December 12, 2013
Does RFRA's Least Restrictive Means Requirement Violate the Establishment Clause?
Those pressing the claim that an exemption in the contraception mandate cases before the Supreme Court would violate the Establishment Clause face a few challenges--doctrinal, textual, and historical. The one that interests me in this post is that the test they favor is in considerable tension with the RFRA framework. Under the interpretation of the Establishment Clause being pressed, it seems to me that the least restrictive means test that represents the third prong of the strict scrutiny standard in RFRA and RLUIPA is constitutionally suspect.
Recall the theory: religious accommodations are unconstitutional if they shift "significant burdens" onto a "focused and identifiable class of third parties." For the moment, leave aside the "focused and identifiable" component. We know that under RFRA, the religious claimant must allege a substantial burden on religious exercise. If it does so, the burden shifts to the government to show that the substantial burden on religious exercise it has imposed is justified by a compelling governmental interest. But the government must also show that it is using the least restrictive means to achieve its interest. So, for example, the government cannot simply say that the contraception mandate is supported by its compelling interest in good health care, full stop. Its statement of its interest is invariably focused and refined by the need to demonstrate that it has used the narrowest means available--that means which least burdens the religious claimant--to achieve its interest. And the least restrictive means component of the RFRA test is, in fact, one of the points on which it has been argued that the government's case for the contraception mandate is weakest.
Suppose one accepts the claim that any "significant" burden resulting from cost shifting onto third parties triggers an Establishment Clause claim (again, for the moment, set to the side the question of what constitutes a "focused and identifiable" group). It seems to me that one would also be saying that the least restrictive means test is at least presumptively constitutionally suspect. The more narrowly tailored a means is so as to avoid burdens on religious objectors, the more probable it becomes that the means selected will burden third party interests. There may perhaps be rare occasions when an accommodation imposes no costs at all on third parties. But very often this will look like a sliding scale: as the imposition on the religiously burdened party decreases, the imposition on third parties increases. And by the time that one gets to the least restrictive means, the sliding scale is very much calibrated against the third party interests. By that point, it will have become highly probable--in some cases verging on certain--that the means chosen will impose "significant" burdens on third parties.
Take these cases.
The claims to exemption that are being made under RFRA are resisted by the claim that the government believes that its interests in providing free abortifacient products to employees are compelling, and the means that it has selected are to require the private employer to pay directly for these products. That is a means that imposes all costs on the religious objector, and no costs on the third parties. But part of the response under RFRA is that if the government truly believes that its interest in providing these products is compelling, it can achieve that interest by less restrictive means than requiring individual private employers to pay for them. For example, it could use various tax strategies, such as the mechanism of tax credits. Or it could use the "accommodation" mechanism that it has used for some nonprofits (in fact, the government has itself called this stratagem an "accommodation," suggesting that it believes that such a means is less restrictive than compelling employers to pay directly). Or it could exempt objecting employers entirely (as it does for those religious groups it has thought worthy of an exemption) and find some other means. Each of these mechanisms (and many others) would have the effect of alleviating the burden to a greater or lesser extent on the religious claimant, and would very often in consequence have the effect of increasing the burden on third parties. In fact, the meaning of "least restrictive means" and of precisely what such an obligation requires, for purposes of interpreting strict scrutiny under RFRA, is a little unclear, as Eugene Volokh details in this post.
But here we are not talking about RFRA; we are not dealing with what the government must do to comply with the statute. We're talking about the Constitution; we are dealing with what the government may do without violating the Establishment Clause. Because the threshold of what constitute "significant burdens" on third parties in the Establishment Clause test being proposed is obscure to me, it is not clear at precisely which point the least restrictive means test would generate a successful Establishment Clause claim for third parties. But it would clearly do so at least presumptively. That is, if this theory about the Establishment Clause is right, it means that every time a party makes a RFRA or RLUIPA claim, any third party can intervene to bring an as applied Establishment Clause challenge alleging that the "least restrictive means" being urged would constitute a "significant burden" on their interests, and would therefore be unconstitutional if implemented.
One possible response is that this limitation on RLUIPA (and so also RFRA) is contained within Cutter v. Wilkinson. As I have briefly explained, I do not agree and think this a misreading of Cutter. Cutter itself dealt with a facial challenge to RLUIPA on the basis that RLUIPA violated the Establishment Clause--a challenge that the Court unanimously rejected. Cutter did not deal with an as applied challenge, so that anything it said on that front is dicta. Nevertheless, what the Cutter Court did say in part of that dicta is this: "Properly applying RLUIPA, courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries." (emphasis mine). As I have explained, just looking at the text, that seems to mean that RLUIPA itself has incorporated whatever establishmentarian concerns were identified in prior case law as setting forth the constitutional limits of accommodation. And in the second part of that dictum, the Cutter Court did not purport to extend those limits beyond the prior caselaw. I plan to discuss this issue further in my next post on this issue. But for now it may suffice to note that it may be for this reason that, so far as I know, one has not seen as-applied third party intervenor claims brought in RFRA or RLUIPA cases under this Establishment Clause theory (however, if readers know of such claims, I'd be very glad to hear about them, as I have not had a chance to do a thorough search).
What of the matter of limiting the new Establishment Clause test to those "focused and identifiable" third parties who have suffered "significant burdens?" I note first that this particular feature of the test being proposed is not found in the case law on this question--neither in Thornton nor in Cutter. I have speculated that the "focused and identifiable" language is being used in order to circumvent what would otherwise be some implausible results--forbidding accommodation of conscientious objectors, for example. But another unusual byproduct of this Establishment Clause theory is that "focused and identifiable" third parties are the very parties whose significant burden the government could itself mitigate while at the same time complying with the least restrictive means requirement under RFRA. That is, if the government can identify who is being significantly burdened as a result of its statutory obligation to comply with the law (which in turn is the result of its need to achieve its compelling interest), then it ought to be the government's task to take care of those third parties. That's the nature of the least restrictive means burden: it is the government's task, not that of private third parties, to achieve its interest in such a way as to impose the least burden on the religious claimant. If that means that third parties are burdened, that's the government's political problem. It is not a constitutional problem.
But that's not the result for the proponents of the Establishment Clause theory under discussion. For them, the government can wait around for a third party to bring an Establishment Clause claim against itself (or against a religious claimant qua federal agent), thereby possibly escaping its legal obligation to use the least restrictive means to achieve its compelling interest. That is exactly because under this theory, the least restrictive means component of the statutes automatically and as a matter of course triggers as-applied Establishment Clause challenges on behalf of third parties, the details to be worked out in court.
December 10, 2013
REMINDER: Register for the 2014 Lumen Christi Conference!
Just a gentle reminder that the 2014 Conference on Christian Legal Thought is only a few weeks away! The conference is sponsored by the Lumen Christi Institute at the University of Chicago and the Law Professors Christian Fellowship and occurs in conjunction with the annual AALS meeting, which is being held in Manhattan this year. This year's conference celebrates the life and thought of Professor Jean Bethke Elshtain and explores the theme of public engagement with law and religion. It's a topic that should be of broad interest in this period of great ferment in the field.
The schedule is below (and includes our own Tom Berg). Please register here!
Friday, January 3, 2014, 12:00 pm to 6:00 pm
The University Club
One West 54th Street, New York, NY 10019
Conference Topic: Public Engagement With Law and Religion: A Conference in Honor of Jean Bethke Elshtain
Noon: Registration, Luncheon, and Opening Remarks
1:15 pm – 2:45 pm: Session One. Public Engagement With Law and Religion: The Thought of Jean Bethke Elshtain
Chair: Zachary R. Calo (Valparaiso University School of Law)
* Thomas C. Berg (University of St. Thomas School of Law)
* Eric Gregory (Princeton University, Department of Religion)
* Charles Mathewes (University of Virginia, Department of Religious Studies)
2:45 pm – 3:00 pm: Coffee Break
3:00 pm – 4:30 pm. Session Two. Public Engagement With Law and Religion: Journalistic Perspectives
Chair: Marc O. DeGirolami (St. John's University School of Law)
* Matthew Boudway (Associate Editor, Commonweal)
* Susannah Meadows (Contributor, New York Times)
* Rusty R. Reno (Editor, First Things)
4:45 PM – 5:15 pm: Vespers
5:15 pm: Reception
December 05, 2013
On the Claim that Exemptions from the Mandate Violate the Establishment Clause
I am glad to see that in the wake of the cert. grants for Hobby Lobby and Conestoga Wood, there has been a frothing up of interest in the issues presented by these cases, issues that we here have been discussing for quite some time. In this post, I want to address one such new claim.
Professors Nelson Tebbe and Micah Schwartzman (T&S) recently argued that an exemption from the contraception mandate under RFRA for employers like Hobby Lobby or Conestoga Wood would violate the Establishment Clause. They elaborate on their claim here and here. Many of the arguments are derived from this paper by Professor Fred Gedicks and Rebecca Van Tassell. The core of the argument is that granting an exemption from the mandate would privilege or favor religion inasmuch as it would shift the burden of purchasing contraception to third parties--i.e., the employees of the exempted corporations. The key to understanding the argument is their reliance on a Burger Court case, Estate of Thornton v. Caldor, which involved an exemption for employees from working on their Sabbath day. A Presbyterian who wished not to work on Sunday sued Caldor after the company dismissed him from a management position because he would not work Sunday. Because the law took absolutely no account of the secular interests of third parties (the employers), the law was found to violate the Establishment Clause. The "unyielding weighting in favor of Sabbath observers" resulted in a major burden on employers. T&S rely especially on this quote of Judge Learned Hand cited in Thornton: "The First Amendment … gives no one the right to insist that, in pursuit of their own interests, others must conform their conduct to his own religious necessities." T&S (as well as Gedicks and Van Tassell) note that the principle of Thornton was restated in dicta in a more recent case, Cutter v. Wilkinson, which involved the application of RLUIPA. Justice Ginsburg, in dicta, said that in applying RLUIPA, “courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.”
I think the argument is interesting, but mistaken. In truth, I have never understood Thornton very well at all and find it to be a difficult case. So I'll start with a few basic points about exemptions and RFRA.
First, any exemption in this context will be directed toward benefiting some religious practice, and by being so directed, it will necessarily not benefit all others--i.e., "third parties." If all choices to protect a specific form of religious exercise violate the Establishment Clause, then all exemptions for religion are Establishment Clause violations. The only thing that would be left for legislators is a law like RFRA, which accommodates religious exercise generally. Could it really be the case that the only thing the Establishment Clause permits is all or nothing? I don't think so, and the Court has never said so. Professor Schwartzman, in other contexts, has questioned whether religion is a special category at all. If that argument were accepted and given constitutional force, then even laws like RFRA would be unconstitutional, because if the choice to protect religious exercise over non-religious ethical belief advances religion, then both specific and general accommodations are unconstitutional. The Court has not adopted that view. As Corporation of the Presiding Bishop of Church of Jesus Christ of Latter Day Saints v. Amos (1987) put it, "This Court has long recognized that the government may (and sometimes must) accommodate religious practices, and that it may do so without violating the Establishment Clause."
Second, all exemptions burden third parties in one way or another. An exemption from laws proscribing peyote smoking imposes social costs of various kinds on third parties. An exemption from compulsory school attendance laws does so as well. An exemption for prisoners from wearing prison uniforms will burden prison officials and guards, and ultimately, everyone who is invested in a uniform system of penal justice. Indeed, one could go much further: all rights have costs that fall on third parties (you pick the context--the speech clause, Miranda rights, etc.). Thornton does not say that any time there is any shifting of burdens, the Establishment Clause is violated. Chief Justice Burger's opinion was much, much narrower than that. It left open the possibility that a more carefully crafted Sabbath exemption law would be constitutional. That is more or less the upshot of Sherbert v. Verner (which was treated as good law by Thornton), where the Court held that a Seventh-day Adventist could not be denied unemployment compensation benefits because she refused to work on the Sabbath. In affirming that case, the Thornton Court is also affirming that it is perfectly constitutional for a state to exempt employees from Sabbath work on religious grounds, thereby imposing the costs of that exemption on third parties. All that Thornton is saying is that a law which imposes extremely severe burdens on secular interests through an "unyielding weighting of" religious interests over those other interests, and which takes no account of the secular interests at all, is constitutionally problematic. Consider an example. Under the Connecticut law at issue in Thornton, a school that is open only 5 days a week would have to provide Sabbath day exemptions to any teacher that asked for it. The burden on the school might be so severe as to impede its ability to function--compelling it even to close. The Thornton Court said that it had to "take pains not to compel people to act in the name of any religion." (emphasis mine). It's that kind of extreme burden on secular interests that rendered this law unconstitutional. Another obvious example might be an accommodation that interfered with a third party's religious freedom--compelling the third party to engage in religious activities. Yet while the Court has said that "[a]t some point, accommodation may devolve into 'an unlawful fostering of religion,'" Amos, only an extreme and absolute imposition on third party interests would justify that conclusion.
Third, both Thornton and a case like Texas Monthly v. Bullock seem to suggest that the burden imposed on secular interests must be state-imposed. Here the question is somewhat complicated inasmuch as the "burden" on employees is said to result from the combination of private claims and state power. Nevertheless, what these cases concerned is the alleviation of burdens on religious or secular beliefs imposed by the state.
Fourth, T&S wonder why nobody has made much of the Establishment Clause claim. But I think there is a good reason. RFRA incorporates certain limits to accommodation. That is, it would be a very rare RFRA (or RLUIPA) accommodation indeed which was constitutionally problematic under Thornton, because all RFRA (and RLUIPA) accommodations need to satisfy the substantial burden, compelling interest, least-restrictive-means threshold. The law at issue in Thornton, according to the Court required an accommodation "no matter what burden or inconvenience this imposes" on third parties. But the standard for RFRA accommodations is not, "you must grant the accommodation no matter what burden or inconvenience this imposes." Accommodations must pass the government compelling interest threshold. If they do, they seem very much not to be violations of the Establishment Clause rule laid out in Thornton. In fact, many of the arguments about third party harms that T&S make have already been briefed by mandate advocates as part of the RFRA calculus. So they haven't been ignored. They just haven't been analyzed under the Thornton Establishment Clause framework, because Congress already saw to that in the statutes.
But let's consider the Establishment Clause precedents on their own.
What we are left with in Thornton is to attempt to weigh up the gravity of the burden on third parties. Matters of degree are the key (as of course they are in RFRA). A law which takes absolutely no account of the burden to third parties, which grants to religious claimants "an absolute and unqualified right," Thornton, and in which the burden on third parties is extremely severe, will run into Thornton problems. But, in the main, and short of such extreme disregard for third party interests, the basic Amos rule applies. Choices by legislatures to allocate burdens as they see fit, including choices that accommodate religious interests at the expense of secular interests, are not Establishment Clause violations. As the Amos Court said, "where...the government acts with the purpose of lifting a regulation that burdens the exercise of religion, we see no reason to require that the exemption comes packaged with benefits to secular entities." Indeed, Amos is exactly a case in which the Court was dealing with a law that exempted the secular activities of a church from Title VII restrictions, imposing just the sort of third party costs that T&S think constitutionally problematic.
What about the dicta in Cutter v. Wilkinson, in which Justice Ginsburg wrote that courts need to "take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.” Does that mean, as T&S claim, that "significant burdens on non-beneficiaries" resulting from religious accommodations violate the Establishment Clause? I don't think so, though it is a point in T&S's favor that there is language in Cutter that puts the issue in question. The full quote from Cutter is: "Properly applying RLUIPA, courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries." (emphasis mine). That sounds like it means that the strict scrutiny standard of RLUIPA and RFRA, if "properly appl[ied]," itself incorporates the Establishment Clause limits raised by cases like Thornton (see my point 4 above). What the Cutter dicta indicates is that any application of RLUIPA which completely disregarded the secular interests of third parties, crafted "an absolute and unqualified right" in favor of the religious claimants, and showed an utter indifference to any burden imposed on third parties would run into Thornton problems. But RLUIPA, "properly appl[ied], does not have those problems. And neither does RFRA.
The part in favor of the T&S position is that Justice Ginsburg later says in another piece of dicta that "Our decisions indicate that an accommodation must be measured so that it does not override other significant interests." That dictum might seem to support the T&S view. But I don't think it does. First, that dictum as applied to the facts of Cutter deals not with all conceivable third party interests, but the state's interest in prison security. Note the gravity of the interest that was rejected by the Court as sufficient to beat out the interest in religious accommodation: one might think that prison security and the safety of other inmates was indeed the sort of paramount third-party interest that should be well-nigh indefeasible. And yet it lost unanimously. If that sort of interest is not "significant," then there will be many others that fail to trigger Establishment Clause concerns. Second, to the extent we are talking about third party interests, the citation for the dictum is Thornton, which, again, speaks in terms of "unyieldingly weighting" of religious reasons "above all others." Again, if one properly applies the strict scrutiny test, there will be no Thornton problem. Just as there wasn't in Cutter.
At this point, then, we need a clear description of the burdens that the contraception mandate is imposing and the nature of the shifting of those burdens onto third parties by RFRA.
1. The burden the mandate imposes on employers with religious objections. The burden imposed by the mandate in the case of for profit corporations is to pay directly for their employees' contraceptive products--actions which these employers say violate their religious beliefs.
2. The burden that RFRA shifts to the employees who want contraception. Here, I will shamelessly poach from Eugene Volokh's fine post on this topic: "Let’s be precise about the effect of an employer mandate exemption would have on employee: If the employees want certain implantation-preventing contraceptives, they would have to buy them with their own funds, rather than getting them for free through an employer-provided health insurance plan. They would thus be in essentially the same legal position as all employees are today, before the employer mandate kicks in, and as some employees will be in the future, if their employers are exempted from the mandate (for instance, because they have grandfathered plans). The employer isn’t forbidding its employees from using certain contraceptives. It’s just not paying for them.
The burden on employees would thus be a burden relative to what the ACA would provide in the absence of an exemption. The employees of a business that would get a religious exemption wouldn’t get a benefit (free implantation-preventing contraceptives) — apparently worth several hundred dollars per year — to which employees of most other businesses will be legally entitled."
Now, back to Thornton. Is this an exemption on religious grounds that implicates the sort of extreme concerns as did Thornton? I don't think so. The reason is plainly that employees are not being prevented from purchasing the contraception products that they desire. They are not being prevented from using their own salaries, paid by their employers, to purchase such products. So this is not the same as actually threatening a school with closure, or "compelling" it to close down, for example. It is not the same as subordinating "all secular interests in the workplace," which is the language of Thornton. It is not the creation of "an absolute and unqualified right" that affects the core nature of employment itself. And it is not preventing anybody from buying as much contraception as they wish. The "cost" to third parties is that of not having someone else pay *directly and explicitly* for such products for them. To my mind, that is a far cry from the sort of extreme disregard of secular interests at issue in the law in Thornton. It misdescribes the holding in Thornton to claim, as do Gedicks and Van Tassell, that the Court "has tended to find an Establishment Clause violation when accommodation imposes a noticeable or perceptible increase in the marginal weight of a pre- existing burden on identifiable third parties, or creates such a burden where none previously existed." If that were true, then accommodating Adele Sherbert would be a violation of the Establishment Clause and Amos would have come out the other way.
What makes these cases even less like Thornton is the precise nature of the contraceptive products objected to by Hobby Lobby and Conestoga Wood, something that just about everybody skips right over. The products at issue are Plan B, Ella, and IUDs. Plan B and Ella are emergency contraception, not ordinary contraception. They are not the pill. Plan B is available over the counter. Therefore, the burden of not having insurance coverage for these products is relatively low because they are emergency drugs and insurance plans for these employers will cover other forms of contraception. As to IUDs, it is true that these are more costly up front, but they may be less costly over time than the pill (I am not certain about this). The point is that the actual exemptions sought in these cases do not come close to raising the kind of "absolute and unqualified right" that got the Connecticut law in Thornton into hot water.
T&S counter that the "baseline" for what is an extreme disregard for a secular interest has changed because Obamacare entitles employees to employer-paid contraception. In making this argument, they seem to adopt a claim made by Joey Fishkin that Obamacare makes employers like Hobby Lobby and Conestoga Wood into "federal agents." Note that this claim would, if accepted, get around the third problem I noted above: namely, that the issues in Thornton and Texas Monthly only really relate to burdens imposed on secular interests by the state. If Hobby Lobby is also the state (or an agent of the state), then all private employers are agents of the state. So, at least in this context, you can extend the Thornton rule to all private corporations. Therefore, T&S claim, in this new "world which we now occupy" the burden is all the more severe on employees of religious corporations, because everybody else is now getting their contraception paid for.
But of course, as T&S acknowledge, it is a contestable question that the new dispensation that created this brand new world of private corporations that are government agents represents the current baseline. I suspect that many people would reject this description of the baseline. And even accepting a baseline of no-cost contraception for FDA approved products, is it really so clear that post-fertilization-contraception-products-only RFRA claims fall below the baseline, and so far below it to implicate burdens of constitutional gravity?
In fact, rather than talk of baselines, it seems to me that this is the heart of T&S's claim: "At root, the constitutional conviction is that it is unfair and unconstitutional for the government to impose any substantial costs of a religious exemption on a focused and identifiable class of third parties."
I certainly respect that this is T&S's constitutional conviction, but it is not one that I share; it is not one that the Establishment Clause has ever been interpreted to require; and it is not reflected in the Supreme Court cases. I began this post by noting that the whole point of religious exemptions is to shift certain costs to others. That is what exemptions do--cost-shift. The rule of Thornton did not say that any "substantial cost" shifting is unconstitutional. It said that in extreme cases--such as the law it considered--accommodation may implicate Establishment Clause concerns. And as to "a focused and identifiable class of third parties," I think that T&S are including this at least in part in order to get around the conscientious objector cases. This is an argument that one finds in the Gedicks and Van Tassell paper as well. Yet I do not understand why the Establishment Clause should be said to reflect such a distinction. Why is it, exactly, that accommodations on religious grounds are constitutionally acceptable when they damage an "unfocused" group but violations of the Establishment Clause when they impose costs on a "focused group." And who decides what is focused and unfocused? And what is the class in this case which is "focused and identifiable"? All of the women in the workforce who wish to receive free contraception from their employers, together with all of the men in the workforce whose spouses or female dependents are on their plans and also want free contraception? That group probably numbers in the millions. Firms that do not object to providing contraceptive coverage? Again, that would be a huge group, and not particularly focused.
I also cannot agree with the argument in the Gedicks and Van Tassell paper that what the Establishment Clause proscribes is accommodations which shift costs to third parties in such a way as to affect "the private ordering of such parties--that is, in their deciding whether or how to act in some relevant way." (24) They write that exemptions for conscientious objection would not be a "material" factor in inducing people to act one way or the other. They write: "it is difficult to imagine that permissive exemption of religious pacifists from the draft would be a factor in the decision of nonpacifists to comply with or evade the draft." But of all the examples available, that seems the one most directly against them. In a footnote, they claim that people do all sorts of dangerous things every day, like drive a car or fly in a plane, and therefore people take risks with their lives all of the time. I don't find that explanation for why exemptions from military service for religious people would not induce nonreligious people to seek similar exemptions plausible. Perhaps exemptions from oath-taking would have been a better example, though even there one might argue that the costs on third parties could be quite substantial, or "material." At any rate, I still do not see the connection to the Establishment Clause limits set out in Thornton.
In sum, interesting as the argument is, I am not persuaded that a RFRA exemption would violate the Establishment Clause in these cases. I should add that the question whether RFRA compels these exemptions is, for me, a difficult one. But I don't think the argument from the Establishment Clause works.
December 04, 2013
Stoner on the Disposition of the Common Law
James Stoner's work on common law constitutionalism has been deeply influential on my own thinking about the interpretation of the religion clauses, as well as on more general questions of constitutional interpretation. My own approach in fact adopts something like Professor Stoner's common law constitutional method (though its motivation for adopting that method is different than Stoner's), distinguishing it from other common law constitutionalist methodologies (e.g., the approach of David Strauss). Here is an interesting post that Professor Stoner has just written on the disposition of the common law (in part it responds to the arguments of Professor John McGinnis). A longish bit:
To the authors of the Constitution, the Bill of Rights, and the Civil War Amendments, common law meant nothing like “judge-made law,” and the use of the modern supposition to untether constitutional law from the Constitution is unwarranted. Moreover, the original understanding of common law—as the unwritten customary law of England, registered in decisions of the courts, and carried over to the American colonies as an inheritance and adjusted to their circumstances—seems to me essential to the interpretation of the Constitution itself, which includes common-law language and takes for granted that the judicial power it established would largely operate by common-law forms: following precedent, recording judicial opinions, drawing the bench from the bar, employing trial by jury, and adhering to due process in myriad other ways . . . .
Originalism and textualism, for example, derive from maxims you can find in Blackstone’s account of how to interpret statutes, and I think they make sense not as free-standing theories of interpretation but in the context of all Blackstone’s adages, including, for example, that one begin by discerning whether the text declares the common law in writing or remedies some mischief, that one interpret criminal statutes strictly and statutes against frauds liberally, and the like. True, constitutions are not exactly statutes, only similar to them: Like statutes, they are put in writing; unlike statutes, they are made by a constituent authority and cannot be easily changed. Are the powers of government granted in constitutions to be interpreted strictly or liberally? What about rights that are reserved?
These questions fell to judges to decide, reasoning according to “the nature and the reason of the thing,” to borrow Hamilton’s words in The Federalist, and this was something common-law judges were trained to do, bound on the one hand by “strict rules and precedents” (Hamilton’s words again) and accustomed on the other to settling new cases through reasoning by analogy, as Edward Levi nicely explains in his Introduction to Legal Reasoning (Chicago, 1949). Understanding the common-law meaning of “judicial power” in the Constitution resolves what would otherwise be the paradox of judicial review, an unwritten power to enforce a written Constitution. And it makes perfect sense of constitutional passages like the Due Process Clause or the reference to “other rights” in the Ninth Amendment. These are not blank checks given to judges, but indication that there is a rich texture of established though unwritten law that they are charged to remember. Hamilton, again, indicates as much when he writes approvingly of the ability of judges “to mitigat[e] the severity and confin[e] the operation” of “unjust and partial laws.” . . . .
Leaving the Constitution to be interpreted in court by judges trained in common law meant it was in the hands of men who habitually looked to find the law applicable to the case before them, not who set out to replace it. When called to interpret the Constitution, the presumption in favor of the authority of the text and its original intent might be heightened, given its sovereign source, but precisely because the Constitution was meant to endure, its meaning had to be adapted to novel circumstances. One can’t avoid asking what comprises a constitutional search in an age of electronic communications, or what is “commerce with foreign nations, and among the states” when the manufacturing process from design through production is fully globalized and you can complete the purchase of almost any item from across the ocean at any time of day without leaving your home.
By focusing on the individual case, allowing the appeal to reason, settling the meaning of law to make property secure and the application of government coercion predictable, and including rules and maxims that leave individuals free to take initiative while holding them responsible for the consequences of their deeds, the common law was held by its advocates to be a great friend and promoter of human liberty. It had its critics, too, who complained that unwritten law was obscure, too much the preserve of the lawyers’ guild, and its favor for private property and individual liberty were inappropriate in a collectivist age. The abandonment of common-law rules and perhaps above all of the common-law spirit by many in the guild of lawyers over the course of the twentieth century no doubt contributed to the eclipse of common law—Professor McGinnis has valuable insights on this score—but probably more fundamental was the culture’s growing historicism: its skepticism toward any permanent standards of right and wrong, its consequent indifference toward tradition as a repository of wisdom, its expectation, not to say, encouragement of intractable partisan division given the supposition that questions of value cannot be rationally settled. Actually, common law really claimed to be common, to articulate a social consensus, more than it claimed to be unchanging; jury verdicts at common law have to be unanimous, and judges on the losing side of cases decisively settled typically feel constrained thereafter to accept the precedent and direct their argument to new issues, where they hope to limit a bad precedent’s future reach.
December 03, 2013
Dane on Legislative Prayer
Perry Dane has a very interesting post over at CLR Forum on legislative prayer and Town of Greece v. Galloway. Perry was Justice Brennan's law clerk at the time the Court decided Marsh v. Chambers and Justice Brennan authored a dissent. I see things a little differently than Perry on this issue, but that hardly matters. His analysis is well worth reading, particularly on the question of what ought to happen if the Court follows the majority view in Marsh. Here's a bit:
At that point [if the Court adheres to Marsh], it seems to me, the principle that prayer is serious business would require us to let (most of) the chips fall where they may. For the reasons Justice Brennan stated, courts should not demand that legislative prayer be “nonsectarian.” There is, with respect to prayer, no such thing. Bland prayers, and prayers to an unnamed deity, are — if taken seriously as religious acts — just as “sectarian” as more apparently meaty prayers. Certainly, judges should not try to monitor or censor individual prayers to strip them of religious particularity. Nor should they even even try, as the Court of Appeals for the Second Circuit panel did, to decide whether a whole pattern of prayer over several years is somehow disproportionate by being, for example, too Christian.
I wouldn’t rule out all constitutional limits on the particulars of legislative prayer. Since legislative prayers are, for better or worse, said in a civic context, the Constitution might at least demand that they be civil, in the sense of not disparaging other faiths. More to the point, maybe, the Establishment Clause might bar processes for selecting chaplains, guest chaplains, or the like that by their terms manifestly exclude certain faiths, or for that matter even all faiths other than the preferred one.
To be sure, the distinction between exclusion and inclusion is shaky, and applying it in particular cases even more so. But it might be the closest we can get to a fair rule while still treating prayer as serious business.
December 02, 2013
Ten Thoughts on the Garnett-Bottum Exchange
Here are ten thoughts on the exchange between Rick and Jody Bottum. Thanks to both men for provoking them.
- Mr. Bottum is on to something important on the issue of cultural change. Cultural change often is not driven by law or by legal argument, but the other way round. And it also seems to me that this is a desirable state of affairs. We should not want law to be the primary driving force of cultural change, and it would be regrettable, if not dangerous, to live in a society in which law arrogated to itself this function.
- To that extent, Mr. Bottum is right. If one wishes to change the culture, law is not and should not be the exclusive, or even the primary, medium through which one works. He is also right that poetry and storytelling and literature and art, etc., are promising methods, as they have always been.
- Still, law has its role to play. Lon Fuller once observed in response to the challenge of legal realism that there is mutual action and reaction between law and culture. Even if law is not and should not be a primary cultural determinant, it is certainly one such determinant. Law's effect on culture is not the less important for being secondary and (generally speaking) reactive. I am thus unsure what Mr. Bottum means when he writes that "you law professors have had the public intellectual part in your hands for forty years." We have had the part that relates to law, and we have taken up that part by our best lights--sometimes well, sometimes poorly. Others have played other parts, also to greater or lesser effect. Mr. Bottum himself has played his own role. There seems to be no shortage of available work, so we needn't niggle over whose turn it is at the bullhorn.
- But perhaps this does not do justice to the sense in which Mr. Bottum may believe that law is actually a problem or an impediment to various larger aims. In fact, it's much worse than he thinks. I fear he may underestimate just how important law has become in our society as a source of value, beauty, and shared meaning. To take one provincial example (what do you expect from a law professor?) this is the reason that Legal Ethics is so hard to teach. People think of it and teach it as a course about rules, but actually, it ought to be taught as a course about law's powerful, usually subterranean cultural and ethical impact. Bar associations and legal education reformers like very much to talk about the importance of ethics and imparting "professional values" to new lawyers, but in fact they usually have very little clear idea what that means. Worse still, it seems vitally important that these ideas remain perpetually vague. To infuse them with content might well disturb what Roger Cramton once described as the ordinary religion of the law school classroom, which is not too far distant from the ordinary religion of the legal profession and the legal culture, which is to say, the culture.
- It will be a daunting task indeed to "re-enchant" the culture, if that is what Mr. Bottum has in mind, in part because it will require disenchanting it from law. The terms in which we think about culture are all too often legal terms. That's more or less what remains as a common discursive currency, cheapened by inflation and otherwise devalued as it may be. Another local example: though he did not say so, Mr. Bottum may see the project in which we are engaged at MOJ as problematic inasmuch as it works within a legal framework or world view. The fact that the project has definite limits makes it appealing to me, but those with larger ambitions will want more.
- I also sympathize in some ways with the weariness Mr. Bottum has expressed in other contexts and which makes a background appearance here. I am coming to tire more and more of the screeching, scratching, gnawing, biting scuffles about law and religion that one is forced into. But it would be wrong to believe that these fights are increasingly tedious because they don't sufficiently engage cultural issues. In fact, they are tiresome because there is so little law in them. If anything has been true for forty years (at least), it is that law and culture have been too often fused into a kind of cheap alloy, to the detriment and diminution of both, particularly law.
- There is an assumption, one that one hears with some frequency these days, in some of the talk about focusing elsewhere than law, that if we do so the state and those many that stand opposite will be appeased. They will leave us alone. We will be able to go on defending positions we find important, living the way that we think best, and the state will take its ball and go home. I think that assumption is false. First, I had thought the whole point was to stop discussing law and politics and start talking about something else. And second, skepticism about this assumption is one reason that I admire the difficult work of Rick, Tom Berg, Douglas Laycock, and others. But it is also the reason that I am uncomfortable with the strategy of sympathetic reciprocity that I sometimes see in Tom's always deeply thoughtful commentary. Perhaps mine is an overly pessimistic disposition--and I've now been dutifully admonished about the shortcomings of "sourpusses." But the case here is simpler: if Mr. Bottum really believes that singing in the trees and rivers will make abortions less common, I'm afraid I see things differently. The state and those on the other side of the issue will see to that. They will be the only game in town.
- Speaking of "hymns to God that are sung in trees and rivers," what is all of this pantheistic, Whitmanesque nonsense? Having read Rick's Notre Dame essay to which Mr. Bottum approvingly linked, I must differ with both of them about Whitman and Whimanesquery respectively. I find Walt Whitman pretty hard to take and think he and Emerson are not the best writers America has produced. As Mark Lilla once put it, in the study of American literature, "just steer clear of anything polluted by Emerson." That goes double for Whitman.
- Unfortunately, the last point isn't really about Whitman. Suppose we accept Mr. Bottum's advice and pivot to cultural or metaphysical matters and away from law. We should fully expect to rekindle some of the same sorts of culture war conflagrations that we were so intent on snuffing out. We will fight about whether the cultural turn should in fact be a "song of myself" or a song about someone or something else. I wonder whether many Catholics inclined to the cultural turn will agree with one another about what is enchanting, what is re-enchanting, and what is altogether disenchanting. Some things are worse that Weber's Iron Cage. I suspect there will be considerable disagreement, and that the fire will rage on.
- Last, and least. The idea that making the cultural turn will mean "pulling back on politics" (in Patheos's locution) is mistaken. The argument seems to be that if we stick to our tree-chanting, we will have effectively lopped off political and ethical matters. One sees this sort of "non-political" point often, but I confess I am mystified by it (maybe "politics" is being used in a way I don't understand). As I have observed before, all Popes are political (just like the rest of us), and it is intended (and I hope is taken) as a token of respect, not disparagement, to call Pope Francis's recent Exhortation an openly and patently political, social, and ethical document (not only that, of course, but plainly that). To take the cultural turn and to devote one's waking hours to matters other than law and politics will not usher in a new era of abstention from legal, political, and ethical questions. Taking positions on such questions is inevitable, though there are more and less effective ways of doing so. It might be better to be candid about that. Then we could talk substance, rather than form or process, as Mr. Bottum rightly urges.
November 28, 2013
President Adams's Proclamation for a Day to Fulfill "The Duties of Humiliation and Prayer"
Here is President John Adams’s 1798 Proclamation For a National Fast, which he issued on March 23 of that year and prescribed for the month of May. Two things are striking to me about the proclamation, though of course they are not unique to this particular proclamation.
First, days of public prayer are closely associated in the mind of Adams (and likely in the minds of his audience) with “humiliation”–that is, with the recognition of the limits of human power, with humility, and with the need and desire for guidance beyond oneself to set to the affairs of governance wisely. It has longed seemed to me that this was the principal function of legislative and other public prayer. Is is an irony of history that these kinds of prayers have now come to signify, in the minds of many of their opponents, something like the opposite of “humiliation.”
Second, note the emphasis on fasting. The idea behind such days was not to gorge on as much food as one could hold down, or to acknowledge one’s own comfortably sated life, or to revel in the capacity to spend lots of money on entirely useless nonsense on “Black Friday.” It was to thank God for one’s gifts by abstaining from consumption.
Now, if you will all excuse me, I’m off to stuff the turkey and, then (Grace having been said) myself. A very happy Thanksgiving to all of our writers and readers.
As the safety and prosperity of nations ultimately and essentially depend on the protection and blessing of Almighty God; and the national acknowledgment of this truth is not only an indispensable duty, which the people owe to him, but a duty whose natural influence is favorable to the promotion of that morality and piety, without which social happiness cannot exist, nor the blessings of a free government be enjoyed; and as this duty, at all times incumbent, is so especially in seasons of difficulty and of danger, when existing or threatening calamities, the just judgments of God against prevalent iniquity, are a loud call to repentance and reformation; and as the United States of America are at present placed in a hazardous and afflictive situation, by the unfriendly disposition, conduct, and demands of a foreign power, evinced by repeated refusals to receive our messengers of reconciliation and peace, by depredations on our commerce, and the infliction of injuries on very many of our fellow-citizens, while engaged in their lawful business on the seas;—under these considerations, it has appeared to me that the duty of imploring the mercy and benediction of Heaven on our country, demands at this time a special attention from its inhabitants.
I have therefore thought fit to recommend, and I do hereby recommend, that Wednesday, the 9th day of May next, be observed throughout the United States, as a day of solemn humiliation, fasting and prayer; that the citizens of these States, abstaining on that day from their customary worldly occupations, offer their devout addresses to the Father of mercies, agreeably to those forms or methods which they have severally adopted as the most suitable and becoming; that all religious congregations do, with the deepest humility, acknowledge before God the manifold sins and transgressions with which we are justly chargeable as individuals and as a nation; beseeching him at the same time, of his infinite grace, through the Redeemer of the world, freely to remit all our offences, and to incline us, by his Holy Spirit, to that sincere repentance and reformation which may afford us reason to hope for his inestimable favor and heavenly benediction; that it be made the subject of particular and earnest supplication, that our country may be protected from all the dangers which threaten it, that our civil and religious privileges may be preserved inviolate, and perpetuated to the latest generations, that our public councils and magistrates may be especially enlightened and directed at this critical period, that the American people may be united in those bonds of amity and mutual confidence, and inspired with that vigor and fortitude by which they have in times past been so highly distinguished, and by which they have obtained such invaluable advantages, that the health of the inhabitants of our land may be preserved, and their agriculture, commerce, fisheries, arts, and manufactures, be blessed and prospered, that the principles of genuine piety and sound morality may influence the minds and govern the lives of every description of our citizens, and that the blessings of peace, freedom, and pure religion, may be speedily extended to all the nations of the earth.
And finally I recommend, that on the said day, the duties of humiliation and prayer be accompanied by fervent thanksgiving to the bestower of every good gift, not only for having hitherto protected and preserved the people of these United States in the independent enjoyment of their religious and civil freedom, but also for having prospered them in a wonderful progress of population, and for conferring on them many and great favors conducive to the happiness and prosperity of a nation.
November 22, 2013
C.S. Lewis on Textualism and Purposivism
Today is the anniversary of C.S. Lewis's death. Both to celebrate it, and as something of a remedy for the many silly and shallow things that get said about textualism, here's something from his memoir, Surprised By Joy: The Shape of My Early Life. Lewis is describing his father's deliberations about which primary school to select for his children. The choice ends up being quite wrong, as Lewis is sent to a school with a cruel master whom the students call "Oldie."
You may ask how our father came to send us there. Certainly not because he made a careless choice. The surviving correspondence shows that he had considered many other schools before fixing on Oldie's; and I know him well enough to be sure that in such a matter he would never have been guided by his first thoughts (which would probably have been right) nor even by his twenty-first (which would at least have been explicable). Beyond doubt he would have prolonged deliberation till his hundred-and-first; and they would be infallibly and invincibly wrong. This is what happens to the deliberations of a simple man who thinks he is a subtle one. Like Earle's Skepticke in Religion he "is always too hard for himself." My father piqued himself on what he called "reading between the lines." The obvious meaning of any fact or document was always suspect: the true inner meaning, invisible to all eyes except his own, was unconsciously created by the restless fertility of his imagination. While he thought he was interpreting Oldie's prospectus, he was really composing a school story in his own mind. And all this, I doubt not, with extreme conscientiousness and even some anguish.
November 21, 2013
NYPD Beard Policy Found to Violate Free Exercise Clause
I am a little late in noting this decision of the United States District Court for the Southern District of New York involving a Free Exercise Clause challenge to the New York Police Department's facial hair policy by a NYPD probationary police officer. The probationary officer is a member of the Chabad Lubavitch Orthodox Jewish community, and his faith prohibits him from cutting his facial hair. The NYPD's policy generally prohibits the wearing of beards but makes exceptions for undercover duties, medical conditions, and religious reasons, but the last two exceptions require written approval. In practice, however, even accommodated beards may only be 1 millimeter or less in length, and the plaintiff's natural beard grew to 1 inch. So the accommodations would not work for the plaintiff, because they would require him to trim his beard.
After his request for exemption was denied and he was eventually fired, the plaintiff sued under the Free Exercise Clause. One might think that the plaintiff would lose, because the policy was neutral as to religion and applied generally (see Employment Division v. Smith). But the plaintiff won. The City argued that the beard policy and the 1 millimeter exemption was a neutral, generally applicable rule, but the court disagreed. It said: "'[f]acial neutrality is not determinative' when the record shows that Plaintiff was terminated pursuant to a policy that is not uniformly enforced."
What is particularly interesting is the nature of the exemptions that the court found trigger strict scrutiny. It isn't just the stated exemptions in the policy. It's the fact that "the undisputed record demonstrates that de facto exemptions to the one-millimeter rule abound." There were temporary exemptions to the one millimeter rule granted for religious reasons and family reasons. And there was under-enforcement of the one millimeter rule against officers who violated the policy for unspecified reasons. The court also rejected the City's claim that shaving is necessary in order to render effective the fitness testing apparatus used by the Department, which is fitted over the officers' mouth and needs to sit flush against the face. There was evidence that some officers were accommodated as to this requirement for medical reasons, and so strict scrutiny applied when plaintiff's request for accommodation on religious grounds was denied. Here the court relied on then-Judge Alito's famous police-beard case in Fraternal Order of Police Newark Lodge #12 v. City of Newark, in which the court held that where the government has made a "value judgment" that medical reasons are more important than religious reasons, strict scrutiny applies.
I've written before several times about the gaping hole (see Chapter Eight) in Smith that is being broadened all the time by the problem of the general applicability exception carved right into Smith itself. In this case, it isn't only explicit exemptions to the policy that trigger strict scrutiny, but the "de facto" exemptions and accommodations in implementation and administration of the policy. If discretion in enforcement of a policy, and the exceptions that governments make all the time to their rules, really do trigger strict scrutiny, then one should expect to see the number of free exercise claims greatly increase in the coming years. Smith's rule will look a whole lot less rule-like than it actually appears. What free exercise effect this expanding exception to Smith may have on other sorts of cases in which executive and administrative discretion as to the enforcement of the law is high remains to be seen.
Just in time for Thanksgiving, your horn of plenty of accomplice liability runneth over. I recently noted Sherif Girgis's smart piece and you ought also to take a look at Gideon Yaffe's terrific recent work. In this post I want to highlight the work of my friend Jim Stewart (UBC), who specializes in comparative criminal law and writes about corporate pillage in Africa (a conducive place to think about problems of accomplice liability).
Here is a succinct and very useful piece on complicity. I especially like Jim's methodological approach, one which seems to pair naturally with a comparative perspective. Rather than constructing a top-down account of the best understanding of complicity, Jim identifies several recurring problems or themes in the area and discusses various solutions that have been offered by different jurisdictions. It is an approach which, Jim says, "exposes blind spots in the various schools of thought about accomplice liability." One particular section I thought provocative was the discussion of the relationship of complicity and justification (pp. 10-11). Jim argues for using the affirmative defense of justifcation to obviate the need to decide between a purpose or knowledge mens rea requirement (he relies on a British case involving the sale of contraceptives by doctors to minors, who were then implicated in charges of statutory rape). The choice of evils defense is a familiar repository for the problems of moral nuance, but I'm not sure the law of complicity ought to be let off the hook this way. At any rate, read the piece, and also take a look at Jim's newest piece on corporate criminal responsibility (h/t Larry S.).
Also, here is Jim's extremely well-written and powerful editorial last week about the moral outrage of corporate pillage in Africa--wrongdoing which, of course, presents the problem of corporate complicity in stark terms.