Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Tuesday, July 17, 2018

Time to Flourish: Protecting Families' Time for Work and Caregiving

The Center for Public Justice (CPJ), just released a powerful report:  “Time to Flourish: Protecting Families’ Time for Work and Caregiving”, as part of  CPJ initiative called Families Valued "that advances workplace practices and public policies that honor both work and family care".  CPJ is "an independent, nonpartisan organization devoted to public policy research and civic education with a distinct theological lens. Working outside the familiar categories of right and left, conservative and liberal, the Center for Public Justice seeks to help citizens and public officeholders respond to God’s call to do justice." 

The report is an elegant brief for the need to address the deplorable lack of support for family life in this country. It draws on a wide spectrum of Christian theological sources, but offering concrete, contemporary examples of the problems, as well as practical suggestions for policy changes.  An Op Ed in today's Christianity Today by one of the co-authors expresses the hope that the some recent indications of bipartisan support expressed at a recent Senate subcommittee hearing on paid family leave (including a proposal championed by Ivanka Trump) might lead to some changes.  Hear, hear!

July 17, 2018 in Schiltz, Elizabeth | Permalink

A strong pro-life editorial on the Kavanaugh nomination from America

I really appreciated this strong editorial from America, "Anyone who recognizes the humanity of the unborn should support the nomination of Judge Kavanaugh."  It concludes with this:

If Roe is overturned, continued Catholic advocacy for a comprehensive medical and social safety net for expectant mothers will be crucial in order to save lives and render abortion an even less appealing choice to the public conscience. At this juncture, anyone who recognizes the humanity of the unborn should support the nomination of a justice who would help return this issue to the legislative arena. Overturning Roe would save lives and undo a moral and constitutional travesty.

July 17, 2018 in Garnett, Rick | Permalink

Thursday, July 12, 2018

Catholic Sorting

On Facebook the other day, I wrote (I think it was a conversation with Rick!) that the Catholic parishes had preserved a greater element than Protestant congregations of bringing people together across political/cultural divides, because the parishes are more geographical and you don't have the menu of options (like Protestants) do to fit your personal taste. Of course, then I read this.

"As traditional parishes decline, 'personal parishes' find new interest" (National Catholic Reporter)

       Increasingly churchgoers are bypassing neighborhood parishes in favor of faith communities that deliver what they are seeking.

       Catholic bishops are recognizing the phenomenon and are increasingly willing to designate "personal parishes," communities formally recognized by bishops for particular groups of Catholics versus traditional parishes which minister to Catholics in a geographic territory.

July 12, 2018 in Berg, Thomas, Religion | Permalink

Wednesday, July 11, 2018

Living in a Full World But Being Empty

From the time that I first learned to read, I fell in love with science fiction and fantasy. Before I was out of elementary school, I had devoured the “Lord of the Rings” trilogy, not even aware that it was the subject of literary studies in college. The greatest works of this genre are not merely an escape from the pedestrian real-world, but give us a new perspective on our human psychology and culture from a completely alien (sometimes truly, alien) perspective.

I’ve been watching the conclusion to the multi-year series, “12 Monkeys” on television over the past week. The story follows the common pattern of time-travel and a future post-apocalyptic world, but adds the distinct twist of an antagonist who seeks to end time altogether by deliberate paradox so as to be able to abide forever in favored moments. 12monkeys

The script is amusing and, at times, profound.  I was particularly taken in the closing episodes by the following line, which I’ve slightly rewritten below. This  character grew up in the ruins after a virus had killed nearly everyone, struggling to survive, even to find food and avoid violent death. She ends up being transported back through time to a period close to our modern day in New York City. Based on her observations of urban Americans, especially those in their teens and twenties who seem always to be wedded to their cell phones, she offers this damning summation:

"They have everything, all the time, but see nothing. Their world is full, but they are empty."

Let us pray that we will always be the witness for something more, so that those around us may seek a full soul, rather than the emptiness of a world.

July 11, 2018 in Sisk, Greg | Permalink

Nagy and Woodward on Keeping -- and Losing -- the Faith

The latest issue of Notre Dame Magazine (which is, I have to say, head and shoulders above any University/alumni magazine I've ever encountered) has essays by, inter alia, John Nagy and Kenneth Woodward on keeping, and losing, the Faith.  Both draw heavily on the work of my friend and colleague in sociology, Christian Smith.  These are not, strictly speaking, "legal theory" pieces, but they do prompt thinking about the ways that culture (which is, of course, shaped by law even as law is "downstream" from culture) creates the conditions and context within which the Faith either is, or is not, transmitted and in which young people are formed.

Here's just a bit from Nagy:

Here’s the core of Smith’s findings: The religious identity that young Catholics establish as children living in their parents’ homes is probably what they’ll carry with them through life. One’s faith practices remain stable from childhood into adulthood. Less frequently, they decline. Late bloomers are a rare third, religiously speaking. The point is that most Catholic kids aren’t going to Mass now and they won’t start when they’re older. 

Interesting, though, is what your generation hasn’t lost. Other studies of trends in American religion have found that, churchgoing aside, people your age retain their wonder, their spiritual wellbeing, their belief that life has meaning and purpose — at levels indistinguishable from their parents and grandparents. Smith disagrees with some of that but notes that you all are slightly more likely to pray daily, to believe in an afterlife, to affirm the Bible’s sacred character. That doesn’t mean you’re reading it, or getting to know the God who is revealed in it. Which means your friends are less and less inclined to talk about religion, the sacred, the eternal — or even life’s purpose — in articulate and meaningful ways. 

That to me suggests we’re losing something essential to what it means to be human — and that’s why I worry. . . .

July 11, 2018 in Garnett, Rick | Permalink

Tuesday, July 10, 2018

Implications of the Umpire Analogy in Judge Kavanaugh's Scholarly Writing

Judge Brett Kavanaugh's scholarly writing repeatedly raises the now well-known umpire analogy and emphasizes the aspiration to judicial "neutrality." I focus here on law reviews, and in particular some of his later pieces on statutory and constitutional rights interpretation, leaving the earlier separation of powers pieces to others.

For example, in his review essay, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118 (2016) (reviewing CJ. Robert Katzmann's book on statutory interpretation), he wrote: "The American rule of law, as I see it, depends on neutral, impartial judges who say what the law is, not what the law should be. Judges are umpires, or at least should always strive to be umpires. In a perfect world, at least as I envision it, the outcomes of legal disputes would not often vary based solely on the backgrounds, political affiliations, or policy views of judges." Likewise, in Two Challenges for the Judge as Umpire: Statutory Ambiguity and Constitutional Exceptions, 92 Notre Dame L. Rev. 1907 (2017), Kavanaugh said this: "I believe very deeply in those visions of the rule of law as a law of rules, and of the judge as umpire. By that, I mean a neutral, impartial judiciary that decides cases based on settled principles without regard to policy preferences or political allegiances or which party is on which side in a particular case." And he has a third short piece, The Judge As Umpire: Ten Principles, in a recent issue of the Catholic University Law Review.

It's a metaphor that has been used and criticized before. Perhaps the most prominent relatively recent example is in the confirmation hearings of CJ. John Roberts, who was also fond of the metaphor. But I think Judge Kavanaugh means something fairly specific by it, and that it has more concrete implications for the way in which he believes the prevailing methods of statutory and constitutional interpretation are flawed and should change. 

Statutory Interpretation

Kavanaugh's primary objection in this area does not involve the issue of textualism and purposivism. He is quite clear that he is a textualist, and he notes in his review essay that CJ. Katzmann also claims to be a textualist. Instead, his objection concerns the binary of clarity and ambiguity. He raises two problems (previously discussed by Professor Ward Farnsworth): (1) how clear must the text be to be deemed clear? 80% clear? 50% clear? Less? More? (2) how does a judge know what level of clarity a text actually has achieved? Because these threshold issues are indeterminate, the interpreting judge has too few rules for getting to the point where he can determine which of the two binaries--clear or ambiguous--to settle on. Kavanaugh argues that in consequence a judge's predisposition toward textualism or purposivism does the work here. It orients the judge either toward or against finding ambiguity, and then it's off and running with the substantive canons of interpretation.

Kavanaugh offers a solution this threshold issue: rather than forcing the judge to choose one of the two binaries from the get-go, he argues that the judge should offer her "best reading of the statute," guided by some semantic canons and context. There are some problems with this proposal, in my view, primary among which is that I am uncertain that this sort of approach solves the issue of predisposition toward textualism or purposivism. An example: Kavanaugh does not care for the semantic canon, eiusdem generis, which holds that the last general term in a sequence should be interpreted in light of previous, more specific terms ("dogs, pigs, sheep, and other animals" should be read to include pigs and horses but not amoebas and tapirs). Kavanaugh says that "other animals" should instead mean any or all other animals, and to apply eiusdem generis allows a judge to, as Justice Kagan put it, take it upon herself to find the "common denominator." But I'm not sure I agree on the merits, and at the very least I think this example illustrates some problems with Kavanaugh's "best reading of the statute" approach, one which he agrees must make use of context.

The point of this post, though, is to connect his substantive comments to his larger umpire analogy. The trouble with the current binary regime of clarity/ambiguity is that it is does not offer judges sufficiently clear, basic rules for interpreting statutes. It does not stimulate judges to aspire to neutrality. It instead stimulates the opposite: a smuggling in, under the pretense of simply "finding" clarity/ambiguity, of the judge's predispositions toward textualism or purposivism. And judges are also seen to be doing that smuggling by the general public. 

Constitutional Interpretation

Kavanaugh makes a parallel criticism of constitutional interpretation. Here, one of his primary targets is the tiers of scrutiny in the evaluation of individual rights as against government interests. The problem with the 1950s-era invention of the tiers of scrutiny (substantial burdens, compelling interests, rational bases, narrow tailoring, etc.) is that they are, at best, "rather indeterminate," and at worst, "empty of real, determinate, objective meaning." They offer no, or very little, transparent guidance to the judicial interpreter. At best, they are "mood-setters." And the mood that they set is the mood the judge happens to be in about the right at issue. So that judges applying these standards are invited to smuggle in other reasons for ruling as they do. And they are seen to do so by all of the rest of us, since it is in the nature of the tiers to push judges in this direction.

Or consider the issue of exceptions to certain constitutional rights--the right to free speech, for example, or the right to keep and bear arms. Is it any surprise, says Kavanaugh, that the tiers of scrutiny can offer no help in resolving when to find such exceptions? Worse still, is it any surprise that when judges apply the tiers of scrutiny purportedly to find exceptions to constitutional rights, they are doing so in ways that are, and appear to be, non-neutral--non umpire-like? There are other judges who have made similar claims about the tiers (see, most recently, Justice Thomas's dissent in Whole Woman's Health v. Hellerstedt). But one can see a critical unity in Kavanaugh's objections to the prevailing methods of statutory and constitutional interpretation: both suffer from the same problems and need similar correctives.

Unlike in the statutory interpretation context, Kavanaugh does not offer a developed solution to this problem. But perhaps the most interesting part of his argument (to me, at least) is his view that it would be preferable to rely on historical and traditional limits on particular rights to find exceptions than to rely on the tiers of scrutiny to do so. He says: "At the moment, I do not have a solution to this concern. Requiring judges to focus on history and tradition, as Justice Scalia suggested, might establish a much clearer strike zone for these “exceptions” cases." And his Second Amendment dissent in Heller v. DC (DC Cir 2011) suggested just such an approach. He also raised "history and tradition," together with "precedent," as important for his judicial method in his acceptance last night.

We'll have to wait and see if and how these threads come together if he is confirmed.

July 10, 2018 in DeGirolami, Marc | Permalink

A last gasp of support for Barrett at CNN...before all behind Kavanaugh

CNN asked me to weigh in on President Trump's pick last night. Here's the full commentary. (Glad for the many conservative voices who  know Judge Kavanaugh much better than I; and glad they asked me as a counter-weight to voices from Planned Parenthood and NARAL.)

Here's what I said: 

I have to admit it: I was hoping President Trump would choose Judge Amy Coney Barrett. Brilliant, courageous, and quick on her feet, the professionally and personally esteemed mother of seven puts to rest -- in her very person -- the central pro-choice feminist assumption that bearing and raising children impedes women's serious engagement in professional and public life.
 
She would have brought true diversity to the Court on the most rancorous constitutional issue of our day, underscoring how an intellectually astute woman need not acquiesce in the unquestioning abortion rights dogma that has held the cause for women's rights hostage for far too long now. And she would have been able to make the case the best way possible: debunking the sham legal reasoning that has upheld the putative right for decades by day and blazing an alternative path with her family by night.
 
Comparatively, President Trump played it safe: Judge Brett Kavanaugh is a legal all-star, an accomplished jurist, and a darling of the conservative judicial establishment; he can be trusted by friend and foe alike to interpret the Constitution as it is written. A solid constitutionalist, Kavanaugh will join those on the Court who are deeply skeptical of its current (internationally extreme) abortion jurisprudence. But with Kavanaugh rather than Coney Barrett, the optics do not bode nearly as well.
 
Should the President have another chance, and should that chance come in the form of the retirement of an aged Justice Ruth Bader Ginsburg, Trump should pull the trigger and nominate Coney Barrett. Our country desperately needs the opportunity to debate not only abortion, but to see how the autonomy feminism Ginsburg has long represented should pass away with its most cherished leader.
 
A dignitarian feminism, by contrast, would recognize both that women and men are of equal dignity and are duly encumbered by their shared responsibilities to the vulnerable and dependent -- in their own families and in the community at large. Coney Barrett would not only serve the Constitution better than most jurists of our time; she would reveal, by the very integrity of her life, a more dignified way forward.

 

July 10, 2018 in Bachiochi, Erika | Permalink

Monday, July 9, 2018

About those Planned Parenthood ads . . .

As some MOJ readers have noticed over the years, sometimes the ads that pop up on our site are ones that don't seem to fit very well with the mission and character of this blog.  Most recently, several readers have informed me that they have seen various "donate to Planned Parenthood" ads when they visit.

I hope it goes without saying that we do not select or endorse those ads.  The ads a reader sees are a function of that viewer's own web activity and the content of the site in question. (So, because abortion is often discussed at MOJ, and many MOJ readers probably read about issues connected to abortion, the Court, judicial nominations, etc., the Algorithms in the Sky put up Planned Parenthood ads.)  We are not able to block, ex ante, particular advertisers.  

But . . . viewers can!  Click on "ad choices triangle" in a particular ad and simply clicking on the "X" will let you tell Google that you don't want to see that particular ad anymore.  We are sorry for the inconvenience.

July 9, 2018 in Garnett, Rick | Permalink | Comments (0)

Sunday, July 8, 2018

Trump and Religious Freedom: Short-Term and Long-Term

Late last week in a rally, President Trump dissed George HW Bush's "thousand points of light" phrase, which Bush used in the 1988 campaign as an image for volunteerism for the common good in a civil society:

"What the hell was that, by the way, thousand points of light? What did that mean? Does anyone know," said Trump. "I know one thing: Make America Great Again, we understand. Putting America first, we understand. Thousand points of light, I never quite got that one."

Commentators focused on how Trump's riff was mean to HW. But it and other riffs like it are harmful to religious freedom. Granted, Trump's Supreme Court picks are more likely than those of other presidents (e.g. HRC) to take religious freedom seriously across the range of applications; that's a major reason, it seems, why evangelical Christians supported him. (All of the short-listers for the new seat give strong indicia of supporting religious freedom. And I say this even though I strongly believe the Court dropped the ball on the travel ban--because my guess is these nominees will be pretty strong on Muslim freedom outside the immigration context.) 

But however significant the short, even medium, -term benefit to religious freedom from a Court appointment, one must also reckon with the long-term harm to religious freedom that Trump has done by encouraging the undercutting of many of the reasons a society would care about protecting religious freedom. Last week's riff dissed the very concept of serving the common good through a plurality of institutions in a diverse civil society. Trump is beckoning conservative Christians, especially evangelicals--who seem to be quite willing to follow his pied piping--to jettison some of the most compelling accounts they can give for religious freedom to themselves first and then to others. That long-term harm to the cause of religious freedom may be harder to predict and quantify than the short-term benefits of a Supreme Court nominee who cares about the issue. But it may also be more serious and irreversible.

This point is an application not only of multiple Mike Gerson columns, but also of Marc and Kevin's fine Times op-ed of last week. The culture will matter in more pervasive, long-lasting ways than the new justice(s). And evangelicals are risking collaborating with Trump in irreversibly degrading their own culture.

July 8, 2018 in Berg, Thomas, Current Affairs | Permalink

How to lose credibility by making a fair point in an unfair way, Michael Sean Winters on Amy Coney Barrett edition

Michael Sean Winters recently made a fair point in a snide and sloppy way. The end result was to illustrate a different point entirely.

The fair point-- better put here by Rick Garnett last fall--is that "it is not inappropriate for senators to question judicial nominees ... about (i) their understanding of the judicial role and (ii) their views about the relationship between a judge's religious commitments (if any) and his or her understanding of that role."

The point Winters actually illustrated, though, is that he cannot be trusted to fairly represent contemporary Catholic legal thought about American constitutional law.

Winters's post is a gallimaufry of ill-informed opinion about legal matters, en passant slimes of people and groups, and intramural Catholic posturing. It does not proceed analytically, but moves on to another point before it finishes developing the argument for a particular assertion. And sometimes there is no argument to be found. In what follows, I address two of Winters's main points as I can best reconstruct them and then explain why the framework he uses is unfortunate.

My two main points in response to Winters are (1) that Barrett's religious affiliation does not put the burden on her to counter a presumption that she lacks independence, and (2) that Winters does not understand originalism and textualism very well. As to the framework, it is regrettable that Winters uses Barrett's potential nomination principally as a vehicle for Catholic intellectual infighting.

 

1. Membership in People of Praise is not prima facie evidence of a lack of sufficient judicial independence. 

In discussing how others have covered Barrett's membership in People of Praise, Winters writes that "it would be irresponsible not to ask questions about the independence we want in a judge, independence that membership in this group would seem to preclude." Take a look at that last clause. A fair reading is that Winters believes "membership in [People of Praise] would seem to preclude" Barrett's possession of "the independence we want in a judge."

This charge is very serious. Yet Winters offers precious little argument or evidence in support. It would be helpful to know if he actually believes it.

Winters offers no reason to think that People of Praise's distinctive beliefs and practices include distinctive beliefs about how Catholic faith informs one's performance of the judicial role. Indeed, Barrett's co-authored article on this issue written twenty years ago is a model of engagement with the Catholic intellectual tradition on this topic. (Incidentally, that article is about cooperation with evil in the death penalty context, not what Winters dismissively describes elsewhere in his post as "issues of pelvic theology.")

The most charitable reading may be that Winters was just being careless here. Perhaps he was making the narrower point that it's reasonable to inquire into the beliefs and practices of a religious group to which a nominee belongs.

A clue that this may be so comes in his first-person declaration: "I am not sure how similar Barrett's life is to 'millions upon millions' of her fellow Catholics: Some of what I know about the 'People of Praise' gives me the willies." This reminded me of Senator Feinstein's "very uncomfortable feeling" about Barrett (and Winters's scare quotes are a nice touch). Feinstein knows many Catholics, like her colleagues Richard Durbin and Tim Kaine, and she seems totally comfortable with them. Barrett, though, seemed different.

Nobody should have a problem with asking a nominee questions about her understanding of the relationship between her religious beliefs and practices and her judicial role. But it's much more of a problem--deplorable, one might say--for Winters to justify those questions by reference to his (or anyone else's) "willies." 

 

2. Originalism and textualism are not "a kind of textual idolatry akin to Martin Luther's sola scriptura approach to the Christian faith, [or] a fundamentalist hermeneutic akin to the Rev. Jerry Falwell's understanding of how to interpret the Bible."

Winters is woefully underinformed about originalism and textualism. The principal merit of his hyperlinked source for defining originalism--a poorly sourced aggregation of content I've never heard of before--is that it may have shown up high in search engine results. I cannot get back into that source without registering, but I can at least report that Wikipedia's entry on originalism is much better.

Wikipedia, too, has its limits, of course. And there are deep theoretical debates about originalism, including arguments about just how representative of originalism Justice Scalia's constitutional law corpus may be. But Winters's assertion that "Scalia's theory has not even a passing similarity with our Catholic intellectual traditions" is easily falsifiable. For readings on the relationship between the Catholic intellectual tradition and originalism, I recommend Lee Strang, Originalism and the Aristotelian Tradition: Virtue's Home in Originalism, and my co-authored piece with Jeff Pojanowski, Enduring Originalism. Even better for those on a tighter time budget is Pojanowski's 7-pager, Why Should Anyone Be An Originalist? (Short answer: Because it's a practically reasonable way of achieving the kind of benefits that the positive law of a written Constitution offers.)

Strang, Pojanowski, and I are admittedly just a few legal scholars trotting out teleological reasoning in theoretical arguments about originalism's jurisprudential foundations. But as far as I'm aware, nobody has taken issue with the claim Pojanowski and I have made that "[f]ar from being a musty, sectarian artifact, the classical natural law tradition of reasoning about positive law’s moral purpose animated the framers’ understanding of our Constitution." The dispute, instead, is instead largely about whether that tradition "provides the most persuasive reason for continued adherence to that original law today."

And contrary to the impression conveyed by Winters (in which Scalia seized on originalism to combat "Blackmun's [sic] penumbras"), neither originalism nor textualism has a necessarily conservative or Catholic inflection. If any particular camp is ascendant in originalist legal theory today, it is probably the libertarians'.    

There's much more I could say on these points. But better to save serious analysis for someone who first makes a serious effort to understand what he's trying to take on.

 

3. Winters's beef is much more with "the conservative Catholic legal establishment" than with Barrett herself.

When I studied for my Theology M.A. at Notre Dame two decades ago, most of my classes were in the Theology Department. But I also participated some in the intellectual life of the law school and took John Finnis's class on Aquinas there.

It was hard back then not to miss two big divides.

One was in the theology department itself, with respect to American Catholicism. Roughly speaking, this was a divide typified by Michael Baxter on the one hand and Richard McBrien on the other.

A second divide was between moral theologians in the theology department and people involved with the legal aspects of some of these issues in the law school.  The divide was not neat, for I learned a lot about the intersection of morality and politics not only from Finnis but also, and more so with respect to American constitutional law specifically, from Cathy Kaveny (now at BC). 

I mention these biographical notes because they shape the personal perspective I bring to Winters's post, which includes an awareness of the various fissures and tensions among Catholic intellectuals addressing the role of Catholics in American public life. 

When understood as the latest volley in an ongoing intra-Catholic skirmish, one can understand why such skirmishing is so regrettable. Barrett is made to bear the brunt of attacks that ought to be aimed elsewhere.

And some of it is downright offensive. Consider, for instance, Winters's discussion of how Barrett "is  a product of, and has been groomed by, the conservative Catholic legal establishment." Sure. When she hit it out of the park academically as a law student at Notre Dame, that was just her being groomed. Her impressive scholarship? Grooming also. 

"Having been groomed" by the "conservative Catholic legal establishment," Winters writes, Barrett is "now the face of that establishment." It's too bad that's the way Winters sees it and wants others to see it.

Too bad is how I see it, anyway. And I bet I'm not far removed in this regard from the Catholic outlook that informs Persons and Masks of the Law.

Shouldn't we try instead to see Amy Coney Barrett's as the face of a real person with a history, intellect, and will of her own?

July 8, 2018 in Walsh, Kevin | Permalink

Saturday, July 7, 2018

The Talking Cure (once again)

In light of its pertinence again--it's an issue that never seems to go out of style--and what I believe to be a prototypically "Response One" form of engagement in the column Rick links to below, I'm reposting this from seven years ago (I'm old now) on the unavoidable shallowness of inquiries about religion for political ends.

***

Jacques Lacan’s famous discussion of Freudian psychoanalysis as a form of talking cure, in which the analyst is able to shape the meanings of the subject’s hangups and mental infirmities, came to my mind during the recent exchange between Rick Garnett, Paul Horwitz, Rob Vischer, and others (see here) on the issue of quizzing political candidates about how their religious beliefs will affect their decisions.  Yesterday, as my colleague Mark notes, Ross Douthat had a column on the issue, with a number of interesting recommendations for journalists.

But I had a thought that may strike some as perhaps a little heterodox.  I want to make a point in (partial, limited) defense of the Rortian “religion as conversation-stopper” view (which Rorty only really very partially revised after an elegant intervention by Jeffrey Stout a few years ago). When candidate X claims that she is informed in her thinking about political issue Y by her religious beliefs and traditions, this is sometimes (not always, but often enough) not the sort of claim that can be understood thoroughly by the public through thorough public discussion, stimulated by extensive question and answer sessions devised by journalists otherwise hostile to the candidate’s political position. What is more likely to happen is that religion — whether the candidate’s or not — will be used as a kind of instrument through which the journalist’s political orientation can be reaffirmed and re-cemented.

Two points are often heard against this view, which I’ll call Response One and Response Two. Response One is that this is the candidate’s own fault. She, after all, is using religion for political advancement of one kind or another. Why is it not then fair to use religion to knock her down — to erase the political advantage that she has gained, and to strike political blows against her to boot?  The candidate did not have to mention religion; but now that she has, religion is “fair game.” Response Two is that engaging with the candidate’s religious views takes religion and the candidate herself seriously — it engages in discursive good faith with the candidate.  We do not say to the candidate, “You have improperly introduced a forbidden subject into the political exchange.”  We say instead, ‘We want to understand you, and since your religious tradition seems to be important enough to you that you raise it to explain, or ground, or at least situate your position, we would like to probe your religious views by the medium of public discourse. We’d like to understand your view, which you’ve informed us is religiously grounded, by talking through it to see if we find it persuasive. Talking will help.”

I want to examine the responses in turn. Response One is motivated by an adversarially political aim, and it seems to me that it is a true reflection of the way in which political discourse is conducted.  That is because political discourse is, fundamentally (though of course not universally), shallow.

Continue reading

July 7, 2018 in DeGirolami, Marc | Permalink

A Strange Defense of Sen. Feinstein et al.

Michael Sean Winters has re-upped his (partial) defense of the line of questioning to which (my friend and colleague) now-Judge Amy Barrett was subjected by several under-informed members of the Judiciary Committee last year.  Barrett is, of course, an intelligent and accomplished lawyer, scholar, and teacher but Winters apparently now sees her (for reasons that are not provided) as the "face" of the "conservative Catholic legal establishment", an "establishment" that is "responsible" for the "deformation of the Church's public witness."

I'll pass over Winters's criticisms of Justice Scalia and what he takes to be "originalism" and leave it to others, such as our own Kevin Walsh, to provide a clarifying response (or perhaps just a reading list!).  For now, just two things:  First, Winters is, I believe, attacking a straw man when he suggests that those of us who were critical of Sen. Feinstein etc. objected to questions either about the law-review article she co-authored (about the obligations of Catholic judges in capital cases) or about her commitment, more generally, to decide cases in accord with the relevant law (rather than religious commitments, or anything else).  As I (and others) have said before, such questions -- so long as they are not ignorant, so long as they are offered in good faith, and so long as they do not presume that Catholics are less able than anyone else to perform the judicial duty -- are fine.  But, again, these are not the questions that were asked.  The President of the University of Notre Dame, Fr. John Jenkins, had a better interpretation and evaluation of the business than the one Winters provides.

Next, Winters accuses me of an "intellectual sleight of hand" for writing this:  "The senators would not have asked — and the senators' defenders would not have tolerated — repetitive and badgering questioning of this kind of a practicing Muslim or Sikh (nor should they)." Winters says:

The blog Mirror of Justice says it is dedicated to "the development of Catholic legal theory." Even if there were a Muslim or Sikh equivalent, there are not five Muslims on the Supreme Court and there are no Sikh-sponsored universities with laws schools as we Catholics proudly boast, so the comparison does not ring true.

I do not see the "sleight of hand" here and am not sure what relevance the fact that MOJ is dedicated to "the development of Catholic legal theory" has to the charge.  Nor is it clear why the fact that there were five Catholics, and no Muslims, on the Court somehow undermines the point that "repetitive and badgering questions" of the kind asked by Sen. Feinstein et al. are inappropriate - whether directed at Catholics, Muslims, Sikhs, or anyone else.

July 7, 2018 in Garnett, Rick | Permalink | Comments (0)

Friday, July 6, 2018

Justice Kennedy’s Best First Amendment Opinion?

Before the chaos surrounding the confirmation of his successor gets underway next week, a look back at the legacy of Justice Anthony Kennedy. Safe to say he will most be remembered for the series of cases involving LGBT rights from Romer v. Evans in 1996 through Lawrence v. Texas, United States v. Windsor, and Obergefell v. Hodges in 2015. He was in the middle of the Court on abortion, upholding the core of Roe v. Wade in the plurality opinion in Planned Parenthood v. Casey in 1992 while writing an opinion upholding restrictions on abortion in Gonzales v. Carhart in 2007. And he wrote important decisions on federalism questions, notably Boerne v. Flores involving Congress’s power to enforce Section 5 of the Fourteenth Amendment and Alden v. Maine regarding state sovereign immunity.

He also had an outsized influence in First Amendment law, both as to freedom of speech and the Religion Clauses: e.g., Citizens United v. FEC, Town of Greece v. Galloway, Lukumi Babalu Aye v. Hialeah, Sorrell v. IMS Health, and, most recently, Masterpiece Cakeshop v. Colorado Civil Rights Commission. But what was Justice Kennedy’s best First Amendment opinion (“best” here just meaning my own subjective judgment blending together lasting doctrinal importance with soundness of result and analysis)?

My candidate: Rosenberger v. Rector & Visitors of the University of Virginia (1995). Recall that Rosenberger was about whether UVA could deny student activity funding (specifically payment for printing costs) to a Christian student publication as part of a policy that denied such funding to “religious activities.” UVA defended the policy on the grounds that there was no content or viewpoint-based restriction on speech in the policy and that the policy was required by the Establishment Clause (the case was argued by two academic luminaries--Michael McConnell for Rosenberger and John Jeffries for UVA). Writing for a 5-4 majority, Justice Kennedy held that the denial of funding was an unconstitutional violation of free speech that complying with the Establishment Clause did not excuse.

I won’t try to summarize all of the twists and turns in Rosenberger, but here are briefly what seem to me the two most important and lasting aspects of Justice Kennedy’s opinion:

1. Rosenberger placed an equality norm at the center of cases about religious speech and government funding of religious activities. Justice Kennedy’s opinion in Rosenberger doubled down on the Court’s equal access cases such as Lamb’s Chapel and refused to allow religion as a category to be treated distinctly or suspiciously when the state regulates expression or provides public benefits (seen most recently in Trinity Lutheran v. Comer). This comes about in Rosenberger through two moves in free speech doctrine: deeming the provision of funding by UVA a public forum (though more in a “metaphysical than in a spatial or geographic sense”) and holding that the exclusion of religious perspectives is unconstitutional viewpoint discrimination. And even though some cases (notably Locke v. Davey and CLS v. Martinez) might be hard to square with what I’m calling Rosenberger’s religious equality norm, Rosenberger still put that concern on a new footing.

2. Rosenberger marked an important departure from the Establishment Clause separationism of the 1970s and 80s in cases such as Lemon, Nyquist, and Aguilar. Of course, the issue in Rosenberger was in a sense the converse of the usual Establishment Clause funding case, i.e., not “may the government fund religious activities?” but “must the government not fund religious activities?” Justice Kennedy’s opinion states that so long as a program is neutral toward religion, the Establishment Clause does not require (let alone excuse) viewpoint-based restrictions on religious speech: “[T]he guarantee of neutrality is respected, not offended, when the government, following neutral criteria and evenhanded policies, extends benefits to recipients whose ideologies and viewpoints, including religious ones, are broad and diverse.” And so while the Establishment Clause discussion in Rosenberger is subsidiary to the free speech claim, it also foretold the Court’s move away from strict separationism in later cases such as Agostini v. Felton in 1997 and Zelman v. Simmons-Harris in 2002 (which characterized Rosenberger as “involv[ing] an individual and insubstantial use of neutrally available public funds for a religious purpose”).

May Justice Kennedy enjoy many happy years in retirement—and with our gratitude for Rosenberger v. UVA.

July 6, 2018 in Moreland, Michael | Permalink

Thursday, July 5, 2018

Judge Amy Coney Barrett

Here's a short reflection I wrote regarding my friend and colleague, Judge Amy Coney Barrett, who is (apparently) being considered to replace Justice Anthony Kennedy.  The bottom line (as I see it):

Judge Amy Coney Barrett is not a symbol or a meme. She is not merely the nominee to whom Senator Feinstein, Yoda-like, said, “The dogma lives loudly within you, and that’s a concern.” Her Catholic faith is deep and animating but, contrary to what was insinuated in a suspiciously timed news report, her participation in the ecumenical Christian community People of Praise is not so different from the lived religious experiences of millions of Americans. As is detailed in powerful supporting letters from the entire Notre Dame Law School faculty, from every living clerk who worked with her at the Supreme Court, from an ideologically and methodologically diverse array of prominent legal scholars, and from hundreds of her former students, she is a respected scholar, an award-winning teacher, a razor-sharp lawyer, a disciplined and diligent jurist, and a person of the highest character. And, if she were nominated and confirmed, she would be not just an excellent, but a great, Justice.

July 5, 2018 in Garnett, Rick | Permalink

Wednesday, July 4, 2018

Roe will probably be reversed even further than before; the real combat is over Casey.

Like our law of slavery once was, abortion law in the United States today is a function of human positive law -- law that can be made and unmade by human will.

As a judicially constructed constraint on legislated protection of vulnerable human life, Roe v. Wade is particularly pernicious. With the upcoming change in the Supreme Court's composition, Roe probably will and definitely should be overruled even further than it already has been.

Recognition of this new likelihood is compatible with the observation that some of those trying to raise an alarm about "the reversal of Roe v. Wade" are engaged in disingenuous scaremongering. Abortion-friendly legal types have long known how election- and appointment-dependent their hold on abortion law has been, especially with respect to legal protections for life later in pregnancy. And that's where the upcoming judicial action will be.

* * *

Although many believe that our constitutional law of abortion is all about Roe v. Wade, they are wrong. Planned Parenthood v. Casey is much more important.

Casey is the 1992 decision in which a majority of the Supreme Court partially overruled Roe while a plurality purported to preserve its "central holding." To accomplish this feat, the plurality developed a new take on stare decisis that Justice Scalia accurately described in dissent as a "keep-what-you-want-and-throwaway-the-rest version." 

The Casey plurality discarded Roe's trimester framework and acknowledged the permissibility of post-viability abortion prohibitions. In place of Roe, Justices O'Connor, Kennedy, and Souter substituted an "undue burden" standard of review for laws limiting pre-viability abortions.

The Justices have sparred over application of Casey's undue burden standard ever since. That is unsurprising given how unstable a legal standard "undue burden" is in the culturally and politically fraught context of abortion law.

The identity of the Justices applying it has been the single variable most predictive of the results this standard delivers. That is exactly why it's no good for the impartial administration of law and needs to go.

* * *

The most recent opinion for the Court in this area is Justice Breyer's in Whole Woman's Health v. Hellerstedt. By 5-3 vote (Garland's nomination was pending), the Court in Hellerstedt held unconstitutional some Texas health and safety regulations for abortion clinics. If Gorsuch had been on the Court together with any one of the potential nominees on President Trump's short list now, Whole Woman's Health would have come out the other way. The Supreme Court would have affirmed rather than reversed the decision under review. That decision would not have required overruling any more of Roe, just applying the undue burden standard from Casey more like the court of appeals did.

It is impossible to know what abortion-law case the Supreme Court will take up next. But it is reasonable to believe that the case's correct decision may require overruling Roe further than Casey did. If the Court decides to review the constitutionality of a state law prohibiting abortion after twenty weeks, for example, the Court should abandon the line that Casey drew at viability.

This shift would not be avulsive. An unborn baby at twenty weeks gestational age is obviously as much a human being worthy of positive-law protection as one at twenty-four weeks gestational age.

* * *

Abortion-friendly activists are understandably uneasy these days. But their real concern should not be Roe's further demise. They should worry, instead, that the pro-life movement will continue to win hearts and minds for the principle of human equality that justifies judicial abandonment of Casey's viability line. And they can now expect the Supreme Court's unjust abortion opinions to erode at the same pace.

July 4, 2018 in Walsh, Kevin | Permalink

The Blanshardians in our midst

Current events in our nation's capital make this Independence Day an especially opportune occasion to observe that Blanshardism is not finished.  By Blandshardism I mean, of course, the activities of those who believe what wrote in his best-selling book, American Freedom and Catholic Power nearly seventy years ago: "the Catholic problem is still with us." Albert Einstein, Bertrand Russell, and McGeorge Bundy were among the books most famous fans.  Following their master's lead, contemporary Blanshardians echo his call for a "resistance movement" to Catholics' "antidemocratic social policies."  A catalogue of Blanshardian grievances against Catholics and their Church is at hand in an article (here) I wrote several years ago. The article closes with Blandshard's agreeing with Hilaire Belloc that holding and adhering to the Catholic view of things about how this world is to be arranged and governed ensures "monstrous conflict" with those who prefer a state that is the agent of "the new morality" (a term I borrow from Edward Rubin). 

Of special salience in light of the aforementioned current events is the Blanshardian dogma that "overpopulation" encouraged by Catholic doctrine regarding human sexuality presents "the most basic and formidable threat to the future happiness of the human race."  It would be a grave mistake to underestimate the force driving this anti-human program.  Blandshard himself didn't shrink from aping the "three generations of imbeciles are enough" O.W. Holmes of Buck v. Bell in defending it: "Fortunately, neither the people nor the courts of the United States agree that there is anything necessarily wrong in depriving an insane or feebleminded person of the capacity to reproduce by a simple and relatively painless operation which does not even deprive him of the satisfaction of sex."  Here one does well to recall that Holmes's opinion in Buck, from which the Catholic Pierce Butler alone dissented, was joined by Stone, Brandeis, Taft, Sutherland, Van Devanter, Stone, and, of course, McReynolds. 

I am of the mainstream view that Buck v. Bell was wrong, but I am also of the view that Pierce v. Society of Sisters, a so-called "substantive due process" decision from which even Holmes did not dissent, and a decision contemporary neo-conservatives have a hard time justifying in terms of their judicial philosophy of choice, was and remains right.  Be that as it may, our Supreme Court's power and authority to set aside acts of the legislature on the ground that they are substantively deficient are not going away, and for that sufficient reason it makes good sense for the Senators to inquire into the substantive views of judicial nominees.  When the Senators do make those inquiries and make them openly, We the People can assess whether their own criteria for evaluating those views are Blanshardian, as they often are and will be, and then decide for ourselves if we will keep voting Blandsharians into high office.  Blanshardians usually beget Blanshardians.      

July 4, 2018 in Brennan, Patrick | Permalink

Monday, July 2, 2018

A Pro-Life Ripple in a Sea of Pro-Choice Academic Commentary

With the retirement of Justice Kennedy from the Supreme Court, law professors have been speculating how constitutional law may change with a new member of the Court. At the forefront of concern for many is the continued viability of Roe v. Wade, the decision that announced a nearly-absolute right to abortion of a pregnancy.

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Given the ideological and political homogeneity of law professors generally and of constitutional law professors in particular, online discussions not surprisingly have been dominated by those who bemoan this possibility. Professorial posts typically frame the question in stark terms between, on the one hand, support for women's rights and gender equality, and on the other side, disrespect for women or even the design to undermine the progress of women toward professional and cultural equality. Indeed, on a general “listserv” of constitutional law professors, posts tend to assume that everyone is on the same page, to the point of outlining the strategy for preserving abortion rights by legal and political action and cheering the various advocates and organizations that champion “reproductive rights.” That anyone in the legal academy might disagree or that another value – such as protection of unborn life – might play a role in the debate appears not to have occurred to many or at least is seldom acknowledged.

While I have become mostly a reader and not poster on internet discussions in recent years, I was unable to resist this time, given the blessings of life that have washed over me recently, as explained below. And so into the "conlaw" professors’ discussion, I interjected this message last week:

Friends, just as a reminder, lest this become a pro-choice echo chamber as we see too often on abortion in the legal academy, tens of millions of Americans regard protecting the life of the unborn to be the most important civil rights movement of our time.  One could as readily list many local pro-life organizations, simultaneously compassionate and passionate, who are dedicated to helping pregnant women avoid the Faustian bargain of abortion.  I have had the opportunity to observe and provide support to families involved with these organizations, who have sacrificed greatly to bring into their homes new-borns of all races, backgrounds, and disability status.

More than half-a-century ago, my 15-year-old birth mother placed me for adoption after she had broken up with her high school classmate who was my birth father.  That loving choice was the spark of multiple blessings to my adoptive family, including my parents who could not have children of their own and obviously to me in the opportunities I have had.  Within just the past two weeks, I’ve learned the identity of my birth mother (from her participation in one of the DNA companies).  That in turn has opened doors for me now to learn of five more sisters and two more brothers, as well as more than a dozen nieces and nephews.  In the past two weeks, the joyful exchanges by phone, on email, and through Facebook have been overwhelming, moving me to tears nearly daily.  I know I will be blessed by building relationships now with my larger family, unknown to me for nearly all my life.

Continue reading

July 2, 2018 in Sisk, Greg | Permalink

NY Times Op Ed with Walsh on the Court, the Culture, and the Justice to Come

Kevin Walsh and I have an op ed today in the New York Times about the Supreme Court, the culture, and what to hope for from whoever replaces Justice Anthony Kennedy. A bit:

 [W]ith Justice Anthony Kennedy’s retirement last week, many of our fellow conservatives are suddenly buoyant. They believe everything is about to change. It is a perennial temptation. If only one or two justices had been different — a Robert Bork rather than an Anthony Kennedy, an “anybody else” rather than a David Souter — then, it is imagined, we would inhabit a different constitutional universe. The problem is simply a matter of personnel. Now at last we will get our chance to fix the country, they think.

Let us not get our hopes too high. Even if Justice Kennedy is replaced with an actual conservative, as we hope and expect, the Supreme Court cannot save a degraded culture, nor can it degrade a virtuous one — not too much in either direction, at least. Conservatives seeking lasting change are better advised to attend to our failures in the broader culture than to prepare the way for our Supreme Court savior. Otherwise, we are likely to be sorely disappointed.

Why? Because law, like politics, generally conforms to the culture. The Supreme Court is shaped by the culture that surrounds it; its instinct is to follow, not to lead. Consider the sexual autonomy cases of the 1960s and ’70s, or the cases involving civic displays of religion in the 1980s and ’90s, or the gay rights cases of this century. In each instance, the court channeled the views of a preferred emerging cultural constituency — about the sexual revolution, about secularization, about same-sex relationships — in recognizing the corresponding rights. The Psalmist was right to warn against trust in princes…

To be sure, law is important. It forms the culture around us, just as much as it is informed by it. Indeed, the Supreme Court has made itself a powerful symbol of an American yearning to resolve profound cultural conflict once and for all. It has come to exercise a potent didactic function over the past several decades. It instructs us, scolds us and exhorts us to follow it. It has become a relentless smasher and refashioner of rights.

As some feverishly speculate about which 5-to-4 decisions of the recent past will soon vanish, we counsel patience. Conservatives have rightly criticized the judicial manufacture of rights; let us not make the mirror-image mistake of urging immediate doctrinal demolition. The legal landscape may change for the better through erosion and accretion, rather than avulsion and ill-considered construction.

Chief Justice John Marshall once wrote that “a constitution is framed for ages to come, and is designed to approach immortality as nearly as human institutions can approach it.” But today, new constitutional law is born and killed off in waves in response to the felt imperatives of cultural change. This is the Supreme Court we have now, borne of the culture we have now. No bright, shiny, new justice can change it alone.

July 2, 2018 in DeGirolami, Marc | Permalink

Clarifying Questions about Janus and Catholic Social Teaching on Unions

The holding in Janus v. AFSCME last week that compulsory public sector agency fees are unconstitutional ushered in some commentary about the relationship between Janus and the long tradition in Catholic social thought of supporting unionization. The USCCB filed an amicus brief in the case supporting the union side, Bishop Frank Dewane (Bishop of Venice, Florida and Chairman of the USCCB Committe on Domestic Justice and Human Development) issued a statement expressing disappointment with the decision in Janus, and Michael Sean Winters has a piece here condemning the decision. On the other side, Bishop Thomas Paprocki of Springfield, Illinois tweeted a message of approval for the outcome in Janus, which resulted in a series of replies with a tone and vehemence that are typical of Catholic Twitter.

I’ve already staked out my position (as has Rick Garnett here at MOJ), but here are a couple of clarifying questions about the issues in Janus as they pertain to Catholic social teaching that—I hope—might be the start of a better conversation than “unions—hooray!” or “unions—boo!”.

1. Do public sector unions pose distinctive issues from the concerns that ground the Catholic social tradition’s support for unions?

One of the consistent themes in the arguments for the outcome in Janus is that agency shop arrangements in the public sector are meaningfully different than such arrangements in the private sector. The “management” on the other side of the bargaining table in public employment is the state whose leaders are the subject of lobbying and political support from…the public employee union. Rerum Novarum and the ensuing line of Catholic teaching on unionization were primarily addressed to the urgent necessity of unions for trade workers in the private sector. In light of the rise of wage labor amid industrialization, Leo XIII focused on the problem of commutative justice and how the formation of workers’ associations would be ordered to the common good.

That does not entail, of course, that Catholic social teaching is irrelevant to public sector unions—but the more fruitful conversation, I think, would be somewhere in between the view that CST on unions applies simply and conterminously between public and private sector unions and the view that CST has nothing to do at all with public employee unions. Do the principles of CST supporting the rights of workers to organize apply with full or modified force in the public sector union context? There is a long scholarly literature about public sector bargaining that highlights the inelastic demand for services and bargaining power of public employee unions, with important policy and economic consequences. To my knowledge, Catholic social teaching has not engaged with that literature.

2. How should we understand the relation between the Catholic social tradition on rights of association and First Amendment freedom of speech?

As presented in litigation, Janus is foremost a case about the scope of First Amendment rights and not about whether unions are a good thing or a bad thing. Specifically, the case was about the claim by plaintiffs such as Mark Janus that the payment of an agency fee amounted to compulsory subsidization of political activity (and more precisely, that Abood’s distinction between chargeable expenses for collective bargaining activities and expenses for political activities was not sustainable, see pp. 28-31 of the slip opinion). Pace Eugene Volokh and Will Baude’s interesting and thoughtful brief, both the majority opinion by Justice Alito and the dissent by Justice Kagan assumed agency fees pose some plausible First Amendment burden on employees such as Janus. Their disagreement was over whether that burden runs headlong into a “no compelled speech” principle (Alito) or whether that burden is justified by a deferential, lower level of scrutiny derived from the government employee speech line of cases coming out of Pickering v. Board of Education (Kagan).

It seems to me that Catholic social teaching underdetermines the answer to this First Amendment problem, in large part because CST on rights of workers' associations begins with a thick understanding of the common good and civil society (which is served by maintenance of a living wage for laborers to support the family) and gets around belatedly to rights of freedom of expression. Catholic social thought has not developed much by way of an account of why and when freedom of speech should be legally protected, and Millian liberal or “marketplace of ideas” accounts presumably sit uneasily with the Catholic understanding of law and politics. Apart from a passing mention of freedom of speech in Pacem in Terris or perhaps by derivation from religious freedom in Dignitatis Humanae, there just isn’t much in the tradition (and the concerns about “indifferentism” in, say Pope Gregory XVI’s Mirari Vos did not lend themselves to a robust doctrine of freedom of speech, to put it mildly). Even John Courtney Murray—usually associated with an irenic assimilation of Catholic political thought and American constitutional law—struggles in this little known essay to square the Catholic commitment to the "moral basis of government" and "ordered liberty" with the then-nascent U.S. Supreme Court caselaw on free speech. All of which is—again—not to say that Catholic social teaching doesn’t speak to the question at all (and perhaps says all the worse for the individualism of American constitutional rights discourse), but only that CST does not resolve the constitutional question in a straightforward way.

July 2, 2018 in Moreland, Michael | Permalink

Sunday, July 1, 2018

Some thoughts on Justice Kennedy and his retirement

Alexander Hamilton predicted that the Supreme Court would be the weakest of the national government's three branches. Many would say that things have not turned out that way and would hold up Justice Kennedy's three decades on the Court as an example.

Justice Kennedy was Pres. Reagan's third nominee to replace Justice Lewis Powell, and the fact that Powell's replacement was Kennedy, rather than Robert Bork, would prove to be hugely consequential.
 
Over the years, Justice Kennedy appeared to "swing" or "switch" back and forth between the Court's more liberal and more conservative blocs, but he held, in fact, a fairly consistent judicial philosophy that prioritized free-speech rights and personal autonomy. Perhaps more than any other justice during his tenure, he believed it was the Court's role and obligation to supervise and second-guess political decisions and resolve social and cultural controversies. His conception of a broad and dramatic judicial role was most famously illustrated in his abortion and gay-rights decisions. In the Planned Parenthood v. Casey decision, he joined an opinion that not only asserted the Court's role as final arbiter but also called on citizens to end their disagreements about abortion policy. Obviously, this call has not been heeded, and Kennedy's critics will say it was presumptuous to issue it.
 
Other areas where Justice Kennedy's vote made significant differences include the debate over federalism and the national government's powers, religious liberty, church-state relations, affirmative action and voting, school choice, and limits on capital punishment. Both political "conservatives" and "liberals" can find much they welcome, and much they reject, in his 31-year record on the Court.
 
It seems likely, judging from the current administration's nominees so far, that Justice Kennedy's retirement and replacement change the Court's balance and case-law in some -- but by no means all -- areas. After all, the vast majority of the Court's rulings are not 5-4, ideologically divided cases. Instead, in most cases and for most of the year, the Court works on technical questions of statutory interpretation and operates by substantial consensus. It is, all things considered, unfortunate that the Court and its composition have come to matter so much with respect to disputed and divisive policy and moral questions that our Constitution is best understood as leaving to the political process. It would be a welcome result of the upcoming confirmation battle if both political parties in Congress take it as an occasion to recommit themselves to Hamilton's vision.      

July 1, 2018 in Garnett, Rick | Permalink | Comments (0)

Thursday, June 28, 2018

Piece on Travel-Ban Decision

I've posted a piece at America critiquing the travel-ban decision. A bit:

       [T]here was room in [the immigration] precedents for the court to write a narrow opinion focusing on Mr. Trump’s uniquely blatant and irresponsible statements that suggested his intent as the sole decision-maker. True, such a ruling would have to have been narrow, to keep from setting a precedent for serious intrusions on executive authority in future cases.

       But the risks from such an opinion would have been worth taking. The president’s statements were virtually unprecedented in modern times in explicitly labeling all members of a religion a danger to the nation....

       And the consequences of the statements extend [beyond those directly connected to immigrant applicants], poisoning the culture in the country for Muslims already here. Reports of anti-Muslim vandalism and other crimes have spiked in the wake of Mr. Trump’s statements.

       The consequences are also harmful for religious freedom as a general principle. Republican support of Mr. Trump’s hostility to Muslims from the beginning (one March 2016 poll showed that 71 percent of Republican voters backed a temporary “total and complete shutdown” of Muslims entering the United States) has helped accelerate the perception that religious freedom is nothing more than a tool for each side to use or discard according to what supports its preferred policy positions. Progressives are selective, too, in denigrating the religious freedom of social conservatives. To preserve religious freedom as a principle, not a tool, we must enforce it for all.

Among the sources of comfort:

       [G]iven the court majority’s clear emphasis on the immigration context, we can have reasonable confidence that courts will still act decisively to forbid official animus against Muslims in domestic matters: hostile local resistance to mosquesofficials’ attacks on copies of the Quran and so forth. The travel ban decision specifically endorses, and must not be read to undermine, that bedrock principle.

June 28, 2018 in Berg, Thomas, Current Affairs | Permalink

Janus, Abood, and the End of the Free Speech Disco Era

Although much of the commentary about yesterday’s decision in Janus v. AFSCME couldn’t resist jumping right to politically partisan conservative/liberal descriptions of the case, it seems to me lawyers and law profs should spend a little time on the free speech doctrinal aspects of Janus. So here’s one rough take: Janus is a great vehicle for understanding the differences between formalism and functionalism (along the lines, say, of this piece by Bill Eskridge) in First Amendment law, or, stated otherwise, Justice Alito’s opinion overruling Abood v. Detroit Board of Education marks the ongoing demise of the disco era in free speech jurisprudence.

Reading the characterizations of Abood in the majority opinion by Justice Alito and the dissent by Justice Kagan, I was struck by how much Abood was a creature of the 1970s Supreme Court. There’s scarcely a doctrinal test or free speech category to be found in Justice Stewart’s opinion, but there is a lot of gesturing toward fairness (“free rider” problems), legislative judgments in the labor area, policy considerations (the concern with “labor peace”), and splitting the difference (in Abood, by separating out agency fees for chargeable collective bargaining expenses and fees that go to political activities). In those respects, Abood is broadly of a piece with other free speech cases from the era such as Buckley v. Valeo, Wooley v. Maynard, Virginia State Pharmacy Board v. Virginia Citizens Consumer Council, and the series of obscenity cases coming out of Miller v. California.

Following Eskridge’s description of functionalism, these cases employed standards rather than rules, favored multi-factor balancing tests (when a test is formulated at all), often discussed various policy “interests” that were in play as part of a process of induction from those interests to a holding, and sometimes invoked ad hoc principles that resisted wider application (such as the “secondary effects” doctrine of Renton v. Playtime Theatres, which is at the outer edge of the era in 1986). Even the case that has come to be seen as the beginning of the distinction between content-based and content-neutral regulation of speech, Chicago v. Mosley from 1972, is a gauzy discussion of free speech and the Equal Protection Clause. (There is probably a similar story about the Free Exercise Clause cases of that period, most especially Wisconsin v. Yoder.)

But just like Josh Neff in Whit Stillman’s The Last Days of Disco tries too hard in one of the final scenes of the movie to hold on to the era (“Disco was too great, and too much fun, to be gone forever! It's got to come back someday. I just hope it will be in our own lifetimes.”), free speech law has left behind the functionalism of the 1970s and 80s and moved in a decidedly more formalist direction. Cases now come in sharply delineated categories, the application of strict scrutiny to all content-based regulation of speech does a lot of work across a wide range of cases (as seen this week in NIFLA v. Becerra), and opinions often begin with a principle (in Janus, no compelled subsidization of speech) and reason deductively to the holding (Abood got around to a brief discussion of the "impact upon [employees'] First Amendment interests" after several pages of discussion about agency shop arrangements and labor policy). It's hard to know when the disco era started coming to an end, but Justice Scalia's opinion in RAV v. St. Paul in 1992 is a good marker.

This is all very general, of course, with a lot of details to be filled in. But in the opinions by Justices Alito and Kagan, I think we can see the difference between the functionalism of the free speech disco era and the formalism of today. For what it’s worth, my own views are strongly in the direction of formalism, and I think Justice Alito’s opinion is thoroughly correct—a topic for another day.

June 28, 2018 in Moreland, Michael | Permalink

Wednesday, June 27, 2018

Court invalidates agency-fees requirement for public employees

The Supreme Court's decision in Janus is here.  In my view, while the stare decisis concerns about overruling Abood (which I have always thought was, to quote Justice Aliton, "poorly reasoned"), this result is the correct one, in that Abood and mandatory agency-fees had become outliers in the Court's First Amendment doctrine and precedents.  There will, of course, be a flood of commentary focusing on the political /partisan implications of the ruling, but I don't believe that commentary should obscure what I regard as the basic point that a public employee should not be required, as a condition of public employment, to support financially (and therefore, under the Court's precedents, to associate with) partisan and political activities to which he or she objects.  

I'll also note -- as I have many (Ed.:  Too many, Rick) times on this blog, that it is (with all due respect to the USCCB) mistaken to claim that Rerum Novarum, or the Church's social teaching on work and workers' rights more generally, requires or even counsels support for legal requirements that public employees support the partisan activities of today's public-employee unions. Nor is it "libertarian," or "individualistic," or "Randian," etc., to conclude that a Supreme Court charged with enforcing the First Amendment should invalidate such requirements.

Workers (in the public and in the private sectors) have a constitutional and moral right to form associations and to advocate in and through those associations for their interests. They do not, in my view, have either a constitutional or a moral right to enlist government power to require those who have different views about those interests to contribute to their partisan or inescapably political activities. (It is clear that the pre-Janus requirements that public-employee unions allow objecting workers to withhold funds for ideological activities are not strictly observed.)

I welcome others' reactions, of course! 

June 27, 2018 in Garnett, Rick | Permalink | Comments (0)

Religious Freedom Gestalts

When the big Obamacare case came down in 2012, one of the most interesting features of the resulting ferment was Larry Solum's insight that the disagreement between the sides could be understood as a fundamental divergence as to overarching conceptions of the scope of the Commerce Clause and the validity of the "New Deal Settlement." A "gestalt" is an organizing framework for understanding a particular legal issue--a jurisprudential weltanschauung. A gestalt is "the big picture that integrates a high-level description of doctrine with vindicating narratives and justifying normative theories." The gestalt does not mandate a particular outcome. But it situates and shapes the general perception of a case in such a way as to orient the interpreter in a very particular direction. 

Larry's insight was that there are competing gestalts when it comes to the Commerce Clause. One gestalt--informed heavily by the New Deal--has it that "Congress had plenary and virtually unlimited legislative power—subject, of course, to the limits imposed by the individual rights provisions of the Constitution." "Imagine," wrote Larry,

a sea of federal power that spans the globe. The New Federalism decisions of the Rehnquist Court created islands of state power, including the anticommandeering principle of Printz v. United States and New York v. United States, the expanded Eleventh Amendment sovereign immunity doctrine of Pennhurst State School and Hospital v. Halderman, and the Lopez and Morrison limits on the Commerce Clause. Thus, the prevailing gestalt underwent modification—the ocean of federal power was dotted with isolated islands of state sovereignty—but the basic pattern (the sea of federal power) remained intact.

The alternative gestalt, in Solum's telling, accepts the New Deal Settlement but adopts a "this far and no further" attitude toward it. The New Federalism cases (Lopez, Morrison, and now possibly NFIB, etc.) correct the errors of the most extreme of the New Deal gestalt cases (e.g., Wickard) and invert the oceanic metaphor. It is state, not federal, power that controls the gestalt. Or at least it should and it will.

I want to suggest that recent cases involving religious freedom, and many future cases, reflect a working out of a parallel set of gestalts as to religious freedom. And the competing gestalts are likely to become more fixed in the coming years--more distinct and therefore less capable of reconciliation. They are fundamentally different ways of seeing things.

In what one could call the "dominant" or perhaps "establishment" gestalt--the Everson dispensation, let's call it--the Court vigorously polices any suggestion that what has been the historically dominant religion in this country--Christianity--appears to receive any preferential treatment, recognition, or even historical acknowledgment by the government. That has been, as I discuss here, the primary way in which "separation of church and state" has been worked out as informing the Establishment Clause since 1947. The working out of the Everson dispensation was a project undertaken over decades by its champions, ostensibly under the banner of "religious neutrality" but in reality with a very distinctive effect (if not an intent) that was not neutral whether or not so perceived. Free exercise, for the Everson dispensation, existed in the majority of the 20th century primarily as a gesture of noblesse oblige to the unthreateningly strange and exotic. It was never intended to extend a set of legal defenses for traditional forms of Christianity, since Christianity held a dominant historical and socio-cultural position that needed to be destabilized. The effect of this dual action of the dominant gestalt was systematically to shrink the public political presence of Christianity in the national civic ethos and at the same time to increase the importance of "religion" as an individual right of spiritual self seeking. This was "religious freedom" in the dominant gestalt, and it was an enormously successful jurisprudential project from the early 20th century through the early 21st. For this project, the objective was continuing progress along the lines mentioned. To continue to shrink the civic and political influence of Christianity while at the same time rendering the idea of "religion" as an individual good more powerful. But a vital part of this project involves the monitoring of Christian civic influence and efforts towards its continuing diminution. For adherents of the dominant gestalt, cases like Hobby Lobby, Masterpiece Cakeshop, and Town of Greece, are evidence of dangerous stalling. Cases like Trump v. Hawaii in combination with Masterpiece are deeply threatening because they are evidence that Christianity (or, in even more strongly held versions of the claim, "white" Christianity) continues to be preferred over other religions despite the best efforts of the Everson dispensation's champions. It is no consolation at all to hear the Trump v. Hawaii majority's reassurance that the Everson dispensation still controls for holiday displays and high school graduations. Failure to progress is regression.

The other gestalt (I don't have a catchy name for it--let's go with gestalt #2) accepts certain basic understandings of church-state separation. Just as in the Commerce Clause division, there is not a wholesale rejection by gestalt #2 of gestalt #1. But whatever gestalt #2's "this far and no further" stance might look like, it was bypassed years ago. Gestalt #2 holds that the Everson dispensation largely has done its work: to diminish the public influence of Christianity and replace it with "religion"--always ill-defined or intentionally non-defined--as an individual experience. There are divisions within this gestalt. Some of its proponents feel that Christianity merits a special place in the national culture; some take the weaker view that it is at least not unconstitutional to recognize such a place, whether it actually exists or not; and some believe that Christianity merits at least similar (or even equal) favorable treatment to other religious traditions, generally through application of free exercise principles.  These divisions have not been fully plumbed because gestalt #2 has never achieved any real salience in 20th-21st century religion clause law. Where it generally attempts to hold the line as to Christianity today is in issues of compelling Christian believers to act in ways that violate their own convictions (Hobby Lobby, Zubik, Masterpiece, Becerra in its way). And this is precisely where, today, it comes into some conflict with the Everson dispensation, whose imperative is to continue to diminish Christianity--or at least conservative Christianity--as a force in American public life. This is gestalt #2's "this far and no further" stand, having been soundly defeated over decades in making its stand at previous possible way stations (just follow the path of Establishment Clause jurisprudence since 1947 for the grand tour). When those who favor the alternative gestalt hear proponents of the dominant gestalt cry out that Masterpiece plus Trump v. Hawaii represents a retrogression--Christianity beating back and beating out other religions--most do not share that view. It is a view that does not account for the massive losses sustained by Christianity at the Court's hands for the last near-century, and the massive reconception of the nature of "religion" undertaken by the Court's jurisprudence in that period. Of course, those losses and reconceptions were not occasioned by the Court alone. But the Court was much more than sympathetic to them; it did what it could to push them along, and successfully too. And the losses have not been limited to religious freedom cases proper. Just have a look, say the proponents of gestalt #2, at the havoc wrought by the Court's substantive due process cases. Those, in combination with the religious freedom canon of the dominant gestalt, have been devastating. Telling a Christian baker that he doesn't have to bake a cake for a ceremony he finds immoral, or a Christian company that it doesn't have to pay for contraceptive products for its employees, or a Christian pregnancy center that it doesn't have to advertise the availability and desirability of abortion...these are tiny and rather pathetic victories (most of them achieved by a bare 5-4 vote) in a wasteland of failure, to be followed in future by more failures. They are hardly signs that gestalt #2 is suddenly ascendant. They are not even signs of, as Larry puts it, a "gestalt shift."

Here's a final prediction. The divisions are likely to increase, in part because of gestalt #1's imperative of progress and gestalt #2's imperative of stasis (at best). If the prediction is correct, and if the Court's members break fairly evenly as between the two gestalts, we can reliably expect more spasms of outrage and disappointment with each new case in this area. These are not disputes over doctrine or even principle. They are deep disagreements over worldview, and over the kind of society we wish to be and become. 

June 27, 2018 in DeGirolami, Marc | Permalink

Tuesday, June 26, 2018

Prof. Carl Esbeck on Trump v. Hawaii and the Establishment Clause

MOJ-friend and law-and-religion expert Prof. Carl Esbeck (Missouri) has shared this essay on today's Trump v. Hawaii decision and its implications for Establishment Clause claims:

The President’s Immigration Travel Ban:

What Trump v. Hawaii Has to Say About Stating a Claim Under the Establishment Clause

Carl H. Esbeck[*]

 It is little appreciated that the United States Supreme Court’s decision today in Trump v. Hawaii, No. 17-965, in addition to addressing the scope of presidential power concerning the entry of foreign nationals into the country, concerns the First Amendment on religious freedom. In particular, the case is instructive regarding the elements for stating a claim under the Establishment Clause, as well as clarifying those harms that are redressable by the clause.

Writing for a 5-4 Court, Chief Justice Roberts held that President Trump did not exceed his authority as outlined in congressional legislation. He also said that he did not today reach the Establishment Clause question, but only because a lower standard of review is applied to constitutional claims in this context of immigration and national security concerns. The case is far from over, however, as the matter was remanded back to the lower courts for further proceedings. That could entail additional fact finding and renewal of claims not before the Court today.

At the center of Trump v. Hawaii is Proclamation No. 9645, an order captioned Enhancing Vetting Capabilities and Process for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats.[1] The proclamation is the third iteration of President Trump’s so-called “immigration travel ban” directed at foreign nationals from eight nations, six of which are Muslim-majority in population. The central allegation is that the President, by targeting nations with overwhelming Muslim majorities, was motivated by discriminatory intent toward those of the Islamic religion. Throughout the country lawsuits were filed alleging that the executive order: (i) conflicted with the President’s authority as detailed in congressional legislation; (ii) exceeded the President’s power in the Constitution; and, (iii) violated the First Amendment on religious freedom. Finding the pleadings meritorious, federal district courts entered nationwide preliminary injunctions against the President and the departmental secretaries charged with implementing the proclamation. The injunctions were later upheld in various circuit courts of appeal.[2]

Trump v. Hawaii came to the Supreme Court from the Ninth Circuit. The case was decided in the circuit on the bases that in issuing Proclamation No. 9645 the President exceeded his authority under congressional statutes.[3] The Ninth Circuit did not reach the Plaintiffs’ alternative claims, among which were claims under the Free Exercise Clause and the Religious Freedom Restoration Act (RFRA). The Supreme Court granted certiorari on the question concerning presidential powers, as well as on the claim that the proclamation violated the Establishment Clause.[4]

The suit was brought by three types of plaintiffs.[5] The State of Hawaii alleged proprietary harms to its own agencies and loss of revenue, including hindering the operation of the state university in enrolling students and recruiting qualified faculty.[6] Three individual Plaintiffs, Dr. Ismail Elshikh and John Does 1 and 2, alleged that as U.S. citizens they had a statutory right to bring family that are closely related by blood or marriage to live in the United States. But the planned relocations were waylaid by the proclamation. Finally, an associational Plaintiff, Muslim Association of Hawaii, Inc., likewise had members whose family relocations were interrupted, and it reported that the entity was losing members because they found affiliation with an Islamic organization brought members unfavorable attention.[7] These individual and associational Plaintiffs are Muslim and, unlike the State of Hawaii, they can allege religious injury. Aliens abroad typically have no constitutional rights, but these domestic Plaintiffs raised their own legal rights and averred losses and injuries specific to themselves.

Deferential Review Under the Establishment Clause?

Because the alleged religious discrimination was directed at foreign nationals, the Government argued that Plaintiffs’ constitutional claims were subject to a standard of review that was highly deferential to the Government. Kleindienst v. Mandel[8] held that courts should engage in only limited judicial review when a U.S. citizen contends that the denial of a visa to an alien abroad violates the citizen’s own constitutional rights. Under Mandel, the Government need only give “a facially legitimate and bona fide reason” for its adverse decision toward entry of a foreign national said to have caused harm to the U.S. citizen filing suit.[9] Once the Government has stated to the court a lawful reason for its actions and the reason appears truthful, that is the end of the matter. The citizen-plaintiff does not get to probe into whether the Government’s explanation is pretextual.

In a parallel case, the Fourth Circuit earlier found that the Government’s proffered national security rationale for the proclamation was not bona fide.[10] There also have been exceptions to the rule in Mandel involving constitutional rights like free speech and due process. So far, however, the exceptions are few and the direction of the law is uncertain. Finally, some Justices were on record as wanting to modify Mandel and permit pretextual challenges. Chief Justice Roberts, for the Court, noted the conventional Mandel rule but elected not to apply it. Slip op. 30-32. Instead, he applied a rational-basis standard of review which does permit pretextual challenges. Slip op. 32. He likely took this path so as not to lose his majority, divided as there likely were over Mandel. The Chief Justice proceeded to find that the proclamation was rational and so administered. Slip op. 33-38.

While claiming to not reach the Establishment Clause claim, the majority proceeded to lower the rigor of its protection to rational basis in this limited context. This drew a dissent by Justice Sotomayor. Slip op. 15-16 n. 6 (Sotomayor, J., dissenting). This is so, rejoined the Chief Justice, not just as to the Establishment Clause but as to all constitutional rights and restraints. Slip op. 32-33 n.5. It is all because of the special context of executive authority concerning national security and immigration. So, on remand, the less rigorous standard will apply to the Plaintiffs’ Free Exercise Clause claim, but not to the RFRA claim and its requirement of strict scrutiny. Citing Romer v. Evans, the Court says that a showing of animus against a class would show irrationality. Slip op. 33. What is not clear is if a law can fail rational-basis review in the absence of animus.

The Supreme Court, however, did not need to resolve whether to follow the Mandel rule here, or fashion a new one of rational-basis review. As will be shown below the Establishment Clause claims fail on bases as straightforward as the Constitution’s text.

What Does the Establishment Clause Prohibit?

            The Supreme Court’s case law has developed two lines of authority or rules under the Establishment Clause that are possibly relevant here.

Rule 1 is that the Establishment Clause prohibits government from intentionally discriminating among religions, that is, preferring one religion over another. In such cases the injury is a type of discrimination, such as a religious claimant missing out on some governmental advantage afforded those of other religions.

The leading case is Larson v. Valente.[11] In Larson, the Supreme Court held that the Establishment Clause was violated by state legislation regulating solicitation by charities where the statute purposefully favored long-standing or well-known churches over new religious movements. There was evidence that legislators explicitly sought to assist well-known or familiar churches because they were deemed not in need of oversight, whereas certain new religions were suspect and their fund-raising methods aggressive and so unwelcome.[12] To intentionally favor one group of religions over another group of religions is to advance the former and suppress the latter. So it makes sense to regard the legislation in Larson as a forbidden “establishment” of the favored churches.

            Instances of government openly favoring one religion over another are uncommon. Gillette v. United States[13] is the only other Establishment Clause case of this sort to reach the High Court. In Gillette, the complaint was that a religious exemption to the military draft accommodated those who opposed all wars for religious reasons but did not accommodate those who opposed only unjust wars for religious reasons. The claimant was deemed to have stated a prima facie claim under the Establishment Clause for government preferring one religious doctrine over a competing doctrine. However, the Court went on to hold that Congress had sufficient nonreligious reasons to justify making the distinction. Because there was no intent to favor one religion over another religion, there was no violation of the Establishment Clause.[14] Larson is thus the only case decided by the Court where the religious claimant actually succeeded in proving a violation of Rule 1.

Rule 2 is that the Establishment Clause prohibits government from enforcing a religious preference, that is, an intentional preferring of religion over the secular. In such cases the injury is temporal or nonreligious. For example, the harm is a pecuniary or economic loss, as in Estate of Thornton v. Caldor[15] and Larkin v. Grendel’s Den.[16] Or the temporal injury is a state’s hindrance of open academic inquiry, as in Edwards v. Aguillard[17] and Epperson v. Arkansas.[18] Or the harm is the inability to hold a public office due to a religious test, as in Torcaso v. Watkins.[19] In each of these cases there was an intentional favoring of religion over the secular, which fits the First Amendment’s text of forbidding the “mak[ing of a] … law respecting an establishment of religion.“[20] As can be seen, a claimant does not have to first subscribe to a religion to successfully state a claim under the Establishment Clause.

The reverse of Rule 2, namely, the government favoring the secular over the religious, is not a forbidden establishment. This is only common sense. The plain text of the clause forbids the “mak[ing of a] … law respecting an establishment of religion.” Nothing in the text prohibits going the other way, namely: preferring the secular over religion. Government cannot establish a religion by aiding the secular. Rather, any favoring of the secular over religion will have to be framed as a challenge under the Free Exercise Clause.

In their briefs, Plaintiffs quote McCreary County v. ACLU of Kentucky,[21] where courts seeking to determine whether an act by an official had an improper “religious purpose” are instructed to look to “the text, legislative history, and implementation of the statute, or comparable official act” in question.[22] Applying this test, Plaintiffs aver that a governmental law disfavoring religion can implicate the Establishment Clause.[23] That is not just wrong, but silly—a mindless application of the three-prong Lemon test wholly disconnected from the constitutional text the Plaintiffs are invoking. A government cannot establish a religion by disfavoring it. To make matters worse, in its Opening Brief the Government seems to go along with Plaintiffs and repeats the error that official acts “of favoring or disfavoring religion can implicate the Establishment Clause.”[24]

In her dissent, Justice Sotomayor cites McCreary County, as well as Larson, Edwards, Epperson, and other cases decided under the Establishment Clause for the proposition that the clause is violated not only when religion is favored over the secular but when the secular is favored over religion. Slip. op. 2-3 (Sotomayor, J., dissenting). But all the cases cited are ones where government favored religion over the secular, never the reverse. And for good reason: it makes no sense to say the government is establishing religion when under the facts it is suppressing religion.

Application of these Rules on Remand

The State of Hawaii is not a religion, nor does it subscribe to one. So Rule 1, which requires discrimination among religions, is of no use to the State. Rule 2 requires an intentional preferring of religion over the secular. But the State’s claim goes in the other direction, to wit:  by discriminating against Muslims the proclamation prefers the secular concern for national security over religion. So Rule 2 is of no use to the State. Hawaii cannot state a claim under the Establishment Clause.

            The individual and associational Plaintiffs are Islamic and allege a colorable claim of religious injury. Rule 1 is that the Establishment Clause prohibits government from intentionally preferring one religion over another religion. Islam is disfavored. But does Proclamation No. 9645 advance Christianity, Judaism, or some other religion by discriminating against Muslims? I suppose it is remotely possible to envision Christianity or Judaism as receiving some benefit from Proclamation No. 9645, but it is just as likely or more so that the fortunes of other religions are unaffected or even damaged by the proclamation.[25] In any event, that either Christianity or Judaism are advanced by the proclamation is wholly speculative and unproven by the Plaintiffs. Rule 1 is out.

Nor does Proclamation No. 9645 establish or otherwise prefer Islam over the secular, the subject of Rule 2. Indeed, if anything the proclamation does the opposite: preferring the secular concern for national security over religion. Preferring the secular over religion is the opposite of establishing religion. Rule 2 is out.

It follows that neither the State of Hawaii nor the individual and institutional Plaintiffs can state a claim under the Establishment Clause.

What About the Free Exercise Clause?

A pleading framed as the government preferring the secular over religion requires turning to the Free Exercise Clause. However, from the plain language of the clause’s text (“make no law … prohibiting the free exercise of [religion].”), a person or organization must first have a religion before it can be exercised.[26] The State of Hawaii has no religion to exercise and thus can suffer no religious burden or injury. Hawaii cannot state a claim under the Free Exercise Clause.

The individual and associational Plaintiffs do have a colorable claim of religious injury and did set out in their amended complaint a count under the Free Exercise Clause. Under Oregon Employment Division v. Smith[27] and Church of Lukumi Babalu Aye, Inc. v. City of Hialeah,[28] the federal government is prohibited from singling out a religion, such as Islam, for adverse treatment. Animus need not be shown, just intent.[29] Normally such laws receive strict scrutiny and will be sustained only if the government can satisfy the compelling interest test.[30]

The Plaintiffs’ Free Exercise Clause and RFRA claims were not in the Court’s grant of certiorari. However, today Trump v. Hawaii was remanded to the lower courts for further proceedings. Slip op. 38-39. Normally the individual and associational Plaintiffs would have an opportunity to show that the proclamation was issued with discriminatory intent. However, the Court today held that all constitutional rights were subject to mere rational basis review. Slip op. 32-33 n.5. In the holding today and given this record, the Court found the proclamation rational, so on remand it will be difficult to prevail on the Free Exercise Clause unless the record is reopened and new and rather damming evidence is admitted. The RFRA claim, however, is by its own terms not limited by the special context of national security and presidential authority.

* * *

Nothing in the foregoing is to be taken as condoning governmental discrimination against Muslims or the President’s intemperate remarks on Islam and immigration. Both are to be deplored.

 

[*]R.B. Price Professor Emeritus and Isabella Wade & Paul C. Lyda Professor of Law Emeritus, University of Missouri.

 

[1] 82 Fed. Reg. 45,161 (Sept. 24, 2017).

[2] See, e.g., Int’l Refugee Assistance Project v. Trump, 883 F.3d 233 (4th Cir. 2018) (en banc), petition for cert. filed U.S. Sup. Ct. No. 17-1270.

[3] Hawaii v. Trump, 878 F.3d 662, 683-98 (9th Cir. 2017) (per curiam).

[4] 138 S. Ct. 923 (Jan. 5, 2018). A few weeks earlier the Court had granted a stay of the injunction pending appellate review. 138 S. Ct. 542 (Dec. 4, 2017).

[5] The multiple counts in Plaintiffs’ third amended complaint are summarized in Hawaii v. Trump, 878 F.3d at 674.

[6] Id. at 682.

[7] Id. at 678, 681-82.

[8] 408 U.S. 753 (1972).

[9] Id. at 770.

[10] Int’l Refugee Assistance Project, 883 F.3d at 264-65.

[11] 456 U.S. 228, 253-54 (1982).

[12] Id. at 231-33, 246-47 n.23, 250-51, 254-55.

[13] 401 U.S. 437 (1971).

[14] In contrast to a claim of intentional discrimination among religions, when a general law has a disparate effect among religions the Establishment Clause is not violated. See Hernandez v. Commissioner of Internal Revenue, 490 U.S. 680, 696 (1989) (limitations on charitable deductions in federal income tax law that had disparate impact on the giving patterns of members of a particular church did not violate the Establishment Clause); Bob Jones University v. United States, 461 U.S. 574, 604 n.30 (1983) (discrimination among religions that have differing beliefs concerning race was not purposeful, but the unintended effect of the IRS’s facially neutral regulation); cf. Larson v. Valente, 456 U.S. 228, 246 n.23 (1982) (dicta to effect that state regulatory act was not generally applicable legislation having disparate impact, but intentionally drafted to favor well-known churches while targeting new religious movements).

[15] 472 U.S. 703 (1985) (upholding claim by department store against Sabbath labor law).

[16] 459 U.S. 116 (1982) (upholding claim by tavern seeking liquor license blocked by nearby church).

[17] 482 U.S. 578 (1987) (striking down state law that required teaching of creation in public school science classes if evolution is taught).

[18] 393 U.S. 97 (1968) (striking down state prohibition on teaching evolution in public school science classes).

[19] 367 U.S. 488 (1961) (atheist kept from public office because state required oath professing belief in God).

[20] Care must be taken not to confuse a religious preference with a religious exemption. The Establishment Clause will strike down an unyielding religious preference. Religious exemptions are altogether different, however, and have been consistently upheld by the Supreme Court because exemptions do not entail “state action” that causes harm to others. See Carl H. Esbeck, Do Discretionary Religious Exemptions Violate the Establishment Clause?, 106 Kty. L. J. no. 4 (June 2018).

[21] 545 U.S. 844 (2005).

[22] Id. at 862 (internal quotation marks omitted).

[23] Cf. Int’l Refugee Assistance Project, 883 F.3d at 256 (“The Plaintiffs allege that the Proclamation violates the Establishment Clause by disfavoring Muslims.”).

[24] Trump v. Hawaii, U.S. Sup. Ct. No. 17-965, Brief for the Petitioners, p. 65 (filed Feb. 21, 2018) (emphasis added).

[25] When a Muslim community believes it is under persecution by a democratic state, that may cause tension with Christians, Jews, or other religions, or at least engender resentment toward those of other faiths who have the votes stop the persecution but fail to do so. Thus, it might be conjectured that every religion is harmed by the rise in tensions among them.

[26] There is no claim under the Free Exercise Clause unless a plaintiff first professes a religion. Frazee v. Illinois Dep't of Empl. Security, 489 U.S. 829, 833 (1989) (noting that only beliefs rooted in religion are protected by the Free Exercise Clause; secular views will not suffice); Thomas v. Review Bd., 450 U.S. 707, 713-14 (1981) (noting that only beliefs rooted in religion are protected by the Free Exercise Clause); Wisconsin v. Yoder, 406 U.S. 205, 215-16 (1972) (identifying religious claims that are “personal” and “philosophical” and those "merely a matter of personal preference" as not protected by free exercise). This understanding aligns with the drafting history of the Free Exercise Clause in the First Federal Congress of 1789. See Carl H. Esbeck, Uses and Abuses of Textualism and Originalism in Establishment Clause Interpretation, 2011 Utah L. Rev. 489, 525-67 (2011); see especially id. at 563.

[27] 494 U.S. 872, 884 (1990).

[28] 508 U.S. 520 (1993).

[29] Shrum v. City of Coweta, 449 F.3d 1132, 1145 (10th Cir. 2006).

[30] See Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418, 430-32 (2006) (describing the focused, case-by-case nature of the compelling interest test in the Religious Freedom Restoration Act, which is the same test as under the Free Exercise Clause).

June 26, 2018 in Garnett, Rick | Permalink | Comments (0)