News Release: Faculty Experts, Law, People, Politics, Religion and Ethics

Dec. 16,  2008

Supreme Court Should Exercise Care in Constitutional Controversies

Abortion, same-sex unions, capital punishment examined in new book

A new book by Emory Law Professor Michael J. Perry examines the most disputed constitutional issues of our times -- abortion, capital punishment and same-sex unions -- and argues that judges, especially U.S. Supreme Court Justices, should exercise deference in deciding whether a law should be declared unconstitutional.

"During this intensely political season when we focus on the Supreme Court, people tend to think, 'I want [President-Elect] Obama to appoint judges who will favor the policy outcomes that I prefer.' But even if the court, or a majority of it, believes that a law is unconstitutional, it does not mean that the court should rule that the law is unconstitutional," says Perry, Robert W. Woodruff Professor of Law at Emory University and a senior fellow at the Center for the Study of Law and Religion (CSLR).

Perry's "Constitutional Rights, Moral Controversy, and the Supreme Court" (Cambridge University Press, 2009) argues that "both sides need to realize the court should be focused on what the implications are, and whether it is a good idea for them to strike down an action as unconstitutional if it is not unreasonable for lawmakers to have come to a different judgment."

The book is one of two titles Perry has produced in conjunction with the CSLR's Christian Jurisprudence research project. The second title, "The Political Morality of Liberal Democracy," will be published by Cambridge in 2010. Sponsored by the McDonald Agape Foundation, the Christian Jurisprudence project is designed to provide a comprehensive analysis of the contributions of modern Catholic, Protestant and Orthodox figures to fundamental questions of law, politics and society.

Perry's work explains that contentious cases come before American courts with regularity, claiming that state laws regarding executions, gay marriage or same-sex benefits, bans or access to abortions, and so on, are unconstitutional and should be declared as such.

But instead of asking only "Is the law unconstitutional?", Perry says the court should also ask the more deferential question: "Is it reasonable to conclude that the law does not violate the right it is claimed to violate?"

Citizens, Perry says, should follow the same standards: Just because someone believes that a law is unconstitutional does not mean that they should want the court to rule that way. Lesser measures can, and often should, be taken.

American Culture Wars

Perry chose to write about laws concerning capital punishment, same-sex unions and abortion because they are at the epicenter of our culture wars. "They are in a class by themselves, more than almost any other constitutional controversy you can mention," he says.

Capital punishment, Perry writes, brings into question a basic human-rights tenet: If every human being has inherent dignity, there is no exception for depraved criminals. States, however, have taken to deciding this issue for themselves (12 states and Washington, D.C., have abolished it), proving that what works for one state may not necessarily work for another, even constitutionally speaking. Perry does believe the Supreme Court should uphold bans on the execution of minors and the mentally retarded.

Abortion, he says, is “the hot-button issue, and has been, of the last generation. Both sides are so dug in, I cannot conceive that there will be anyone appointed to the court who will say this is an issue for the states. Assuming that Obama [is president] for eight years and gets a couple of appointments, I believe Roe v. Wade will stand.”

As for same-sex unions, Perry says, some states have been “quite bold in interpreting state constitutions as to extending benefits [to same-sex partners.] More are shy about requiring that these unions be called ‘marriages.’ A few—Massachusetts and Connecticut—have. California reversed it. It’s extremely unlikely the U.S. Supreme Court will get involved here. Different states have different cultures and different attitudes.”

Perry hopes that "Constitutional Rights, Moral Controversies, and the Supreme Court" will stimulate informed yet spirited discussions. "As with the best conversations I have with my colleagues and students," he says, "sometimes our minds are changed.

About the The Center for the Study of Law and Religion

The Center for the Study of Law and Religion (CSLR) at Emory University is home to world-class scholars and forums on the religious foundations of law, politics, and society. It offers first-rank expertise on how the teachings and practices of Christianity, Judaism, and Islam have shaped and can continue to transform the fundamental ideas and institutions of our public and private lives. The scholarship of CSLR faculty provides the latest perspectives, while its conferences and public forums foster reasoned and robust public debate.

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