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«Fordham Urban Law Journal Volume 24, Issue 3 1996 Article 5 Linking Genes with Behavior: The Social and Legal Implications of Using Genetic Evidence ...»

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Fordham Urban Law Journal

Volume 24, Issue 3 1996 Article 5

Linking Genes with Behavior: The Social and

Legal Implications of Using Genetic Evidence

in Criminal Trials

Carol A. Gaudet∗

Fordham University School of Law

Copyright c 1996 by the authors. Fordham Urban Law Journal is produced by The Berkeley

Electronic Press (bepress). http://ir.lawnet.fordham.edu/ulj

Linking Genes with Behavior: The Social and

Legal Implications of Using Genetic Evidence in Criminal Trials Carol A. Gaudet Abstract This Note surveys the increasingly problematic issue of using genetic information in legal decision making. This Note concludes that genetic evidence should be admissible during both the guilt or innocence phases and the penalty phases of criminal trials because it improves the trial process by enhancing juries’ understanding of the defendant’s intentions during the commission of their crimes.



Nadine Strossen** I. Introduction 1 am honored and delighted to speak at the Jewish Theological Seminary ("JTS"). From a personal perspective, I am especially pleased to be here because I am Jewish myself and live right in this neighborhood. On both counts, therefore, I feel quite at home. As a civil libertarian, I always feel especially comfortable in Jewish audiences, because Judaism entails such a strong commitment to human rights.

When Rabbi Visotzky invited me to participate in this lecture series, he gave me a lot of latitude to deal with its broad subjectreligion and politics-but he suggested I might well want to respond to the remarks that Supreme Court Justice Antonin Scalia made on this and related subjects when he lectured in this series last month. Indeed, Rabbi Visotzky noted my self-restraint during the question-and-answer session that followed Justice Scalia's lecture, which I attended, since I did not raise any questions or comments then. That was only because I respected the free speech rights of other audience members, and not because I had no comments. To the contrary, I was overflowing with responses to Justice Scalia's remarks, but I knew that I would get my chance to make them tonight.

Justice Scalia spent much of his lecture describing and commenting on the thirteen Establishment Clause cases the Supreme Court * This piece is an edited transcript of Professor Strossen's oral presentation on "Religion and Politics" at the Jewish Theological Seminary ("JTS") in New York on June 18, 1996. She was responding to Justice Antonin Scalia's presentation at JTS on the same subject on May 21, 1996. Excerpts from both presentations were broadcast on National Public Radio's program "Bridges: A Liberal-Conservative Dialogue," on August 2, 1996. The edits reflect developments subsequent to the oral presentations, including the Supreme Court's two decisions in June, 1997 concerning the First Amendment's religion clauses: City of Boerne v. Flores, 117 S. Ct. 2157 (1997), and Agostini v. Felton, 117 S. Ct. 1997 (1997).

** Professor of Law, New York Law School; President, American Civil Liberties Union ("ACLU"). A.B. 1972, J.D. 1975, Harvard University. For research assistance, Professor Strossen thanks her Chief Aide, Raafat S. Toss, her Academic Assistant, Amy L. Tenney, and her Research Assistants Theodore Davis, Rubeena S. Lal, Jaci Pickens, Andrew G. Sfouggatakis, and Laura Haldeman.

FORDHAM URBAN LAW JOURNAL [Vol. XXIV had decided during his tenure on the Court.' The American Civil Liberties Union ("ACLU") had directly represented the parties asserting Establishment Clause claims in half of these cases. I disagree with Justice Scalia's assessment of almost all of those cases, as well as with almost everything else he said.

But before I get to the areas of disagreement, let me start on a positive note by stressing one thing I really liked and admired about Justice Scalia's presentation: his sense of humor. I believe that retaining one's good humor is essential, even when discussing deeply important subjects such as religion and politics; indeed, it is especially important in such contexts. This point was made during a recent discussion in one of the ACLU's on-line chat rooms.' There was a competition to come up with other phrases for which our initials could stand. From my perspective, the hands-down winner was, "Aw, C'mon, Lighten Up!" In that spirit, I would like to describe a political cartoon about the ACLU that came out right before Passover this year, which is germane to the topic of this lecture series. It depicts Moses in front of Mount Sinai bearing the two tablets. As Moses shows them to a man who is pulling a wagon carrying a golden calf on which is emblazoned "ACLU," the man scratches his chin skeptically and comments: "The Ten Recommendations? I guess I can live with that."

Amusing as it is, this cartoon also raises a serious point that is central to the theme of this lecture series. It taps into the widespread misconception that a strong vision of the Establishment Clause 3-which the ACLU has consistently defended-is somehow inimical or hostile to religion. This misconception was belied, for example, by the three co-authors of the Handbook on Religious

1. Capitol Square Rev. & Advisory Bd. v. Pinette, 515 U.S. 753 (1995); Rosenberger v. Rector & Visitors of the Univ. of Virginia, 515 U.S. 819 (1995); Board of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687 (1994); Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993); Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993); Lee v. Weisman, 505 U.S. 577 (1992); Board of Educ. of Westside Community Schs. (Dist. 66) v. Mergens, 496 U.S. 226 (1990);

County of Allegheny v. ACLU, 492 U.S. 573 (1989); Hernandez v. Commissioner, 490 U.S. 680 (1989); Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989); Bowen v. Kendrick, 487 U.S. 589 (1988); Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327 (1987); Edwards v. Aguilard, 482 U.S. 578 (1987).

2. The ACLU's on-line forums can be accessed through the ACLU's site on America Online (keyword "ACLU") or on the World Wide Web http:// www.aclu.org.

3. U.S. CoNsT. amend. I (stating that "Congress shall make no law respecting an establishment of religion...").

1997] RELIGION AND POLITICS Liberty,4 which the ACLU recently published. These three are an ordained Baptist minister, an ordained Episcopal priest, and someone who had studied at rabbinical school (although he did not become a rabbi). Recognizing that to many their religiosity might

seem inconsistent with their strict separationist beliefs, they wrote:

"[T]he three authors of this book believe, with the American Civil Liberties Union, that keeping religion and state separate is not godless but in the best interest of both religion and state."

Robust First Amendment religious freedoms, including those under the Establishment Clause, are especially important to members of religious minorities, including Jews. Rabbi Eric Yoffie of

the Union of American Hebrew Congregations recently wrote:

"The provision in the U.S. Constitution of church-state separation,6 more than any other, has7 assured Jews religious freedom and social success in this country."

Alas, that centrally important guarantee is now very much under attack. The attacks have been mounted by well-organized radical right-wing groups such as the Christian Coalition, and they have been supported by the rulings of Justice Scalia and some of his Supreme Court colleagues, who share those groups' narrow understanding of the Establishment Clause.

I deliberately eschew the label that is commonly applied to those groups, "the Religious Right," since that implies that it is the religious nature of their beliefs that is somehow objectionable or antithetical to civil liberties, including religious freedom. Any such implication would be completely incorrect for two reasons. First, individuals have fundamental freedoms to hold and assert religious beliefs, and to seek to influence the government to enact policies that are consistent with those beliefs. Whenever those rights are threatened, the ACLU stands up for them. 8 Second, many religious people and organizations, including those with Christian beBARRY LYNN ET AL., THE RIGHT TO RELIGIOUS LIBERTY: THE BASIC ACLU GUIDE TO RELIGIOUS RIGHTS (1995).

5. ld. at Introduction.

6. While the Establishment Clause is commonly paraphrased as guaranteeing "separation of church and state," I prefer to substitute "religion" for "church" in that phrase, in recognition of the fact that a church is the place of worship only for certain religions.

7. Rabbi Eric H. Yoffie, A Liberal Response, REFORM JUDAISM, Spring 1993, at 9, 11.

8. To cite one recent example, the ACLU opposed a proposed lobbying "reform" bill that would have curtailed the First Amendment rights of (among others) the Christian Coalition, by requiring it to turn its membership lists over to the federal government; the ACLU accordingly collaborated with the Christian Coalition in FORDHAM URBAN LAW JOURNAL [Vol. XXIV liefs, have supported separation of government and religion, 9 and other human rights,' ° specifically because such rights are consistent with their religious beliefs. Therefore, it is the anti-civil-liberties aspects of the agenda of the Christian Coalition and other extreme right-wing groups to which I object, not any religious beliefs that may undergird that agenda.

While the Christian Coalition may not represent the majority of Christians," it has disproportionately great political strength, 2 which it has wielded to the detriment of civil liberties, including separation of government and religion.' 3 The Christian Coalition's anti-liberties clout was highlighted by the 1996 Republican Convention. The Coalition's Executive Director, Ralph Reed, boasted that 60% of the Convention's delegates were supporters of his orworking to defeat the bill. See 140 Cong. Rec. S14281, at S14283 (1994) (Lobbying Disclosure Act of 1994, S. 349, 103d Cong., 2d Sess.).

9. Church Groups Fight Proposal For Amendment On School Prayer,THE NEWS TRIB., July 23, 1996, at Al (noting leaders of major religious groups denounced plans to revive organized school prayer through a constitutional amendment, warning it would weaken safeguards provided by the separation of church and state); see also Jim Myers, Ministers Assail Prayer Proposal,TULSA WORLD, July 23, 1996, at Al (stating ministers from several of the country's major denominations denounced as "dangerous" and "radical" a renewed effort in Congress to add a school prayer amendment to the Constitution).

10. Larry Witham, Effort to Topple Veto Unites Leaders of Society in Prayer; They See Declining Nation, Illegitimate Government in Failure,WASH. TIMES, Sept. 27, 1996 (noting some religious groups back partial-birth abortion as a woman's choice or a means to health); see also Ira Rifkin, Some Religious Republicans Lament Harsh Abortion Stance, PLAIN DEALER, Aug. 15, 1996 (stating religious liberals who support abortion rights have held rallies and news conferences).

11. The End of Church-State Separation, WALL ST. J., Oct. 5, 1995, at A15 (noting the Christian Coalition does not speak for all Christians, nor even a majority of Christians); see also Payback Time, COURIER-JOURNAL, May 27, 1995, at 14A (stating that the Christian Coalition does not represent even a majority of Christians).

12. Richard Vara, Religion's Top 10 In 1995: Rabin Death Leads the List, Hous.

CHRON., Dec. 30, 1995 (noting the continuing political strength of the Christian Coalition with an estimated 1.7 million members); see also Curtis Wilkie, Christian Right Takes Control of Iowa GOP, BOSTON GLOBE, Oct. 9, 1995 (noting that a Des Moines School Board candidate had compared the political strength of the Christian Coalition to "a virus that is strong and virulent").

13. The Peril of Prayer in Public Schools, STAR-LEDGER (Newark, NJ), Sept. 16, 1996 (stating the Christian Coalition is attempting to have school prayer imposed and it would like to fuse religion and government so that one institution is followed as blindly and without question as the other); Threat to Our Freedom, ROCKY MTN.

NEWS, June 12, 1995, at 29A (noting that the "Christian Coalition is... seeking to amend the Constitution and subvert the First Amendment.... The Coalition's Contract with the American family will essentially do away with the separation of church and state, eroding our rights to freedom of and from religion and jeopardizing our freedoms of speech, press, assembly, and our right to petition the government").


1997] ganization. 1 Not surprisingly, then, the Convention toed the Coalition's line on major issues, despite the objections of many Republican elected officials and party leaders, including the party's Presidential nominee, Bob Dole. 5 One striking example concerns separation of government and religion. The Republican platform calls for a constitutional amendment to fundamentally rewrite the Establishment Clause by permitting government-sponsored prayer in the public schools and other public places.' The positions and political influence of the radical right were well-documented in a book that the Anti-Defamation League ("ADL") published in 1994, entitled The Religious Right: The Assault on Tolerance & Pluralism in America.'7 It is a marvelous but frightening documentation of the current right-wing threat to religious liberty in general, and to the religious liberty of Jews in particular.

Just as a strictly-enforced Establishment Clause is especially helpful to religious minorities, an unenforced or under-enforced Establishment Clause is especially threatening to them. At best, lowering Thomas Jefferson's proverbial "wall" between government and religion' 8 has the unintended effect of disadvantaging religious minorities, including Jews.19 At worst, it is expressly inJohn Harwood, Campaign '96: Conservative Christians Prove More Powerful Than Dole in Shaping the GOP Abortion Plank, WALL ST. J., Aug. 7, 1996, at A14 (noting religious conservatives account for nearly 60% of the delegates to the 1996 Republican convention).

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