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  • Print publication year: 2009
  • Online publication date: December 2010

8 - Easier Cases

Summary

In the next two chapters, I concern myself with the details of how judges should hold lawmakers to the standard of public justification. In doing so, I refer to some of the best-known constitutional issues to render my exclusive principle of public reason less abstract: freedom of religion, same-sex marriage, affirmative action, and abortion. I use particular cases as examples of when the Court met or failed to meet the standard of public justification, and then in some instances, I explain why the concurring or dissenting opinion was more publicly justified. When none of the opinions is sufficiently publicly justified, I offer my own thoughts as to how such an opinion could have been written. The point is not to claim that these hypothetical opinions are necessarily correct but to illustrate the kinds of opinions that could be publicly justified, and therefore could guide future judicial decision making.

RELIGIOUS FREEDOM

In Wisconsin v. Yoder, three Amish men, Wallace Miller, Jonas Yoder, and Adin Yutzy, were charged with violating a Wisconsin law that made school attendance compulsory until the age of sixteen. The crime was a misdemeanor, with penalties ranging from a minimum of a $5 fine to a maximum of a $50 fine and three months in jail. The defendants were convicted and fined $5 each but were reluctant to appeal their convictions because of the Christian principle of not “going to law” to resolve disputes.

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Peters, Shawn Francis, The Yoder Case: Religious Freedom, Education, and Parental Rights (Lawrence: University Press of Kansas, 2003), 36
Nolt, Steven N., A History of the Amish (Intercourse, PA: Good Books, 1992), 300–4
Hostetler, John A., Amish Society, 4th ed. (Baltimore, MD: Johns Hopkins University Press, 1993), 82–3
Song, Sarah, Justice, Gender, and the Politics of Multiculturalism (New York: Cambridge University Press, 2007)
Gutmann, Amy, “Civic Education and Social Diversity,” 105 Ethics (1995), 566
Taylor, Charles, “The Politics of Recognition,” in Multiculturalism: Examining the Politics of Recognition, ed. Gutmann, Amy (Princeton, NJ: Princeton University Press, 1994), 38
Galston, William, “Defending Liberalism,” 76 American Political Science Review (1982), 627
Kymlicka, Will, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford, U.K.: Clarendon Press, 1995), 162
Macedo, Stephen, Diversity and Distrust: Civic Education in a Multicultural Democracy (Cambridge, MA: Harvard University Press, 2000)
Brighouse, Harry, “Civic Education and Liberal Legitimacy,” 108 Ethics (1998), 719
Friedman, Milton, Capitalism and Freedom (Chicago: University of Chicago Press, 1962), 85–107
Macedo, Stephen, “Liberal Civic Education and Religious Fundamentalism: The Case of God v. John Rawls?105 Ethics (1995), 471–2
Gutmann, Amy, “Children, Paternalism, and Education: A Liberal Argument,” 9 Philosophy and Public Affairs (1980), 348
Gutmann, Amy, Democratic Education (Princeton, NJ: Princeton University Press, 1987), esp. 50–2
Taylor, Charles, “The Politics of Recognition,” in Multiculturalism: Examining the Politics of Recognition, ed. Gutmann, Amy (Princeton, NJ: Princeton University Press, 1994), 72
Nussbaum, Martha C., Liberty of Conscience: In Defense of America's Tradition of Religious Equality (New York: Basic Books, 2008), 143
Barber, Benjamin R., Consumed: How Markets Corrupt Children, Infantilize Adults, and Swallow Citizens Whole (New York: W. W. Norton, 2007)
Barry, Brian, Culture and Equality (Cambridge, MA: Harvard University Press, 2001), 181
Okin, Susan Moller, “Is Multiculturalism Bad for Women?” in Is Multiculturalism Bad for Women? ed. Cohen, Joshua, Howard, Matthew, and Nussbaum, Martha C. (Princeton, NJ: Princeton University Press, 1999), 9–24
Kleiman, Mark A.R., Marijuana: Costs of Abuse, Costs of Control (New York: Greenwood Press, 1989)
Carter, David, Stonewall: The Riots that Sparked the Gay Revolution (New York: St. Martin's Press, 2004), 1
Pinello, Daniel R., America's Struggle for Same-Sex Marriage (New York: Cambridge University Press, 2006), 20
Strasser, Mark, “The State Interests in Recognizing Same-Sex Marriage,” in Marriage and Same-Sex Unions: A Debate, ed. Wardle, Lynn D. (Westport, CT: Praeger Publications, 2003), 33–4
Koppelman, Andrew, “Discrimination against Gays Is Sex Discrimination,” 69 New York University Law Review (1994), 197–287
Macedo, Stephen, “Homosexuality and the Conservative Mind,” in Marriage and Same-Sex Unions: A Debate, ed. Wardle, Lynn D. (Westport, CT: Praeger Publications, 2003), 98
Richards, David A. J., The Case for Gay Rights: From Bowers and Lawrence and Beyond (Lawrence: University Press of Kansas, 2005), 108
Rauch, Jonathan, Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America (New York: Henry Holt, 2004), esp. 72–85
Waldron, Jeremy, Law and Disagreement (Oxford: Oxford University Press, 1999)
Metz, Tamara, “Why We Should Disestablish Marriage,” in Shanley, Mary Lyndon, Just Marriage (New York: Oxford University Press, 2004), 99–105
Wedgewood, Ralph, “The Fundamental Argument for Same-Sex Marriage,” 7 Journal of Political Philosophy (1999), 227
Wardle, Lynn D., “Legal Claims for Same-Sex Marriage: Efforts to Legitimate a Retreat from Marriage by Redefining Marriage,” 39 South Texas Law Review (1998), 736–68
Kirk, Russell, The Conservative Mind: From Burke to Eliot, 7th ed. (Washington, D.C.: Regnery Publishing, 1953), 8–11
Eskridge, William N., The Case for Same-Sex Marriage (New York: Free Press, 1996)
Murphy, Jeffrie G. and Coleman, Jules L., Philosophy of Law: An Introduction to Jurisprudence, rev. ed. (New York: Westview Press, 1990), 7–8
Feinberg, Joel, Harm to Others: The Moral Limits of the Criminal Law (New York: Oxford University Press, 1984), 1:65–70
Devlin, Lord Patrick, “Morals and the Criminal Law,” in The Philosophy of Law, ed. Dworkin, Ronald (New York: Oxford University Press, 1977), 66–82
Posner, Richard A., “Homosexuality: The Policy Questions,” in Same-Sex Marriage: Pro and Con, ed. Sullivan, Andrew (New York: Vintage Books, 1997), 187–8
Chambers, David, “What If? The Legal Consequences of Marriage and the Legal Needs of Lesbian and Gay Male Couples,” 95 Michigan Law Review (1996), 447–91
Finnis, John, “Law, Morality, and Sexual Orientation,” 69 Notre Dame Law Review (1994), 1069–70
George, Robert P., “Neutrality, Equality, and ‘Same-Sex Marriage’,” in Marriage and Same-Sex Unions: A Debate, ed. Wardle, Lynn D. (Westport, CT: Praeger Publications, 2003), 123
George, Robert P. and Wolfe, Christopher, “Natural Law and Public Reason,” in Natural Law and Public Reason (Washington, D.C.: Georgetown University Press, 2000), 70
Macedo, Stephen, “In Defense of Liberal Public Reason: Are Slavery and Abortion Hard Cases?” Natural Law and Public Reason, ed. George, Robert P. and Wolfe, Christopher (Washington, D.C.: Georgetown University Press, 2000), 22
Koppelman, Andrew, “Homosexual Conduct: A Reply to the New Natural Law Lawyers,” in Same Sex: Debating the Ethics, Science, and Culture of Homosexuality, ed. Corvino, John (Lanham, MD: Rowman and Littlefield, 1997), 44–57
Rawls, , “The Law of Peoples,” in The Law of Peoples (Cambridge, MA: Harvard University Press, 1999), 60–7
Sullivan, Andrew, “The Conservative Case,” in Same-Sex Marriage: Pro and Con, ed. Sullivan, Andrew (New York: Vintage Books, 1997), xxii
Galston, William A., Liberal Pluralism: The Implications of Value Pluralism for Political Theory and Practice (Cambridge: Cambridge University Press, 2002), 19
Gerstmann, Evan, Same-Sex Marriage and the Constitution (Cambridge: Cambridge University Press, 2004), 5–6, 8
Katz, Pamela S., “The Case for Legal Recognition of Same-Sex Marriage,” 8 Journal of Law and Policy (1999), 65
Bedi, Sonu, Rejecting Rights (New York: Cambridge University Press, 2009), 111–112