Repudiating Morals Legislation: Rendering the Constitutional Right to Privacy Obsolete

This article is set out in three parts. Part II outlines the difficulties with the right to privacy. Part III articulates the relationship between morals legislation and privacy, demonstrating that we no longer need the latter as long as the state eschews the former. Part IV argues that the Court in Lawrence articulates a new standard of rational review where specific appeal to morality is constitutionally suspect, allowing us to reject the right to privac

Repudiating Morals Legislation: Rendering the Constitutional Right to Privacy Obsolete

This article is set out in three parts. Part II outlines the difficulties with the right to privacy. Part III articulates the relationship between morals legislation and privacy, demonstrating that we no longer need the latter as long as the state eschews the former. Part IV argues that the Court in Lawrence articulates a new standard of rational review where specific appeal to morality is constitutionally suspect, allowing us to reject the right to privac

Collapsing Suspect Class with Suspect Classification: Why Strict Scrutiny is Too Strict and Maybe Not Strict Enough

While scholarly work often analyzes the nature and scopeof the Court\u27s tiers of scrutiny approach to enforcingequality, this Article examines the underlying theory ofequal protection. This Article mounts a challenge to thetheory of higher scrutiny, and, in particular,strict scrutiny.It seeks to analyze two questions: (1) What principles triggerheightened scrutiny? and (2) Why does the Court need tosubject laws that discriminate on the basis of race to strictscrutiny? The first question concerns the underlying theoryof equal protection doctrine: the what of higher scrutiny.Scholarly work that seeks to answer this question rightlydistinguishes between principles of antidifferentiation andantisubordination, principles that underlie the Court\u27sthreshold decision to impose higher scrutiny. Yet this lineof reasoning fails to realize that the Court endorses neither.By collapsing a suspect class analysis-a focus on anti-subordination-with a suspect classification one--a focuson anti-differentiation, the Court\u27s jurisprudence pervertsboth. It points to an inconsistent theory of reviewinglegislation. This is a novel critique of equal protectiondoctrine, one that has hithertogone unnoticed.The second question concerns the purpose or goal of strictscrutiny: the why of such scrutiny. Once we have decidedthat strict scrutiny is necessary, what is it meant toaccomplish? Here this Article focuses only on the doctrineof strict scrutiny. Drawing from case law and John Ely\u27sclassic defense of judicial review, it argues that the answerto the why question is about either remedying democraticdefects of representation or distinguishing between benignpurposes on one hand and racist or nefarious ones on theother. If this is the why of strict scrutiny, it turns out to be both too strict and not strict enough. While scholars rightlycriticize the Court for failing to deploy strict scrutiny incertain cases, namely those where unconscious racism maybe afoot, they do not home in on the cost in deploying it.This Article argues that strict scrutiny is too strict, becauseit invalidates a wide range of laws that seek to better thestatus of racial minorities. Framing Justice Harlan\u27sdissent in Plessy v. Ferguson (1896) in a novel light, itargues that a rational review analysis is sufficient to do thedistinguishing work in cases where a law faciallydiscriminates on the basis of race. This Article draws fromthe recent decision by the Ninth Circuit Court of Appeals inPerry v. Brown (9th Cir. 2012) invalidingProposition8, theCalifornia constitutional amendment defining marriagebetween a man and a woman, to buttress this claim of thesufficiency of a rational review analysis. After all, if such areview can invalidate legislation based on homophobia,mere hostility to gays and lesbians, it can invalidatelegislation based on racism, mere hostility to racialminorities. This Article concludes that strict scrutiny, as itis currently understood, is too blunt an instrument. Wemust be careful in deploying it, precisely because it standsat the center of our dual commitments to democracy andjudicial review

Beyond the conflict: religion in the public sphere and deliberative democracy

Traditionally, liberals have confined religion to the sphere of the ‘private’ or ‘non-political’. However, recent debates over the use of religious symbols in public spaces, state financing of faith schools, and tax relief for religious organisations suggest that this distinction is not particularly useful in easing the tension between liberal ideas of equality among citizens and freedom of religion. This article deals with one aspect of this debate, which concerns whether members of religious communities should receive exemptions from regulations that place a distinctively heavy burden on them. For supporters of exemptions, protection for diverse practices and religious beliefs justifies such a special treatment. For others, this is a form of positive discrimination incompatible with equal citizenship. Drawing on Habermas’ understanding of churches as ‘communities of interpretation’ this article explores possible alternative solutions to both the ‘rule-andexemption’ approach and the ‘neutralist’ approach. Our proposal rests on the idea of mutual learning between secular and religious perspectives. On this interpretation, what is required is, firstly, generation and maintenance of public spaces in which there could be discussion and dialogue about particular cases, and, secondly, evaluation of whether the basic conditions of moral discourse are present in these spaces. Thus deliberation becomes a touchstone for the building of a shared democratic etho

Global, regional, and national burden of disorders affecting the nervous system, 1990–2021: a systematic analysis for the Global Burden of Disease Study 2021

BackgroundDisorders affecting the nervous system are diverse and include neurodevelopmental disorders, late-life neurodegeneration, and newly emergent conditions, such as cognitive impairment following COVID-19. Previous publications from the Global Burden of Disease, Injuries, and Risk Factor Study estimated the burden of 15 neurological conditions in 2015 and 2016, but these analyses did not include neurodevelopmental disorders, as defined by the International Classification of Diseases (ICD)-11, or a subset of cases of congenital, neonatal, and infectious conditions that cause neurological damage. Here, we estimate nervous system health loss caused by 37 unique conditions and their associated risk factors globally, regionally, and nationally from 1990 to 2021.MethodsWe estimated mortality, prevalence, years lived with disability (YLDs), years of life lost (YLLs), and disability-adjusted life-years (DALYs), with corresponding 95% uncertainty intervals (UIs), by age and sex in 204 countries and territories, from 1990 to 2021. We included morbidity and deaths due to neurological conditions, for which health loss is directly due to damage to the CNS or peripheral nervous system. We also isolated neurological health loss from conditions for which nervous system morbidity is a consequence, but not the primary feature, including a subset of congenital conditions (ie, chromosomal anomalies and congenital birth defects), neonatal conditions (ie, jaundice, preterm birth, and sepsis), infectious diseases (ie, COVID-19, cystic echinococcosis, malaria, syphilis, and Zika virus disease), and diabetic neuropathy. By conducting a sequela-level analysis of the health outcomes for these conditions, only cases where nervous system damage occurred were included, and YLDs were recalculated to isolate the non-fatal burden directly attributable to nervous system health loss. A comorbidity correction was used to calculate total prevalence of all conditions that affect the nervous system combined.FindingsGlobally, the 37 conditions affecting the nervous system were collectively ranked as the leading group cause of DALYs in 2021 (443 million, 95% UI 378–521), affecting 3·40 billion (3·20–3·62) individuals (43·1%, 40·5–45·9 of the global population); global DALY counts attributed to these conditions increased by 18·2% (8·7–26·7) between 1990 and 2021. Age-standardised rates of deaths per 100 000 people attributed to these conditions decreased from 1990 to 2021 by 33·6% (27·6–38·8), and age-standardised rates of DALYs attributed to these conditions decreased by 27·0% (21·5–32·4). Age-standardised prevalence was almost stable, with a change of 1·5% (0·7–2·4). The ten conditions with the highest age-standardised DALYs in 2021 were stroke, neonatal encephalopathy, migraine, Alzheimer's disease and other dementias, diabetic neuropathy, meningitis, epilepsy, neurological complications due to preterm birth, autism spectrum disorder, and nervous system cancer.InterpretationAs the leading cause of overall disease burden in the world, with increasing global DALY counts, effective prevention, treatment, and rehabilitation strategies for disorders affecting the nervous system are needed

Global burden of 288 causes of death and life expectancy decomposition in 204 countries and territories and 811 subnational locations, 1990–2021: a systematic analysis for the Global Burden of Disease Study 2021

BACKGROUND Regular, detailed reporting on population health by underlying cause of death is fundamental for public health decision making. Cause-specific estimates of mortality and the subsequent effects on life expectancy worldwide are valuable metrics to gauge progress in reducing mortality rates. These estimates are particularly important following large-scale mortality spikes, such as the COVID-19 pandemic. When systematically analysed, mortality rates and life expectancy allow comparisons of the consequences of causes of death globally and over time, providing a nuanced understanding of the effect of these causes on global populations. METHODS The Global Burden of Diseases, Injuries, and Risk Factors Study (GBD) 2021 cause-of-death analysis estimated mortality and years of life lost (YLLs) from 288 causes of death by age-sex-location-year in 204 countries and territories and 811 subnational locations for each year from 1990 until 2021. The analysis used 56 604 data sources, including data from vital registration and verbal autopsy as well as surveys, censuses, surveillance systems, and cancer registries, among others. As with previous GBD rounds, cause-specific death rates for most causes were estimated using the Cause of Death Ensemble model-a modelling tool developed for GBD to assess the out-of-sample predictive validity of different statistical models and covariate permutations and combine those results to produce cause-specific mortality estimates-with alternative strategies adapted to model causes with insufficient data, substantial changes in reporting over the study period, or unusual epidemiology. YLLs were computed as the product of the number of deaths for each cause-age-sex-location-year and the standard life expectancy at each age. As part of the modelling process, uncertainty intervals (UIs) were generated using the 2·5th and 97·5th percentiles from a 1000-draw distribution for each metric. We decomposed life expectancy by cause of death, location, and year to show cause-specific effects on life expectancy from 1990 to 2021. We also used the coefficient of variation and the fraction of population affected by 90% of deaths to highlight concentrations of mortality. Findings are reported in counts and age-standardised rates. Methodological improvements for cause-of-death estimates in GBD 2021 include the expansion of under-5-years age group to include four new age groups, enhanced methods to account for stochastic variation of sparse data, and the inclusion of COVID-19 and other pandemic-related mortality-which includes excess mortality associated with the pandemic, excluding COVID-19, lower respiratory infections, measles, malaria, and pertussis. For this analysis, 199 new country-years of vital registration cause-of-death data, 5 country-years of surveillance data, 21 country-years of verbal autopsy data, and 94 country-years of other data types were added to those used in previous GBD rounds. FINDINGS The leading causes of age-standardised deaths globally were the same in 2019 as they were in 1990; in descending order, these were, ischaemic heart disease, stroke, chronic obstructive pulmonary disease, and lower respiratory infections. In 2021, however, COVID-19 replaced stroke as the second-leading age-standardised cause of death, with 94·0 deaths (95% UI 89·2-100·0) per 100 000 population. The COVID-19 pandemic shifted the rankings of the leading five causes, lowering stroke to the third-leading and chronic obstructive pulmonary disease to the fourth-leading position. In 2021, the highest age-standardised death rates from COVID-19 occurred in sub-Saharan Africa (271·0 deaths [250·1-290·7] per 100 000 population) and Latin America and the Caribbean (195·4 deaths [182·1-211·4] per 100 000 population). The lowest age-standardised death rates from COVID-19 were in the high-income super-region (48·1 deaths [47·4-48·8] per 100 000 population) and southeast Asia, east Asia, and Oceania (23·2 deaths [16·3-37·2] per 100 000 population). Globally, life expectancy steadily improved between 1990 and 2019 for 18 of the 22 investigated causes. Decomposition of global and regional life expectancy showed the positive effect that reductions in deaths from enteric infections, lower respiratory infections, stroke, and neonatal deaths, among others have contributed to improved survival over the study period. However, a net reduction of 1·6 years occurred in global life expectancy between 2019 and 2021, primarily due to increased death rates from COVID-19 and other pandemic-related mortality. Life expectancy was highly variable between super-regions over the study period, with southeast Asia, east Asia, and Oceania gaining 8·3 years (6·7-9·9) overall, while having the smallest reduction in life expectancy due to COVID-19 (0·4 years). The largest reduction in life expectancy due to COVID-19 occurred in Latin America and the Caribbean (3·6 years). Additionally, 53 of the 288 causes of death were highly concentrated in locations with less than 50% of the global population as of 2021, and these causes of death became progressively more concentrated since 1990, when only 44 causes showed this pattern. The concentration phenomenon is discussed heuristically with respect to enteric and lower respiratory infections, malaria, HIV/AIDS, neonatal disorders, tuberculosis, and measles. INTERPRETATION Long-standing gains in life expectancy and reductions in many of the leading causes of death have been disrupted by the COVID-19 pandemic, the adverse effects of which were spread unevenly among populations. Despite the pandemic, there has been continued progress in combatting several notable causes of death, leading to improved global life expectancy over the study period. Each of the seven GBD super-regions showed an overall improvement from 1990 and 2021, obscuring the negative effect in the years of the pandemic. Additionally, our findings regarding regional variation in causes of death driving increases in life expectancy hold clear policy utility. Analyses of shifting mortality trends reveal that several causes, once widespread globally, are now increasingly concentrated geographically. These changes in mortality concentration, alongside further investigation of changing risks, interventions, and relevant policy, present an important opportunity to deepen our understanding of mortality-reduction strategies. Examining patterns in mortality concentration might reveal areas where successful public health interventions have been implemented. Translating these successes to locations where certain causes of death remain entrenched can inform policies that work to improve life expectancy for people everywhere. FUNDING Bill & Melinda Gates Foundation

An Illiberal Union

This Article breaks new ground by applying the philosophical framework of liberal neutrality (most famously articulated by John Rawls) to the United States Supreme Court’s jurisprudence on marriage. At first blush, the Court’s decision in Obergefell v. Hodges—the culmination of marriage rights—seems to affirm a central principle of liberalism, namely equal access to marriage regardless of sexual orientation. Gays and lesbians can finally take part in an institution that celebrates the union of two committed individuals. But perversely, in its attempt to expand access to marriage, the Court has simultaneously entrenched values that are antithetical to the basic tenants of liberal neutrality. Working at the nexus of political theory and constitutional law, this Article provides the first critique of marriage as an illiberal union. It focuses on three problems with the current state of marriage: one, marriage is problematically a spiritual—not secular—status, affirming an intangible quality that threatens the separation of church and state; two, in marrying couples, the state stigmatizes those who choose not to marry; and three, by promoting monogamy, marriage unreasonably excludes alternative adult relationships and even permits the state to criminalize certain kinds of sexual activity. By questioning the legitimacy of the institution itself, this Article breaks from the usual focus on the issue of access. It ultimately suggests a radical rethinking of the relationship between marriage and the state’s role in regulating it, where marriage becomes a private contract rather than a state-sanctioned, civil institution

Collapsing Suspect Class with Suspect Classification: Why Strict Scrutiny is Too Strict and Maybe Not Strict Enough

While scholarly work often analyzes the nature and scopeof the Court\u27s tiers of scrutiny approach to enforcingequality, this Article examines the underlying theory ofequal protection. This Article mounts a challenge to thetheory of higher scrutiny, and, in particular,strict scrutiny.It seeks to analyze two questions: (1) What principles triggerheightened scrutiny? and (2) Why does the Court need tosubject laws that discriminate on the basis of race to strictscrutiny? The first question concerns the underlying theoryof equal protection doctrine: the what of higher scrutiny.Scholarly work that seeks to answer this question rightlydistinguishes between principles of antidifferentiation andantisubordination, principles that underlie the Court\u27sthreshold decision to impose higher scrutiny. Yet this lineof reasoning fails to realize that the Court endorses neither.By collapsing a suspect class analysis-a focus on anti-subordination-with a suspect classification one--a focuson anti-differentiation, the Court\u27s jurisprudence pervertsboth. It points to an inconsistent theory of reviewinglegislation. This is a novel critique of equal protectiondoctrine, one that has hithertogone unnoticed.The second question concerns the purpose or goal of strictscrutiny: the why of such scrutiny. Once we have decidedthat strict scrutiny is necessary, what is it meant toaccomplish? Here this Article focuses only on the doctrineof strict scrutiny. Drawing from case law and John Ely\u27sclassic defense of judicial review, it argues that the answerto the why question is about either remedying democraticdefects of representation or distinguishing between benignpurposes on one hand and racist or nefarious ones on theother. If this is the why of strict scrutiny, it turns out to be both too strict and not strict enough. While scholars rightlycriticize the Court for failing to deploy strict scrutiny incertain cases, namely those where unconscious racism maybe afoot, they do not home in on the cost in deploying it.This Article argues that strict scrutiny is too strict, becauseit invalidates a wide range of laws that seek to better thestatus of racial minorities. Framing Justice Harlan\u27sdissent in Plessy v. Ferguson (1896) in a novel light, itargues that a rational review analysis is sufficient to do thedistinguishing work in cases where a law faciallydiscriminates on the basis of race. This Article draws fromthe recent decision by the Ninth Circuit Court of Appeals inPerry v. Brown (9th Cir. 2012) invalidingProposition8, theCalifornia constitutional amendment defining marriagebetween a man and a woman, to buttress this claim of thesufficiency of a rational review analysis. After all, if such areview can invalidate legislation based on homophobia,mere hostility to gays and lesbians, it can invalidatelegislation based on racism, mere hostility to racialminorities. This Article concludes that strict scrutiny, as itis currently understood, is too blunt an instrument. Wemust be careful in deploying it, precisely because it standsat the center of our dual commitments to democracy andjudicial review