Just 'Close Your Eyes'

JSPAN Newsletter - March 22, 2012
Jewish Social Policy Action Network

In this Issue:
Newsletter: March 22, 2012
JSPAN Freedom Seder Supplement Available on the Web
JSPAN announces that its 2012 Passover Supplement to the Haggadah is now available. The Freedom Seder Supplement celebrates emerging freedom movements around the world with poems, texts and prayers. Editors Stephen C. Sussman Esq. and Kenneth R. Myers Esq. have drawn from far-ranging sources, from Lord Byron to Tibet. Each of the readings includes suggestions keying it into the traditional Seder service.

Supplements to the traditional Haggadah relate the biblical story of the Exodus to current events and issues. In 2010 JSPAN released its first Supplement, entitled "We were strangers," on the theme of immigration in history and in the United States. In 2011 the JSPAN Supplement, "This is the bread of poverty," brought the focus to hunger here and around the world. The 2012 "Freedom Seder" takes up the human longing for freedom that is spreading around the globe, and concludes with four resolutions that we as American Jews can meaningfully adopt.

The 2012 Freedom Supplement, comprised of 16 pages with illustrations, is available without charge as a download from the JSPAN web site.


Pennsylvania and the Death Penalty
New York Times Editorial (March 18, 2012)

In the past year, the appalling injustice of Pennsylvania's death penalty system has been the subject of review and debate among the state judiciary, lawyers and the media. Two new judicial reports and a recent death sentence for an indigent defendant in Philadelphia further bolster the case to abolish the system.

In February, a report by a Philadelphia judge ordered by the Pennsylvania Supreme Court found that the amount the city has long paid court-appointed private lawyers in death cases is "grossly inadequate" and has increased "the risk of ineffective counsel." A RAND study in December similarly found that low pay and lack of support for court-appointed lawyers in Philadelphia were significant factors in inadequate legal representation. The consequences have played out in legal appeals: of the state's capital convictions since 1976, 32 percent were reversed or sent back for new hearings because of errors by lawyers, according to an investigation by The Philadelphia Inquirer last October.

[read more]


Tom Corbett, Pennsylvania Governor, On Ultrasound Mandate: Just 'Close Your Eyes'
Huffington Post (03/15/2012)
Laura Bassett

During a discussion of a far-reaching mandatory ultrasound bill, Pennsylvania Gov. Tom Corbett (R) on Wednesday dismissed off-handedly the insinuation that the measure goes too far, saying, "You just have to close your eyes."

Corbett reaffirmed his support for the "Women's Right to Know" Act, which would require doctors to perform an ultrasound on a patient, offer her two personalized copies of the image and play and describe fetal heartbeat in detail before she can have an abortion -- "as long as it's not obtrusive."

He did not indicate whether or not he considered a transvaginal ultrasound to be an intrusive procedure, which the bill would require doctors to perform on a woman whose fetus is not developed enough to be visible by a regular, "jelly-on-the-belly" ultrasound.

Asked if he thinks the bill goes too far to make a woman look at the ultrasound image, Corbett responded, "You can't make anybody watch, okay? Because you just have to close your eyes. As long as it's on the exterior and not the interior."

[read more]


Admin. Outlines Options on Birth Control Coverage
The Associated Press (March 16, 2012)

WASHINGTON - The Obama administration signaled Friday it's willing to help insurance companies offset the cost of providing free birth control to women working at church-affiliated institutions like hospitals and colleges.

By finding a way to make the middlemen whole, the administration may be able to extricate itself from an unexpected political furor over birth control that has mobilized partisans across the political spectrum a half-century after the advent of the pill.

A 32-page regulatory proposal unveiled Friday offered options for providing free birth control to women whose employers object to contraception on religious grounds. The government now classifies birth control as preventive care, and President Barack Obama's health care law requires health plans to cover prevention at no cost to the consumer.

Churches, synagogues, mosques and other institutions whose primary purpose is to propagate faith are exempt from the mandate. But when the administration sought to impose the requirement on religious nonprofits serving the public, it triggered a backlash. That forced President Barack Obama himself to offer a compromise: insurers, not the religious employers would bear the responsibility.

[read more]


Living With the Church-State Tension
Democracies Respect Religious Freedom, With Clear Lines
By Perry Dane, The Forward (March 23, 2012)

Few topics are as fraught and complicated, or as tempting to oversimplify, as the encounter between religion and state. Take Israel. The balance of religion and state seems to be particularly imperiled for a variety of cultural and political reasons. Some Israelis think the problem has to do with an increase in religious commitment itself. They point, for example, to a recently released Guttman Center survey that found that only 44% of those questioned believed that "in the event of a contradiction between halacha and democratic principles, democracy should always take precedence." In fact, Ben-Gurion University professor Harvey Hames argued in these pages a few weeks ago that this finding "implies that when push comes to shove, a majority of Israelis would prefer Jewish law to democratic values." But this overlooks some crucial particulars.

First, though the survey did report that only 44% of respondents would always give priority to "democratic values," it also found that a mere 20% would always give priority to Halacha. The remaining 36% answered quite sensibly, given the vacuity of the question, that "each case must be judged on its own merits." Second, any religiously serious person is likely to believe that "when push comes to shove," a divine imperative prevails over a human command, whether the source of that command is a dictator or a democracy. For that matter, any serious nonreligious person is likely to have some commitment that would take priority over unconscionable majority decisions. Third, modern democratic tradition itself embraces the idea that even democracy has its limits, particularly with respect to religion. James Madison - drafter of the American Bill of Rights, and not a Haredi Jew - eloquently insisted, "It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governour of the Universe."

The challenge is not deciding who should prevail "when push comes to shove"; it is trying to keep push from coming to shove. For democratic constitutions, that means respecting as much religious liberty as possible, while also drawing clear jurisdictional lines between religion and government to try to protect each side from the encroachments of the other. For religious traditions, it means developing an understanding of legitimate state authority and a respect for pluralism and the conscience of others. The Halacha, in all its richness, already has most of the tools necessary to reconcile itself, most of the time, to democratic governance.

[read more]

Perry Dane is a professor of law at the Rutgers School of Law - Camden and a member of JSPAN's Church-State Policy Center


Disparities Threaten a Nation of Minorities
Philly.com (March 12, 2012)
By Lewis Diuguid,

Because of this country's racist past, the future for people of color, and for the United States overall, doesn't look too promising. That was the conclusion of a report by the group United for a Fair Economy.

Consider that in 1980, the U.S. population was 80 percent white. By 2010, the white portion had dropped to 65 percent. The Census Bureau now projects that by 2042, eight years sooner than once predicted, the United States will become a majority-minority nation.

The challenge is that America's history of discrimination has created an enduring legacy of economic oppression for people of color. There simply won't be a broad enough base of high-wage, taxpaying young people of color to maintain the United States as a superpower.


The continuing racial disparity will be too great to ignore, the report warns.

[read more]


Young Americans Less Interested in the Environment than Previous Generations
Washington Post (March 15, 2012)
By Martha Irvine

CHICAGO - They have a reputation for being environmentally minded do-gooders. But an academic analysis of surveys spanning more than 40 years has found that today's young Americans are less interested in the environment and in conserving resources - and often less civic-minded overall - than their elders were when they were young. The findings go against the widespread belief that environmental issues have hit home with today's young adults, known as Millennials, who have grown up amid climate change discussion and the mantra "reduce, reuse, recycle." The environment is often listed among top concerns of young voters.

"I was shocked," said Jean Twenge, a psychology professor at San Diego State University who is one of the study's authors. "We have the perception that we're getting through to people. But at least compared to previous eras, we're not."

This study, published online this month in the Journal of Personality and Social Psychology, looked at the life goals, concern for others and civic orientation of three young generations - baby boomers, Generation X and Millennials.

[read more]


Politics vs. Policy: Violence Against Women Act Dustup in Senate
ABC News (March 16, 2012)

Republican aides emphasize that their bosses are not against the Violence Against Women Act, originally passed in 1994 and reauthorized at least twice by Congress. But the new version of the bill, they say, is a "drastic expansion" of parts of the law as it was negotiated by the Senate Judiciary Committee this year.

The disagreement has forced Republican senators into a political corner on an issue in which they believe they're right about the policy. But their opposition to the tweaks and updates to the bill is what has garnered much attention, especially in the context of what's been called a war on women. A Republican aide said the Democratic changes to the bill, "deliberately contain unserious legal provisions on issues such as immigration designed to create the false appearance of obstruction." Six Democratic female senators took to the floor Thursday to push for the domestic violence bill, a coordinated effort to gain momentum and shine the spotlight on the reauthorization that's still pending.

[read more]


Book Review: Cosmic Constitutional Theory
Why Americans Are Losing Their Inalienable Right to Self-Governance

By J. Harvie Wilkinson III
161 pp. Oxford University Press. $21.95.

New York Times Book Review (March 16, 2012)

In courts and law schools across America, the most intense legal battles are fought over theories of constitutional interpretation. From the originalists on the right to the living constitutionalists on the left, each of the warring camps claims that it has discovered the true faith and accuses its opponents of hypocrisy. Now comes Judge J. Harvie Wilkinson III with a bracingly clear and bipartisan message: All the theories are bunk! According to Wilkinson's "Cosmic Constitutional Theory," "the theories have given rise to nothing less than competing schools of liberal and conservative judicial activism, schools that have little in common other than a desire to seek theoretical cover for prescribed and often partisan results." As a result of their cosmic theorizing, Wilkinson concludes, liberal and conservative judges and justices are too quick to second-guess the choices of legislatures, and the casualty is "our inalienable right of self-governance."

Wilkinson, who was appointed to the United States Court of Appeals for the Fourth Circuit by Ronald Reagan, is one of the most respected appellate judges in the country; he was on President George W. Bush's shortlist for the Supreme Court. It's not surprising that he indicts liberal justices like William Brennan for embracing a theory of living constitutionalism that "led the courts deep into the thickets of abortion, capital punishment and habeas corpus" by encouraging them to update the Constitution in light of contemporary values. While praising the living constitutionalists for "giving the elected branches leeway to craft fruitfully modern definitions of terms like 'equality' and 'commerce,'" Wilkinson sharply criticizes Roe v. Wade, which he says "flunked simultaneously the three most basic interpretive tests" - it was unsupported by constitutional text, history or structure.

More surprisingly, however, Wilkinson is just as critical of the jurisprudence of original understanding, embraced by Justices Antonin Scalia and Clarence Thomas. Calling originalism a form of "activism masquerading as restraint," he says that the methodology "fails to constrain judicial choices" when the historical evidence is ambiguous, which it is in every hard case.

[read more]


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