Wednesday, December 6, 2017
Doug Laycock and I did another piece, this one at Vox, explaining how the Court can and should rule for the baker, under the Free Exercise Clause, in a way that gives meaningful protection to both same-sex couples and religious objectors. (Several editor solicitations.) Conclusion, after going through the analysis:
We should not have to go through this detailed analysis to protect a simple act of conscience. Same-sex couples should be free to marry, with fancy weddings and wedding cakes, and conscientious objectors should not be required to assist. But under the Supreme Court’s interpretation, the Constitution protects religious conscience only against laws that fail its test of general applicability. Fortunately for Jack Phillips, the Colorado law as it was administered fails that test.
Thanks to Marc for describing how the free-exercise claim in Masterpiece Cakeshop took on more prominence than most people expected in Tuesday's oral argument. Doug Laycock and I have a piece in the New York Daily News explaining the free-exercise argument detailed in our amicus brief, and how it seemed to attract several justices' interest Tuesday. From the piece:
Justice Samuel Alito called it “disturbing” that the other three bakers could “refuse to create a cake with a message that is opposed to same-sex marriage,” but “when the tables are turned,” Phillips was “compelled to create a cake that expresses approval of same-sex marriage.”
Justice Anthony Kennedy, likely among the swing votes, raised another piece of evidence. One of the state commissioners who ruled against Phillips stated that “freedom of religion . . . used to justify discrimination . . . is one of the most despicable pieces of rhetoric.”
Not content to criticize Phillips’ traditionalist view of marriage, the commissioner invoked slavery and the Holocaust as comparisons. No wonder Kennedy suggested the case involved “a significant aspect of hostility to a religion.”
I should say that our amicus brief did not emphasize "animus" or hostility as the essence of the free-exercise violation. We focused on the state's objective discrimination in protecting the other bakers and refusing to protect Phillips, while making (in the case of the state court) flatly inconsistent arguments concerning the two situations. If the free-exercise claim indeed prevails, it will be interesting to see how much it depends on a finding of animus and how much on the objective differential treatment.
Our brief also emphasized the importance of protecting both sides in the conflict between same-sex couples and religious traditionalists. Although oral argument is always an uncertain indicator, it was encouraging to see Justice Kennedy, the author of Obergefell, sound that same theme in the oral argument. From our Daily News piece:
On Tuesday, echoing his earlier argument for gay couples, Kennedy summed up this case: “[T]olerance is essential in a free society. And tolerance is most meaningful when it’s mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.”
Monday, December 4, 2017
That's the title of a short piece that Doug Laycock and I have posted at the Berkley (Georgetown) Forum about Masterpiece Cakeshop. It summarizes aspects of the amicus brief we filed presenting the free-exercise case for baker Jack Phillips, and it argues that
recognizing a carefully defined right in circumstances like Phillips’s, while applying nondiscrimination laws in most cases of commercial services, would appropriately protect both sides in the conflict between same-sex marriage and religious liberty rights.
Thursday, November 30, 2017
An article in the Nation magazine, by William Greider, discusses on an "autopsy" report on "What Killed the Democratic Party?" The conclusion is that the party left behind working people and unions (and minorities as well) in order to chase big donors by giving them more pro-business policies (and, one might add, cultural progressivism, but the Nation would never see that as part of the disconnect). Sanders, of course, was the messenger of the revolt, and:
Many young people are even to the left of Bernie. A YouGov poll in January 2016 found that 43 percent of people under the age of 30 had a favorable opinion of socialism, versus just 26 percent unfavorable. A recent poll of 18-to-29-year-olds by Harvard University found that a majority of the respondents did not “support capitalism.” This was too much for Representative Nancy Pelosi, the House minority leader. At a postelection town hall, she bolted out of her seat to declare: “I have to say, we’re capitalists—that’s just the way it is.” Maybe it’s time for the Democrats to start a conversation with these young lefties.
People shouldn't forget the line (whoever said it) that anyone who's not a socialist at 20 has no heart and anyone who is a socialist at 30 has no brain. But with that said, the great recession, and the long-term instability in the economy and the job market caused by technological revolution, may well make this young generation more hospitable to government intervention for the long term, not just for the moment.
But why does it have to be "socialism, not capitalism"? The New Deal was understood, and won long-lasting support in part because it was understood, as a means not to replace capitalism, but to preserve it by curbing its excesses--excesses that threatened to lead to destructive unrest. Just how much intervention that requires is, of course, a matter of debate and practical judgment. Maybe the meltdown of 2008 showed the need for a lot more regulation in order in order to restore the fair working of a basic market-based economy. (That conclusion seems consistent, BTW, with the Catholic social tradition's affirmation of the need for a "strong juridical framework" to regulate markets--although I agree that CST principles also could support more limited conceptions of the "strong juridical framework.")
In any event, the argument about saving capitalism and markets still, today, seems to me to be more effective--reaching a far wider range of people--than the argument pining for socialism as an ideal. (To say nothing of remembering all the problems with how socialism has actually worked.)
Wednesday, November 15, 2017
There is now online a podcast conversation on religious freedom that I recently did with the Rev. Leith Anderson. Leith is the president of the National Association of Evangelicals, a wonderful and prolific writer on Christian living, and the former senior pastor of Wooddale Church in the Twin Cities. He has been interested in religious-freedom issues, and commenting thoughtfully on them, for some time. It was great fun to have this conversation with him. A sample comment of mine, in response to Leith's question "Why should Christians work on protecting people of other faiths in the U.S.?":
Two kinds of reasons. One is a matter of principle: Christians know that a commitment of faith, a relationship with the Divine, is a matter of the heart; it can’t be real and valid if it’s coerced by government. Human dignity means that the soul should be free to seek and respond to God, even if its response is mistaken. The second reason is pragmatic: If Christians want to preserve freedom for their own religious exercise, they have to recognize it for others. You won’t get sympathy for your plight if you don’t show it for others.
Friday, November 10, 2017
Two days ago, Rick offered reflections on the successful confirmation process of Amy Barrett to the 7th Circuit. This morning in the New York Times, former federal judge Shira Scheindlin (now on the board of the Lawyers Committee for Civil Rights under Law) serves notice that the false assertions against Barrett will continue long after her swearing-in. Scheindlin's op-ed attacks several of Trump's lower-court nominees and appointments, including, sadly but I guess inevitably, Barrett.
There's the same old, willfully misleading claim that "[i]n a 1998 article, [Barrett] criticized the Supreme Court justice William Brennan for saying that his oath to uphold the law trumped any obligation to his Roman Catholic faith." For the umpteenth time, what Barrett and her co-author criticized (in a very indirect, gentle way) was Brennan's apparent suggestion that he would stay on a case and rule in a way that violated his faith. Barrett wrote then, and said this fall, that in case of an unavoidable conflict, the Catholic judge should follow her faith--and the law--by using the option of recusal that the law itself offers. That is the exact opposite of that Scheindlin and the other critics imply: that Barrett advocated ruling based on one's faith rather than the law. A former federal judge, more than anyone, knows better.
There's other wrong or distorted stuff in there, too, about Barrett's views on precedent. The same stuff that's been rebutted before.
So far as I can tell (and I haven't looked at it closely), Trump's nominees include a few strange and dubiously qualified names. (As well as some very strong ones, including David Stras, whose nomination to the 8th Circuit remains tied up.) Barrett is plainly among the very strong ones. But some of the critics will keep trying to stick her in the dubious group, not because of what she would actually do on the court of appeals, but because of their fears that (1) she is a dangerous symbol of a highly qualified woman who takes her Catholic faith (including the controversial parts) seriously and (2) she might get on a short list for the next step up.
Tuesday, November 7, 2017
A committee at the University of Michigan is studying whether to rename an academic building currently named for geneticist and cancer researcher C.C. Little, the university's president in the 1920s, who was also a leading eugenicist and president of the American Eugenics Society. At a September forum accompanying a student rally calling for the renaming, a UM history professor reviewed Little's involvement:
[P]rofessor Martin Pernick opened the panel by discussing the topic of eugenics in a broad sense and what role Little played in it. Pernick made the argument that being in support of the idealistic form of eugenics was not cause enough to remove a person’s name from the building they were named after.
“Eugenics meant a lot of different things to a lot of different people,” Pernick said. “Charles Darwin’s cousin, Francis Galton, defined it as the use of science to improve human heredity. Who can argue with that? Using science to improve things.”
Pernick explained Little’s interpretation of eugenics was what merited a renaming of the building named after him. According to Pernick, the type of genetics Little supported was one that promoted the advancement of those who held power in society in the early 20th century, through any means necessary.
“The kind of eugenics that Little promoted included all of the American Eugenics Society’s most controversial methods: compulsory sterilization, ban on interracial sex, selective immigration and restrictions by ethnicity,” Pernick said.
In an interview, university president Mark Schlissel says he has no opinion yet and is waiting for the committee report, which he notes is charged with suggesting criteria for these renaming debates:
[O]ne of the more interesting and challenging criteria is: You can imagine there are many ideas that in today’s context seem ridiculous, that they’re so out of step with our current values and the current social norms in our society that they make no sense. However, when you’re thinking about a naming, you have to actually go back in time to when the naming happened, and then figure out in the context of those times, how do you judge that person? Were they typical of their era, or were they a terrible outlier that, regardless what the era was, you wouldn’t want to associate yourself with their values? That’s a very hard thing to do because I’m sure 100 years from now there are going to be things that we all do and think and care about today that our society a century from now is going to think about really differently. That’s happened all throughout our history, there’s no reason to think it’s not going to keep happening.
How should one shaped by the criticism of eugenics found in Catholic social thought assess a debate like this? (1) Welcome the fact that the wrongs of eugenics have been brought to campus attention through the kind of student advocacy that we've seen concerning other historical wrongs? (2) Suspect, and complain, that condemnations of eugenicists will be selective (e.g. entirely omitting Margaret Sanger or Clarence Darrow) and overly narrow (e.g. underplaying its threats to human dignity that are not tied to racial/ethnic discrimination) and will simply rest on the currently dominant political views on campus? (3) Some other assessment?
Monday, October 30, 2017
In the last month, I've given a lecture, "Religious Freedom in a Polarized Age," as the Lin Lecture at St. Mary University Law School in San Antonio, and as the Veninga Lecture at the Wisconsin Institute for Public Policy and Service. Recordings of those lectures are, respectively, here and here. A summary paragraph:
In [recent high-profile religious liberty] cases, divides over religious liberty increasingly trace, and even intensify, the divides over the underlying policy issues: sexual morality, health policy, immigration, national security. If you support LGBT nondiscrimination laws, you reject any religious-liberty challenges to those laws; likewise if you support immigration restrictions. Both left and right do it.
This is a bad development: that’s my thesis today. We must renew our commitment to religious freedom for all. That proposition has two parts. First, we should place a strong value on religious freedom, which I define as the ability of people to live consistently with their religious beliefs and identity, presumptively free from government penalty for doing so. We have to balance that freedom with other values, but it should receive heavy weight in the balance. Second, that strong freedom must extend equally to all faiths. We need to protect Muslims and conservative Christians. Today more than ever, Americans need to affirm what Justice Oliver Wendell Holmes called “freedom for the thought we hate.”
As I posted recently, Professor Doug Laycock and I filed a brief in the Masterpiece Cakeshop case on behalf of the Christian Legal Society and other amici, evangelical Protestant, Mormon, and Jewish. Our brief focused on the Free Exercise Clause claim, arguing that "Colorado’s Anti-Discrimination Act, as applied, ... violates the [c]lause" because "[i]t is neither religion-neutral nor generally applicable" under Church of the Lukumi Babalu Aye v. City of Hialeah and Employment Division v. Smith. We argued in short, that
Colorado protected bakers who cannot in conscience create cakes that denounce same-sex relationships [and who were sued for discrimination against a religious belief]. But Colorado denied protection to petitioner, who cannot in conscience create a cake that celebrates a same-sex wedding [and who was held liable for sexual-orientation discrimination]. The state court applied flatly inconsistent reasoning to the two claims.
Our brief drew a critique at the Take Care blog from Professor Jim Oleske (Lewis & Clark Law School), who argued that we were reading Smith and Lukumi too favorably to religious exemptions. Oleske argues that those decisions protect religious exercise only against laws targeting it for regulation.
We've now posted our reply to Oleske's critique, also at Take Care. A couple of sample bits:
In Lukumi, the Supreme Court made clear that “neutrality and general applicability,” particularly the second element, turn on whether the government has regulated a religious practice while failing to regulate analogous secular conduct that undermines the same interests as those allegedly undermined by the regulated religious practice. The Court found that the state had “devalue[d] religious reasons for killing [animals] by judging them to be of lesser import than nonreligious reasons.” 508 U.S. at 537. This “devaluing” can happen even when only a small number of other interests are left unregulated. When the government deems some private interests and activities sufficiently important to protect and others insufficiently important, religious exercise should be treated like the important interests, not the unimportant ones. Religious exercise is an interest deemed important by the constitutional text....
... Both sets of bakers were in the business of producing custom cakes to customers’ specifications. Those bakers who refused to produce cakes attacking same-sex marriages were protected; those bakers who refused to produce cakes celebrating same-sex marriages were not.
Of course, Colorado is free as a matter of state law to determine that Phillips’s conduct violated the nondiscrimination statute. But it is not free to interpret religious discrimination in a narrow way that protects the conscience of bakers with whom the state agrees, and then interpret sexual-orientation discrimination broadly to penalize a religiously motivated baker with whom the state disagrees. Such a discriminatory interpretation makes the law not neutral and not generally applicable.
Saturday, September 16, 2017
The classic American response to deep conflicts like that between gay rights and traditional religious faith is to protect the liberty of both sides. The very arguments that underlie protection of same-sex marriage also support strong protection for religious liberty. Religious believers and same-sex couples each argue that a fundamental component of their identity, and the conduct that flows from that identity, should be left to each individual, free of all nonessential regulation.This case is about assisting with a wedding. It does not involve any alleged right to generally refuse service to same-sex couples, or to act on conscience in purely commercial contexts. It involves a right to act on conscience in a religious context—in connection with a wedding.
Colorado’s Anti-Discrimination Act, as applied, violates the Free Exercise Clause. It is neither religion-neutral nor generally applicable. Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993).A. Colorado protected bakers who cannot in conscience create cakes that denounce same-sex relationships. But Colorado denied protection to petitioner, who cannot in conscience create a cake that celebrates a same-sex wedding. The state court applied flatly inconsistent reasoning to the two claims. This differing treatment cannot be explained on the ground that the message of the other bakers’ cakes would be explicit and the message of petitioner’s cake implicit. That would not matter to the court’s stated logic, and either way, petitioner would be helping to celebrate a wedding he believes is sinful.B. Neutrality and general applicability are distinct requirements: while non-neutrality focuses on targeting and discrimination, lack of general applicability is shown when the state regulates religious conduct while leaving analogous secular conduct unregulated—even if in only one or a few instances. The question is whether the unregulated “nonreligious conduct … endangers these [state] interests in a similar or greater degree” than the regulated religious conduct. Here the unregulated conduct—refusing to provide a cake denouncing same-sex marriage for a conservative Christian customer—endangers the state’s interests as much as the regulated conduct—refusing to create a cake celebrating same-sex marriage for a same-sex couple. Unwillingness to promote a protected group’s message either is discrimination or it is not. Sending a customer elsewhere because of disagreement with his requested message inflicts the same inconvenience, and the same insult, whether the message about same-sex marriage is celebration or condemnation....D. Vigorous enforcement of the neutrality and general-applicability requirements is vital to preserving meaningful religious liberty. Exempting secular but not religious interests deprives religious minorities of vicarious political protection. And regulating religious conduct devalues religion as compared to the unregulated secular conduct.
[Moreover,] [t]here is an objective way in which the balance of hardships tilts heavily in favor of petitioner. Couples who obtain their cake from another baker still get to live their own lives by their own values. They will still celebrate their wedding, still love each other, still be married, and still have their occupations or professions.Petitioner does not get to live his own life by his own values. He must repeatedly violate his conscience, making wedding cakes for every same-sex couple who asks, Pet. App. 57a, or he must abandon his occupation. The harm of regulation on the religious side is permanent loss of identity or permanent loss of occupation. This permanent harm is far greater than the one-time dignitary harm on the couple’s side.Forcing petitioner to choose between his business and his conscience is an historic means of religious persecution. [Discussing historical examples from religious-test statutes etc.]