Vincent Samar

The First Amendment’s Free Exercise and Establishment Clauses were meant to guarantee freedom of religion for all persons living in the United States. This was to be done by ensuring that government could not establish a state religion nor interfere with individual practices and beliefs so long as they did not violate public morals. The idea was to have the two clauses operate together to ensure state separation in matters of religion. However, recent caselaw involving government accommodations to religious organizations has emphasized the Free Exercise Clause with little or no attention afforded the Establishment Clause. As a result, intermediate factors like entanglement, endorsement, general applicability, and neutrality, that previously were used to assist the separation of church and state, are now called into question. This Article attempts to rekindle these factors by attaching a public/private distinction to the way the two clauses are understood, to ensure a more certain and clearer basis for the separation of church and state.

The Supreme Court’s antiabortion opinion in Dobbs v. Jackson Women’s Health Org., which overruled Roe v. Wade and Planned Parenthood of S.E. Penn. v. Casey, on the one-hand suggests that the Court may be moving toward eliminating all non-enumerated fundamental rights not deeply rooted in the Nation’s longstanding history and tradition. On the other hand, it may suggest only that the Court might be just opening the door to overruling specific non-enumerated rights with which it no longer agrees. Either way, many long-recognized, non-enumerated, human rights, beyond abortion that are essential to individual autonomy and human dignity are now up for grabs. Such rights in the area of privacy law will most likely include not just abortion, but also contraception, interracial marriage, and the Court’s more recent recognition of same-sex marriage, and possibly still other precedents, including whether states can criminalize adult consensual same-sex behavior in private. More importantly, the proposed foundation for this Court’s potential departure from its past case precedents cannot be justified even by claiming such rights are not deeply rooted in the Nation’s history and tradition. As I hope to show in this article, neither from the point of view of looking to this Nation’s longstanding history and traditions, if properly understood, nor from the point of view of allowing Equal Protection to aide in identifying forms of discrimination not previously recognized or afforded much attention, can departures from past human rights precedents based in autonomy be justified.

Where did the right to privacy come from and what does it mean? Grappling with the critical issues involving women and gays that relate to the current Supreme Court appointment, Vincent J. Samar develops a definition of legal privacy, discusses the reasons why and the degree to which privacy should be protected, and shows the relationship between privacy and personal autonomy. He answers former Supreme Court nominee Robert Bork's questions about scope, content, and legal justification for a general right to privacy and pays particular attention to issues involving gays and lesbians.

This anthology examines Love's Labours Lost from a variety of perspectives and through a wide range of materials. Selections discuss the play in terms of historical context, dating, and sources; character analysis; comic elements and verbal conceits; evidence of authorship; performance analysis; and feminist interpretations. Alongside theater reviews, production photographs, and critical commentary, the volume also includes essays written by practicing theater artists who have worked on the play. An index by name, literary work, and concept rounds out this valuable resource.

Many people submit to the law simply because they believe that the institutions administering it are just. But what if a law itself is unjust? The duty to obey law presupposes that laws are both consistent and just; because they aren't always, appeals to a higher political morality are sometimes necessary if justice is to be served. Justifying Judgment reconsiders the relationship between legal and political philosophy to show that the former is incomplete without the latter. Taking the problem of how to solve difficult cases as his point of departure, Vincent Samar demonstrates the inherent incompleteness of conventional theories of law in order to examine the meaning of justice in a democratic society. He reviews the current state of legal and political theory and then sets forth a metatheory for law which would enable judges to decide such cases by drawing upon competing theories of jurisprudence as the case's level of a

This article reviews the field of international human rights with particular attention to the way that the International Court of Justice, the International Criminal Court, the Human Rights Committee, and local domestic courts operate to resolve human rights cases. It first notes what internationally recognized human rights there are and the sources that give rise to them. It then explains how relativism enters human rights decision-making, especially at the domestic court level, in part because a common grounding for the human rights pro-pounded was never adopted. Even at the level of the International Court of Justice, its failure to include an ethical modality in the way it interprets treaties generally, and human rights treaties in particular, can leave it floundering to present any consistent framework for its own human rights decision-making. The article then presents a philosophical theory to justify the human rights that are recognized, based on an objective criterion that can be developed to assist courts in deciding conflicts of rights cases. Especially with respect to state domes-tic courts, the International Court of Justice can serve as a model to be emulated were it to adopt this theoretical framework for future hu-man rights decision-making.

The unexpected passing of United States Supreme Court Justice Antonin Scalia left a vacancy on the Court in the midst of a presidential election year. As a result, the appointment process did not proceed in the same fashion as previous appointments. Instead, the Senate declared shortly after Justice Scalia’s death that it would not consider any candidate to fill the vacancy until the next president is elected. The Senate remained steadfast in this decision throughout the remainder of President Obama’s term. This Article analyzes the constitutional questions surrounding the Senate’s refusal to consider any nominee and argues the Senate has a duty to advise and consent in a timely manner. Additionally, it demonstrates how a politically-motivated delay threatens the integrity of the constitutional process for selecting judges, violates separation of powers concerns by politicizing the Court, and contradicts the express intent of the Framers of the Constitution.

Is there an independent legal method separate from the political process for handling a constitutional amendment that may be inconsistent with, or contrary to, the basic structure and rights the Federal Constitution currently inaugurates, or are courts stuck with having to accept the amendment on its face? This problem is not unique to the United States. Nor is it the same problem as whether a state constitutional amendment may violate the Federal Constitution. While I initially focus on the U.S. Constitution, I plan, before the end of this piece, to broaden out to other national constitutions as well, and certainly some of the arguments might also apply to state constitutional amendments, as we see with the controversy over the constitutionality of California’s Proposition 8. In this vein, it will make sense to consider cases from other nations, like Kesavananda Bharati v State of Kerala, in which the Supreme Court of India held that the judiciary could strike down amendments to the constitution passed by Parliament that conflict with the constitution’s “basic structure.” The U.S. Supreme Court has never addressed what constitutes the basic structure of the U.S. Constitution. This is the question addressed in this article.

Large-scale data brokers collect massive amounts of highly personal consumer information to be sold to whoever will pay their price, even at the expense of sacrificing individual privacy and autonomy in the process. In this Article, I will show how a proper understanding and justification for a right to privacy, in context to both protecting private acts and safeguarding information and states of affairs for the performance of such acts, provides a necessary background framework for imposing legal restrictions on such collections. This problem, which has already gained some attention in literature, now becomes even more worrisome, as government itself becomes a consumer of this information to fight off a domestic instantiation of the global Covid-19 pandemic. This Article proposes some definite ways in which the courts and Congress might limit both the private sector and the government’s use of such data to ensure individual autonomy will not be sacrificed.

The article argues that lesbian, gay, bisexual, and transgendered (LGBT) rights are a particular instantiation of human rights. But in order to make this argument several things must be done first. Preliminarily, it should be noted that some transgendered issues fall under the rubric "gay rights," even though strictly speaking, they center most prominently on gender and not sexual orientation. Still, there gender aspects are often ignored because of concerns related to sexual orientation, such as whether a transgendered female can use a woman's washroom. Arguably, the reverse may also be true of gays, lesbians, and bisexuals, as many of society's concerns regarding this group involve their following gender roles, even though the discrimination against them is not usually seen as sex discrimination. Bearing that in mind, among the various responsibilities of this article is to define--in the broad sense--what gay and lesbian rights are. This is followed by a similar set of expressions defining what human rights are and an argument for how such rights get justified. Once that is done, the connection between gay and lesbian rights and human rights is pursued within the context of a theory of political morality that establishes the centrality of human rights to all moral concerns.

Is the current state of international governance by the United Nations and related organizations a preface to what eventually might become a world government? Is it at all similar to what was the structure of government in the United States after the adoption of the Articles of Confederation in 1781 and before adoption of the Constitution of 1787? Are changes in the way international institutions like the United Nations operate related to changes in our conceptions of the role of these institutions in providing international governance? When governmental institutions prove to be too weak to adequately perform the tasks expected of them is there a natural evolution toward greater centralization of power? If so, might an early sign of this evolution be decisions by public officials that afford greater deference to the decrees of international institutions that previously might have been sidestepped?

I here advance the thesis that if there is a general right to privacy, it follows that each person has a right not to be intruded upon in respect to their HIV status. I shall call this right RNIH (the Right to Non-Intrusion on HIV Status). Closely related to RNIH is society's compelling interest to protect against the spread of a fatal disease. In cases where the two conflict, the state's interest dominates but only to a point. In this article I sketch out a theoretical basis for believing RNIH exists. I also provide a serious legal mechanism for the protection of the right to privacy in the context of AIDS.

In June 2015, in Obergefell v. Hodges, the Supreme Court of the United States determined that there is a fundamental right to marriage that extends to same-sex couples. This Article analyzes the Obergefell decision in light of the Court’s 2014 decision in Burwell v. Hobby Lobby regarding religious protections that might by analogy be afforded under state Religious Freedom Restoration Acts. In particular, the article considers whether a government official may claim the right to religious freedom to deny issuing marriage licenses to same-sex couples. Additionally, the article suggests that a new standard for the separation of church and state may be required. Although the 2015 decision prevents the government from denying marriage to same-sex couples, the decision does not directly affect private businesses that choose not to provide services for same-sex weddings. It may, however, have an important indirect effect if laws are already present that prohibit sexual orientation discrimination. Therefore, the article explores possible avenues for protection from private

More than thirty-four years after the United States Supreme Court initially recognized a woman’s constitutional right to choose whether or not to terminate a pregnancy (at least within the first two trimesters) in its landmark abortion decision Roe v. Wade, the issue of whether women ought to have this right continues to affect public debate. Presidential candidates are asked about the issue, and potential Supreme Court nominees and their prior judicial decisions, academic writings, and speeches are thoroughly scrutinized for any inkling of how they would likely rule in a future case on the issue. Perhaps even more important is the way the debate over this issue has impacted federal funding for stem cell research in the United States. Because of moral concerns regarding the personhood status and level of dignity owed to the human embryo as a form of human life, in September of 1999, the National Bioethics Advisory Commission recommended against providing federal funding for the use and derivation of embryonic stem (ES) cells and embryonic germ (EG) cells except when obtained from “cadaveric fetal tissue” or “embryos remaining after infertility treatment.” In this article, I will suggest that the abortion debate and its offshoots into embryonic medical research persist because of a failure to properly separate human personhood from human biology. I will argue further that a proper analysis of the problem will not only enlighten the abortion and fetal tissue research debate, but will have implications for end-of-life issues as well.

In this essay, I maintain that the issue of whether the right to die is viable as a constitutionally protectable right remains open. I intend to reconcile the Supreme Court's holdings in Glucksberg and Quill by examining the different rationales the Justices offered for their decisions. I do not believe this issue can be resolved simply by asserting that the intention of the actor is different when assisting suicide, as compared to when life-sustaining treatment is withdrawn. Rather, the right to die continues to be viable due to the level of abstraction at which the Court chose to frame the issue in these cases.

This Article examines recent claims that the fetus be afforded the status of a person under the Fourteenth Amendment. It shows that such claims do not carry the necessary objectivity to operate reasonably in a pluralistic society. It then goes on to afford what a better view of personhood that could so operate might actually look like. Along the way, this Article takes seriously the real deep concerns many have for the sanctity of human life. By the end, it attempts to find a balance for those concerns with the view of personhood offered that should engage current debates about abortion and women’s rights.