Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Sunday, April 15, 2012

A Thought on Evolutionary Textualism

One of the more interesting things about the directions in which Employment Division v. Smith has been interpreted by subsequent judges is the possible implication for textualism as a theory of constitutional interpretation.  The primary virtue of textualism is sometimes said to be its fixity: words mean something -- and that something can be fixed and understood by later interpreters to mean exactly what it meant at the time of the words' authorship.  And yet it seems to me that the interpretation of the Smith decision -- and particularly the expansion of the exceptions which Smith itself mentions (including by the Court itself in Hosanna-Tabor) -- may suggest something like the opposite view.  Textualism is in some ways a theory of interpretive change, in a way that intentionalism could never be.

Here's why.  We know that Justice Scalia was the author of Smith.  And we know that his Smith opinion for the majority was joined by 4 other Justices (Justice O'Connor wrote a special concurrence which did not adopt the Smith framework).  And we also know that Smith itself seems to carve out really three categories of exception -- for hybrid rights, regulatory schemes with individual assessments, and the issue of church autonomy.

What we don't know is what either Justice Scalia or any of the other Justices who signed on to the opinion intended by making the exceptions to Smith's general rule.  Perhaps they really intended to create major exceptions which would put in doubt the central holding of the case.  Or perhaps they needed to make these exceptions simply in order to circumvent existing precedent, never intending (or desiring) that those exceptions would see the light of day again in future cases.  Or maybe there was a combination of motivations -- some exceptions were really intended to have doctrinal consequences, while others were just attempts to get around some inconvenient decisions of the past.  We could ask Justice Scalia or any of the other Justices signing the majority opinion what they intended 22 years ago, but we are not likely to get a reliable answer.  It's hard to remember what one intended by doing something in the past, let alone in a single case among hundreds some decades long past, and now lost to the sands of time.

But it gets fun when one reflects on what happened next.  In the wake of Smith, lower courts had to make sense of its language.  They had to interpret the language -- including, and especially, the exceptions to the central rule -- in a way that made sense to them in light of the specific concerns reflected in their own cases.  It was the text, rather than the intentions motivating it, which served as their guide and governed the texts that they in turn produced.  And by interpreting the text in this way, lower court judges moved Free Exercise law in directions possibly (probably...almost certainly) not intended by the Justices who joined Smith.  It is entirely possible (perhaps even likely) that the exception for individualized assessments made in Smith was never remotely intended to ground a subsequent doctrinal evolution in which that exception was interpreted, expounded, and expanded upon by lower courts.  But that is exactly what has happened: in fact, it has happened many times over, as different judges have interpreted it in very different ways.  The Justices may have intended one thing, but the words of Smith do not belong to them, and it is for later courts to interpret them in new ways -- ways which take text in unexpected and likely unforeseen directions.  This phenomenon occurred in Hosanna-Tabor too.  If you had asked Justice Scalia at the time he wrote Smith whether he thought that the ministerial exception lay outside of Smith's general rule, he may well have given you a very different answer than what he gave in signing on to CJ Roberts's decision this past January.

My own view is that the evolutionary quality of textualism might please Justice Scalia, himself (along with Justice Black) a primary exponent of its virtues.  The text does not belong to its author.  It belongs to the interpreters that follow -- to those others that come after.  It is in this way that textualism may be a theory of both fixity and gradual change.   


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Perhaps one should view Smith in light of the responsibility of our Government to protect our fundamental Right to Life with the understanding that that which is harmful physically, spiritually, emotionally, and morally, should not be condoned. I would argue that although it was never the intention of our Founding Fathers to suggest we should all be, for example, Anglicans, our Founding Fathers believed that Religious Liberty would serve not to undermine our foundational Christian principles, but rather to complement and thus enhance them.

Posted by: N.D. | Apr 15, 2012 9:49:04 AM

Professor DeGirolami,

Your comments the last few days have been excellent. As a question about the exceptions in Smith, what do you think are the chances of the HHS mandate being stricken under a "hybrid rights" exception?

Smith (and Lakumi) both involved prohibitions on various affirmative acts (smoking peyote and ritual animal slaughter), whereas the HHS mandate requires an affirmative action on the part of employers. This seems somewhat similar to the distinction from Smith the Court in Hosanna Tabor made (prohibitions of an affirmative act v. internal church governance). While some have criticized this distinction as a weak one, I think it suggests a hybrid rights framework (as internal church governance is an associational issue). Justice Alito's concurrence places the ministerial exception rather explicitly in a hybrid rights context. Just like forcing a religious organization to associate with a particular person can dilute its message, so too can forcing a religious group to associate with treatments and services to which it objects.

So, does HT show that the hybrid rights exception to Smith is robust and possibly applicable in a challenge to the HHS reg?

Posted by: Catholic Law Student | Apr 15, 2012 1:20:40 PM

Hi, CLS, thanks for the kind word.

Your question is complicated, but the bottom line is that I think the chances of the mandate being struck down under the hybrid rights exception are very, very slim. There are several reasons, but the main one is that there are exceptionally few cases recognizing a hybridity claim that combines free exercise and associational rights, notwithstanding the fact that one of the examples of hybridity which Smith points to is the Jaycees case. One court which has recognized a hybrid rights claim combining free exercise and associational rights is the Indiana Supreme Court in City Chapel Evangelical Free Inc. v. City of South Bend back in 2001. The court there held that the City's decision to exercise its power to take a religious organization's church implicated both associational and free exercise rights (interestingly, for purposes of comparison with the government's position in Hosanna-Tabor, there the City claimed that the associational right was "derivative" of the free exercise right). But so far as I know, no federal circuit has held anything like this.

In fact, the second big reason that hybridity is unlikely to apply here is that many federal circuits have simply ignored the hybrid rights exception as dicta, or have just looked to the strength of the non-FEC claim in making their decision. There are some circuits -- the 9th and 10th among them -- which have adopted a "colorable claim" approach to hybridity: two less than fully viable, but colorable, rights, when combined, equal a single fully viable right. But again, these circuits are in the minority, and so far as I know not even they have ever recognized an FEC/associational hybrid.

Hosanna-Tabor was not a hybrid rights case (though it might have been interesting to see the plaintiffs argue for hybridity in response to the government's claim that the associational right was all that was at issue...probably would have been a losing strategy...there's a reason I'm not a litigator). I guess one *could* argue that, in light of the Court's holding that both the FEC and the EC are at issue in the ministerial exception, it's a hybrid. But that seems implausible to me. H-T is just a straight up religious liberty case.

Posted by: Marc DeGirolami | Apr 15, 2012 3:28:20 PM

Hmmmm...I have a thousand questions, but I won't trouble you with them.

The Petitioner's Brief from H-T has what looks like a hybridity arguement:

"This Court was careful to preserve freedom of religious association in Smith: “[I]t is easy to envision a case in which a challenge on freedom of association grounds would * * * be reinforced by Free Exercise Clause concerns.” 494 U.S. at 882 (emphasis added) (citing Jaycees, 468 U.S. at 622). The scope and meaning of “hybrid rights” has been debated, but this example was no artificial combination of unrelated rights. The Court simply recognized that two closely related rights genuinely “reinforce” each other. The ministerial exception lies at the intersection of the Establishment Clause, the Free Exercise Clause, and freedom of association."

At 36: http://www.americanbar.org/content/dam/aba/publishing/previewbriefs/Other_Brief_Updates/10-553_petitioner.authcheckdam.pdf

Posted by: Catholic Law Student | Apr 15, 2012 4:26:11 PM

Perhaps you could recommend a law review article on hybrid rights.

Posted by: Catholic Law Student | Apr 15, 2012 4:27:11 PM

CLS, nice find. Though the quote you raise doesn't make a hybrid rights argument specifically, it does raise the issue. Note, though, even the petitioner is not embracing a hybrid rights claim in the quote. And there is no mention at all of hybrid rights in the H-T case itself (though there is a specific statement that both the FEC and EC support the exception, and that the exception cannot be reduced to associational rights alone).

As for literature on hybrid rights, most legal scholars are quite skeptical of the exception. You can see in this very informative post by Eugene Volokh on an issue that came up last year that even he, a supporter of Smith, doesn't really buy hybrid rights: http://volokh.com/2011/05/23/proposed-san-francisco-circumcision-ban-and-religious-freedom/

I thought this Harvard Law Review note from a couple of years ago was very good at laying out some of the doctrine and the various problems: http://www.harvardlawreview.org/media/pdf/compromise_and_hybrid_religious_exemptions.pdf

Posted by: Marc DeGirolami | Apr 15, 2012 4:44:09 PM


Posted by: Catholic Law Student | Apr 15, 2012 5:12:01 PM