Tuesday, September 01, 2015

Refusals to Issue Marriage Licenses to Same Sex Couples on Religious Grounds--An American Constitutional Conundrum and the View From the European Court of Human Rights

(Pix © Larry Catá Backer 2015)


The U.S. Supreme Court decision in Obergefell vs. Hodges has produced an expected push back along religious lines. And it once again pushes the political organs of society to examine the elasticity of the U.S. Constitution's Free Exercise Clause. The problem, of course, arises from the judicial determination, made nearly a generation ago, and written into some federal law, that effectively provides religious dissidents an "opt out" of civil law on the basis of religious objection. Not that this somewhat organic effort to create a workable settlement for sectarian differences and ambitions (that is for ambitions to control the societal conversation about conduct management through law) is necessarily wrong or wrongheaded (though many object to the form, scope and direction of the settlement). But it does present the government with a series of conundrums, especially relating to its own internal operations. In that sense it touches on a very delicate point--the power of religious free exercise to affect the order, organization and operation of the state. To the extent it does, it appears to invite objection on the grounds that such accommodation effectively establishes religion within the heart of the state--in its government. And thus the American conundrum.

The setting for the resolution of this conundrum arises from within the lower and most ministerial of the rungs of government administration within the States of our federal union. The clerks of several jurisdictions, most famously now those of the state of Kentucky, has declared their refusal to perform their obligations to issue marriage licenses to same sex couples. That objection is not grounded on the power of the state to issue such licenses, or of the right, under the secular laws of Kentucky (now mandated in a sense by federal constitutional guarantees) of same sex couples to marry. Rather is is grounded int he personal right of individual clerks to avoid complying with their duties of office on the basis of personal religious objection.
Rowen County clerk Kim Davis, who objects to gay marriage for religious reasons, asked the nation's highest court Friday to grant her "asylum for her conscience." . . . . She stopped issuing all marriage licenses in the days after the Supreme Court's landmark decision. . . . A federal judge ordered Davis to issue the license and an appeals court upheld that decision. . . . Forcing her to abandon her Christian principles and issue licenses could never be undone, her attorney, Jonathan D. Christman, with the Christian law firm Liberty Counsel, wrote the court. (Kentucky Clerk Asks Supreme Court to Intervene in Gay Marriage Case, Associated Press via NBC News, September 1, 2015)
That plea was rejected by the Supreme Court on August 31, 2015. "Davis is now faced with a lower court order that her office begin issuing licenses effective Monday. The order marks the first time the issue of same-sex marriage has come back to the justices since they issued an opinion last June clearing the way for same-sex couples to marry nationwide" (Ariane de Vogue and Jeremy Diamond, SCOTUS: Kentucky clerk must issue same-sex marriage licenses, CNN Politics, August 31, 2015). She continues to refuse to issue marriage licenses as of September 1, 2015 (Kentucky Clerk Again Denies Gay Couples Marriage Licenses, The New York Times, Sept. 1, 2015 ("According to news reports on Tuesday, Ms. Davis has again refused to issues marriage licenses to same-sex couples.").

Whatever the decision of the courts, the European Court of Human Rights has also recently had cause to consider similar claims under the protections of the European Convention for the Protection of Human Rights and Fundamental Freedoms. This point includes relevant text of a recent decision of the European Court of Human Rights, Eweida and Others v. The United Kingdom (May 27, 2013). In which the Court rejected, under the European Convention, similar claims on the part of government employees.

Friday, August 28, 2015

The Regulatory Architecture of Civil Society and NGOs in China

(Pix © Larry Catá Backer 2015)


The regulation of NGOs in China has tended to be a backwater in the consciousness of Westerners; unless foreign NGOs are the target of regulation.  And indeed, Western civil society became quite animated in the wake of Chinese proposals to substantially amend their foreign NGO regulations.  I have been considering both Western reaction to Second Draft  of the  People's Republic of China Foreign Non-Governmental Organizations Management Law (Draft) (Second Reviewed Draft) (人民共和国境外非政府组织管理法(草案)(二次审议稿), and comments thereto (see here, here, and here).

But the draft Foreign Non-Governmental Organizations Management Law (Draft) (Second Reviewed Draft) (人民共和国境外非政府组织管理法(草案)(二次审议稿) is only the tip of an administrative and regulatory architecture that has been built for the management of civil society in China.  

Shaoming Zhu (绍明) (Penn State SJD expected) has prepared a working paper that examines this regulatory architecture and points to recent changes--Shaoming Zhu, "The Application of Laws against Chinese NGOs --Research on NGO in China, Coalition for Peace & Ethics Working Paper 8/3 (August 2015).  As one considers the role of NGOs in China, and not just that of foreign civil society within that country, this Working paper may prove useful.  Portions of the working paper follow.  The paper may be accessed here

Wednesday, August 26, 2015

On Building Vanguard Party Organization--Thoughts on "Several Provisions on Advancing Capacity To Promote And Demote Leading Cadres (Provisional) 推进领导干部能上能下若干规定(试行)"



(Pix © Larry Catá Backer 2015)


In an earlier post (Evolving Leninism in the Chinese Communist Party?: Reforming Mechanisms for Intra-Party Discipline) I considered the evolution of intra-Party disciplinary mechanisms in China. The changes are interesting not merely from the technocratic perspective (that is do they make good governance sense?) but also from the theoretical perspective (are the changes consistent with and advance the development of Marxist Leninist thought and practice consistent with Chinese characteristics?).

These changes are part of a comprehensive reform plan laid out at the third plenary session of the 18th CCP Central Committee in 2013 which reflected earlier actions of the Central Commission for Discipline Inspection. Among the most important of these organizational developments has been the  Several Provisions on Advancing Capacity To Promote And Demote Leading Cadres (Provisional) 推进领导干部能上能下若干规定(试行).  CHINESE ORIGINAL HERE. These were unveiled and to be made effective July 31, 2015. 

The policy underlying these provisions are old--they can be traced back to Deng Xiaoping's statement, "Questions Concerning Cadres of the Party in Power," The Selected Works of Deng Xiaoping Vol. I (Nov.29, 1962).  This post includes a translation of Several Provisions on Advancing Capacity To Promote And Demote Leading Cadres (Provisional) 推进领导干部能上能下若干规定(试行)and commentary.

Tuesday, August 18, 2015

Part 50: (The Self Coupled and Satan, The Tree of Knowledge, and the Education fo the Self): Dialogues on a Philosophy for the Individual

(Pix (c) Larry Catá Backer 2015)


With this post Flora Sapio and I (and friends from time to time) continue an experiment in collaborative dialogue. The object is to approach the issue of philosophical inquiry from another, and perhaps more fundamentally ancient, manner. We begin, with this post, to develop a philosophy for the individual that itself is grounded on the negation of the isolated self as a basis for thought, and for elaboration. This conversation, like many of its kind, will develop naturally, in fits and starts. Your participation is encouraged. For ease of reading Flora Sapio is identified as (FS), and Larry Catá Backer as (LCB).

The friends continue their discussion in which  Flora Sapio responds and considers the Devil and the constitution of free will.  Larry responds in turn, suggesting that the Devil is, indeed, in the apple consumed in the Garden of Eden, or that ignorance is bliss in the sense that it permits a communally constituted individualism..


Contents: HERE.

Sunday, August 16, 2015

2015 United Nations Forum on Business and Human Rights: Draft Programme Outline Posted




I have been writing about the United Nations Forum on Business and Human Rights. (see here, here, here, and here). The Forum has been an important site for the meeting of key international stakeholders who tend to control the discussion about business and human rights in the international sphere. If for no other reason, that is reason enough for sustained attention to its proceedings.

The Secretariat of the Forum on Business and Human Rights has recently announced the publication of the draft program for the 2015 Forum on Business and Human Rights to be held in Geneva on 16-18 November 2015.  The announcement in English, French and Spanish follow. 

Saturday, August 15, 2015

Part 49: (The Self Coupled and Satan--Harm, Pragmatism and the Social Self): Dialogues on a Philosophy for the Individual

(Pix (c) Larry Catá Backer 2015)


With this post Flora Sapio and I (and friends from time to time) continue an experiment in collaborative dialogue. The object is to approach the issue of philosophical inquiry from another, and perhaps more fundamentally ancient, manner. We begin, with this post, to develop a philosophy for the individual that itself is grounded on the negation of the isolated self as a basis for thought, and for elaboration. This conversation, like many of its kind, will develop naturally, in fits and starts. Your participation is encouraged. For ease of reading Flora Sapio is identified as (FS), and Larry Catá Backer as (LCB).

The friends continue their discussion in which  Betita Horn Pepulim responds to Flora Sapio and  Larry Catá Backer on pragmatism and the societal self, and Larry responds in turn, suggesting that even the most personal acts of the self, selfishness, can be understood as a societal concept not arising from but only through the self.


Contents: HERE.

Friday, August 14, 2015

10th Annual Conference of the European China Law Studies Association (欧洲中国法研究协会); University of Cologne — 25–27 September 2015


I am delighted to post the program for the 10th Annual Conference of the European China Law Studies Association (欧洲中国法研究协会): New Perspectives on the Development of Law in China.  

The Conference will be held at the Institute of East Asian Studies, University of Cologne. It will bring together scholars from Europe, the Americas and China. Since its founding in 2006, the European China Law Studies Association has become a major international venue for scholars and practitioners who are engaged in the study of Chinese law, from both comparative and interdisciplinary perspectives. The annual conference is a leading international academic forum for the exchange of information and ideas on Chinese law, as well as a platform for the initiation of research collaboration. 

The Program follows.