September 30, 2011 14:55 Age: 3 yrs

Assessing Fundamental Questions of Law and Morality

Michael J. Perry

Robert W. Woodruff Professor of Law
AB, Georgetown University, 1968
JD, Columbia University, 1973
LLD (honoris causa), St. John’s University
(Minnesota), 1999  
Scholarly interests: constitutional law, law and religion, law and morality, human rights

“Ever since my first class in constitutional law,” Michael Perry says, “I’ve been most deeply engaged intellectually by questions concerning the relationship of morality to law — specifically, as that relationship plays out in the context of the constitutional law of the United States.”

That deep interest led Perry to international renown as a scholar of constitutional law, religion, and the intersection between them. Having held distinguished chairs at Northwestern University and Wake Forest University, he holds a Robert W. Woodruff Professorship, Emory’s highest honor for a faculty member. He also is a Senior Fellow at the Center for the Study of Law and Religion at Emory Law.
In his 12 books and in more than 75 articles and essays, Perry has written on the most contentious issues of American law and politics. His scholarship extends to two broad areas: constitutional theory and human rights theory, which, he says, are intimately related.

Perry’s work in human rights theory addresses What is a “human right”? and What are the grounds of human rights? He asks, further, What is the right to religious and moral freedom, and what are the implications of that right for the controversies over same-sex marriage and abortion?

“My work in constitutional theory, too, addresses questions about certain basic human rights, namely, the human rights that are entrenched in the constitutional law of the United States,” Perry says. “But it also poses the fundamental question of American constitutional theory: What is the proper role of the courts — especially of the Supreme Court of the United States — in resolving constitutional controversies?”

The constitutional controversies forming the principal context for Perry’s writings about the proper judicial role are those that that track gravely divisive moral controversies, such as capital punishment, same-sex marriage, and abortion.
Within Perry’s long list of major university press titles, recent books include Toward a Theory of Human Rights: Religion, Law, Courts (Cambridge 2007) and The Political Morality of Liberal Democracy (Cambridge 2010). Two new books are under way: The Morality and Law of International Human Rights: Introduction and Overview and The Constitutional Morality of the United States: Democracy, Human Rights, and Judicial Review.

“In the United States, the great — and greatly divisive — moral and political controversies seem inevitably to become greatly divisive constitutional controversies,” Perry says. “We need to understand more fully the various dimensions of the controversies; we need to understand what, exactly, is at stake.”
Perry continues to raise questions and propose answers, nationally and beyond. He has served as a visiting professor at a number of law schools, including Yale, Tulane, and the University of Tokyo, and is now the Distinguished Visiting Professor in Law and Peace Studies at the University of San Diego.

Among Perry’s recent presentations are a plenary session at the annual Judicial Conference of the U.S. Court of Appeals for the 2nd Circuit, a lecture at Fordham University’s interdisciplinary conference on Moral Outrage and Moral Repair, and a paper at a conference on Religious Law and State Affairs, sponsored by the Bar Ilan University Faculty of Law in Tel Aviv, Israel.

In March, Perry will present the annual Currie Lecture at Emory Law’s Center for the Study of Law and Religion, speaking on “Freedom of Religion, Same-Sex Marriage, and the Catholic Church.”

“If my work succeeds in deepening our understanding of the divisive moral and constitutional controversies,” Perry says, “the potential beneficiaries include not just lawyers, judges, law professors, and law students, but every citizen who cares about the profound issues of morality and law.”

SELECTED PUBLICATIONS

Books

  • The Political Morality of Liberal Democracy (Cambridge 2010)
  • Constitutional Rights, Moral Controversy, and the Supreme Court (Cambridge 2009)
  • Toward a Theory of Human Rights: Religion, Law, Courts (Cambridge 2007)
  • Under God? Religious Faith and Liberal Democracy (Cambridge 2003)
  • We the People: The Fourteenth Amendment and the Supreme Court (Oxford 1999)

Book Chapters

  • The Grounds of Human Rights, in Human Rights: Critical Dialogues (Mark Goodale ed., Oxford, forthcoming 2012)
  • The Right to Religious and Moral Freedom, in Religion and Human Rights (John Witte Jr. & M. Christian Green eds., Oxford, forthcoming 2011)

Articles

  • From Religious Freedom to Moral Freedom, 47 San Diego Law Review 993 (2010)
  • A Religious Basis of Liberal Democracy, 41 George Washington International Law Review 923 (2010)
  • Liberal Democracy and the Right to Religious Freedom, 71 Review of Politics 1 (2009)
  • Religion as a Basis of Lawmaking? Herein of the Nonestablishment of Religion, 35 Philosophy & Social Criticism 105 (2009)

EXCERPT: “Violating the Political Morality of a Liberal Democracy: A Case in Point”

In November 2008, a few weeks after the election of Barack Obama to the presidency of the United States, Cyndy S. Lederman, a Florida judge, decided an adoption case: In the Matter of the Adoption of John Doe and James Doe. When I read Judge Lederman’s opinion in the case, I was struck by the fact that she was addressing, both explicitly and implicitly, some of the very issues at the heart of
this book.

A Florida law, enacted in 1977 during Anita Bryant’s successful campaign to repeal a gay rights ordinance that had recently been adopted by Dade County (Miami), declares that no one otherwise eligible to adopt under Florida law “may adopt if that person is a homosexual.” That a state refuses to create civil unions for same-sex couples — or that a state creates such unions but refuses to recognize them as “marriages” — does not prevent a same-sex couple from being a couple and living together as such and, along with their families, friends, and community, recognizing their union as a marriage.

But the Florida adoption law prevents gays and lesbians from becoming adoptive parents — and, so, imposes a much more severe hardship on gays and lesbians, it effects a more grievous assault on gays and lesbians, than does a state’s refusal to create civil unions for same-sex couples.

Judge Lederman concluded that the Florida law violates the Florida Constitution’s guarantee of equal protection. As I write this conclusion, the attorney general of Florida has filed an appeal in the case, and by the time this book has been published, Judge Lederman’s ruling may have been — or may be on its way to being — reversed. Nonetheless, her ruling is correct as a matter of the political morality of liberal democracy. And because the relevant part of that morality — the right to moral equality — is embedded in the constitutional law of Florida (in the guise of the right to equal protection), Judge Lederman’s ruling is also correct as a matter of Florida constitutional law. Because the right to moral equality is also embedded in the constitutional law of the United States (in the guise of the right to equal protection), the Florida law invalidated by Judge Lederman also violates U.S. constitutional law. (As I read her opinion, Judge Lederman ruled only as to Florida constitutional law.)

The Florida law clearly implicates the right to moral equality: There is undeniably a serious question whether the law is based on the view that homosexuals are inferior — second-class, or worse —human beings: that they do not have equal inherent dignity; that their well-being does not merit the same respect and concern as the well-being of some other human beings. Answering that question —and thereby deciding whether the law not only implicates but violates the right to moral equality —requires answering this question: Is the Florida law — specifically, the singling out of homosexuals and treating them less well — necessary to serve a legitimate (and sufficiently weighty) governmental interest?

Judge Lederman’s opinion patiently and thoroughly explained that the evidence presented to the court demonstrates a robust social scientific consensus to the effect that parenting by homosexuals, whether as biological, foster, or adoptive parents, is no less healthy for children —no less in the “best interests” of children — than parenting by heterosexuals. The sole interest the Florida law succeeds in serving, then, is the interest in affirming the traditional moral view that homosexual sexual conduct is immoral. As I explained in Chapter 8, however, that interest is not a legitimate governmental interest.

I can anticipate a response along these lines: “Although the right to moral equality (in the guise of the right to equal protection) is part of the constitutional law both of Florida and of the United States, a court should adopt a deferential stance — a Thayerian stance — in enforcing the right. And this Judge Lederman did not do.” I argued in Chapter 9 that a court should not adopt a Thayerian stance in enforcing the right to moral equality if there is good reason for the court to suspect that the challenged law is based on the view that those whom the law treats differently and less well are morally inferior. Put that point aside, however. The fact remains that Judge Lederman, constrained by established judicial precedent, did adopt a Thayerian stance: She did not ask whether in her own judgment the Florida law served a legitimate governmental interest; instead, she asked whether a lawmaker could plausibly think that the law served a legitimate governmental interest. (In the parlance of constitutional law, she asked whether the Florida law had a “rational basis.”) Judge Lederman’s answer, which was no, was more than amply supported — indeed, it was overdetermined — by the social-scientific evidence presented to the court.

The Florida law not only violates the political morality of liberal democracy. The law — according to which, again, no one otherwise eligible to adopt under Florida law “may adopt if that person is a homosexual”— is unconstitutional. The law is unconstitutional even from the perspective of Thayerian deference: Given the robust social-scientific consensus that has emerged to the effect that parenting by homosexuals is no less healthy for children — no less in the “best interests” of children —than parenting by heterosexuals, Judge Lederman was right to conclude that no lawmaker could any longer plausibly think that the Florida law serves a legitimate governmental interest.

Sometimes a court’s rejection of a constitutional challenge to a law is not merely incorrect; sometimes it is shameful. So shameful as to later warrant both embarrassment and apology. Two infamous examples:

  1. In Plessy v. Ferguson (1896), the U.S. Supreme Court’s rejection of a constitutional challenge to a law requiring racially segregated (“separate but equal”) railroad accommodations.
  2. In Korematsu v. United States (1944), the Court’s rejection of a constitutional challenge to the forced relocation of persons of Japanese ancestry, many of whom were American citizens, from their homes on the west coast of the United States to internment camps, during World War II.

By the time this book has been published, Judge Lederman’s constitutional ruling may have been reversed by the Florida Supreme Court. If so, that reversal — that rejection of the constitutional challenge to the Florida adoption law — will not merely be incorrect; it will be shameful. So shameful as to later warrant both embarrassment and apology.
— from The Political Morality of Liberal Democracy (Cambridge 2010)

 

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