APA Newsletters
Spring 2000
Volume 99, Number 2

To begin with, I am very pleased to announce that Professor Theodore Benditt of the University of Alabama in Birmingham has been selected as my replacement to edit the APA Newsletter on Philosophy and Law for the next five-year term. After a number of years serving as the Dean of his school at UAB, Ted has returned to full-time teaching in the Philosophy Department, and has graciously agreed to take this job into his able hands. Although Ted’s term of office will officially begin effective July 1, 2000, I will finish out my work on the Fall 2000 issue, since that task overlaps the transition date. Ted will oversee the next ten issues, beginning with the Spring 2001 issue, which is being guest-edited by Brian Leiter of the University of Texas.

The current issue is an open topic affair, with three contributions. In an article entitled "Same-Sex Marriage and the Equal Protection Clause," John Orlando argues that standard gender discrimination arguments in defense of the constitutionality of same-sex marriages are based on a fundamental misunderstanding of the way in which equal protection analysis was applied in the 1967 anti-miscegenation case, Loving v. Virginia. Orlando contends that most proponents of this strategy have failed to recognize the full implications of the fact that the determination of the relevant level of judicial scrutiny applicable to the law in question (e.g., "strict" or "intermediate" scrutiny versus the "rational basis" standard) is distinct from considerations relevant to determining whether the law in question actually satisfies the applicable level of scrutiny. Consequently, gender discrimination arguments for same-sex marriages have not been made as forcefully as they otherwise might.

Jennifer Faust has supplied us with two pieces: an article entitled "Reasonable Doubt Jury Instructions," and an annotated bibliography of work written on this topic during the past decade. In her article, Professor Faust distinguishes between two types of reasonable doubt: one in which a juror has sufficient reason to believe in the innocence of a defendant, and the other based on the idea that the juror lacks sufficient reason to believe in the defendant’s guilt. Faust argues that the second type of doubt, which is weaker than the first (since it doesn’t actually require the juror to formulate positive reasons for the defendant’s innocence), is clearly the more appropriate doubt to provide a minimal basis for acquittal (consistent with the presumption of innocence). Nonetheless, she goes on to contend that many states use pattern jury instructions that effectively require the first kind of doubt in order to warrant an acquittal.

Professor Faust’s annotated bibliography focuses primarily on a flurry of law review articles that appeared during the years immediately following the 1992 case Victor v. Nebraska, which many legal commentators have come to regard as a reversal of the Supreme Court’s decision just two years earlier in Cage v. Louisiana (the Court majority’s own remarks notwithstanding). Most of these commentators also regard Victor as a turn for the worse: making acquittal of potentially innocent defendants potentially less likely than such decisions would have been under Cage.

Before I leave the contributions of the current issue, I would like to add a brief sidebar concerning the topic of John Orlando’s article. In a note he makes reference to the fact that the Vermont Supreme Court heard oral arguments in Baker v. Vermont a year ago last November. In that case, two lesbian couples and a gay couple contested Vermont’s proscription against same-sex marriage on state constitutional grounds. During the interval since Professor Orlando submitted his article, the Vermont Court has handed down its decision, after deliberating for more than a year, on December 20, 1999. Having learned from the ill-fated attempt to secure same-sex marriage by judicial means in Hawaii, the Vermont judges decided to stop short of eliminating the state ban on same-sex marriages, offering instead to countenance genuinely comprehensive domestic partnership licensing arrangements as a constitutionally permissible alternative to the legalization of gay marriages.

When the Hawaiian courts took fateful steps (in 1993 and 1996) toward judicially mandating same-sex marriage, gay rights opponents invoked the specter of autocratic judicial disregard for majoritarian sentiment, in order to secure the allegiance of an ambivalent electorate in November, 1998. At that time Hawaiians voted over 2 to 1 in favor of a constitutional referendum giving the state legislature authority to restrict marriage to opposite sex couples.

Submission Deadline: June 15, 2000

Editor:  Richard Nunan
Department of Philosophy and Religious Studies
College of Charleston
Charleston, SC 29424
nunanr@cofc.edu
(843) 953-6522

There are many philosophically interesting topics that fall under this heading, raising not just First Amendment questions (e.g., the ongoing debate about public high school biology curricula, or the one about state support for parochial schools), but also sometimes involving questions about the right to privacy (e.g., the question of state in/tolerance of "private" consensual religiously motivated activity that happens to be criminalized in other contexts [peyote ingestion as a sacramental rite, for instance], or the issue of medical treatment refusal cases [especially for minor children]), equal protection (e.g., state prohibition of religiously motivated polygamy), and legal procedure questions (e.g., preemptory strikes of jurors of a certain religious persuasion, or whether in judicial proceedings lawyers are constitutionally entitled to compel testimony about the nature of private religious beliefs). Prospective contributors should feel free to conceive this topic fairly broadly.

Submission Deadline: Currently closed due to number of solicited advance commitments

Guest Editor:  Brian Leiter
Director, Law and Philosophy Program
University of Texas at Austin
727 East Dean Keeton Street
Austin, TX 78705
bleiter@mail.law.utexas.edu
(512) 471-5151

Submission Deadline: June 15, 2001

Editor:  Theodore M. Benditt
Department of Philosophy
University of Alabama at Birmingham
Birmingham, AL 35294-1260
tbenditt@uab.edu
(205) 934-4083

In recent years there has been a resurgence of natural law thinking in both ethics and law. Important books and collections of essays have been published making the case for or against some version of natural law. It seems appropriate for the Newsletter to take stock of these developments. Essays are welcome that address central themes related to the recent literature on natural law theory.

If you are interested in submitting an article to be considered for inclusion in one of the forthcoming issues with space still available, it would be prudent to send an inquiry in advance, briefly describing your proposed topic. Space is very tight in the Newsletter, and there is room for only a few articles in each issue. Since the Newsletter aims for broad coverage of the range of issues relevant to a particular topic, it is unlikely that two articles treating of the same subtopic will be published. Advance inquiries will also enable guest editors to furnish prospective contributors with more detailed infor-mation about the formatting requirements for submissions. In any event, authors should restrict their contributions to 3,000–4,000 words (about 10–15 pages, double-spaced).