Wednesday, June 27, 2018
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.