This post has relevance to this blog because it is based on a post from a nationally prominent corporate law professor and it is about a topic so fundamental that it should be of interest to most readers. So, here is a quote, via Professor Bainbridge, with several insights by the scholarly law professor Rick Garnett, regarding this week’s U.S. Supreme Court decision, with reference to anti-Catholicism as the "last acceptable prejudice":
A chill wind from Rome . . ."
. . . is what a number of bloggers and commentators perceive in the partial-birth-abortion decision. I suppose I should not be surprised by this line, but — I admit — I’m disappointed. And then there’s this, from the Philadelphia Inquirer (which characterizes as "activist" a decision that declines to invalidate a measure which has always enjoyed broad and bipartisan support or to read broadly a precedent which invalidated an earlier law which also enjoyed broad and bipartisan support):
My point here is not to vent about the "last acceptable prejudice" . What’s irritating, to me, as a lawyer, about the cartoon is the claim that it is as Catholics — i.e., because they are Catholics, and not because they think, as intelligent and engaged lawyers, that the Constitution does not disable legislatures entirely from regulating what most people (not just Catholics, fideists, and sexists) regard as a particularly gruesome abortion procedure — that the five Justices who voted to uphold the ban.
Not only that . . .
More striking, and sad, for me, is what the cartoon suggests, and reveals, about the state and future of debate about moral questions. Look at the faces of the dissenting Justices — quizzical, sad, bewildered, as if to say, "what are these guys talking about?" — while the majority are smug and complacent. And why shouldn’t they be? They didn’t have to think or reason; only to put on their mitres!
It is, increasingly, thought to be enough to discredit an argument or position — any argument or position — merely to note that the person who makes it is a religious believer, and to write off any moral argument with which one disagrees as "religious." (This practice, of course, does not run both ways: arguments against torture, the death penalty, race discrimination, and income inequality are "secular"; arguments against partial-birth abortion or the creation of embryos for research are "religious.") It appears, increasingly, that arguments whose trajectory is not in line with the standard liberal / autonomy / choice line are not only rejected, but declared not to be permissible arguments.
And now, apparently, even words whose use suggests the embrace of certain premises are out of bounds. In Justice Ginsburg’s dissent, she took the time to complain that there was something improper, and threatening, about the majority’s use of words like "abortion doctor" and "unborn child"; but, of course, the use of these words represents an argument. To rule out the words is to rule out, as illegitimate, the argument they reflect.
I have long understood that many (most, probably) of my friends — decent, intelligent, thoughtful people — disagree with me about abortion (and constitutional law). This is true, I understand, of many of my co-bloggers and Prawfsblawg readers. I don’t think, though — at least, I try hard not to think — that their disagreement is merely a product of their funny-hat choice.
Here is more.