies designed primarily to avoid or delay litigation may be bad-faith and therefore illegal. She also predicts that if bankruptcies do go forward, the document disclosure issues have occurred in clergy abuse civil actions are likely to recur -- for the archdioceses may invoke the Religious Freedom Restoration Act (RFRA) to challenge aspects of bankruptcy procedure as applied to them.
Tuesday, Jul. 13, 2004
The Supreme Court's Terrorism Cases:
What They Held, and Why They Are Important
FindLaw columnist and Cardozo law professor Marci Hamilton discusses both the results and the importance of two "war on terrorism" cases just decided by the Supreme Court. In the first, Rasul v. United States, the Court held that the detainees at Guantanamo have the right to file habeas corpus petitions to challenge the legality of their detention. In the second, Hamdi v. Rumsfeld, a majority of Justices - in a plurality opinion, and a concurrence - held that American citizen Yaser Hamdi has the right to challenge the government's justification for his detention.
Thursday, Jul. 01, 2004
The Supreme Court Decision on the Pledge of Allegiance Case:
Why It Raises Federalism Issues
FindLaw columnist and Cardozo law professor Marci Hamilton explains why the Supreme Court's recent decision on the "under God" Pledge of Allegiance may be very significant, despite the fact that it did not resolve the ultimate issue of whether requiring schoolchildren to recite the Pledge is an Establishment Clause violation. Hamilton argues that the Court's decision on standing -- that is, who has the right to sue -- raises troubling federalism issues, and intrudes on the traditionally state law domain of family law.
Thursday, Jun. 17, 2004
The Supreme Court's Federalism Cases This Term:
A String of Decisions Upholding Federal Power Show the Portrayal of the Court as Extreme Is A Caricature
FindLaw columnist and Cardozo law professor Marci Hamilton discusses four cases decided by the Supreme Court this term that implication arguments of federalism -- that is, states' rights and powers versus federal rights and powers. Hamilton argues that taken together, the four cases (as well as other precedents) shatter predictions that the current Court was going to impose on the country an extreme, pro-states' rights federalism. To the contrary, Hamilton urges, this Term's decisions show the Court is actually quite moderate and tempered in this area of law.
Thursday, Jun. 03, 2004
Why the Massachusetts Supreme Judicial Court Was Right to Reject A First Amendment Defense To a Subpoena in a Clergy Abuse Case
FindLaw columnist and Cardozo law professor Marci Hamilton discusses two recent rulings of Massachusetts' Supreme Judicial Court, each relevant to the controversy over alleged clergy child sexual abuse. In one ruling, the Court rejected, 4-3, a First Amendment defense raised by the Society of Jesus of New England to a subpoena requiring the productions of documents in an alleged abuse case. Hamilton argues that the majority was correct, and the dissenters were in error.
Thursday, May. 20, 2004
Why Ensuring Accountability for Clergy Sexual Abuse of Children Has Proved So Difficult,
Even Though It Remains So Crucial
FindLaw columnist and Cardozo law professor Marci Hamilton takes on a troubling question: If everyone agrees clergy child sexual abuse must be stopped, why has it been so hard to actually enact solutions and gain full Church cooperation? Hamilton examines three examples from Wisconsin, Illinois, and New Hampshire to illustrate her points.
Thursday, May. 06, 2004
The Bush Presidency and Power:
The Guantanamo Cases, the Cheney Case, and the 9/11 Hearings
FindLaw columnist and Cardozo law professor Marci Hamilton discusses three developments, each of which will test President's Bush's Administration's exercise of power. First, there is the Supreme Court case, upon which oral argument recently was heard, testing whether the detainees at Guantanamo have the right to judicial review of the reasons behind their detention. Second, there is the Supreme Court case that will decide if Vice-President Cheney's records from his energy policy commission will be disclosed, or whether they are covered by executive privilege. Third, there are the proceedings of the 9/11 Commission.
Thursday, Apr. 22, 2004
Is "Ghost" Voting Acceptable?
A Pennsylvania Legislator Allegedly Casts a Remote Vote, And Raises the Question Whether the Problem Is Remote Voting or Archaic Voting Technology
FindLaw columnist and Cardozo law professor Marci Hamilton calls for an end to an American tradition that she argues undermines, rather than further, the Framers' values: The requirement that legislators, state and federal, be present in order to vote. Hamilton considers the "ghost" voting controversy in Pennsylvania and questions whether the real problem was that legislators were not allowed to "vote remote" in the first place. If anything, she argues, legislators should be required to present for hearings -- not votes.
Thursday, Apr. 08, 2004
Contrasting a Nun's View With a Journalist's:
A Review of Two Recent Books on The Catholic Church Clergy Abuse Debacle
FindLaw book reviewer and Cardozo law professor Marci Hamilton contrasts two very different books on the Catholic Church clergy sexual abuse scandal. The first is Karol Jackowski's The Silence We Keep: A Nun's View of the Catholic Priest Scandal. As the title suggests, Jackowski is a nun who brings a religious and historical perspective to the scandal. The second is reporter David France's Our Fathers: The Secret Life of the Catholic Church in an Age of Scandal -- a chronological account of the unfolding of events related to the scandal.
Friday, Mar. 26, 2004
The Court Hears Oral Argument in the "Under God" Pledge of Allegiance Case:
Why the Court Should Reject This Pledge, and Why the Department of Justice Is Wrong To Support It
FindLaw columnist and Cardozo law professor Marci Hamilton weighs in on the controversial case that asks the Supreme Court to decide whether having the "under God" pledge of allegiance in public schools violates the Establishment Clause. Hamilton explains the tenor of the recent oral argument before the Court, argues that there is indeed an Establishment Clause violation, and argues that a decision to the contrary would not only be a legal error, but also lower the U.S.'s credibility in the international community.
Thursday, Mar. 25, 2004
Shockingly, Only 2% of Catholic Clergy Sexual Abusers Were Ever Jailed:
A Demonstration that the Self-Policing of Criminal Behavior Will Never Work
FindLaw columnist and Cardozo law professor Marci Hamilton cites statistics from a new report, as well as events in Springfield, Massachusetts -- where a bishop has resigned his post -- as evidence that Catholic Church self-policing has been a catastrophic failure. Hamilton argues that even incorporating lay review into self-policing cannot be a substitute for a policy of reporting all sexual abuse allegations to police and prosecutors.
Thursday, Mar. 11, 2004
The Supreme Court Issues a Monumental Decision:
Equal State Scholarship Access for Theology Students Is Not Required by the Free Exercise Clause
FindLaw columnist and Cardozo law professor Marci Hamilton comments on the Supreme Court's decision this week in Locke v. Davey. As Hamilton explains, the case asked the Court to decide whether the State of Washington's scholarship program, which (pursuant to the state's Constitution) specifically excludes theology students, violates the federal Constitution's Free Exercise Clause. The Court, by a 7-2 vote, said no; Hamilton explains why, given the U.S. Constitution's structure and the Court's own precedents, she believe the Court's result was the right one.
Friday, Feb. 27, 2004
A Recent Utah Case Asks:
Is a Prohibition on Polygamy Constitutional?
FindLaw columnist and Cardozo law professor Marci Hamilton discusses a suit recently filed in Utah, which challenges a clerk's denial of a marriage license to a married couple who wanted to expand their marriage to include another woman. Hamilton discusses the Supreme Court precedent on polygamous marriage, and assesses whether the status of polygamous marriage may change in light of the Supreme Court's decision last summer in Lawrence v. Texas. There, the Court suggested that constitutional privacy may mean consenting adults can do as they like in their bedrooms.
Thursday, Feb. 12, 2004
California's Defeat of a State RLUIPA Bill:
The Growing Backlash Against Religious Land Use and Institutionalized Persons Acts
FindLaw columnist and Cardozo law professor Marci Hamilton discusses the recent proposal, and defeat, of a Religious Land Use and Institutionalized Persons Act (RLUIPA) in the California legislature. Hamilton explains how such acts -- including the currently-in-force federal RLUIPA -- change the legal context for land use disputes involving religious entities, and argues that they are so unfair that backlash against them, such as occured and California, will -- and should -- continue.
Thursday, Jan. 29, 2004
The Catholic Church's Self-Audit on Its Clergy Child Sexual Abuse Procedures:
The Fox Continues to Guard the Henhouse
FindLaw columnist and Cardozo law professor Marci Hamilton discusses the recently released clergy child abuse procedures report by the Catholic Church, which goes diocese by diocese in evaluating responses to the scandal. Hamilton contends that the report is both procedurally flawed -- for investigators spoke to very few victims, and were given access to only some materials -- and substantively troubling. She argues that the report shows that in the end, it will be lawsuits, and not the Church itself, that will truly make headway towards addressing past victims' harms, and preventing harm in the future.
Thursday, Jan. 08, 2004
Holiday Decorations, and the Religion Clauses
What the Rules Are, And Why the Supreme Court Was Prescient to Clarify Them Decades Ago
FindLaw columnist and Cardozo law professor Marci Hamilton discusses the kind of holiday displays by the government that the Establishment Clause allows, and the kind it makes illegal. In so doing, Hamilton surveys relevant Supreme Court precedent, and comments on two recent cases in which confusion regarding the law in this area apparently caused holiday displays to be unnecessarily dismantled.
Thursday, Jan. 01, 2004
The Supreme Court's Recent Landmark Campaign Finance Decision
Acknowledging the Factual Record Of Corruption in Congress
FindLaw columnist and Cardozo law professor Marci Hamilton discusses the recent Supreme Court decision upholding, in large part, the Bipartisan Campaign Reform Act. She argues that the dissenting Justices turned a blind eye to the strong interest in ending corruption or the appearance thereof -- and overvalued what is really a relatively modest incursion on First Amendment rights.
Thursday, Dec. 18, 2003
Is World Peace Through Conflict Prevention Possible?
A Review of David Hamburg's No More Killing Fields
FindLaw book reviewer, 9/11 Commission Vice-President, and President of the Woodrow Wilson International Center for Scholars Lee Hamilton assesses David Hamburg's recent work on conflict prevention. Hamburg covers topics ranging from the lessons of World War II, to the value of preventive action and early warning, to the need for international cooperation, and more.
Friday, Dec. 12, 2003
Can the State Refrain from Funding Education of the Clergy, When It Funds Secular Education?
The Supreme Court Will Decide This Term
FindLaw columnist and Cardozo law professor Marci Hamilton discusses a church/state case argued this week before the Supreme Court. The case raises the question whether the Free Exercise Clause of the First Amendment requires a state that provides college scholarships for secular instruction, to fund religious instruction as well. As Hamilton explains, it involves two separate lines of Supreme Court church/state precedent that are in tension with each other.
Thursday, Dec. 04, 2003
Judge Roy Moore and the Ten Commandments Controversy
Why He Was Not A Fit Justice, Won't Be A Fit Governor, And Belongs in the Private Sphere
FindLaw columnist and Cardozo law professor Marci Hamilton discusses the possible future plans of the now-unseated Alabama Chief Judge Roy Moore -- who was required by an ethics panel to step down after he insisted on having a Ten Commandments statue in Alabama's courthouse. Hamilton contends that if Moore is contemplating a bid for governorship, he has proven himself unfit, for he made clear that he would disobey a court order to remove the statue, and thus does not respect the law.
Tuesday, Nov. 18, 2003
The Federal Government's Intervention On Behalf of Religious Entities In Local Land Use Disputes:
Why It's A Terrible Idea
FindLaw columnist and Cardozo law professor Marci Hamilton discusses the Department of Justice's decision to intervene, and investigate, in cases brought pursuant to the Religious Land Use and Institutionalized Persons Act (RLUIPA). Hamilton argues that RLUIPA itself is a bad idea for, she contends, it gives religious entities special rights to challenge local zoning laws. She also argues that DOJ's decision to intervene to aid plaintiffs in RLUIPA cases only increases the statute's harmful impact.
Thursday, Nov. 06, 2003
The Federal Government's Intervention On Behalf of Religious Entities In Local Land Use Disputes:
Why It's A Terrible Idea
FindLaw columnist and Cardozo law professor Marci Hamilton discusses the Department of Justice's decision to intervene, and investigate, in cases brought pursuant to the Religious Land Use and Institutionalized Persons Act (RLUIPA). Hamilton argues that RLUIPA itself is a bad idea for, she contends, it gives religious entities special rights to challenge local zoning laws. She also argues that DOJ's decision to intervene to aid plaintiffs in RLUIPA cases only increases the statute's harmful impact.
Thursday, Nov. 06, 2003
The Rule of Law
Even As We Try to Export the Ideal of Justice By Law, Not Whim, Some in America Resist That Very Ideal
FindLaw columnist and Cardozo law professor Marci Hamilton discusses the rule of law -- the concept, fundamental to American constitutional government, that everyone is governed by the same law, which is fairly and equally applicable to all. Hamilton describes attempts by Americans to export this concept to other countries -- but decries the way in which, she argues, it is at the same time being undermined in the U.S..
Thursday, Oct. 23, 2003
The First Monday in October, 2003:
Reflections on the Beginning of a New Supreme Court Term, And A Federalism More Moderate than Many Claim
FindLaw columnist and Cardozo law professor Marci Hamilton contends that even the first two cases of the Supreme Court's October Term 2003 reveal that the Court's federalism is not reflexive and archconservative, but rather reasoned and moderate. In one case, a State seeks to use another State's river water; in the other, a State is trying to avoid a settlement agreement it signed. In both, Hamilton argues, the Justices, at oral argument, displayed an approach profoundly different from the caricature that the Court automatically favors states' rights.
Thursday, Oct. 09, 2003
The Catholic Church Is Not the Only Culprit In the Abuse Scandal:
Why Society Must Insist on Legal Reform
FindLaw columnist and Cardozo law professor Marci Hamilton discusses what reforms -- both to the Catholic Church, and to the law -- should arise from the clergy child abuse scandal. Hamilton focuses, in particular, on statute of limitations issues, arguing that states should actively pursue a diverse set of approaches to see which works best, rather than being cautious about revising their current abuse statutes of limitations.
Thursday, Sep. 25, 2003
The Ten Commandments and American Law
Why Some Christians' Claims to Legal Hegemony Are Not Consistent with the Historical Record
FindLaw columnist and Cardozo law professor Marci Hamilton discusses the legal history behind the claim that the Ten Commandments are a central part of American law -- and finds historical evidence for this claim severely wanting. Hamilton explains what the historic sources of American law really were, and why the Framers did _not_ want to rely on the Ten Commandments in creating the U.S. constitutional system.
Thursday, Sep. 11, 2003
The Era of Entitlement:
What Alabama Judge Roy Moore, File "Sharers," and the Catholic Church Have in Common
FindLaw columnist and Cardozo law professor Marci Hamilton contends that our era is marked by an attitude of entitlement that leads individuals and institutions to claim that, in some cases, they deserve to be able to break the law. To illustrate her point, Hamilton looks at file sharers who claim the right to infringe copyright, the Alabama Supreme Court Justice who claimed the right to place a religious statue in the courthouse, and the Catholic Church's claim that it should be excused from the same child abuse reporting requirements that apply to others.
Thursday, Aug. 28, 2003
Why Suing College Students for Illegal Music Downloading Is the Right Thing To Do
FindLaw columnist and Cardozo law professor Marci Hamilton argues in favor of the recording industry's controversial recent decision to go after not only file-trading sites, but also students who file-trade. Hamilton contends that the apparent bad fit between copyright law and the Internet does not mean copyright law is obsolete, but rather, that it has not been strongly enough enforced in the Internet context.
Tuesday, Aug. 05, 2003
The Boston Grand Jury Report on Catholic Clergy Sexual Abuse:
Why Its Conclusion that Criminal Charges are Stale is Wrong
FindLaw columnist and Cardozo law professor Marci Hamilton critiques the recent grand jury report regarding Catholic Church clergy abuse in Boston. She faults Massachusetts Attorney General Thomas Reilly for failing to file a single criminal charge, on the ground that they would be stale. Hamilton contends that, even given statute of limitations concerns, there are still valid, timely charges that could be brought and prosecuted.
Thursday, Jul. 31, 2003
The Case for Abolishing Child Abuse Statutes of Limitations, And For Victims' Forgoing Settlement In Favor of A Jury Trial
FindLaw columnist and Cardozo law professor Marci Hamilton contends that -- in light of the Supreme Court's recent decision that states cannot retroactively extend child abuse statutes of limitations -- the best solution is for state legislatures to abolish such statutes of limitations altogether. As with murder, she contends, there should be no statute of limitations for child abuse. She also argues that victims should choose trial over settlement if possible.
Thursday, Jul. 17, 2003
The Supreme Court's End of Term Cases:
A Demonstration of the Court's Continuing Independence That Proves Commentators Wrong
FindLaw columnist and Cardozo law professor Marci Hamilton draws on a number of the Supreme Court's recent, end-of-Term decisions to defend the Court from charges that it is unduly political, that it is hostile to civil rights, and that it unfairly favors the states above the federal government. Hamilton contends that these claims are unsubstantiated myths -- and that recent cases that have struck down state laws, and upheld or expanded civil rights protections, prove that, to the contrary, the Court is balanced, reasonable, and centrist.
Thursday, Jul. 03, 2003
It's Time For A RICO Prosecution of the Catholic Church:
Governor Keating's Forced Resignation Shows the Church Will Not Reform Itself
FindLaw columnist and Cardozo law professor Marci Hamilton argues the time has come for the Department of Justice and local U.S. Attorney's Offices to consider action against the Catholic Church and its officials under the federal Racketeering-Influenced Corrupt Organizations Statute (RICO). Hamilton contends that the latest chapter in the scandal shows there is little, if any, hope that local prosecutions will cause the Church to institute true reform from the inside.
Thursday, Jun. 19, 2003
Pretending Decades of Covering Up Child Abuse Is Not a Crime:
Why the Phoenix Settlement Agreement Is Insufficient
FindLaw columnist and Cardozo law professor Marci Hamilton takes issue with the settlement agreement Phoenix, Arizona prosecutors recently reached with a bishop there who allegedly had covered up clergy child abuse by more than fifty perpetrators over a lengthy time period. Hamilton contends that the settlement's provisions protecting future children from abuse are not enough to justify its neglect for the harms to past clergy child abuse victims.
Thursday, Jun. 05, 2003
Why President Bush's "New" Emphasis on Religion Is Hardly New:
A Look Back at the Clinton Administration and Religion
FindLaw columnist and Cardozo law professor Marci Hamilton takes on the popular belief that the Bush Administration is the first to so strongly push faith-based initiatives. To disprove this claim, Hamilton draws on Clinton Administration legislation, contending that recent Bush Administration church/state developments were presaged by Clinton Administration laws and policies. Hamilton also discusses how recent Supreme Court decision intersect with the recent Presidency/religion connection.
Thursday, May. 22, 2003
The D.C. District Court's Recent Campaign Finance Opinions:
The Fourteen-Pound Tome Underscores the Policy, As Well as Legal, Problems with the Act
FindLaw columnist and Cardozo law professor Marci Hamilton discusses the three-judge special D.C. district court's recent decision striking down much of the McCain-Feingold Bipartisan Campaign Reform Act. Hamilton argues that the problems with the Act are not limited to First Amendment concerns. Rather, she contends, the real problem is that its method of fighting corruption is bound to be ineffective. Hamilton suggests an alternative approach.
Thursday, May. 08, 2003
Finding the Right Government for Iraq:
U.S. History Shows That It May Take Time, Patience, Rethinking, and Amendment
FindLaw columnist and Cardozo law professor Marci Hamilton draws on U.S. history -- particularly in the time period between the enactment of the Articles of Confederation and the Constitutional Convention -- to derive lessons for Iraq. Hamilton notes that while civics lessons tend to portray the Constitution's advent as smooth and assured, the truth is far different.
Saturday, Apr. 26, 2003
How Congress Undermined the American Dream:
The Effect of the Religious Land Use and Institutionalized Persons Act on Residential Neighborhoods
FindLaw columnist and Cardozo law professor Marci Hamilton discusses the issue of conflicts between religious landowners and their residential neighbors. Hamilton explains the federal statute that now has a significant effect, favoring the religious landowner, on such disputes. She argues that, under our Constitution, such issues are properly left to states and localities, not the federal government.
Thursday, Apr. 24, 2003
The Catholic Church and the Clergy Abuse Scandal:
FindLaw columnist and Cardozo law professor Marci Hamilton explains recent developments in what she terms the third Act of the Catholic Church scandal -- in which the Church has tried to resist reforms by raising various First Amendment arguments, and claiming reliance on a "church autonomy doctrine." Hamilton argues that there is no such doctrine, and the First Amendment does not offer protection here.
Thursday, Apr. 10, 2003
The Elizabeth Smart Case:
Why We Need Specific Laws Against Brainwashing
FindLaw columnist and Cardozo law professor Marci Hamilton argues that the charges in the Elizabeth Smart case -- for aggravated kidnapping, aggravated sexual assault and aggravated burglary -- do not get to the heart of the wrong that was done to Elizabeth. Creating a specific brainwashing offense, Hamilton argues, is the best and most direct way to target crimes like this.
Thursday, Mar. 27, 2003
The Supreme Court's "Three Strikes" Opinion:
Another Strike for Federalism
FindLaw columnist and Cardozo law professor Marci Hamilton offers a fresh perspective on the Supreme Court's recent decision upholding California's "three strikes" law. Hamilton argues that the decision is best understood as not only an Eighth Amendment "cruel and unusual punishment" ruling, but also as a ruling on federalism, and the delineation of the proper boundaries of federal and state power.
Thursday, Mar. 13, 2003
Will State Legislatures Stand Up to the Catholic Church, and Pass Strong Anti-Child Abuse Laws?
Maryland's Example Suggests It Will Be A Tough Fight
FindLaw columnist and Cardozo law professor Marci Hamilton discusses how Maryland and other states have been responding to the challenge of amending their current laws to prevent future clergy child abuse, and ensure that past clergy child abuse can be prosecuted or sued upon. In particular, Hamilton focuses on the controversy in Maryland over how far the protections of the confessional reach, and how far a proposed statute would encroach on them.
Monday, Feb. 24, 2003
Now that the Supreme Court Has Declined to Limit Copyright Duration, Those Who Want to Shorten the Term Need to Look At Other Options, Including Constitutional Amendment
FindLaw columnist and Cardozo law professor Marci Hamilton discusses thre options for those who oppose lengthy copyright terms, in light of the Supreme Court's opinion in Eldred v. Ashcroft. Eldred held that Congress's extending the copyright term, by statute, to life-of-the-author plus seventy years did not violate the Constitution's copyright clause.
Thursday, Feb. 13, 2003
Why the U.S.'s International Religious Freedom Commission Is Harming Its Status In the World Community
FindLaw columnist and Cardozo law professor Marci Hamilton describes and critiques the role of the U.S.'s International Religious Freedom Commission (IRFC). Hamilton contends that by unfairly criticizing our allies' stances on religious liberty issues, the IRFC hurts the U.S.'s image in the world.
Thursday, Jan. 30, 2003
THE CATHOLIC CHURCH, THE INSURANCE CARRIERS, AND WHY THE FIRST AMENDMENT'S RELIGIOUS FREEDOM GUARANTEES PROVIDE NO DEFENSE IN THE CLERGY ABUSE CASES
FindLaw columnist and Cardozo law professor Marci Hamilton discusses the Catholic Church's Boston Archdiocese's and its insurer's decision to raise a First Amendment freedom of religion defense in the clergy abuse litigation in which they are currently involved. Could the defense work? Is it a strategic necessity for the insurance carrier? Hamilton explains.
Thursday, Jan. 16, 2003
ARE FEDERALISM, AND THE STATES, REALLY ANTI-CIVIL RIGHTS, AS LIBERALS OFTEN CLAIM?
THE CLAIM DEFIES THE FACTS, THE CONSTITUTION, AND LOGIC
FindLaw columnist and Cardozo law professor Marci Hamilton takes issue with the oft-repeated claim of a link between a conservative policy agenda and principles of States' rights and Constitutional federalism, as expressed in recent Supreme Court cases. Hamilton argues that in the contemporary era, when States have their own sets of anti-discrimination laws, claims that federalism principles are inherently anti-civil-rights are inaccurate and unfair.
Thursday, Jan. 02, 2003
WHY CARDINAL BERNARD LAW'S RESIGNATION IS A BRIEF, BUT SHINING MOMENT FOR THE LAW, AND HOW IT MAY FIT INTO THE LARGER CHURCH SCANDAL
FindLaw columnist and Cardozo law professor Marci Hamilton analyzes the meaning and likely effect of Cardinal Bernard Law's recent resignation. Hamilton contends that Law's resignation is a triumph for the law -- and in particular, for the civil lawsuits that prompted it by revealing Law's record vis-a-vis clergy child abuse -- and comments on the role the law will continue to play in the larger Catholic Church scandal.
Thursday, Dec. 19, 2002
IN THE TIME OF THE WAR ON TERRORISM, IT'S ALSO TIME TO RETHINK HOW WE TREAT OUR VETERANS, AS THE OLD SOLDIERS AND AIRMEN'S HOME DEBACLE SHOWS
FindLaw columnist and Cardozo law professor Marci Hamilton urges that we improve our treatment of veterans, especially now that we in are the midst of the war on terrorism. As an example of one major problem area, Hamilton cite the continuing controversy over how the Old Soldiers and Airmen's Home -- a nursing home for retired vets -- should be funded. Hamilton argues the provisions made in the 2002 Defense Appropriation Act are not yet sufficient.
Thursday, Dec. 05, 2002
THE VATICAN, THE BISHOPS, AND THE STATE RELIGIOUS FREEDOM RESTORATION ACTS:
WHY THE DALLAS AGREEMENT AND VATICAN NORMS ARE INSUFFICIENT TO ENSURE CLERGY CHILD ABUSE WILL BE PROPERLY REPORTED
FindLaw columnist and Cardozo law professor Marci Hamilton explains how the
Catholic Church's reforms relating to clergy child abuse will likely be
applied in practice. Explaining key provisions of both the Vatican Norms and
the Dallas Agreement, Hamilton explores how they will intersect with state
statutes. Hamilton contends that the end result may be that clergy clergy
abuse still is not always immediately reported -- and may, in some cases,
never be reported at all.
Thursday, Nov. 21, 2002
HOW EXISTING STATE RELIGIOUS FREEDOM RESTORATION ACTS
MAY BE USED TO HELP COVER UP CLERGY CHILD ABUSE,
AND WHY STATES CONSIDERING RFRAS SHOULD THINK AGAIN
FindLaw columnist and Cardozo law professor Marci Hamilton discusses the
intersection of two controversial topics. The first is the Catholic Church's
clergy abuse scandal and the resulting prosecution and litigation. The
second is a type of statute for which the Church is heavily lobbying -- the
state-level Religious Freedom Restoration Act, which would impose demanding
standards on laws regulating religious entities.
Thursday, Nov. 07, 2002
MICKEY MOUSE VERSUS WIRED MAGAZINE:
THE SUPREME COURT CONSIDERS WHETHER
A LAW EXTENDING THE COPYRIGHT TERM IS
FindLaw columnist and Cardozo law professor Marci Hamilton discusses the case
of Eldred v. Ashcroft, in which the Supreme Court held oral argument last
week. The case raises the issue of whether the current, extended term of
duration for copyrights (the life of the author plus seventy years) violates
the Constitution's Copyright Clause. Hamilton predicts how the case will be
decided, and comments on the larger issues it raises.
Thursday, Oct. 24, 2002
WHY NEW JERSEY SHOULD NEVER HAVE FUNDED A POET LAUREATE
IN THE FIRST PLACE:
THE REAL LESSON OF THE AMIRI
FindLaw columnist and Cardozo law professor Marci Hamilton weighs in on the
New Jersey scandal involving poet laureate Amiri Baraka. Baraka's poem
"Somebody Blew Up America" includes lines that appear to endorse the
baseless, anti-Semitic rumor that 4000 Israelis in America somehow had
foreknowledge of the 9/11 World Trade Center attacks. Now New Jersey is
trying to fire Baraka -- but Hamilton suggests that a more long-term solution
of cutting off arts funding is needed.
Thursday, Oct. 10, 2002
WHERE NOT TO DRAW THE LINE, WHEN IT COMES TO
THE LEFT, FEDERALISM, AND
THE WAR AGAINST TERROR
FindLaw columnist and Cardozo law professor Marci Hamiton contends that
liberal critiques of the Bush Administration's war plans -- such as the
recent ad from prominent celebrity activists such as Susan Sarandon and Jane
Fonda in the New York Times -- are misguided. Hamilton argues, moreover,
that even those on the left should appreciate the influence of the Supreme
Court's federalism cases.
Thursday, Sep. 26, 2002
WAS CHURCH/STATE SEPARATION PART OF THE ORIGINAL
A REVIEW OF PHILIP HAMBURGER'S PROVOCATIVE
ON SEPARATION'S HISTORY
FindLaw columnist and book reviewer and Cardozo law professor Marci Hamilton
reviews Professor Philip Hamburger's recent book, The Separation of Church
and State. Hamilton finds much in the book to admire, including the strong
evidence it adduces to support a fascinating thesis about American history.
She cautions, however, that the work may be susceptible to misuse by those
who deny that church/state separation is an integral part of the
Constitution, and seek a far closer relationship between the two.
Friday, Sep. 20, 2002
THE CONSTITUTIONAL THREATS WE FACE
FROM WITHOUT BUT ALSO FROM WITHIN, A YEAR AFTER
FindLaw columnist and Cardozo law professor Marci Hamilton discusses how the
Bush Administration can win back some of its lost credibility with the public
-- in part by showing us some of its dossier on terrorists. Hamilton
contends that the problem lies not just at the door of the Administration,
but also at those of what she argues are overly harsh critics such as the
ACLU. She also points out a little-noted threat of the Administration's
closed-door policies: ill-informed judges may make rulings they would not if
they knew all the facts.
Monday, Sep. 09, 2002
A RELIGIOUS BIAS SUIT BY EVANGELICAL CHAPLAINS
AGAINST THE NAVY:
THE LAW CONFRONTS
FindLaw columnist and Cardozo law professor Marci Hamilton discusses a recent
lawsuit that claims not just religious, but denominational discrimination.
The suit has been brought by Evangelical Navy chaplains who allege that they
are being passed over for promotion in favor of chaplains from more
mainstream Protestant denominations. Hamilton explains how and why the
Constitution protects not just religions but denominations, through a number
of different clauses in the Bill of Rights. She also considers whether the
chaplains' suit is likely to succeed even if there is no "smoking gun"
showing intentional discrimination and the chaplains must rely on a disparate
impact theory instead.
Thursday, Aug. 29, 2002
PROTECTING RELIGIOUS INSTITUTIONS' RIGHT TO POLITICAL SPEECH:
WHY THE HOUSE OF WORSHIP POLITICAL SPEECH PROTECTION ACT SHOULD BE ENACTED
Since the Johnson Administration, religious institutions' tax exempt status has been conditioned on their foregoing the right to speak on political issues. A new bill -- the House of Worship Political Speech Protection Act -- would repeal that rule. FindLaw columnist and Cardozo law professor Marci Hamilton argues that the bill should be passed. Not only does it remedy a longstanding injustice, she argues, but it would also shed needed light on church/government relationships that currently go on beneath the media's radar screen.
Thursday, Aug. 15, 2002
THE ONGOING FIGHT FOR RELIGIOUS DOMINANCE:
FROM THE SECRET SERVICE AGENT'S SLUR, TO CRITIQUES OF
THE NINTH CIRCUIT'S PLEDGE OF ALLEGIANCE DECISION
FindLaw columnist and Cardozo law professor Marci Hamilton discusses the reasons why Americans should be more accepting of religious diversity -- as the Framers of the Constitution hoped they would. She begins by pointing out the irony of our nation's condemning a federal agents' "Islam Is Evil. Christ Is King." slur, and at the same time also condemning the Ninth Circuit's decision to strike "under God" from the Pledge of Allegiance. Hamilton argues that we should take a position against government Christocentrism or religiocentrism all the time, not just some of the time.
Thursday, Aug. 01, 2002
THE VIRTUE OF THE SUPREME COURT'S FEDERALISM CASES:
THE NECESSARY CONSTITUTIONAL ROLE OF THE STATES
FindLaw columnist and Cardozo law professor Marci Hamilton reflects on, and defends, the Supreme Court's federalism jurisprudence. She argues that the Court's decision against the state of Florida in Bush v. Gore was not in conflict with prior federalism cases, as many critics have claimed. And she discusses the reasons behind the Constitution's federal structure, and the reasons why that structure should continue to be enforced today.
Thursday, Jul. 18, 2002
WHY THE SUPREME COURT'S RECENT VOUCHERS OPINION WAS WRONG, AND ALSO TYPICAL OF THE COURT'S ESTABLISHMENT CLAUSE APPROACH
FindLaw columnist and Cardozo law professor Marci Hamilton discusses the
Supreme Court's 5-4 decision last week in Zelman v. Simmons-Harris. There,
the Court approved as constitutional Cleveland's voucher plan, under which
government-funded vouchers may be used by parents to pay for their children's
attendance at private schools, including religious schools. Hamilton
explains Justice O'Connor's crucial concurrence, and explains why Zelman may
not have as broad an influence as might appear to be the case.
Monday, Jul. 01, 2002
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