Mirror of Justice

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Monday, March 30, 2015

Ross Douthat's questions

Reflecting on the striking and troubling embrace by so many who should (or do) know better of a false narrative about Indiana's RFRA (and the many other state laws like it), Ross Douthat notes, as several others have, the dramatic extent to which religious liberty has become controversial, contested, and vulnerable.   And, in order to highlight this extent, he poses a number of questions for Indiana's critics: 

1) Should religious colleges whose rules or honor codes or covenants explicitly ask students and/or teachers to refrain from sex outside of heterosexual wedlock eventually lose their accreditation unless they change the policy to accommodate gay relationships? At the very least, should they lose their tax-exempt status, as Bob Jones University did over its ban on interracial dating?

2) What about the status of religious colleges and schools or non-profits that don’t have such official rules about student or teacher conduct, but nonetheless somehow instantiate or at least nod to a traditional view of marriage at some level — in the content of their curricula, the design of their benefit package, the rules for their wedding venues, their denominational affiliation? Should their tax-exempt status be reconsidered? Absent a change in their respective faith’s stance on homosexuality, for instance, should Catholic high schools or Classical Christian academies or Orthodox Jewish schools be eligible for 501(c)3 status at all?

3) Have the various colleges and universities that have done so been correct to withdraw recognition from religious student groups that require their leaders to be chaste until (heterosexual) marriage? Should all of secular higher education take the same approach to religious conservatives? And then further, irrespective of leadership policies, do religious bodies that publicly endorse a traditional Judeo-Christian-Islamic view of sexual ethics deserve a place on secular campuses at all? Should the Harvard chaplaincy, for instance, admit ministers to its ranks whose churches or faiths do not allow them to perform same-sex marriages? Should the chaplaincy of a public university?

4.) In the longer term, is there a place for anyone associated with the traditional Judeo-Christian-Islamic view of sexuality in our society’s elite level institutions? Was Mozilla correct in its handling of the Brendan Eich case? Is California correct to forbid its judges from participating in the Boy Scouts? What are the implications for other institutions? To return to the academic example: Should Princeton find a way to strip Robert George of his tenure over his public stances and activities? Would a public university be justified in denying tenure to a Orthodox Jewish religious studies professor who had stated support for Orthodox Judaism’s views on marriage?

5) Should the state continue to recognize marriages performed by ministers, priests, rabbis, etc. who do not marry same-sex couples? Or should couples who marry before such a minister also be required to repeat the ceremony in front of a civil official who does not discriminate?

6) Should churches that decline to bless same-sex unions have their tax-exempt status withdrawn? Note that I’m not asking if it would be politically or constitutionally possible: If it were possible, should it be done?

7) In the light of contemporary debates about religious parenting and gay or transgender teenagers, should Wisconsin v. Yoder be revisited? What about Pierce v.Society of the Sisters of the Holy Names of Jesus and Mary?

These are all questions that those of us in the First Amendment academy and on the law-and-religion conference circuit encounter regularly.  Too often, the answers are not encouraging.


March 30, 2015 in Garnett, Rick | Permalink

Free Exercise By Moonlight

I have a new article in draft called Free Exercise by Moonlight. It is about the current condition of permissive religious accommodation. It is pervasively lugubrious. Here is the abstract:

How is the current condition of religious free exercise, and religious accommodation in specific, best understood? What is the relationship of the two most important free exercise cases of the past half-century, Employment Division v. Smith and Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC? This essay explores four possible answers to these questions.

  1. Smith and Hosanna-Tabor are the twin suns of religious accommodation under the Constitution. They are distinctively powerful approaches.

  2. Hosanna-Tabor’s approach to constitutional free exercise is now more powerful than Smith’s. Smith has been eclipsed.

  3. Hosanna-Tabor has shown itself to be feeble. It has been eclipsed by Smith.

  4. Smith augured the waning of religious accommodation, which proceeds apace. Hosanna-Tabor does little to change that.

In describing these possibilities, the essay considers the cases themselves, various doctrinal developments (focusing on subsequent Supreme Court cases as well as lower court decisions interpreting Hosanna-Tabor), and the broader political and social context in which claims for religious accommodation are now received. It concludes that though each possibility has persuasive points (perhaps with the exception of the second), the last is most accurate.

Smith’s approach to free exercise continues to control for constitutional purposes and is, for more general political purposes, more entrenched than ever. Its admonition about fabulously remote threats of anarchy in a world where each “conscience is a law unto itself” has ironically become more apt as a warning against the multiplying number of secular interests argued to be legally cognizable than against religious accommodation run amok. There is no clearer manifestation of these developments than the recent emergence of theories maintaining that new dignitary and other third party harms resulting from religious accommodation ought to defeat religious freedom claims. These theories reflect the swollen ambit of state authority and defend surprising understandings of the limits of religious accommodation—understandings that pose grave threats to the American political tradition of providing generous religious exemptions from general laws. The ministerial exception simply represents the refracted glow of constitutional protection in the gathering gloom. It is free exercise by moonlight. 

March 30, 2015 in DeGirolami, Marc | Permalink

Indiana’s RFRA Act


It should come as no surprise to us of the present age that religion plays a key role in political life. Recently the State of Indiana enacted its Religious Freedom Restoration Act that parallels Federal legislation and statutes of many other states of the Union. Unfortunately, some American citizens or interests are keen on exposing the so-called discrimination or potential discrimination that this kind of legislation may perpetrate against fellow citizens who are part of the sexual orientation and gender identity movement.

Powerful influences including elements of the media, the NCAA, and large corporations that publicly support the political, social, and cultural initiatives of this movement have been adding their objections to this new legislation which reflects what has been the law for some time in other jurisdictions. Could it be that there is something in the text of the Indiana law that is different? I do not think that is the real issue. The real issue resides in the text itself and what the text is supposed to protect, which I shall address in a moment.

The opponents of the new Indiana law are now pressuring the legislators and the governor, who supports the legislation, for clarifications. But are clarifications needed? This is where a careful examination and interpretation of the text are in order. After all, words and their meanings are important to the law as are the entire texts. In my discussion today, I am relying on Indiana Senate Bill No. 568 introduced on January 20 of this year and enacted this past week. The text is HERE:  Download SB0568.01.INTR.

The substance of the legislation is contained in Section 6 that provides that state action or the action of an individual based on state action cannot “substantially burden a person’s right to the exercise of religion, even if the burden results from a law or policy of general applicability.” The same section further provides that a burden to the right of religious free exercise may be lawful and trump the right of religious freedom if the burden is “essential to further a compelling governmental interest” and is “the least restrictive means of furthering the compelling governmental interest.” This language essentially tracks Supreme Court jurisprudence, albeit at times confusing, on the nature of religious liberty.

The first five sections of the legislation contain the definitions applicable to the intent and purpose of the new law. I find two of the definitions crucial to meeting the general opposition to the state RFRA that opponents of the bill are voicing. Section 3 defines the phrase “the exercise of religion.” The definition can be fairly distilled as the practice or observance of a person’s [defined in Section 4] ability to act or to refuse to act in a manner that is substantially motivated by the person’s sincerely held religious belief. Inherent in this protected right is the defense of the person who is acting or refusing to act on the grounds of that person’s religion. This protected right does not impose on the non-believer or someone who adheres to some other faith. It protects the claimant who is exercising a Constitutional and now an Indiana statutory right. It does not interfere with the legal rights of others who may disagree with the religious tenets in issue.

To understand this point further, it is useful to look at the second important definition to which I alluded a moment ago, and this definition concerns the “compelling governmental interest” that can derogate the protected right of religious freedom under specified circumstances. A “compelling governmental interest” is defined as “a governmental interest of the highest magnitude that cannot otherwise be achieved without burdening the exercise of religion.” I have emphasized two passages with italics.

While the first italicized phrase might profit from a definition, I do not think that a definition essential to the protection of all legitimate interests at stake. The phrase “the highest magnitude” suggests a crucial legal, perhaps even constitutional, principle that is essential to the integrity and survival of the Republic, the State of Indiana, and the commonweal/common good. Opponents to the legislation appear to ignore this element of the text when they argue that the Indiana law “could make it easier for religious conservatives [the legislation does not use the term “conservative” anywhere] to refuse service to gay couples.” What might these services be? The denial of some services to anyone might actually be a lawful act of discrimination rather than an unlawful act of discrimination.

For example, an innkeeper might discriminate against a would-be customer if the innkeeper refuses to serve alcohol to someone who is already intoxicated or underaged. This refusal could be compelled not only by law but also by a person’s sincerely held religious belief that the intoxicated or underaged person should not be served. Might the proprietor of a bed and breakfast refuse to accommodate a single person? Unless the single person is rowdy, a known fugitive from justice, travelling with an animal, etc., it would be difficult for the proprietor to refuse accommodation on the grounds of religious freedom as the law is designed to protect. But what if it is a couple of persons? Does it matter if they are of the same-sex or opposite-sex? Could the proprietor rely on the provisions of this law to deny accommodation to either couple and not trigger the compelling governmental interest standard of the highest magnitude? It would seem that the right of religious freedom (or conscience which is not directly addressed by the statute’s language) as enshrined by the law would protect the proprietor who knows that the opposite-sex couple is not married. Why should the same-sex couple be treated differently by forcing the proprietor to provide them with a room with a large bed? (Perhaps the circumstances would be different if this couple were Queequeg and Ismael from Melville’s Moby Dick, but I digress.) Is there a compelling governmental interest of the highest magnitude that is at stake? Would it matter if the proprietor of the business relying on the religious liberty protection operates a bakery and objects to an opposite-sex couple who want a cake to celebrate their living together out of wedlock or a same-sex couple who order a cake to celebrate their commitment or union under state law?

The point here is this: must a person seeking the protection of this law conform his, her, or its religious conscience and thereby sacrifice his, her, or its religious faith to the sin of someone who desires to have his, her, or its action declared a compelling governmental interest of the highest magnitude that cannot otherwise be achieved without burdening the religious person’s free exercise? It strikes me that, given the context of those objecting to this law, this is precisely the objective that they are seeking. They are pursuing the goal because they see no sin or sin is inconsequential; it is irrelevant to them that they are asking another person to cooperate and participate in their sin. This circumstance parallels what medical providers are now facing from their licensing authorities when they are forced to refer a patient to a medical provider who will provide the service they cannot provide due to their sincerely held religious belief or conscience.

As I keep going over the text of the new Indiana law and consider the objections raised by its opponents, I see strong parallels to what Henry VIII did in England from 1533-35. Both the king and the opponents of the Indiana law will not tolerate anyone who disagrees with their objective from escaping. All must conform to the goals of the law’s opponents, and sincerely held religious beliefs will be no defense. We know what happened during and after 1535 in England. Is this same thing really required under the rubric of a compelling governmental interest of the highest magnitude today? If so, then sin wins once again and virtue is at forfeit.


RJA sj  

March 30, 2015 in Araujo, Robert | Permalink

NYTimes Beliefs Column on Catholics Finding Common Ground in Opposing Death Penalty

In this time of embarrassingly poor reporting at the intersection of law and religion, it can be helpful to recognize that not all law-and-religion matters divide on predictable lines. MOJ readers familiar with the joint editorial of various Catholic publications on the death penalty may therefore find of interest the New York Times Beliefs column from this past weekend: "Catholics on Left and Right Find Common Ground Opposing Death Penalty."

There was once a time in my life when I simultaneously subscribed to both The National Catholic Register and The National Catholic Reporter, and I have also subscribed at various times to First Things, Commonweal, America, and Our Sunday Visitor. (Much of this was before the internet and Catholic blogs were the kinds of sources they are now.) Eventually the cacophony was too much to take (particularly reading "news" stories on the same issues from both the Register and the Reporter in one sitting) and I have weaned off print subscriptions to all of them.

In any event, I'm hopeful for working together with Catholics and others here in Virginia to end the death penalty. Depending on how Glossip v. Gross comes down and on other developments, lethal injection may no longer be practicable. Proposed legislation that switches over to firing squad may be a useful way for both sides of the death penalty debate to put their respective positions before voters and legislators. 

March 30, 2015 in Walsh, Kevin | Permalink

Follow the money

Learn more here about the entities and funding sources behind much of the current effort to delegitimize the RFRA model and religious exemptions more generally.

March 30, 2015 in Garnett, Rick | Permalink

Friday, March 27, 2015

The Loyola decision out of Quebec

MOJ readers are likely familiar (here, here, here (Religion Clause blog), here, etc.) with the long-running saga of Loyola High School in Montreal to resist a government mandate that it teach a general ethics-and-culture course in a way that, the School believes, conflicts with its Catholic character.

Well, the Supreme Court of Canada's decision is finally here.  (Congrats to my friend Victor Muniz-Fraticelli for being cited!)  At first, the reports were that Loyola won big -- and it does seem that they won -- but, getting down into the weeds, it's still troubling, I think, what the Court seems to agree the government is allowed to demand.  Here is an interesting account ("What Did Loyola Really Do?").

Here is the holding:

The Minister’s decision requiring that all aspects of Loyola’s proposed program be taught from a neutral perspective, including the teaching of Catholicism, limited freedom of religion more than was necessary given the statutory objectives. As a result, it did not reflect a proportionate balancing and should be set aside. The appeal is allowed and the matter remitted to the Minister for reconsideration.

There's more explicit balancing talk here -- and, later, more cites to Aharon Barak and Habermas -- than we are used to, probably, in American cases, but . . . so far so good.  Catholic schools may teach Catholicism (pretty much?) as if it is true.  Early on in the majority opinion, there's this:

 Freedom of religion means that no one can be forced to adhere to or refrain from a particular set of religious beliefs. This includes both the individual and collective aspects of religious belief. Religious freedom under the Charter  must therefore account for the socially embedded nature of religious belief, and the deep linkages between this belief and its manifestation through communal institutions and traditions.

Also good.  Read the whole thing!

March 27, 2015 in Garnett, Rick | Permalink

Thursday, March 26, 2015

Another nice review of Garnett & Brinig, "Lost Classroom, Lost Community"

Here's a nice review by Will Seath, at the Fare Foreward site, of Nicole Garnett's and Peg Brinig's new bookLost Classroom, Lost Community:  Catholic Schools' Importance in Urban America.  A taste:  

Lost Classroom, Lost Community’s sobering last chapter asks readers to imagine the implications of cities without Catholic schools; the loss of quality social capital-building education in traditional neighborhoods, leaving families unable to afford alternatives to poor quality public schools struggling in the wake of others seeking refuge away from their declining neighborhoods.  “Our cities may well survive (indeed, they may have to survive) without Catholic schools,” Brinig and Garnett conclude, “but our evidence suggests strongly that they would be better off if they did not have to do so.”

March 26, 2015 in Garnett, Rick | Permalink

"Correcting Misimpressions about Religious Freedom"

Here is an op-ed of mine, which ran today in the South Bend Tribune, in which I try to respond to what I regard as some of the misconceptions (and, frankly, the misinformation) about RFRA-type laws (like the one that was signed into law by Gov. Pence, in Indiana, today.)  In a nutshell:

In fact, the act is a moderate measure that tracks a well-established federal law and the laws of several dozen other states. Contrary to what some critics have suggested, it does not give anyone a “license to discriminate,” it would not undermine our important civil-rights commitments, and it would not impose excessive burdens on Indiana’s courts. . . .

The act’s standard is applied in many jurisdictions across the land and it has long enjoyed support from across the political spectrum. This standard is not new; we have plenty of evidence about how it works. We know that courts have not applied it to require excessive accommodations or exemptions from anti-discrimination laws and civil-rights protections. Fighting invidious public discrimination is, American courts agree, a public interest of the highest order. Contrary to the concern quoted in the recent Tribune piece, a business owner or medical professional who invoked the act as a “license” to engage in such discrimination would and should lose. The act creates a balancing test, not a blank check. . . .

March 26, 2015 in Garnett, Rick | Permalink

"It is by obeying the judgments of our predecessors that we are empowered to make judgments of our own."

That's from a superb essay on originalism and "the rule of the dead" by Joel Alicea in the latest issue of National Affairs. Alicea's piece is particularly useful on the necessary connection of obedience to the will of the dead and the concept of written law (and the disconnection between the concept of written law and obedience to the will of the living). A bit more:

By obeying the dead, the living can demand obedience. As Judge Frank Easterbrook once remarked, "Decisions of yesterday's legislatures...are enforced...because affirming the force of old laws is essential if sitting legislatures are to enjoy the power to make new ones." That is, "[p]eople accept old contracts and old laws because they know that this is the only way to ensure that promises to them are kept." We, the living, accept the binding force of laws passed before our time so that our laws will be obeyed, both in our own time and beyond.

This dynamic between the living and the dead not only undergirds written law; it is foundational to a proper conception of popular sovereignty under the Constitution. Indeed, it is at the heart of what Whittington has called the dualist conception of democratic theory. Under this framework, "the people" exist in their sovereign capacity only when they engage in higher lawmaking — the making and amending of the Constitution. This lawmaking is of a higher order, as it sets the rules by which all other laws can be made and sets the limits of what those laws can do. At all other times and for all other lawmaking, ordinary politics is the norm, and in such circumstances, the people do not act as the sovereign — though they retain the power to reassert their sovereignty at any moment through the process of constitutional amendment. This is not to deny, of course, that the people remain the ultimate source of authority in a polity during a time of ordinary politics; it is simply to say that they and their representatives are acting under or subordinate to the rules that the people established in their sovereign capacity.

This conception of popular sovereignty stems from the same kinds of considerations that uphold written law. In the same way that the dead-hand argument is hostile to any form of written law, saying that the people act in their sovereign capacity in everyday politics is hostile to a written constitution. A constitution is meant to guide and limit ordinary politics, and if ordinary politics were the domain of the people acting as sovereign, then every statute would be the equivalent of a constitutional amendment, and the idea of a written constitution would become meaningless. 


These philosophical assumptions underlying written law are the essence of originalism. We must submit to the commands of the dead in order to govern ourselves, and in order to submit, we must understand those commands according to their original meaning. It would be farcical to claim that we are being obedient to a rule if we arrogated to ourselves the power to change the meaning of that rule. It would be tantamount to telling past generations: "We will obey your laws — so long as they mean what we say they mean." The rejection of the dead-hand argument is therefore not just about defending the validity of written law in general; it is about defending originalism's core philosophical assumptions.

Similarly, we see that the argument over the dead-hand of the past is about far more than the viability of originalism. At stake is the idea of written law, of popular sovereignty, and of society as an intergenerational partnership between the living and the dead. 

March 26, 2015 in DeGirolami, Marc | Permalink

Tuesday, March 24, 2015

"The Theocracy Brief"?

At the Crime and Consequences blog, which is a project of the Criminal Justice Legal Foundation, there is a post by Kent Scheidegger called "The Theocracy Brief," which takes issue with the amicus brief filed by the National Catholic Reporter in Glossip v. Gross (the SCOTUS case involving Oklahoma's lethal-injection procedures).  Here's the primary part of the post:

Some briefs are just downright weird.  In Glossip v. Gross, the midazolam lethal injection case, the National Catholic Reporter has submitted an amicus briefpurporting to explain the teachings of the Catholic Church on the subject.  I have no opinion on whether what they say is correct.  I know nothing about it.  I do have an opinion on whether what they say has any relevance.  It does not.

Last time I checked, the United States of America was not a theocracy.  Quite the contrary, one of the cornerstones of the foundation of our government was a rejection of the mingling of church and state that had caused such enormous trouble in the Mother Country.

If Islamic teachings say it's okay to behead people,* would that make beheading constitutional under the Eighth Amendment?  Of course not.  So why would the teachings of the Catholic Church have any greater relevance?  Because five of the current Justices of the Supreme Court happen to be Catholic?  I am quite sure all five have the integrity not to let such an argument influence them.

* I don't know if they do, and truth of the "if" is not necessary to the point being made.

As it happens, the brief has an entire section dedicated to explaining why the teachings of the Catholic Church with respect to capital punishment are, or at least could be, relevant to the particular question presented in this case.  It seems to me that Mr. Scheidegger's "theocracy" charge is misplaced.  

Obviously, the Church's teachings as such are not binding or authoritative on the Court when it answers legal questions and, generally speaking, whether or not the Church approves of this or that has nothing to do with questions about what the Constitution says (or doesn't) about this or that.  But, in this particular context, the Court's own precedents and doctrines seem to make relevant "the evolving standards of decency that mark the progress of a maturing society" and so there seems to be nothing particularly strange -- and certainly nothing "theocratic" about an amicus brief that says, in effect, "given that you have told us you are interested in what people think about the matter, here's what a whole lot of us think about the matter, and here's why."  



March 24, 2015 in Garnett, Rick | Permalink

Starr on "The First Freedom: Religious Liberty in America" at Touro

Pres. Kenneth Starr (Baylor University) is delivering a lecture at Touro, on March 26, called "The First Freedom:  Religious Liberty in America."  More information is available here.  And, you can watch it live here.  Should be great!

March 24, 2015 in Garnett, Rick | Permalink

Monday, March 23, 2015

A Religious Constitution -- Christian, Jewish, Islamic?

Those interested in the lively issues presented by religious constitutionalism might want to check out the Clark Lecture to be held at the Rutgers School of Law (Camden)  this Thursday, March 26th (corrected from March 24th), at 4pm.  Details are here.   I will be addressing the question I was assigned:  "What would a Christian constitution, in a predominantly Christian nation, look like?"  

March 23, 2015 in Brennan, Patrick | Permalink

Two Reviews: Inazu on Smith, Movsesian on Russell

A couple of interesting new book reviews. First, a review by John Inazu of Steve Smith's most recent book, The Rise and Decline of American Religious Freedom, over at the Hedgehog Review (though John's original title, "Steve Smith, Optimist" really sang). Here's the ending:

Smith published Rise and Decline just prior to the Supreme Court’s decisions in Burwell v. Hobby Lobby and Holt v.Hobbs, and it’s worth considering how those cases fit his story. Both were wins for religious liberty, but both were statutory rather than constitutional decisions. In one sense, the focus on statutes is completely unsurprising given the state of constitutional free exercise concerns. But it’s not clear that these statutory protections by themselves alter the direction of Smith’s narrative of decline. For that kind of directional change, we would need the Court to re-examine its reasoning in the 1990 peyote case, Employment Division v. Smith. Such a re-examination would be entirely warranted. As Laycock rightly noted in an amicus brief filed just this month, the rule announced in the peyote case came unexpectedly (the rule “was neither briefed nor argued” to the Court) and the decision “cannot be said to have become embedded in the law.” But the Supreme Court has thus far not budged. And as long as that decision stays on the books, Smith may have been better off basing the title of his latest book on an article he wrote in the Harvard Law Review a few years ago: “Discourse in the Dusk: The Twilight of Religious Freedom?” Even then, Smith’s question mark might be too optimistic.

Second, my colleague Mark Movsesian's review over at the Liberty Law blog of Gerard Russell's book, Heirs to Forgotten Kingdoms. Here are Mark's concluding paragraphs:

There is a danger in treating Copts and other Middle Eastern Christians like this. A major obstacle to getting American Christians interested in the plight of Middle Eastern Christians is the fact that they seem so foreign, so distant from the lived experience of Christianity in the United States. Accounts like Russell’s inadvertently emphasize the “otherness” of Middle Eastern Christians, thereby making it even less likely that they will draw the attention of Americans in a position to help. Of course, this is not Russell’s intention. As I say, he has genuine sympathy and admiration for all these groups, including the Christians. But his portrayal of them may have an unintended and unfortunate effect.

Nonetheless, this is an enjoyable and valuable book, instructive and a pleasure to read. It should appeal to anyone with an interest in the history of religion and the Middle East—indeed, anyone with an interest in the human spirit itself.

March 23, 2015 in DeGirolami, Marc | Permalink

Friday, March 20, 2015

Saturday is World Down Syndrome Day!

Tomorrow (3/21) is World Down Syndrome Day. 
Celebrate by watching this great video put out by the Jerome LeJeune Foundation (named after the geneticist who discovered that Down Syndrome was caused by trisomy 21 (3 copies of the 21st chromosome), currently on the road to canonization.
Or this inspirational story about the basketball team of at Lincoln Middle School in Wisconsin defending one of their cheerleaders with Down Syndrome.
Or do yourself a real favor spend some time celebrating with a person with Down Syndrome!

March 20, 2015 in Schiltz, Elizabeth | Permalink

Thursday, March 19, 2015

Baude's "flouting the rule of law" critics should explain precisely which rule of law his proposal flouts

In the dust-up over Will Baude's op-ed proposal for plaintiff-specific compliance in King v. Burwell, one peculiar feature stands out. Some of Baude's legal critics contend that the Obama Administration's adoption of his proposal would flout the rule of law even while they do not identify any particular rule of law that the Administration would be violating. As far as I have been able to discern to this point, there is none.     

The opening paragraph of Noah Feldman's Bloomberg View commentary contends that "[o]beying the court only with respect to the plaintiffs in this case would be a flagrant violation of the rule of law." But one reads that essay in vain for an identification of which specific rule of law would be violated, flagrantly or not. Feldman's opening sentence asks: "Could the Barack Obama administration really ignore an adverse Supreme Court judgment in the King v. Burwell health-care litigation, as a University of Chicago law professor has proposed?" The problem with this sentence--as we know Feldman knows from elsewhere in his commentary--is that Baude makes no such proposal. Baude's proposal is not to ignore the Supreme Court's judgment, but to obey the Court only with respect to the plaintiffs in the case. 

Relatedly, Josh Blackman's commentary at National Review Online describes Baude's proposal as a "procedural putsch" (though it is probably more precisely pegged only as "precedential parsimony").  Blackman accuses the Obama Administration of making "unprecedented assertions of power" that "have flouted the rule of law," but he ultimately differentiates the question of legal correctness from the rule of law. "Even if legally correct," he writes of plaintiff-specific compliance,"this practice should be emphatically rejected." 

I understand the political and practical difficulties posed by plaintiff-specific compliance in King v. Burwell. And I understand why some others of Baude's critics disagree with his proposal even while acknowledging that he is right about its legal permissibility. But the "rule of law" criticisms are of a different sort, and they remain puzzling insofar as they are untethered from what one might call "the law of law." 

In the United States, there are three ways that a court's judgment can have binding legal effect: the law of preclusion, the law of precedent, and the law of remedies.

Of these three types of "law of law," both the law of preclusion and the law of precedent operate primarily in other, later cases. If the government were to lose in King v. Burwell, a non-party to that case could almost certainly use non-mutual offensive issue preclusion to win another challenge to the subsidies in a later case. [UPDATE: D'oh! Shouldn't have needed to be reminded, as I was shortly after posting, about United States v. Mendoza. Non-mutual offensive issue preclusion is unavailable against the federal government.] But it would not even be necessary to rely on preclusion, for every court would be bound as a matter of precedent to hold the subsidies illegal. To the extent that the doctrines of preclusion and precedent operate only in other, later cases, however, their reach extends only to whichever other, later cases there happen to be. Given the nature of the relief sought in King v. Burwell, there may not be very many such cases.

By contrast with the law of preclusion and the law of precedent, the law of remedies at least has the potential to provide for broader binding effect in King v. Burwell itself. If legally authorized, a nationwide injunction against the responsible government officials would authoritatively forbid any further implementation of the challenged subsidies. But the legal propriety of a nationwide injunction is far from clear.

Josh Blackman addressed some of the issues relevant to nationwide injunctive relief in two earlier posts criticizing Baude's proposal, ultimately suggesting that "unusual factors" in this case would allow for a nationwide injunction. But the reason that he had to rely on "unusual factors" is that the usual approach toward injunctive relief would require that the injunction should only be as broad as necessary to give the plaintiffs relief from their injury, and the King plaintiffs do not advance nationwide injury requiring nationwide relief. (It might also be worth noting that Blackman discusses D.C. Circuit precedent about nationwide injunctions, but not the seemingly more confining Fourth Circuit precedent that would govern in King if the Supreme Court itself does not specify the scope of injunctive relief. See, e.g., Kentuckians for the Commonwealth v. Rivenburgh, 317 F.3d 425, 434-36 (4th Cir. 2003) (reversing nationwide injunction that was "broader in scope than that necessary to provide complete relief to the plaintiff" and that "did not carefully address only the circumstances of the case").)

Another way of coming at the scope-of-injunctive-relief issue is to imagine that the King plaintiffs had sought to represent a class of all subsidy-eligible plaintiffs and asked a court to certify that class under Rule 23(b)(2). Would it have been proper to certify the King plaintiffs as representatives of such a class? Not a chance. Why, then, should they be able to secure an injunction that would accomplish the same result?

The reason this all seems confounding is that it would usually be foolish to engage only in plaintiff-specific compliance with a Supreme Court ruling. But that is largely because of all the court losses that would follow in later cases. Those losses would be attributable, however, to the law of precedent and the law of preclusion, not to a nationwide remedy. And it would be a mistake to treat the potential absence of enough later cases in which precedent or preclusion would compel practical nationwide compliance as an argument for authorizing nationwide injunctive relief.

Perhaps I am missing something. But until Baude's "flouting the rule of law" critics explain which particular rule of law would be violated by adoption of his proposal, I don't know how to find my way to agree with them on this point. 

To say that plaintiff-specific compliance is legally permissible is far from suggesting it would be advisable for the Obama Administration to follow that course. There is much that is legally permissible that is inadvisable for any number of reasons. And I would not advise being so grudging in King v. Burwell.

It is nonetheless important to acknowledge the legal permissibility of plaintiff-specific compliance. Not only is casual acceptance of judicial supremacy undesirable but clear appreciation for the legal limits of judicial authority can also usefully inform the Supreme Court's crafting of interim relief such as a temporary stay like the one issued after Northern Pipeline. If the Court declines to grant such relief to ease the transition, but the Obama Administration deems some transitional relief necessary, the Administration can lawfully rely on the legal limits on judicial relief when deciding how to proceed.

March 19, 2015 in Walsh, Kevin | Permalink

Archbishop Chaput on Human Dignity and Dignitatis Humanae

Over at First Things, you can read Archbishop Chaput's March 17 lecture, "Of Human Dignity:  The Declaration of Religious Liberty at 50."  In his address, "outline[s] what the Church teaches about religious freedom"; "list[s] some of the key religious liberty challenges heading our way"; and "talk[s] about why the Council was right."  Like the man says, "highly recommended."

Here's a bit:

In the mind of the Council, religious liberty means much more than the freedom to believe whatever you like at home, and pray however you like in your church. It means the right to preach, teach and worship in public and in private. It means a parent’s right to protect his or her children from harmful teaching. It means the right to engage the public square with moral debate and works of social ministry. It means the freedom to do all of this without negative interference from the government, direct or indirect, except within the limits of “just public order.”

And, in his discussion of threats and challenges, there's this:

The biggest problem we face as a culture isn’t gay marriage or global warming. It’s not abortion funding or the federal debt. These are vital issues, clearly. But the deeper problem, the one that’s crippling us, is that we use words like justice, rights, freedom and dignity without any commonly shared meaning to their content.

We speak the same language, but the words don’t mean the same thing. Our public discourse never gets down to what’s true and what isn’t, because it can’t. Our most important debates boil out to who can deploy the best words in the best way to get power.

And he concludes, quoting St. John Paul II's "be not afraid!", with this:

There’s too much beauty in the world to lose hope; too many people searching for something more than themselves; too many people who comfort the suffering; too many people who serve the poor; too many people who seek and teach the truth; too much history that witnesses, again and again, to the mercy of God, incarnate in the course of human affairs. In the end, there’s too much evidence that God loves us, with a passion that is totally unreasonable and completely redemptive, to everstop trusting in God’s purpose for the world, and for our lives.

I must admit -- or confess -- to an increasing inability to really embrace and express the hope that Archbishop Chaput holds up.  As my friend and colleague, Bob Rodes (RIP), put it:

Gods plan made a hopeful beginning 
man spoiled its chances by sinning
we hope that this story
will end in Gods glory
but at present the other sides winning.


March 19, 2015 in Garnett, Rick | Permalink

Wednesday, March 18, 2015

Notre Dame's excellent Laetare Medal selection

I am delighted by the news that the University of Notre Dame will award this year's Laetare Medal to Aaron Neville.  (I admit, I have nominated Neville several times, including this year.)  Although I'm not a huge fan of some of his biggest pop hits, the Neville Brothers are, in my view, one of the country's all around best bands.  Take a few minutes to read this nice piece about Neville's faith.   Then go listen to his Ave Maria.  And then -- why not? -- kick out the jams with "Fiyo on the Bayou" (here).

March 18, 2015 in Garnett, Rick | Permalink

Sunday, March 15, 2015

Two Virginia governors with different estimations of various things Catholic

As a Catholic Virginian, it was somewhat jarring to read in the same sitting Thomas Jefferson's correspondence from approximately two hundred years ago and a statement of Terry McAuliffe's spokesman reported in Friday's Richmond Times-Dispatch. From Jefferson there was condemnation of various dogmas of the Catholic faith, while from McAuliffe's spokesman there was confusion about Catholic teaching.

Governor McAuliffe's spokesman publicly professed him to embrace what Jefferson privately condemns-- Catholic faith. But it remains unclear what the governor's professed faith has to do with his actions in office. The spokesman portrays Catholic teaching on the protection of unborn human life and the definition of marriage to require a man and a woman as improper for implementation in public law: "The governor is a lifelong Catholic who takes his faith very seriously. . . . He also believes in keeping government out of decisions that should be left to women and their doctors, or to consenting adults who love each other.” 

As for Jefferson, it is difficult to know which of his many expressions on matters of false faith would be the best to quote for a flavor of his thinking. But an aside in his Halloween 1819 letter to William Short includes a helpful list of examples of the "imputation of imposture, resulting from artificial systems, invented by ultra-Christian sects, unauthorized by a single word ever uttered by [Jesus]," from which Jefferson believed it desirable to rescue the enlightened teachings of Jesus (whom Jefferson described in the same letter as the "greatest of all reformers of the depraved religion of his own country").

Jefferson's list of imputations of imposture contains "[t]he immaculate conception of Jesus, his deification, the creation of the world by him, his miraculous powers, his resurrection and visible ascension, his corporeal presence in the Eucharist, the Trinity; original sin, atonement, regeneration, election, orders of Hierarchy, &c."

Given this list, Jefferson would presumably be disappointed to find the spokesman of the present governor of Virginia professing Governor McAuliffe a "lifelong Catholic who takes his faith very seriously." But this disappointment would probably be offset by attention to Governor McAuliffe's public actions with respect to the law over his spokesman's public words with respect to the governor's faith. 

March 15, 2015 in Walsh, Kevin | Permalink

Thursday, March 12, 2015

Amicus Brief in Marriage Cases: Protecting Same-Sex Marriage and Religious Liberty

Doug Laycock and I have filed an amicus brief in the same-sex-marriage cases on behalf of ourselves, David Blankenhorn of the Institute for American Values, and Professors Marie Failinger and Edward Gaffney. It argues that the Court can and should protect both the right to civil marriage for same-sex couples and strong rights to religious liberty for religious objectors. From the summary of argument:

       The proper response to the mostly avoidable conflict between gay rights and religious liberty is to protect the liberty of both sides. Both sexual minorities and religious minorities make essentially parallel claims on the larger society. Both sexual orientation and religious faith, and the conduct that follows from each, are fundamental to human identity. Both same-sex couples, and religious organizations and believers committed to traditional understandings of marriage, face hostile regulation that condemns their most cherished commitments as evil.
       The American solution to this conflict is to protect the liberty of both sides. Same-sex couples must be permitted to marry, and religious dissenters must be permitted to refuse to recognize those marriages.

Tom B.

March 12, 2015 in Berg, Thomas | Permalink

If There Is Room for Zaytuna College, Is There Room for Gordon College and Authentic Catholic Universities?


Zaytuna College

Word comes that Zaytuna College, an Islamic institution located in Berkley, California, has received initial accreditation from the Western Association of Schools and Colleges, the same body from which UC Berkley and Stanford University receive their accreditation.  Some on the political right (Breitbart) are not happy about this development, in part because of the anti-Semitic and anti-Israeli statements of some individuals involved in founding Zaytuna.  In addition, they report that Hazam Yusuf, the College's president, signed a much publicized letter condemning ISIS but supporting the establishment of a caliphate and the imposition of the death penalty under sharia law for Muslims who openly renounce Islam.

Plainly, the views of at least some Zaytuna administrators represent something out of the mainstream relative to the views of most college administrators.  Although it is unlikely that such views will be greeted by shouts of "Je Suis Charlie!" (and putting to one side the merits of such views), there can be no doubt that they constitute a contribution to the plurality of views that the First Amendment was designed to foster and protect.  (Holmes' "marketplace of ideas" includes the souk).

Of greater importance is the pluralism in higher education that Zaytuna College itself represents.  Zaytuna expressly identifies itself as a "Muslim liberal arts college" and forthrightly states that its "aim and ambition is to fully participate in a renewal of the teachings embedded in the Islamic religious tradition so that students may grasp their relevance to the present world" (see here).  Zaytuna's mission is "to educate and prepare morally committed, professional, intellectual, and spiritual leaders who are grounded in the Islamic scholarly tradition and conversant with the cultural currents and critical ideas shaping modern society" (Id.).

One might ask what sort of "moral commitment" Zaytuna is seeking in its students?  Here, the College makes clear that "[s]tudents, faculty, staff and visitors are strictly forbidden" from using or promoting the use of tobacco, alcohol and "illegal or controlled drugs or intoxicants" (here p. 49).  Violation of this policy may be grounds for expulsion.  Men and women must dress modestly and in a way "consistent with the dignity adherent to representing a Muslim institution of higher education" (Id. at 48).  "Clothing is inappropriate when it is sleeveless, revealing, or form fitting" and women's skirts and trousers "must be full length" (Id.).  Moreover, "Muslim students should not visit bars, discos, casinos, or other places where actions prohibited in Islam (e.g. drinking alcohol) are the primary activity" (Id. at 49).

With respect to housing, all student housing is single-sex and "students of opposite gender are not permitted to visit each other in student housing" (Id. at 66).  Violation of this policy may be grounds for expulsion.  Beyond this, in order to foster "spiritual growth" and "moral formation" consistent with "Islamic norms," when outside of class "students should study and socialize with members of their own gender" (Id. at 49).

Most significantly, Zaytuna's student catalogue provides that "[d]ating, sexual activity, or romantic relationships among unmarried Muslim students are not allowed either on campus or off campus" (Id.).  Violations of this policy "are deemed serious and will result in disciplinary action, which may include expulsion" (Id.).  The catalogue expressly provides that "[s]tudents of other faiths are also expected to abide by the Honor Code, although they are not required to attend extracurricular religious services and prayers and are free to practice their own faith or philosophy" (Id. at 37).  The Honor Code does not specifically prohibit "dating" or "sexual activity" but these prohibitions, which  do expressly apply to Muslim students, could be applied to non-Muslims under the Honor Code's general principles of "Propriety and Modesty" and "Sobriety and Restraint," and as the Dean of Student Life may provide (Id.).  The catalogue does not specifically mention homosexuality, and I suppose it is possible to interpret Zaytuna's catalogue as not prohibiting "sexual activity" between two students of the same sex who are married under state law, but I somehow doubt that administrators at Zaytuna would subscribe to such a reading.

In previous posts on MOJ Rick Garnett has commented on the current threat to Gordon College's accreditation, and by implication, the threat to institutional pluralism and the religious liberty of other religiously affiliated colleges and universities foreshadowed by this incident (see here, here, and here). 

Gordon is a Christian college that expects its students, faculty and staff to abide by Scriptural standards of conduct and refrain from "blasphemy, profanity, dishonesty, theft, drunkenness, sexual relations outside marriage, and homosexual practice."   Gordon makes clear that these actions "will not be tolerated in the lives of Gordon community members, either on or off campus" (see here).  

Gordon's accrediting body, the New England Association of Schools and Colleges' Commission on Institutions of Higher Education initiated a process to determine "whether Gordon College's traditional inclusion of 'homosexual practice' as a forbidden activity . . . [is] contrary to the Commission's Standards for Accreditation," a process that now requires a the College to submit a report in September 2015 (see here).

Why the difference?  Why is the Islamic college granted accreditation and the Christian college threatened with revocation of its accreditation?  It may be a difference in standards between the NEASC and the WASC.   There doesn't appear to be the equivalent of NEASC's non-discrimination norm in Standard 11.5 (here) in the WASC  standards (here) although WASC's diversity policy (here) would seem to allow for the application similar regulatory pressure.  Or it may be a difference in the relative zeal of the enforcers.

Or the difference may due to a desire on the part of accrediting bodies to appear to be open and welcoming to those who are deemed appropriately "diverse" -- a category that does not include traditional Christianity.  Is it due to a fear of Islam or of appearing Islamaphobic and of reprisals that would ensue following a denial of accreditation?  Whereas religious identity can be discounted and treated as an empty remnant where Christianity is involved?

If this is not the case -- if the decision to grant accreditation to a college like Zaytuna is in fact principled, based on a genuine respect for diversity and institutional autonomy in higher education as it relates to religious identity -- then surely a similar decision can encompass a Christian college like Gordon.

Presently, there is no threat to Catholic colleges and universities that express their identity in similar policies regarding the behavior of students, faculty and staff (Catholic elementary and secondary schools are, of course, another matter, see here).  This may be due to the fact only a handful of Catholic colleges and universities maintain standards regarding student sexual conduct beyond sexual activity that is non-consensual (compare the standards at Notre Dame and Franciscan-Steubenville with those at Marquette and Loyola-Chicago).  But if the accrediting bodies are allowed to bludgeon small Christian colleges like Gordon in the name of an intolerant tolerance, does anyone really believe that that will be the end of it?






March 12, 2015 | Permalink

Religious Freedom "against" Civil Rights

This piece, by Profs. Sarah Barringer Gordon and Nomi Stolzenberg, presents what I think is an inaccurate account of the current efforts to secure religious exemptions and accommodations in various states.  Now, authors rarely get to pick the titles of their pieces (in my experience, anyway), and so I don't think Profs. Gordon and Barringer should be blamed for the headline, "State Legislatures Pit Religious Freedom Against Civil Rights."  Still, as I tried to set out, in this forthcoming essay

the right to religious freedom is a basic civil right, the increased appreciation of which is said to characterize our “age.” Accordingly, I push back against scholars’ and commentators’ increasing tendency to regard and present religious accommodations and exemptions as obstacles to the civil-rights enterprise and ask instead if our religious-accommodation practices are all that they should be. Are accommodations and exemptions being extended prudently but generously, in as many cases and to as many persons and entities as possible, in a sincere effort to welcome religious minorities, objectors, and dissenters as fully as we can into what Justice Harlan called “the dignity and glory of American citizenship”? What barriers exist to the promotion and achievement of civil-rights goals through religious accommodations and how might these barriers be overcome? Are civil-rights laws being designed and enforced in ways that guard against unintended or unjustified disregard for or sacrifices of the civil (and human) right to religious liberty?



March 12, 2015 in Garnett, Rick | Permalink

Wednesday, March 11, 2015

On Remembering and Forgetting

A worthwhile reflection at the always interesting Hedgehog Review by Wilfred McClay. Here's an interesting bit on the difference between memory and unfiltered, endlessly accreting deposits of historical data:

Memory is the very core of our personal identity, and it is most powerful when it is purposeful, and selective. Above all, it requires that we possess stories and narratives—contexts—that link facts in ways that are both meaningful and true, rather than treat them as a mass of disaggregated data, to be exploited as we, or others, might wish. What makes for intelligent and discerning memory is not the mere capacity for massive retention, but a certain balance and order in the mental economy of remembering and forgetting. In other words, memory takes an active role in thinning out the mental trees so that the forests can be discerned. We need to retain less if we are to remember more. In so doing, we may rediscover the enduring virtues of ink on paper, of scripta that remain in one place, as the vehicle for a new kind of samizdat, one that eschews the digital grid altogether.

March 11, 2015 in DeGirolami, Marc | Permalink

Tuesday, March 10, 2015

"Room for Debate" on religious accommodations, health, and children

I'm one of the contributors to today's "Room for Debate" feature at the New York Times.  The theme is "Parents' Beliefs vs. Their Children's Health" (which, in my view, might be a bit question-begging, but anyway .  . .).  My contribution, "Parents' Beliefs Should Be Honored, Within Reason," is here (and has a title that I did not select).   A bit:

If a regulation – even a sensible one that serves well the public good – imposes a significant burden on someone’s religious practice or conscience, we are willing to consider an accommodation if, all things considered, it would not undermine our ability to promote important government interests and public goals. Religious beliefs and objections do not and should not supply an absolute license to violate general laws, but they do and should deserve special care and consideration by policymakers. . . .

March 10, 2015 in Garnett, Rick | Permalink

Schaerr and Anderson on the upcoming SCOTUS marriage cases

Here is a Heritage Foundation backgrounder, by Ryan Anderson and Gene Schaerr, on the upcoming SCOTUS marriage cases. The paper focuses on the question of the appropriate role of the federal judiciary in directing or concluding the current debate about both what marriage is and what our laws regarding marriage should be. I expect the Court to decide that the Constitution requires states to include same-sex couples within their category of legal marriage but also think that the rationale the Court majority offers could well matter, going forward, for purposes of religious accommodations, etc.  (See this, for more.)  


March 10, 2015 in Garnett, Rick | Permalink

An interesting exchange on Steven Smith's most recent book

It appears that the good folks at the Pepperdine Law Review put together a really interesting conversation about Steven Smith's most recent bookThe Rise and Decline of American Religious Liberty.  (A must-read, in my view.)   Here is his response, "Situating Ourselves in History," to contributions by Nelson Tebbe ("What Is at Stake?"); Andy Koppelman ("Theorists, Get Over Yourselves"), and Paul Horwitz ("More Vitiating Paradoxes").  

I'm with Steve, I admit, in thinking that "Barzunesque" "gloom" might be the appropriate response to the current state of religious-freedom law and conversations, and that Nelson's and Andy's "don't worry, it won't be too bad" assurances don't quite dispel it for me but . . . we'll see.  In any event, this is a very engaging collection of papers.

March 10, 2015 in Garnett, Rick | Permalink