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January 20, 2009
Moral disputes need judicial deference

By Mary Loftus

The most disputed constitutional issues of our times — abortion, capital punishment and same-sex unions — are examined in a new book by Emory Law Professor Michael J. Perry who argues that judges, especially U.S. Supreme Court Justices, should exercise deference in deciding whether a law should be declared unconstitutional.

“During this intensely political season when we focus on the Supreme Court, people tend to think, ‘I want [President-Elect] Obama to appoint judges who will favor the policy outcomes that I prefer.’ But even if the court, or a majority of it, believes that a law is unconstitutional, it does not mean that the court should rule that the law is unconstitutional,” says Perry, Robert W. Woodruff Professor of Law and a senior fellow at the Center for the Study of Law and Religion.

Perry produced “Constitu-tional Rights, Moral Controversy, and the Supreme Court” (Cambridge University Press, 2009) in conjunction with the CSLR’s Christian Jurisprudence research project, which is designed to provide a comprehensive analysis of the contributions of modern Catholic, Protestant and Orthodox figures to fundamental questions of law, politics and society.

Instead of asking only “Is the law unconstitutional?” Perry says the court should also ask: “Is it reasonable to conclude that the law does not violate the right it is claimed to violate?”