Bill Diamond (Huffington Post) asks:

But given all the talk about the possible reinstatement of the draft, why aren't we hearing more from the nation’s campuses? Is there resistance brewing and it's just not getting reported? Or is it, as I think Jim is suggesting, that college-aged students have become so narcotized by our entertainment-obsessed culture that they don’t see what may be headed their way?

I respond.

An interesting and candid item at the Huffington Post.

The Director of the Institute for Political Democracy & the Internet, "the research arm of the Graduate School of Political Management at George Washington University," filed a comment with the FEC, urging regulations of certain speech by bloggers. Here's part of what the comment said:

Some bloggers want it both ways . . . . They want to preserve their rights as political activists, donors and even fundraisers — activities regulated by campaign finance laws — yet at the same time enjoy the broad exemption from the campaign finance laws afforded to traditional journalists. . . . For thirty years the campaign finance laws have made a fundamental distinction between political activists and the news media, in order to protect a free press while at the same time limiting the influence of big money on federal elections.

Until recently, the distinction between the news media and rest of us was clear and uncontroversial. Bloggers blur that distinction. If anyone can publish a blog, and if bloggers are treated as journalists, then we can all become journalists. If millions of “citizen journalists,” as bloggers like to call themselves, are given the rights and privileges of the news media, two consequences will follow.

One is that a newly-expanded media exemption encompassing millions of bloggers will create a new loophole that will eviscerate the contribution and expenditure limits of the campaign finance law. The other consequence is that the privileged status the press [including the privilege to protect the anonymity of sources] currently enjoys will diminish . . . .

If the statute is to survive, two principles must emerge . First, the class of bloggers entitled to be treated as “news media” — and thus exempt from most campaign finance laws — must be limited. Secondly, the FEC must make clear that bloggers cannot wear two hats simultaneously: that of journalist and that of partisan activist. . . .

Digby (Hullabaloo) responds:

Dear FEC,

I write to you today to request your kind advisory as to whether this pamphlet defines me as an ACTIVIST or a JOURNALIST. . . .

Sincerely,

Thomas Paine

Read the post for Mr. Paine's entire letter.

Bill Patry has a very interesting post about how the Sony case ended up the way it did, based on information in Justice Thurgood Marshall's papers; see also this follow-up.

Mark Kleiman, one of the country's leading drug policy experts, has a very interesting post related to the Justice Stevens-Randy Barnett exchange about what effect a decrease in demand has on prices. It turns out, Mark says, that where at least some illicit goods are concerned, lower demand may mean higher prices.

(if, of course, the press account is accurate). The AP reports:

A Kentucky judge has been offering some drug and alcohol offenders the option of attending worship services instead of going to jail or rehab . . . .

"I don't think there's a church-state issue, because it's not mandatory and I say worship services instead of church," he said. . . .

Seems pretty "mandatory" to me. Sure, the offender doesn't have to go to religious services; but if he says no, he'll have to go to jail or rehab. Whether the condition is phrased as "You must go to religious services, or else we'll send you to jail" or "You must go to jail, but we'll let you get out of it by going to religious services," the government is coercing people to go to religious services by threatening them with jail. Nor does it matter that he's not picking the denomination; he's still coercing people to engage in religious activity.

This issue has actually come up in the past, when the government has given prisoners special benefits if they go to Alcoholics Anonymous, a program that has a religious component; courts have generally — and in my view, rightly — held that such a program indeed violates the Establishment Clause, precisely because it coerces people to participate in religious activities.

The result would be different if the judge required people to do something, and there were both religious and nonreligious options. But here it sounds like the only option is to engage in religious practice — or go to jail or rehab. I'm not sure that going to worship services is an effective way of getting people to stop misbehaving. But whether or not it is, the government may not coerce people into religiosity, even as a tool in fighting drug and alcohol abuse.

Thanks to Sean Sirrine for the pointer.

The AFL-CIO faults California Supreme Court Justice Janice Rogers Brown's willingness to protect offensive speech as being "troubling and extreme":

[I]n Aguilar v. Avis Rent-a-Car, 980 P.2d 846 (1999), Brown authored a dissenting opinion that would have struck down, on First Amendment grounds, an injunction that instructed a supervisor not to use racial epithets against Latino employees. The injunction was issued by a trial court judge after the employer was found liable by a jury for maintaining a discriminatory hostile work environment for Latino employees.

On the other hand, the National Writers Union — a member union of the AFL-CIO — proudly filed an amicus brief urging the same result that Justice Brown endorsed. Now of course the AFL-CIO need not agree with everything its member unions say. But if a member union takes a particular pro-free-speech view, it does seem odd that the AFL-CIO — which has long benefited from free speech protections, and has long fought for broadening such protections — would label that view "troubling and extreme."

Thanks to Hans Bader for pointing this out.

Reader Cathy Fasano put the point so colorfully that I thought I'd quote it:

You can certainly disagree with . . . [any] conclusion[s] that moral theologians of whatever faith come up with in gazillions of particular cases. But . . . [f]orests worth of trees have been felled, herds of sheep slaughtered, great pits of clay have been quarried, all so that several millenia of humans can write down their reconsiderations of deific decrees. Up until a few hundred years ago, theology was more or less the only intellectual discipline out there. . . .

I'm not terribly interested in most theological arguments myself; they don't speak to me and my concerns. But I imagine that many deeply religious people feel the same way about utilitarianism or objectivism or a wide range of other secular moral philosophies. (Naturally, not all -- there are surely religious thinkers who are intellectually interested in secular philosophies, and vice versa, whether out of intellectual curiosity, a desire to borrow from other philosophies, or just a desire to better understand others' views.) One doesn't have to agree with theological debates, though, to recognize that religious people spend a lot of time trying to get others, both within their traditions and outside thos traditions, to reconsider their understandings of divine decrees -- and in many instances succeed.

The Ninth Circuit, in United States v. Quaempts (thanks to How Appealing for the pointer) had to choose between two precedents: One held that a person standing in the doorway of his home could be arrested without an arrest warrant, because the doorway is public enough; another held that a person who was lying in bed and could be seen through the open door couldn't be arrested, because he was still in his private home. The question was which category someone who opened the door while lying in bed -- it was a very small trailer -- fit in, and the court said the latter.

I have nothing against that decision as such: Courts sometimes have to make some choices, and draw some mighty thin lines, especially when they have to work with precedents that aren't as crisply theorized as one might like. The process may seem silly to outsiders, but the decisions have to be made.

Still, I was puzzled by this argument:

Quaempts, however, was in his bed, the sanctuary of the right to privacy. See Lawrence v. Texas, 539 U.S. 558 (2003).

Really? I know people use "bed" as a reference to "sex," and I know lots of sex goes on in bed. But surely Lawrence isn't so limited -- presumably sex on the rug, the counter, the kitchen table, or even up against the door (granted, from the inside, with the door closed) is just as covered by Lawrence as sex in the bed. Is this just a little bit of absurdist legal humor, or did someone get carried away with analogies here?

Or perhaps this might add another answer to the old Why do Baptists not have sex standing up? joke -- because it's constitutionally unprotected.

What ever happened to Cohen of Cohen v. California? Or O'Brien of United States v. O'Brien? I'd like to know about them, and about figures in other constitutional law cases, especially First Amendment cases. (They would make for good notes in the Teacher's Manual for my second edition.) If you have any information, please post it — with URLs or cites, if you'd be so good — in the comments. A few that I'm contributing myself:

1. Biographies of the Tinkers and Christopher Eckhardt, of Tinker v. Des Moines Indep. School District, the leading student speech case, are here.

2. Joe Roth, one of the kids whose parents successfully sued to strike down school prayer, in the Engel v. Vitale case, ended up being becoming chairman of Twentieth-Century Fox in 1989, eventually ran Disney Motion Pictures for six years, and in 2001 started a new studio, Revolution Studios. He also directed America’s Sweethearts (2001) and Revenge of the Nerds II (1987).

3. Matt Fraser, of Bethel School District v. Fraser, went on to run the debate program at Stanford.

4. Harry Connick, of Connick v. Myers, retired as D.A. in 2003, after a 30-year stint. He had been known as the "Singing D.A." during his tenure, and has done some professional singing since then. His son, Harry Connick, Jr., is a noted musician.

5. The last of the Zacchini family (see Zacchini v. Scripps-Howard Broadcasting Co.) to do a human cannonball act was Edmondo Zacchini — apparently Hugo's nephew — who flew his last flight in 1991. In 1991, the Zacchini family was inducted into Barnum Ringling Brothers and Barnum & Bailey's Circus Ring of Fame in Sarasota, Fla.. Hugo Zacchini was in his mid-70s when he performed the act that formed the basis of the Supreme Court case; and by the time the Supreme Court case was decided, he was dead (not a barrier to a lawsuit for damages, which would be taken over by his estate, but oddly enough the court opinions don't even mention this).

6. In Cantrell v. Forest City Publishing Co. (1974), a Cleveland Plain Dealer reporter named Joe Eszterhas apparently fictionalized a news story, which led to a false light invasion of privacy lawsuit against a newspaper:

   Most conspicuously, although Mrs. Cantrell was not present at any time during the reporter's visit to her home, Eszterhas wrote, 'Margaret Cantrell will talk neither about what happened nor about how they are doing. She wears the same mask of non-expression she wore at the funeral. She is a proud woman. Her world has changed. She says that after it happened, the people in town offered to help them out with money and they refused to take it.' Other significant misrepresentations were contained in details of Eszterhas' descriptions of the poverty in which the Cantrells were living and the dirty and dilapidated conditions of the Cantrell home.

   Eszterhas recognized that his flair for fiction made him better suited to a different career, and became a once-hot screenwriter (Flashdance, Jagged Edge, Basic Instinct).

So, more, more, please! The comments are ready for you to post.

UPDATE: Steve Kurtz points to a First Amendment Center page that also has follow-ups on Epperson (v. Arkansas), Goldman (v. Weinberger), Bates (v. Arizona), Lemon (v. Kurtzman), Kulhmeier (Hazelwood School Dist. v.), Maynard (Wooley v.), Pickering (v. Board of Ed.), Sindermann (Perry v.), Fraser, and Myers (Connick v.), as well as the Tinker kids, whom I mentioned above.

A reader writes:

The key step in explaining the difference between religiously and secularly-motivated moral claims is almost reached in the excerpt from your most recent correspondent, but he’s not quite there. After your counterpoint about, “My gut feeling says X” being on no firmer grounds than “My deity whom you don’t believe exists says X,” there is another point open to the side endorsing the principled difference between the religious and secular claims. This point is that Rawlsian (or another variety, but I think most are familiar with it from Rawls) reflective equilibrium is possible between the gut feeling and an overarching ethical principle, and may lead to the gut feeling changing (or to the principle being dismissed). Reflective equilibrium is not, as far as I can tell, possible between a deific decree and an overarching ethical principle, because the deific decree cannot be reconsidered.

It seems to me that there are two problems here.

1. I don't see why people's arguments for laws somehow become illegitimate -- or the laws enacted based on those arguments become unconstitutional, as some argue -- simply because the people refuse to reconsider their arguments. Many people are quite unwilling to reconsider certain fundamental moral principles, for instance their rejection of infanticide, slavery, rape, and the like.

Perhaps one can fault these people for not being sufficiently reflective; perhaps all of us should be willing to challenge even our deepest beliefs. But it seems to me that in a democracy, the obstinate and unreflective are just as much entitled to enact their views into law as those who are constantly reexamining their moral commitments (even if the unreflective people, religious or secular, may be properly faulted at times for being too self-confident about matters on which they should have more humility.)

2. As best I can tell many people's religious beliefs are indeed subject to reconsideration. Quite a few people change their religions, or at least their denominations. Many others drift from more literalist readings of their sacred texts to less literalist. Many change their understandings of divine decrees, which in many instances are quite ambiguous or incomplete. (As I understand it, Christian views on abortion come from interpretation and inference, since the Bible doesn't explicit focus on this.)

Many change their views about how much of their religious law should be enacted into secular law. They sometimes change these views as a result of deliberate reconsideration; and sometimes, as with secular people, they change them because their intuitions and outlooks are changed over time by new experiences. The process of reflective equilibrium that my correspondent describes -- the process of one's overarching philosophies affecting one's intuitions and vice versa -- psychologically operates for those religious people as well as for secular ones. And, conversely, there are many secularists who are quite rigid in their worldviews, uninterested in considering the possibility that their understanding may be mistaken or incomplete, and psychologically inclined to resist revising their views.

So this again reinforces my view that religious people are as entitled to enact their religious views into law as secular people are entitled to enact their secular moral views into law.

A correspondent proposes to distinguish religious reasons for decisionmaking and secular reasons this way:

The difference between religious justifications and purely moral justifications is that moral questions are debatable. For instance, any person of any philosophical or religious persuasion can debate both the philosophical question of what duty we have to protect the earth to future generations, and the more specific question of whether protecting the snail darter is necessary to discharge any such duty. These questions cannot be resolved, but they can be debated with reasoned argument.

Similarly, one can debate whether aesthetic justifications are sufficient to prohibit the eating of a certain sort of meat, whether horses have a "higher consciousness" sufficient to justify a ban, to what extent customary practices should be considered, whether meat should be eaten at all, whether horses who are slaughtered feel pain, and all sorts of other questions.

But once someone says "a little man in the sky whom you don't think exists ordered humans not to do something", that ends the debate. I realize that I am being sarcastic, but to the nonbeliever, that is exactly what it means to say that God ordered something. To the nonbeliever, saying God ordered something is no different than someone saying that he was visited by an apparition who ordered him to do something, or that his palm or tarot card reader told him that the spirits have ordered it. To the nonbeliever, the justification that "God" ordered something is nothing more than a hallucination, a completely irrational justification to restrict his conduct. And even to the believer, the justification that someone else's God, that he doesn't believe in, ordered something, is precisely the same. To anyone other than an adherent of a religion, an argument that a religious text says something is simply not a reasoned argument and therefore does not provide any justification to bind the non-adherent. A contested moral claim, in contrast, is still a reasoned argument.

It seems to me that this misses the mark. One can make reasoned arguments, in the sense of an argument that adduces reasons for action, about religious beliefs as well as secular beliefs. People argue all the time about how to interpret contested provisions of religious texts, or how to resolve seeming tensions in the text, or whether there are implied exceptions to the text, or for that matter whether a religious commandment — even one that both parties to the argument agree is religiously binding — ought to be turned into secular law. They give reasons, they use syllogisms, they argue by suggesting counterexamples, they engage in all the hallmarks of reasoned argument.

Of course, at some point the capacity of reasoned argument to drive our judgment runs out, as people come up against their axioms. But that's true whether the people are religious or not. Secular people who want to ban others from eating horse don't say "a little man in the sky who you don't think exists ordered humans not to do something." Rather, if they're candid, they say "a little feeling in my belly that you don't think is morally obligatory ordered humans not to do something."

To those who don't agree with California voters' view about eating horsemeat, "the justification that [the majority's morality] ordered something is nothing more than a hallucination, a completely irrational justification to restrict [our] conduct." Yet in a democracy, the objectors aren't allowed to buy horsemeat, even though this means they're being governed by others' nonrational preferences (not irrational preferences, but nonrational preferences in the sense of being the axioms on which rational arguments rest rather than statements that can be proven rationally).

The same applies to abortion. I suspect that many secular people (or religious people who do not make this decision on religious grounds) believe that the right to life starts some time before birth — perhaps at viability, perhaps at the second trimester, perhaps when some specific developmental milestone is reached. They can adduce reasons for their decision, just as religious pro-life people can adduce reasons for theirs. But ultimately, when you get to the core of the argument, you have people's moral intuitions, gut feelings, axioms, or whatever else you want to call them. No logical argument can provide "proof" that one place and not another is where the right to life attaches.

These positions then get enacted into law; to the best of my knowledge, in most states abortions are not allowed very late in pregnancy, precisely because of these concerns. Whether the backers of such prohibitions support the prohibitions for religious reasons or secular moral reasons, the prohibitions interfere with some women's decision to abort a fetus late in the pregnancy. (We can say the same about infanticide, but I wanted to use a case that was somewhat more controversial.) "To the nonbeliever [in the secular life-begins-some-time-before-birth argument], the justification that [the fetus's right to life mandates] something is nothing more than a hallucination, a completely irrational justification to restrict [her] conduct." Yet such justifications do restrict our conduct. I don't see why religious people's justifications, based on their religious axioms, should be condemned as illegitimate, while nonreligious people's nonreligiously based justifications, based on their secular axioms, are somehow proper.

I've gotten a bunch of responses to my post about "Religion, Forcing Moral Views on Others, and Abortion"; and quite a few give as hypotheticals bans on eating pork, backed by devout Jews or Muslims, or bans on eating cow meat, backed by devout Hindus. Surely those laws are unconstitutional (that was actually Geof Stone's argument in the post that prompted by original response). In the words of one correspondent of mine, "A Christian should not be prohibited from eating meat because the Hindu gods that the Christian does not believe exist have decreed the cow sacred."

It turns out, though, that California voters in 1998 banned the sale of horsemeat for human consumption. (Georgia law bans the sale of dogmeat for human consumption; I'm sure some other states have similar laws.) I have no reason to think that this law was motivated by religion. Rather, I suspect that most voters supported it because of their gut feel that eating horse or dog is disgusting or, in the words of one critic, "morally perverse," "a perversion of the human-animal bond." The people probably didn't even think that horses had a right to life, or a right not to be eaten; the law banned only the sale of horsemeat for human consumption — the sale of horsemeat for animal consumption is, to my knowledge, still permitted.

Both the religiously motivated pork/cow bans and the gut-feel-motivated horsemeat bans burden people's liberty to eat what they please. Both of them do so because of the unproven and unprovable views of the majority. One can say that both are permissible, on democratic grounds; or that both are impermissible, on libertarian grounds. But it doesn't seem to me sound to say that (1) the pork/cow (religiously motivated) ban is impermissible, (2) the horsemeat (disgust-motivated) ban is permissible, and (3) if it turned out that in some state the supporters of the horsemeat ban were actually motivated by a belief that it was sacrilegious to eat horse, that horsemeat ban would become impermissible. In any event, supporters of such a distinction have some explaining to do, it seems to me.

in which Sheik Ibrahim Mudeiris says the following is now available in video and audio, with English subtitles; readers who speak Arabic can then check the translation for themselves:

"With the establishment of the state of Israel, the entire Islamic nation was lost, because Israel is a cancer spreading through the body of the Islamic nation, and because the Jews are a virus resembling AIDS, from which the entire world suffers.

"You will find that the Jews were behind all the civil strife in this world. The Jews are behind the suffering of the nations. . . .

"We have ruled the world before, and by Allah, the day will come when we will rule the entire world again. The day will come when we will rule America. The day will come when we will rule Britain and the entire world -– except for the Jews. The Jews will not enjoy a life of tranquility under our rule, because they are treacherous by nature, as they have been throughout history. The day will come when everything will be relived [likely relieved -EV] of the Jews — even the stones and trees which were harmed by them. Listen to the Prophet Muhammad, who tells you about the evil end that awaits Jews. The stones and trees will want the Muslims to finish off every Jew."

From what I understand, this is not some open forum in which any speaker can speak; the Authority gave the speaker, and others like him, privileged access to Palestinian television. Thanks to Brian Ross for the pointer.

UPDATE: Reader Patrick McKenzie points out that the outrage over this sermon seems to have led the Palestinian Authority to promise to stop carrying such sermons in the future. Sounds good to me; let's hope they stick with it. (I should stress that I oppose governments' outlawing anti-Semitic speech -- but governments shouldn't give such speakers preferential access to the government's own propaganda organs.)

Some of what I hear about the likely causes of the non vote in the French referendum on the EU Constitution reminded me of the old story about the ostracism of Aristides the Just. Aristides the Just was indeed just, but was banished nonetheless by his fellow citizens. It is said that when the vote on his banishment was taking place, an illiterate farmer asked Aristides — not knowing whom he was asking — to mark the potsherd ballot for him.

"What name should I put down?," asked Aristides.

"Aristides," said the farmer.

"Why? What did he ever do to you?"

"Oh, nothing. I'm just tired of hearing him called Aristides the Just all the time."

The farmer's thinking, of course, is not sound. (As best I can tell from what I've read recently, the substantive arguments for the French "no" vote weren't very sound, either; and peevishness at the political classes' seeming arrogance doesn't strike me as a great reason to vote no.) But it does reflect a real trait in human nature, a trait that politicians are wise to remember.

UPDATE: The original title of the post, "Non the Just," was an error on my part, which lost the whole point of the analogy. D'oh! In any case, "Oui the Just" is now right.

I blogged about this in 2003, but this struck me as worth reposting, given recent discussions of the Constitution and foreign law, and of speech restrictions in other Western countries (emphasis added):

SIGNING TREATIES MAY ERODE THE BILL OF RIGHTS: American decisions to sign on to international treaties may erode the protections of the Bill of Rights, for instance the First Amendment. Yes, the Supreme Court has supposedly said otherwise, in Reid v. Covert (1957): "[N]o agreement with a foreign nation can confer power on the [federal government] which is free from the restraints of the Constitution" (speaking of the Bill of Rights). But it turns out that this supremacy of the Bill of Rights really isn't that strong: The President and the Senate can, in the long run, "insinuat[e] international law" that would create "a partial displacement of constitutional hegemony" (for instance, with "an international norm against hate speech . . . supply[ing] a basis for prohibiting [hate speech], the First Amendment notwithstanding"). "In the short term," international norms would and should be "relevan[t] . . . in domestic constitutional interpretation." But "In the long run, it may point to the Constitution's more complete subordination."

These quotes are not from some anti-internationalist "The U.N. is coming to take away our liberties" conservatives. They are from a recent article by Prof. Peter Spiro, one of the leading American international law scholars; the article, called Treaties, International Law, and Constitutional Rights, was published in 2003 in the Stanford Law Review, which is generally seen as one of the top 3 legal journals in the country.

Prof. Spiro is both defending the notion that treaties should be able to trump constitutional rights — "If some constitutional norms are more appropriately set at the international level" (and he believes they are), "that should justify a treaty power that, in some cases, overcomes even the Bill of Rights" — and predicting that treaties will over time do so. Courts, he acknowledges, would try to "maintain[] the formal hegemony of the domestic constitution," but "this formal hegemony may disguise a loss of domestic constitutional autonomy over the long run." "Constitutional rights 'adjusted' by treaty norms are changed by them. The Constitution is read to conform with the treaty."

Of course, some people may be quite happy about this: They might well conclude that parts of the Bill of Rights should be superseded by "international" norms. They may think the international lawmaking community (mostly, I suspect, composed of European legal and political elites, plus of course those segments of American legal and political elites that are involved in this field) will indeed reach better results than those provided for by the current understanding of the U.S. Constitution.

But those of us who disagree should vigilantly watch for, and resist, the "displacement of constitutional hegemony" that the article welcomes. We should insist that the President and the Senate consistently stress in all the treaties they sign and ratify that our agreement to the treaty is constrained by our Constitution, and that the treaty should be read to conform to the Constitution, and not the other way around. We should criticize judges who rely on international norms in interpreting American constitutional provisions (in this respect, reading Prof. Spiro's article has led me to reconsider some of my earlier views on the subject, and to view with much more alarm reliance on international law in American constitutional interpretation). And we should assiduously publicize the ways in which international rules are, in our view, worse than ours, for instance to show that foreign bans on "hate speech" actually end up banning (as American First Amendment thinking would have suggested) a good deal of speech that deserves to be protected (see, for instance, this post by David Bernstein).

Our Constitution is far from perfect, both as written and as interpreted. I think courts should indeed change their views on many issues, and people should try to press courts to do so. But this should be our decision as Americans. We should not cede our control over our constitutional rights to international bodies, international professional elites, or even to our own President and Senate.

People often complain that others -- often others who oppose abortion or destruction of embryos in the lab -- are just trying to implement their own religious views into law, and how they are trying to force their moral views on others. The argument isn't that the particular view about when life begins, or about whether abortion is proper, is mistaken; I can respect such arguments, and I even agree with some of them. Rather, instead of confronting the pro-life position on the controversial and difficult to debate merits, the arguer claims that this position is somehow procedurally improper, because it rests on religious reasons or forces moral views on others.

But all judgments about when human beings acquire certain rights rest on unproven and unprovable moral calls. (I have made this argument more broadly before, but I think it's even clearer as to abortion.) Moreover, they all force one's moral views on others. If you think people acquire a right to life at birth, and you thus support infanticide bans, then you're forcing your moral view on others who want to kill babies. If you think that ninth-month abortions are wrong, because the baby acquires rights at viability, then you're forcing your moral view on others who want to abort fetuses that are eight months old.

Now of course these judgments may be informed by medical observations -- for instance, when the brain develops to a certain level, or when something will end up naturally growing into a born human without any further intervention -- or by pragmatic considerations, gut feel, opinion polls, tradition, views about how precise and clear legal lines should be, or whatever else. But ultimately these judgments rest not on the scientific or social facts as such, but on moral judgment calls about how one evaluates these facts.

Likewise with libertarian arguments about the rights of the woman; the scope of the woman's rights, the existence or not of the fetus's or baby's rights, and how one reconciles those rights ultimately rests on one's own axioms about morality. And whether one supports a law against all abortion, against late-term abortions, against infanticide, or against killing babies who are one year or older, one is forcing one's moral views on others.

Ah, but at least you're forcing moral views on others, not forcing religious views on them, some say. So what? How is (1) someone's gut feeling that an eight-month old fetus is so much like a baby that surely it shouldn't be killed a more legitimate basis to write laws than (2) someone's deduction from the Bible that any fetus can't be killed? For that matter, how is a secular moral axiom that born babies are as entitled to live as we are a more legitimate basis to write laws than a religious moral axiom to the same effect?

All of us draw lines in this field, whether at conception, viability, birth, or whenever else. None of us can prove the validity of those lines through science or through abstract logic.

Those of us (like me) who draw secular lines shouldn't feel superior to those who draw religious lines here -- and we certainly shouldn't think that the Constitution or political morality somehow makes our linedrawing more proper. We can and should debate, as best we can, where the lines should be drawn, but we should recognize that at some point it comes down to the unproven and unprovable, for the secular among us as well as for the religious. And we should realize that no attempt to protect children from killing -- wherever you draw the line about what constitutes a "child" -- can operate without forcing one's moral views on others.

Apropos the outrageous (if press reports are correct) court order barring Wiccan divorced parents from teaching their child their religion, the executive director of the American Family Association of Indiana -- essentially a conservative Christian group -- says: "The parents have the right to raise their child in that faith, just as I have the right to raise my child in the Christian faith." A very good response.