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29809_wlp_1-2 Sheet No. 45 Side A 06/10/2011 15:12:24 , HE — T AND , USTICE in J , ELIGION R HEORYOF OMEN W present; Director , A T – HEORY OF (1999) (asserting that that (asserting (1999) , , A T ATRIARCHAL are not what they AW ICHARDS ILL L — ,P UBJECTION OF OF UBJECTION M including, prominent- † AWLS S (2008). (2008). R — A.J. R AW ATURAL L THE THE TUART , OHN N ICHARDS S the new natural lawyers are new natural lawyers the AVID say, utilitarianism or contrac-say, — D OHN OHN IBERTY — ATURAL ATURAL A.J. R L N N EFENSE OF OF EFENSE Nicholas Bamforth and I argue that Nicholas Bamforth and I 281 281 EW 1 D , :O N On critical examination, however N AVID 2 UNDAMENTALISM , I ILL F M See generally See &D EORGE RITIQUE OF OF RITIQUE TUART P. G S DAVID A.J.DAVID RICHARDS 301 (Modern Library 2002); for an attractive statement of con- of statement attractive an for 2002); Library (Modern 301 – :AC OVERT AMFORTH Patriarchal , Sexuality, and Gender: A OHN OHN 1994. 1994. B C ) 5/11/2011 ) 7:47 PM (Clarendon Press 1971). (Clarendon J OBERT – ENDER , R ELETE G 233, 233 233, CTION D A OT OT that try to makethat try sense of the deep values of equality and li- N AND ICHOLAS , O N — RITINGS OF (D W 1994 University, York New , of Professor Webb D. Edwin . See, e.g. See, . † 2 n our book, Critique Law of New Natural M K TILITARIANISM ASIC ASIC FOR EASONS EXUALITY ICHARDS shown to propound not a secular democratic view, but a highly secta- democratic view,secular but a highly a shown to propound not religious one, centrally concernedrian, theocratically with defending the anachronistic views of the currently embattled patriarchal papacy and to sexuality relating of issues a range on of the Catholic Church one developed at length in our book one developed at length S B U R

I R tractualism, and its contrasts with utilitarianism, see see J and utilitarianism, with its contrasts tractualism, (Harvard University(Harvard Press 1971). theory is the superior approach for confronting issues of of and ). approach issues confronting is the theory for natural superior law For an attractive ofstatement see utilitarianism J a of thinkers,group the new natural lawyers ly, Professors John George and Robert ly, Finnis claim to be. The new natural lawyers claim that their views are a se- cular form and, of political theory as such, are entitled to as much important questionsclarify of in liberal democracies as are any other such seculartheories political tualism democracy. that justify berty of the Program for Study of Law, and Social Theory, New University New York Philosophy and Program Theory, Law, the Social of for of Study 1977 Law, of School 1. C Y 29809_wlp_1-2 Sheet No. 45 Side A 06/10/2011 15:12:24 A 06/10/2011 45 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 45 Side B 06/10/2011 15:12:24 M K e- C Y — The The Con- 4 Rome Fid- . 16, July J., T S the view is [Vol. 1:2 1:2 [Vol. esoteric — ALL , W s recent attempt to to attempt s recent ’ David D. Kirkpatrick, D. Kirkpatrick, David attempt by a cleric to a cleric by attempt s view of the subordi- s view of “ ’ see also Maureen Op-Ed., Dowd, 9; – note 1, at 5 (arguing that new natural natural new that 5 (arguing 1, at note ., that 27 (explaining Dec. 20,2009, at see also AG supra , M note 1, at 8 note 1, at 10. abuse scandal by accusing the Vatican of “equating “equating of Vatican the accusing by scandal abuse IMES ICHARDS list of crimes deemedby punishable ex- supra supra “ , , Y. T &R note 2, at 151 (arguing that non-marital sex, adultery, prom- adultery, sex, non-marital that (arguing 151 at 2, note , N. , July 18, 2010, at WK8 (disparaging the Catholic Church’s r Church’s Catholic the (disparaging WK8 at 2010, , July 18, Vatican Toughens Rules on Abuse Cases on Abuse Rules Toughens Vatican ICHARDS ICHARDS 6 supra to the , IMES as if the sexual abuses of bizarrelychildren were ” AMFORTH ) 5/11/2011 ) 7:47 PM &R &R T ” ,B WAKE FOREST JOURNAL OF LAW & POLICY LAW OF & FOREST JOURNAL WAKE EORGE ELETE Our is that none of these views can reasonably D 5 , N.Y. , G OT OT N AMFORTH AMFORTH This is readily apparent in the two quite different styles of different apparent in the two quite This is readily particular,In the newnatural lawyers offer an argument O 7 See, e.g. E.g. Why is this kind of view objectionable?Why We have two expla- 3 (D ICHARDS prerequisites to democratic dialogue dialogue and deliberation to democratic prerequisites not honest about the of its own claims, which not is religious, secular. nations. First, as nations. First, a of democratic candor and civility 5. Stacy Meichtry, Meichtry, Stacy instrument an than more body the make activity sexual of forms other and iscuity, pleasurefor and harmdeeply the individual). 5. George’s critics, including many Catholics, have concerns about his ties to the Republican Republican the to ties his about concerns have Catholics, many including critics, George’s B insuf- giving while and morality on sex fixate law natural new his find and party ficient attention to other aspects ).of 7. dles, We Burndles, We sexual abuse with the ordination of women”); women”); of ordination the with abuse sexual 2010, at A9 (reporting that women’s groups have responded to the Vatican’s revisions revisions Vatican’s to the responded have groups rights women’s that (reporting A9 at 2010, churchof rules in response the to sex- nected to this, they defend the current papacydefend the current this, they nected to in the reflected women, a view nation of Vatican ordain a woman tighten its rules in tighten abuse cases by adding an fusal to ordain women as priests as inconsistent with the broader societal trend in favor of of as priestssocietal trend favor in to broader ordain women fusal the as inconsistent with B betweenequality andmen women and that arguing insistenceVatican’s the on maintaining misogyny). hierarchy is rooted in its all-male 6. 3. 3. be regarded as secular in character, and that the new natural lawyers claim they but a not propounding the secular view to defend, are sectarianhighly religious controversial is reasonably view, one that Catholics, many letamong and non- alone other forms of religious believers. religious exposition that the new natural lawyers use: first, the Catholic co-religionists, for reserve conservative that they in which 282 282 gender. moral wrongness of contraception, alia, the intrinsic about, inter sexual and lesbian intimacy. of gay and all forms abortion, R Right Hand of the Fathers the of Right Hand lawyers such as John Finnis can be viewed as defending authoritarian, patriarchal, and doc- and patriarchal, authoritarian, defending as viewed be can Finnis John as such lawyers Church). Catholic Roman modern the by espoused views conservative trinally 4. communication, somehow of the same order of moral wrongness as women in the priesthood. 29809_wlp_1-2 Sheet No. 45 Side B 06/10/2011 15:12:24 B 06/10/2011 45 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 46 Side A 06/10/2011 15:12:24

10 — that not AVID and and — 8 D ELIGION ELIGION one which one which ., R R — ,J See also also violates ITTE 32. 32. — – W OHN OHN J 283 283 note 2, at 131 However, and more second 7 (1986) (discussing an argument by by argument an (discussing 7 (1986) 9 1 (2000) (explaining the of the of belief the 1 (2000) (explaining by which we mean a form offormmean a by which we supra ” , ished in a community and that the state must that must and state the community in a ished ”) (emphasis added);”) (emphasis AWLS , Sherbert v. Verner, 374 U.S. 398, 402 (1962) (1962) 402 398, U.S. 374 Verner, v. , Sherbert XPERIMENT -old assumptions inherited from Western from inherited -old assumptions ONSTITUTION E C note 6, at 27 (discussinga speech given by George to beliefs note 2, at 161 (introducing an argument an (introducing 161 2, at note see, e.g. hich George argued hich social” issues like that, “moral George unlike supra supra , style use their they pronounce-for more public If we are right about the new natural lawyers, their we are about the new natural their right If lawyers, ONSTITUTIONAL ONSTITUTIONAL EORGE . amend. I; . amend. ) 5/11/2011 ) 7:47 PM C 11 covert , , G , Kirkpatrick, , Kirkpatrick, OLERATION ANDTHE “ ELETE ONST exoteric D C indeed, grounded theocracy in patriarchal ,T OT OT N — MERICAN MERICAN O See, e.g. See, e.g. For a classic statement of this position, including this of For an position, that “ a classic statement argument of A (D COVERT FUNDAMENTALISM COVERT ICHARDS -marital sexual acts -marital are always and in to contrary anpersonal intrinsic tect and support it against other ”). it support tect and ating that door “[t]he Free Exercise Clause stands the closed of tightly against any M K ICHARDS AND THE importantly, it is a hallmark it importantly, of modern liberal demo-constitutional cracies that people construct arguments about constitutional essen- thattials in a way is reasonably accessible to all, irrespective of differences about more philosophical andultimate ends. religious second, the second, the worldments to at in which large, their religious fundamentalism covert the least, andis, to say masked. A.J. R 8. 8. w in bishops Catholic of group a and are not thepoverty or social injustice, resolved he claimed Gospel by which reasonable natural new under clear perfectly was same-sex like issues of resolution the debate, debate). policy public of scope the beyond therefore is and the Gospel and law 9. 2011] basis religious purely the madeviews is of their clear; quite R Framers of the Constitution, including Thomas Jefferson, that the Free Exercise Estab-and Exercise Free the that Jefferson, Thomas including Constitution, the of Framers “defied the Clauses millennium lishment (st regulation religiousgovernmental of Judge Learned Hand that a sound can only be attained by viewing the law law the viewing by attained be only can jurisprudence sound a that Hand Learned Judge U.S. values). moral subjective for regard lens and without through a cynical 11. can that free exercise of must be of Ameri- feature defining an important and is it only not Moreover, exerciseof that free can constitutionalism conscience must be of not estab-principle the also observe must but the State respected, religion. lishing the principle that separates religious from , the principle that separates political authority, a cen- from religious in tral principle of liberalgeneral and democracy constitutional in particular. We call this form American constitutional democracy of argument arguments arearguments objectionable they are on both grounds. Not only views,candid about their highly but their argument, religiously sectarian purportsbe on based to entirely natural law and not on prejudice against homosexuals “non good.”). 10. be“general,” must do society inright” the they forming that not require a basis of they in that “” also but understood, widely be to in order specialized apply to persons, everyone as moral see R pro that one form of Christianity Christianity be establ must of that one form C Y 29809_wlp_1-2 Sheet No. 46 Side A 06/10/2011 15:12:24 A 06/10/2011 46 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 46 Side B 06/10/2011 15:12:24 M K a- a- C Y 26 (1922) (1922) 26 – 25 [Vol. 1:2 1:2 [Vol. AW L 12 both of which are which are both of note 1, at 155 (explaining (explaining 155 1, at note — 14 supra HILOSOPHY OF HILOSOPHY OF P , prohibiting prohibiting all action ICHARDS note 1, at 279 (arguing that the term “fund term the that (arguing 279 at 1, note the day-to-day morally relevant of the the day-to-day morally &R supra , religious fundamentalism.religious NTRODUCTIONTHE TO note 6, at 28note (discussing arguments 6, Robert George’s for I AMFORTH N — Timothy George & Chuck Colson, “The Manhattan Declar Manhattan “The Colson, & Chuck George Timothy ICHARDS ,A absolutist doctrinal according absolutist that argument operates to an in- supra &R any ’s philosophical relied on ’s , , psychology, biology, on Aristotle’s relied theology philosophical ’s OUND and gay and lesbian rights and and gay P 13 ) 6/10/2011 ) 12:48 AM WAKE FOREST JOURNAL OF LAW & POLICY LAW OF & FOREST JOURNAL WAKE ELETE AMFORTH OSCOE D R Philosophy is a famously secular rational discipline, and secular is rational discipline, and a famously Philosophy , Robert George, George, , Robert , Kirkpatrick, , Kirkpatrick, in a way that has been somewhat more successful than that hasin a way been somewhat moresuccessful than B Lawrence v. Texas, 539 U.S. 558, 578 (2003) (holding that a Texas statute statute Texas a that (holding (2003) 578 558, 539 U.S. Texas, v. Lawrence OT OT 16 N O — See See E.g. E.g. See New natural law theory been has important playeran in the (D 15 . ICHARDS mentalist” can to apply “ outlawing between consensual adults sodomy state interest furthered and no legitimate was interestsProcess protected Due and under the intrusion privacy of an impermissible (striking (1996) 635 620, 517 U.S. Evans, v. Romer Amendment); Fourteenth the of Clause Colorado toConstitution the an amendment down intended to homosexual, protect lesbian, or bisexual persons, on the grounds that the the amendmentof Planned Protection Fourteenth violated Clause the Amendment); Equal statute Pennsylvania a (holding (1992) 838 833, U.S. 505 Casey, Pa. v. Se. of Parenthood abortion); an intent to have wife’s the of notification spousal requiring for unconstitutional a assisting criminalized that statute Texas a (holding (1973) 164 113, U.S. 410 Wade, v. Roe rights un- privacy fundamental of violation unconstitutional an be to abortion in an woman Fourteenth Amendment).derProcess the the Clause of Due 16. that St. St. Thomas that and omitted). ) (citation now, to a significant extent, constitutionally protected extent,now, to a significant constitutionally in the United States American wars, in particular by cultureAmerican regularly wars,particular by in speaking out abortion against 12. 12. 284 284 fundamentalismreligious intends and conceals that to conceal its character is what it from other forms not of fundamentalism by appearing as the ofform reli- fundamentalism it gious is. really For example, it is associated with Catholic moral of the distinctively and political that thought to not of Christianity, texts tended has, among forms treat biblical literally hasand been open to famously philosophical argu-general the neo-Aristotelianism Thomas to ment, in particular, St. of Aquinas. supposedly law, being thus new natural in philosophy, grounded sectarianappear(thus, than other forms of obviously less Christianity secularThomas supposed that being philosophical arguments, his and not religious, would reasonably appeal not only to Christians, but R (discussing St. Thomas (discussingAquinas’s St. Thomas role in justice adopting distinctions theof Aristotelian into philosophy); legal modern B banning abortion and embryo-destructive research). 14. world”) 13. ternal but with little or no connection to connection little or no but with ternal logic tion: Call of Christian A Conscience” (Nov. 20, 2009), legi- the (denouncing http://www.manhattandeclaration.org/pdfs/ManhattanDeclaration.pdf same-sex of ).timacy 15. 29809_wlp_1-2 Sheet No. 46 Side B 06/10/2011 15:12:24 B 06/10/2011 46 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 47 Side A 06/10/2011 15:12:24 : a- AW L thus thus 18 AY OF AY OF THE 125 (1998) 125 (1998) 19 W HE T HEORY ). It is for this this is for ). It ELIGION AND AND ELIGION T in 17 R , EGAL 285 285 (2010). (2010). L MERICAN MERICAN AND , A EMOCRACY D OLITICAL ,P note 1, at 172 (arguing that in light of the the of light in that (arguing 172 at 1, note s anachronistic matters of views on HREAT TO ORAL Christian Moral Principles ’ that neither require - nor invite supra T , ” , S :M ’ UNDAMENTALISM IN note 6, at 28 (observing that “[w]hen George W. Bush Bush W. George “[w]hen that 28 (observing at 6, note RISEZ , F G indeed, all reasonable peopleindeed, Fundamentalism in American Religion and and Religion Fundamentalism in American note 1, at 165. at 165. 1, note ICHARDS QUINAS supra — ,A ATRIARCHY &R P supra ICHARDS new natural law, evangelical Protestantism, and ERMAIN , INNIS ) 5/11/2011 ) 7:47 PM moral — F “ all of which have found a common reactionary ground –23 (1983) (arguing that the “basic human goods” which provide the re the provide which goods” human “basic the that (arguing (1983) –23 ,1 G ,1 A.J. R ELETE — OHN AMFORTH D ICHARDS , Kirkpatrick, , Kirkpatrick, ,J B OT OT N AVID 1, 122 HALLENGE TO TO HALLENGE &R O See, e.g. See C Because new natural lawBecause is a less obvious ofform fundamen- In my book, my In I discuss at length three important forms of such religious three important forms discuss at length of such religious I S (D 20 ’ ESUS COVERT FUNDAMENTALISM COVERT . E.g. . . E.g. . 21 J , 20 17 self-evident M K BAMA AMFORTH ORD ICHARDS talism, it has played a particularlytalism, it has played important role in the collaboration fundamentalism several other among religious forms of which have aplayed powerful, influential, and reactionary political role in the W. George in of President United States, notably the administrations Bush. includ- heterosexual possible couplesof engage inrange of who activity, sexual motivations the naturaling position expressions new lawyers’ regards that sexual and intimacy, of re- debate the of beginning the marks as moral sex marital procreational, heterosexual, only instead its end). of sexual garding morality, reason that Nicholas Bamforth and I felt only Nicholas that felta quiteonly reason book Bamforth and long could I adequately expose of covert law as a form new natural fundamental- show, forism, and example, a alleged that its is, in , natural law sham. New thedoes not develop philo- of rational kind sophical argument distorts at crucial Thomas used but instead points ends, sectarian religious which it defines to its own such arguments as able discussion or debate. new natural effect, law only not defends In theologian Germain Catholic moral the views of the Grisez, supporting the current papacy the current supporting and sexuality gender, but those in characterizing views as self- reasonable views beyond those evident, it also shifts debate. O 18. 18. L Law fundamentalism Mormonism rights. Indeed, abortion and gay under the Bushin opposition to ad- an important played the nomination role in these forms ministration, 2011] to Jews and Muslims R (discussing Aquinas’s that view preceptsmoral could be “natural of knowable law in sons behind the goals people choose to pursue can be found in Genesis, and are “the Genesis, in can be found to pursue people choose goals the sons behind true religion”). all of the concern are which God with and friendship 19. became president[Robert]2001, in George an active playerwas inWhite weekly House conference calls Catholic andfor President allies,” that noting later presented Bush George D Medal). a Presidential Citizens with 21. principle by anybody without appeal to any divine . . . .”) (citations omitted); omitted); (citations . .”) . . revelation divine to any appeal without anybody by principle B C Y 29809_wlp_1-2 Sheet No. 47 Side A 06/10/2011 15:12:24 A 06/10/2011 47 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 47 Side B 06/10/2011 15:12:24 M K 26 C Y , Jan. 15, , 15, Jan. . art. I, § 7.5, IMES [Vol. 1:2 1:2 [Vol. ONST .C Most of the , N.Y. T 24 AL C 628 F.3d 1191 (9th Cir. 2011) 2011) Cir. (9th 1191 F.3d 628 see also 23 Perry v. Schwarzenegger, 704 F. Supp. 2d 2d 704 F. Supp. Schwarzenegger, v. Perry -backed group that raised more than $5 than mil- more raised that group -backed 14 (arguing originalism is analogous originalism 14 (arguing to reli- Mormons Tipped Scale in Ban on Gay Mar- Gay on Ban in Scale Tipped Mormons – , July 8, 2002, 8, 2002, , July (David v. Goliath Films 2010). (David Films Goliath v. IMES note 24. 24. note T s less obvious (i.e., fundamental-covert) Alito vs. Roberts, by Word Word ’ supra supra Accordingly, I suspect there is a strong con-strong is a there suspect Accordingly, I note 21, at 213 at 21, note 22 ROPOSITION From Justice Scalia, a Chilling Vision of Religion’s Authority in in Authority of Religion’s Vision a Chilling Scalia, Justice From P supra , but the Mormons self-consciously characterized but the Mormons self-consciously characterized certifying questions to Cal. Sup. Ct. Sup. questionscertifying Cal. to 25 ) 5/11/2011 ) 7:47 PM ORMON , Rosen, Jeffrey , Nov. 15, (describing, Nov. leadingProposition up events at A1 2008, the to 8 WAKE FOREST JOURNAL OF LAW & POLICY LAW OF & FOREST JOURNAL WAKE ELETE M ICHARDS D Jesse McKinley & Kirk Johnson, Jesse McKinley HE IMES Sean Wilentz, R OT OT T T N O See, e.g. See We can see the impact of new natural law in the way , N.Y. (D . See . , N.Y. see also 23 ICHARDS riage their support in terms of a coalition that included their support in terms of a coalition evangelical Protes- Robert George. natural lawyer the new position, tants and, in a lead nection between the religious fundamentalism and the constitutional andbetween the religiousnection fundamentalism the constitutional that leading originalism, of exponentsfundamentalism namely, of and Scalia Court ( Antonin Supreme on the originalism Clarence Thomas) are themselves covert religiousfundamentalists. Thus, it is through the prism of their fundamentalism religious that havein turn, reinforces which, led to adopt been they originalism, as constitutional law. views their religious vote, includingvote, “urgent” efforts one by Mormon lion for advertising in the last two weeks before the weeks vote); thelion in last two advertising for 26. 8: 26. invalidated on federal constitutional grounds by by grounds constitutional federal on invalidated 2010), Cal. 921 (N.D. (questioning appellant’s standing). 25. & Johnson, McKinley religious fundamentalists religious organized to opposemarriage in Cali-gay securingfornia, the passage of a state constitutional amendment, marriage. prohibited gay which Proposition 8, considerable amount of money considerable of amount to passraised the amendment money came Mormons, from 22. 22. 286 286 conservative very of two the to judges in Chief Court Supreme JohnJustice and Roberts Justice the latter of Samuel Alito, whom originalist. be an may R http://www.nytimes.com/2002/07/08/opinion/08WILE.html (observing Justice Scalia’s view view Scalia’s Justice (observing http://www.nytimes.com/2002/07/08/opinion/08WILE.html that people of should tofaith ensure the resolve divine authority they believe in has influ- pluralist notwithstanding a society).ence in government, their 24. 2006,http://www.nytimes.com/2006/01/15/weekinreview/15rosen.ready.html (reporting that Alito then-Judge appearedto endorse originalismhis confirmation hear- during Senate ing). By using newBy natural law ism, George playedism, George a crucial role in masking the largely Mormon under orders from the patriarchal and given church money America gious fundamentalism and instills a self-perpetuating patriarchal psychology in its follow- psychology patriarchal self-perpetuating a instills and fundamentalism gious ers); 29809_wlp_1-2 Sheet No. 47 Side B 06/10/2011 15:12:24 B 06/10/2011 47 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 48 Side A 06/10/2011 15:12:24

– AILY e any IRTH OF , D at 193 at ome day, day, ome B id. that the HE 30 , T ILLIGAN G 287 287 which requires each 27 — AROL , is a father.”). C 123 (1992). Polygamy aban- was Polygamy 123 (1992). See hieros Bloom, one of the most astute students of astute the students of most one of Bloom, ELIGION ELIGION R ession of women by men, literally means a means a men, literally by women ession of Both foundations of Mormonism of Mormonism foundations Both Id. 29 It is for this same thatIt reason Mor- 32 that Mormons so sharply repudiat sharply that Mormons so MERICAN MERICAN 16 (2003) (explaining “[p]atriarchy, that although A It is because the Book of Mormon of is because the Book estab- It ʊ 31 HE NOM Was the Top Donor to Fund Proposition 8 Proposition to Fund Top Donor Was the NOM OVE L note 21, at 10. 10. note 21, at , T in which theinthe priest, which note 21, at 201 (stating that “[w]omen had value solely 21,201note hadwithin that (stating solely value at “[w]omen — supra LOOM 96. 33 , AP OF – B ) 5/11/2011 ) 7:47 PM supra M , EW ELETE at 195 AROLD ICHARDS D (Nov. 19, 2008), http://www.dailyprincetonian.com/2008/11/19/22161 (stat- http://www.dailyprincetonian.com/2008/11/19/22161 19, 2008), (Nov. Tasnim Shamma,Tasnim R H at 214. 214. at OT OT N a rule priests of ICHARDS s and charismatic remarkable founder, Joseph Smith, de- O ’ :AN See See See id. In light of both its and current practices, ofMormonism both its history light In What makes the Mormons more conspicuously fundamental- more conspicuously the Mormons What makes — but also on the authority of a patriarchal prophet in mandating of a patriarchal prophet in mandating on the authority but also (D COVERT FUNDAMENTALISM COVERT 28 . See . .Id. .Id. 31 33 M K RINCETONIAN LEASURE ICHARDS Mormon to connect in the right way to his or her place in these mar- to his or her place way right in the Mormon to connect riages that exist in heaven have women conception that control ultimate may of whether and they when will bear children. is so conspicuously religiously fundamentalist religiously that, had its actual roleis so conspicuously and 30. over all other women. hierarchically men placed as the fathers rule patriarchy as priests of I define Carol Gilligan, Following lishes celestial marriage among all Mormons ing that the National Organization for Marriage (NOM), founded by Robert George, was the was Robert George, by (NOM), founded Marriage for the Organization ing that National largest contributorfinancial Proposition the to 8 campaign). 28. religion limited to marriage including formsmanded, largely polygamous of the sect. the leadership of ist than the new natural lawyers is that their views so clearly rest not so clearly is that their views lawyers the new natural ist than literal interpretationjust on a of their text, basic the of Mor-Book mon, 27. 27. P P 2011] hierarchyof passing that Apostles the regarded amendment as crucial aims. sectarian religious its highly to achieving R to believers. that interpretation to mean the oppr misintererpreted frequently hierarchy doned by a later prophet to accommodate federal criminal prohibitions, but remains alive remains but criminal prohibitions, federal accommodate a later prophet to by doned Harold In this connection, Mormons. some among finan- and political enough have will Mormons the century, twenty-first the in on far too not vi- complete the or other, form in some it, Without again. polygamy to sanction power cial fulfilled.” be can never Smith Joseph of sion Mormonism Mormonism as the American religion, observes: “I cheerfully do prophesy that s 29. 29. this order things, available of sexually as to men, wives andfertile of mothers children.”). see Mormonism, of roots patriarchal the about claims these of support fuller For mons also reject formany mons also reject and lesbianof sexual including gay life, that doeslife, not connect in the required to way the of fertility celestial marriage. can be traced to the extreme form of religious patriarchy 32. R 202. 202. C Y 29809_wlp_1-2 Sheet No. 48 Side A 06/10/2011 15:12:24 A 06/10/2011 48 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 48 Side B 06/10/2011 15:12:24 , M K s i- ’ C Y note note s lit- Facing ’ supra with the with the — , Sept. 19, 2010, 19, 2010, , Sept. [Vol. 1:2 1:2 [Vol. The broader The broader s and men 35 ’ IMES Meichtry, Meichtry, T and Mormonism, and Mormonism, see — , N.Y. s public of Propo- support ’ Christianity, , and the Law the and Feminism, Christianity, (May 21, 2010), 21, 2010), (May note 21, at 141 (stating thatnote 21, at 141 “polit the . It is through this patriarchal is through this patriarchal . It ) 34 supra arguing that Jesus’ primary was mission while , note to at 171 21, (describing sensitivity Jesus’ supra A Brief Introduction the to Modifications Made in the ICHARDS , 07 (1991) ( R – ICHARDS R see also ) 5/11/2011 ) 7:47 PM & L. 67, 106 stereotypical idealizations.”); John Burns & Rachel F. Donadio, WAKE FOREST JOURNAL OF LAW & POLICY LAW OF & FOREST JOURNAL WAKE see also ELETE D ENDER Angela L. Padilla & Jennifer J. Winrich, J. Winrich, Padilla & Jennifer L. Angela OT OT N O .J.G (D own anti-patriarchal teachings . See See . ’ 34 OLUM ICHARDS not the liberation of women, his teachings ran counter to those of the patriarchal society in teachings hisnot women, in liberation of ran the to thosepatriarchal the counter of society he lived); which at A18. A18. at problem of covert fundamentalism, therefore, arises therefore, problem of covert fundamentalism, the perpe- from uncriticaltually role that patriarchy plays in our understanding of re- 1 C tle known campaign from realizing the success it did by making the making by success it did the from campaign tle known realizing fundamentalism and polarizing too conspicuous religious issue of for the generalpublic. Thus, natural new law 288 288 fundraiser as primary and organizer of passage behind 8 Proposition been more known,widely have prevented it would Mormon the R the politically usefulsition 8 played and more covertly fundamental- ist role of the obscuring actual level and intensity of fundamentalism at work. What is little is that there however, , andtheologies, in their different this coalition beliefs which unites them; could bereligions few as different as the among fundamentalists evangelical Protestantism naturalCatholicism of new law, reveals, placedweight on the interpretation the Bible of the which of for Book Mormon supplants the Old and New Testa- to religious is their common commitment them ments. What unites natural lawyers, What the new evangelicalpatriarchy. Protestants, and Mormons share is patriarchalrigidly and male-only priesthood, irrespective of their all con- common fundamentalist belief historical and biblical to the argument vincing contrary (including in a Jesus 5 and accompanying text; accompanying 5 and Normae de Gravioribus Delictis the plight of women at the he lived). lived). he the time at women of plight the 35. William Cardinal Levada, http://www.vatican.va/resources/resources_rel-modifiche_en.html; prism that all three denominations converge, as demonstrated by beliefs in thetheir shared of women subordination the intrinsic and all of wrongness of contraception, and homosexuality, abortion, which support patriarchal controls over women sexuality. In particular, this prism on issues of gender patriarchal sexuality. In and the embattled papal connection the bizarre by is illustrated sexuality hierarchydrew between its standards tightening condemning both sex advocacy abuse and of women in the priesthood. cal psychology of patriarchy . . . [was] often not acknowledged but [was instead] covered covered instead] [was but acknowledged not often . [was] . . patriarchy of psychology cal gender- with over Protests in London, Pope Sorrow Expresses Over Child Abuse 29809_wlp_1-2 Sheet No. 48 Side B 06/10/2011 15:12:24 B 06/10/2011 48 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 49 Side A 06/10/2011 15:12:24 , b- 36 HY and OURT ,W C — Roe v. ICHARDS R ONSTITUTION Still, the Still, the views that views that C 37 HAUNCEY OLITICAL — C P of Our Time”) (citation (citation Our Time”) of as being based on “su based being as See generally generally See n’s text cann’s have text little to EORGE EORGE 289 289 G Consequently s decision to appoint s decision to appoint f. 40 ’ ANGERS OF A MPLEMENTING THE 73, 77, 86 (observing a common common a 86 (observing 77, 73, D Y 91; c 91; ’ Dred Scott Dred the federal constitution to prohibit prohibit to constitution federal the ., I – R Roe v. Wade OL ,J .P The only approach, rather, en- UB 38 25 (describing of a religiousmeeting leaders ALLON – COTT AND THE THE COTT AND H. F S and that the denial of gay marriage marriage of gay and that the denial . J.L. & P 39 Originalism and the Does Originalism Constitution: note 21, at 190 21, at note RED ARV ICHARD ,D note 6, at 24 at 6, note R supra , cf. , 34H note 22. 22. note supra REENBERG G ICHARDS ) 5/11/2011 ) 7:47 PM supra R –60 objections (discussing andoriginalism to providing “an internal and , Lino A. Graglia, ELETE originalism is not a consistent or coherently developed THAN THAN D Kirkpatrick, Kirkpatrick, E Rosen, Rosen, OT OT — N ? 144 (2004) (describing efforts to amend to amend efforts (describing 144 (2004) ? O See, e.g. Cf. See See also The problem of covert fundamentalism in the United States, (D was wrongly decided was wrongly COVERT FUNDAMENTALISM COVERT . See . note 21, at 53 39 22 (2001) (discussing how the adaptive nature the of common legal system law at – ARRIAGE M K ICHARDS 38. 38. Always ProvideAnswer? the same-sex marriage). contrasts with, and is preferable to, the principles of originalism). originalism). to, of principles the is preferable and with, contrasts ironically and would havecertainly interpretation, position on constitutional leadingbeen rejected by as incompatible with a Constitu- Founders supra its reasonableness”). of criticism external failure of originalism as an approach to constitutional interpretation of originalism as an approach to constitutional failure who the fact actually that no judge defends position this is shown by adheres consistent to it in any way. 20 M 36. 36. in the which participants their restated commitment to conservative religious principles by the Manhattan Declaration).writing 37. 2011] the and in which such patriarchal way ligion so otherwise religions, have mobilized different, strategy unified political a theologically R objection that judges originalism to are incapable discerning of the meaning the of Founders in- constitutional Court Supreme numerous reviewing text, constitutional interpreting when terpretations, and concluding that strict reliance on the Constitutio outcomes); disparate do with jective notions of justice,” pejoratively calling it “The calling it “The justice,” pejoratively of notions jective 275 (2009) (explaining that many originalists critique critique originalists many that (explaining 275 (2009) to enforce the theocratically sectarianviews they the theocratically to enforce share have no place, as the basis law, in our for secular de- constitutional mocracy. rarely discussed, became the diminish if it though would likely sub- ject of the sustained critical examination it deserves. Yet me, as for a this dilemma is mostconstitutional lawyer, dramatically seen in the has hadpower covert on legitimating fundamentalism religious interpretation. it an approach to constitutional as originalism Indeed, even influenced President George W. Bush Justices to the Supreme Court who share this approach. Court who share to the Supreme Justices raises noraises significant claims. constitutional joys the appeal it has had when it leads to the result that religious that religious result the to it leads when the appeal it has had joys that namely, grounds, endorse on sectarian fundamentalists Wade omitted). omitted). 40. C Y 29809_wlp_1-2 Sheet No. 49 Side A 06/10/2011 15:12:24 A 06/10/2011 49 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 49 Side B 06/10/2011 15:12:24 , M K s- u- 44 a C Y — 41, 41, 41 , U.S. , and its its and led a ma- s most de- EHRENBACHER ’ MENDMENTS (New York: Ox- York: (New [Vol. 1:2 1:2 [Vol. Dred Scott Scott Dred A E. F ONSCIENCE AND THE ON . OLITICS , C P ICHARDS 178 (2003) (discussing Lincoln’s Lincoln’s (discussing 178 (2003) .) 393, 454 (1857) (holding that that (holding (1857) 454 393, .) AW AND oln’s critique of of critique oln’s ECONSTRUCTION ECONSTRUCTION L R OW A.J. R Dred Scott v. Sanford Lincoln and others also rebuked Lincoln 43 MERICAN AVID superseded by constitutional amendment constitutional by superseded –57, 81 (describing Lincoln’s critique of Dred Dred of critique Lincoln’s (describing 81 –57, A ONSTITUTION , including its misunderstanding of the legal pro- theits misunderstanding of legal , including C AW OF THE L S ’ at the expense of the text and history at the expense text of the and history note 38, at 18 (questioning whether the Framers — AND , INCOLN Dred Scott Dred note 43, at 56 supra ,L IGNIFICANCE IN , note 43, at 178 (discussing a number of faults associated with with associated faults of number a 178 (discussing at note 43, decision). For more on more Linc decision). For HEORY S the party isthe party of Abraham A little history Lincoln! supra TS ,T , ARBER supra :I — its ALLON F 45 , ) 5/11/2011 ) 7:47 PM ASE — , F ISTORY C WAKE FOREST JOURNAL OF LAW & POLICY LAW OF & FOREST JOURNAL WAKE Dred Scott Dred ELETE ANIEL ICHARDS D ARBER . XIV. For a penetrating critique of the opinion, see see opinion, the critique. XIV. of a penetrating D For :H F Dred Scott v. Sanford, 60 U.S. (19 Sanford, H v. Scott Dred R D OT OT COTT COTT N S O See, e.g. See See See See Our contemporary ofOur contemporary originalism with the revival What remains, then, is a question of personal and political political of personal and a question then, is What remains, in Taney Chief Justice Roger s originalism democratic for betraying constitutionalism. (D Better lawyers than Better Chief Justice Taney, notably Lincoln, ’ AMEND . RED RED 42 D 57, 81 (1993). (1993). 81 57, – ONST ONSTITUTION HE ICHARDS jority of the Supreme Court on such originalist grounds, not only to not only grounds, of on such originalist Court the Supreme jority entrench both in the states and territories tobut also exclude the of the United States Constitu-from people of color protections tion. is not dissimilar. Even its leading advocates do not consistently apply of cases legitimacy would undermine the such consistency it, for Scott and decision’s that precipitatingin role the Civil War). objections to the T that is also consistent with the sensitivity to changethat is also consistentconcept of the sensitivity with the Enlightenment.American how has originalism why and particular had the psychology: appeal it has had as a of kind on orthodoxy in the interpretation constitutional Republican Party here.relevant C 41. 41. condemned his originalismcondemned his because it indulged America 290 290 ofthe interpretation tion would which changeover reasonably time circumstances, to evolving principles enduring its adjusting by R based impulse C 54 44. Chief Justice Taney’s opinion in opinion in Justice Taney’s Chief or, alternatively, whether “the meaning the of Constitution’s general language [was] nece application”). contemporaneous by fixed sarily 42. andbiases) of partisanauthority, sharp impairment customs, fession’s 45. 45. understood “the Constitution as commanding adherence to originalist interpretative norms” norms” interpretative originalist to adherence commanding as Constitution “the understood Scott’s African descent denied him standing to challenge provisions of the federal Constit federal the of provisions to challenge standing him denied descent African Scott’s citizen), U.S. a considered not was he as tion ford University 1978). University ford 43. Together these critiques precipitated the constitutional crisis led that War. to the Civil Taney role precipitatingin the War, see Civil D that appealed to universal as powerful constitutional to such counterweights an impulse. 29809_wlp_1-2 Sheet No. 49 Side B 06/10/2011 15:12:24 B 06/10/2011 49 Side Sheet No. 29809_wlp_1-2 29809_wlp_1-2 Sheet No. 50 Side A 06/10/2011 15:12:24 - 67 (Robert W. or striking striking or 46 , Jan. 9, 2011, WK1 WK1 2011, 9, , Jan. EBATES EBATES D It is shocking that that shocking is It IMES T 49 291 291 ” OUGLAS , N.Y. -D INCOLN L that such advocatesthat such are now eager HE lates the Equal Protection Clause of the Four- of Clause lates theProtection Equal — T 47 in If Scalia His Way Had note 43, at 55 (quoting Abraham Lincoln from a Senate debate debate Senate a from Lincoln Abraham 55 (quoting at 43, note ) 5/11/2011 ) 7:47 PM supra s criticism of Stephen Douglas for indulging racism racism s for Douglas indulging of Stephen criticism ’ , , Rosen, Jeffrey Thus, we are left with a deeply and unreasonably we are Thus, with a deeply left and unreasonably ELETE D 48 OT OT N ICHARDS jurisprudence). O See, e.g. Loving v. Virginia, 388 U.S. 1, 12 (1967) (holding that Virginia’s anti Virginia’s that (holding 1, 12 (1967) 388 U.S. Virginia, v. Loving Lincoln (D COVERT FUNDAMENTALISM COVERT Brown M K he is blowing out the moral lights around us . . . he is, in myhe is, judg- . . . he is blowing out the around usmoral lights ICHARDS applies to politicians who indulge sexism who indulge applies to politicians today: and homophobia “ of reason the humanment, penetrating the light and eradicating in this American people. and the love of liberty interpretive interpretive that traditional that question interpretation in constitutional developments is aggressively applied patriarchal perhaps views of sexualityre- and gender, inadvertently only to those thevealing of the problem root in the process. (stating Justice Scalia’s endorsement of originalism explicitly excludes an endorsement of a of endorsement an excludes explicitly originalism of endorsement Scalia’s Justice (stating pre- 49. R 49. down anti-miscegenation the party of Lincoln would the become political agent of such unrea- son. race vio basis of the on segregation school 46. of practice the that (holding (1954) 495 483, U.S. 347 Bd. of Educ., v. Brown miscegenation Fourteenth statutes violated the Amendment). 48. teenth Amendment). Amendment). teenth 47. 2011] segregation racial state-imposed those repudiating like R Johannsen ed., 1965). with Steven Douglas (Aug. 21, 1858)), (Aug. Douglas Steven with to endorse. C Y 29809_wlp_1-2 Sheet No. 50 Side A 06/10/2011 15:12:24 A 06/10/2011 50 Side Sheet No. 29809_wlp_1-2