Tuesday, June 5, 2018
Another slightly longer thought on the Masterpiece Cakeshop decision. Many were interested to see how the role of "animus" might affect the outcome in the case, and specifically the free exercise leg of the case. Animus played a starring role. Animus mattered in two ways: (1) the favorable treatment given by the Commission to claims against other bakers who "objected to a requested cake on the basis of conscience" (this was said by the Court to be an "indication of hostility" to Phillips); and (2) the comments of certain commissioners felt by the Court to evince hostility to Phillips' religious views, comments which were never subsequently disavowed (more evidence of animus).
I confess that as to the second category, the Court makes some comments that are genuinely puzzling to me. For example, the Court says that the following statement by one Commissioner was susceptible either of a neutral reading or of a reading suggesting "animus": “[I]f a businessman wants to do business in the state and he’s got an issue with the— the law’s impacting his personal belief system, he needs to look at being able to compromise.” In light of the later comments of a different Commissioner, the Court decided that the animus reading "seems more likely." I really don't understand this. The Commissioner here was offering the view that when somebody goes into business, the ambit of their religious exercise rights may be different than when one does not go into business, such that the person may have to "compromise." Like it or not, the antidiscrimination law seems to suggest as much. And why should the comments of a second Commissioner, offered later, suggest that the first Commissioner's comments were hateful? I wonder if the Court's approach has the effect of inducing the members of adjudicatory bodies not to say a word, and perhaps even to keep their written dispositions as short and inscrutable as possible. If even predictive evaluations of the strength of the claims suggest animus, that seems to be quite an expansion of an already sweeping concept.
And speaking of "adjudicatory bodies." In describing the state of jurisprudential play with respect to "animus" evidence, the Court said this:
Members of the Court have disagreed on the question whether statements made by lawmakers may properly be taken into account in determining whether a law intentionally discriminates on the basis of religion. See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 540– 542 (1993); id., at 558 (Scalia, J., concurring in part and concurring in judgment). In this case, however, the remarks were made in a very different context—by an adjudicatory body deciding a particular case.
The Court seems to be acknowledging that not everybody that agreed on the disposition in Lukumi signed on to the "animus" discussion. Indeed, the "animus" discussion in Lukumi did not get a majority of the Court. But here it does: it gets 7 votes. Why the difference?
The explanation offered here seems to be that Lukumi dealt with "lawmakers" while this case deals with the "very different context" of "adjudicatory bod[ies] deciding a particular case." It is true that in the following section of the opinion, the language about "adjudicatory bodies" does not reappear as a limitation. When the Court again cites to Lukumi for the proposition that "the government's" "neutrality" may be evaluated by looking to “the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body,” we do not see more language about adjudicatory bodies.
But the application of these factors in this case to an adjudicatory body which ruled on this particular case--the Commission--does appear just after the enumeration of these factors, and there is no suggestion that the scope of animus analysis goes further than that. Indeed, taken together, the statements may suggest that there is a new majority for the sort of "animus" analysis that did not get a majority in Lukumi, but only when one is dealing with "adjudicatory bodies deciding a particular case."
If that reading is right (and it of course may not be), what could explain a new, special animus rule for "adjudicatory bodies"? Admittedly this is speculation, and I don't have a firm answer in the least. But perhaps it is the particularism of adjudication. When a court expresses hostility to the litigants in front of it, and those comments directly influence the outcome of the litigation, there is a closer nexus between the animus and the specific result than is the case when a legislative body makes a general law affecting persons that are neither before it nor even specifically identified (incidentally, how this works out in the Executive context is entirely unclear to me). So that to the extent that one has qualms about the vagueness of animus analysis--its susceptibility to manipulation, for example--those qualms may be relieved to some extent by the particularized focus on a specific litigant, in a specific litigation, whose outcome is determined by the adjudicator right in front of that litigant.
Again, just a speculation. We'll see how, if at all, the "adjudicatory bodies" language is picked up by future cases, and whether we now have a special animus rule for a particular set of government actors.
Monday, June 4, 2018
Lots will be written about the decision today in Masterpiece Cakeshop (congratulations to Tom Berg for...pretty much nailing it). Here is something small. I was struck by another 7-2 decision in a religious freedom case. The individual justices' voting patterns in those cases are fairly uniform too. Hobby Lobby was 7-2 on the question of corporate personhood under RFRA (JJ. Sotomayor/Ginsburg in dissent). Trinity Lutheran was 7-2 (JJ. Sotomayor/Ginsburg in dissent). And now Masterpiece Cakeshop is 7-2 (JJ. Sotomayor/Ginsburg in dissent). Many, but not all, of these decisions feature concurrences by JJ. Kagan and/or Breyer. In addition, both Holt v. Hobbs and Zubik v. Burwell, though unanimous as to outcome, featured pointed concurrences in a 7-2 pattern (JJ. Sotomayor/Ginsburg in concurrence).
The asterisk above is for Establishment Clause cases, the last of which was Town of Greece v. Galloway in 2014. Those always tend to return us to the more familiar 5-4 configuration (the asterisk to the asterisk is Hosanna-Tabor, if one is inclined to think of that case as [principally] an Establishment Clause case).
Friday, May 25, 2018
My colleague, Mark Movsesian, has a thoughtful piece over at First Things, in which he argues that the association of religion in America with particular political parties is becoming more pronounced. Mark makes the point that, increasingly, "a new sort of divide appears to be opening up in American politics: Republicans are the religious party, and Democrats are the non-religious party." He cites Tocqueville for the view that while in Europe, everyone understood that religion and republicanism were enemies, that was not the case in America where, notwithstanding religious differences, Americans have never had religious and non-religious parties in the same way. But that is now changing, Mark claims, citing a Pew Center survey indicating that there is increasingly a correlation between belief in God and party affiliation (Rs believe much more than Ds).
The piece may be read profitably alongside this article about the introduction of the new "Do No Harm Act" by various Senate Democrats, whose object is to narrow the protections of the Religious Freedom Restoration Act, especially as a defense against the operation of "others' civil rights." It appears that the civil right of religious liberty would take second place to any other civil right under the proposed statute. Rick Garnett offers the view in the piece that the Act "reflects a mistaken view that religious freedom should only be granted when it is costless." The story goes on to say that "since the bill is highly unlikely to pass, without Republican support, its purpose is in large part simply to announce Democrats’ priorities to voters before the midterm elections in the fall." (this opinion is attributed to Charles Haynes of the Newseum)
The story seems to support Mark's view that religion is becoming politicized along party lines. RFRA, after all, passed with very strong bipartisan support in 1993. Its aim was to protect religious freedom for all. But, so the argument might go, today the breakdown of support for RFRA, and the efforts to shrink it (and, eventually, perhaps to repeal it), demonstrate the fragmentation of support for religious freedom along party lines. Rs support religious civil liberties. Ds support other civil liberties.
I'm not sure this account is accurate. At the very least, it does not account for the way in which many progressives have thrown their support against, for example, the Trump Immigration order and in favor of Muslim immigrants. It does not account for at least some progressive support for the expansion of religious freedom to include non-traditional "religious" groups such as the Nones and other conscientious believers. It does not account for progressive support for at least some of the Court's recent religious liberty cases, such as Holt v. Hobbs.
My own view is that we are witnessing the end of the period in which "religion" is seen to be a general good, and therefore in which "religious" freedom ought to be protected for that reason. I have written before about the vacuity and ultimate unsustainability of the category of "religion" in contemporary American law, and so I do not think it is particularly surprising to see this development. But that does not mean that one party is the party of "religion" while the other is the party against "religion." It means that "religion" as a conceptual category thought, in general, to be worthwhile, and "religious freedom" as a right generally worth supporting, is moribund (there are reasons it is dying off, which I discuss in the piece).
Instead, what is emerging in the partisan fragmentation is that the Rs and Ds are becoming the parties of particular religions and religious traditions. Rs are in general more sympathetic to traditional Christian religious beliefs (in general, of course...there are prominent exceptions at the highest levels of government), while Ds are in general hostile to them--believing that Christians in particular "impose" their views (particularly their views about sexuality) on others in the name of Christianity. Ds are in general more sympathetic to religious views that are not traditionally Christian (indeed, one might even say that the Nones represent a distinctively modern Christian heresy, but that's a subject for a different post) or that they associate with minority groups that they believe warrant special protection, while Rs are in general hostile to them. The reason that Senate Ds sponsor the No Harm Act is that they oppose the right of traditional Christians to use their views about sexuality to discriminate against LGBT people (I am putting it polemically, of course). The reason that Senate Rs oppose the Act is that they disagree. None of this has much at all to do with "religion" as an abstract category.
Perhaps if we had more parties in this country than the usual dreary duo (something to be fervently wished for, but that is also for another post), we would see even more fragmentation. But the growing divisions between our existing political parties along these lines reflect preferences for certain kinds of religion over others, not religion as such. They are both religious parties. The place of the specific religious tradition (or, in the case of the Nones, view) in American public life, its substantive positions (particularly as respects sexuality), its market strength, its "other-ness"--all of these and more are true markers of partisan support or opposition. What has changed politically is the notion that religion qua religion is worth protecting as an American good. And, in light of the incoherence of the category in American law and politics, small wonder that it has.
Friday, April 13, 2018
Here's a Friday booknote. I first read John Gray about 10 years ago, and was struck by his description of the “agonistic liberalism” of Isaiah Berlin. Gray’s Two Liberalisms picked up on and developed the themes in the book on Berlin in ways which influenced the way I thought about “tragedy” in law. I enjoyed Straw Dogs as well, but by this point there was an acidic quality in Gray’s writing that differed from the earlier books (I am not criticizing, just observing).
And Gray's essays are always a great read–whether on secular eschatology, Machiavelli and the weakness of law, or (my own favorite) the ubiquity of evil. He is iconoclastic, brilliant, bracingly skeptical, and deeply learned. Now comes a new book: Seven Types of Atheism (Farrar, Straus and Giroux). Here is an early review (h/t Paul Horwitz) by Terry Eagleton in “The Guardian” (more positive, I think, than Eagleton’s very critical review of Straw Dogs). And here is the publisher’s description.
For a generation now, public debate has been corroded by a shrill, narrow derision of religion in the name of an often very vaguely understood ‘science’. John Gray’s stimulating and extremely enjoyable new book describes the rich, complex world of the atheist tradition, a tradition which he sees as in many ways as rich as that of religion itself, as well as being deeply intertwined with what is so often crudely viewed as its ‘opposite’.
The result is a book that sheds an extraordinary and varied light on what it is to be human and on the thinkers who have, at different times and places, battled to understand this issue.
Thursday, February 22, 2018
In the early 1990s, I was fortunate to be a student of the great Catholic scholar, Wallace Fowlie. Professor Fowlie's particular area of expertise was French symbolist poetry, in particular Rimbaud and Mallarmé (he has an important set of translations of the former). But he was also deeply interested in the work of the symbolist-influenced Catholic poet, Paul Claudel and the (complicated) philosopher, Henri Bergson.
I took various classes on Dante and Proust with Professor Fowlie. I also remember visiting with him on several occasions in his home (at that time, in a quiet retirement community; he was already quite advanced in age) and chatting with him about his extraordinary life. On one memorable occasion, in 1995, just before I graduated, I recall driving him to a wonderful and simple Easter service.
I thought about Professor Fowlie, who passed away in 1998, twenty years ago, in reading a little pamphlet of his published in 1994 titled, "Dante Today: A Personal Essay." Here is a passage of it for Lent, concerning an encounter in his youth with T.S. Eliot:
The year was 1932-33, when Eliot came to Harvard to give the Charles Eliot Norton lectures. These were public lectures in the evening. They were published in book form in 1931: The Use of Poetry and the Use of Criticism. In addition to these public lectures, Eliot gave a course on "English literature from 1830 to 1930," to fifteen students. Fourteen of these students were English majors. I was the fifteenth, just barely admitted since I was a French-Italian major.
I had two good friends in that class which was held on the second floor of Sever Hall. Before Eliot arrived in Cambridge, we had worked hard on "The Love Song of J. Alfred Prufrock" (1915) and on "The Wasteland" (1922). When I first read "Ash Wednesday" in 1930, it seemed to me a religious poem, a poem of peacefulness finally reached after the earlier poems of man's human dilemmas. We were proud to have Eliot there and hear him speak to us each week. We became almost childishly curious about him, about his life, and we developed the outrageous habit of following him in the street to see where he walked, where he ate, what he ate. If he went into the Coop, what did he buy? He had announced his allegiance to the Anglo-Catholic branch of the Episcopal Church, and we suspected that he attended Sunday services in the Church of St. John the Evangelist, on the back of Beacon Hill in Boston. That turned out to be true.
When Christmas Eve came, the three of us decided to attend midnight Mass at St. John's where the singing was Gregorian chant, directed by a skilled organist, Mr. Titcomb. We hoped, of course, that Eliot would be there. He was there in the first row, seated beside his colleague-friend Theodore Spencer. We took our places in the sixth row behind them. It is a small church, and that evening it was filled. It was snowing outside. The ladies wore fur coats. The liturgy was performed slowly and reverently, and the Mass was beautifully sung by the Cowley Fathers, an Anglican monastic order.
At the end of the service, the congregation stood and filled immediately into the one aisle that led to the entrance. The three of us decided to wait in our row until Eliot and Spencer passed us. Then we took our places somewhat behind them. Between us and Eliot, we noticed in the very slow moving crowd, a tall fellow we had seen in the Harvard yard. He was a graduate student. The church was quiet and we filed out. Suddenly, this student, whom we did not know, opened his mouth and recited in a strong voice a line in Italian, which he obviously directed at Eliot. We could see Eliot cringe and try to move faster in order to get out of the church. When we finally got outside, Eliot and his friend had disappeared into the falling snow, and the graduate student also had disappeared.
When I returned to college after the Christmas holiday, I ran into the student one day in the yard. I spoke to him then. "Excuse me. After midnight Mass on Christmas eve, I heard you recite a line of Italian. You seemed to direct it to Mr. Eliot. May I ask you what that line was? Possibly Dante?" He looked at me in a somewhat scornful way, and asked: "Haven't you read Guido Cavalcanti?"
"No, I haven't read Cavalcanti."
"Well, let me recite it to you and translate it. Perch'io non spero di tornar giammai. 'Because I do not hope to turn again.' Do you recognize the translation?"
This time I was able to answer in the affirmative. And I said, "Yes, it's the first line in Eliot's Ash Wednesday." "But," I continued, "Why did you do that in the quiet of that church? It disturbed Eliot."
"I wanted to tell that Old Possum that I knew he had stolen his first line from the first line of a Cavalcanti poem."
Abruptly he left me then. And I, both shocked and somewhat amused, made my way to Widener.
Thursday, February 15, 2018
My colleague, Mark Movsesian, and I are pleased and honored to announce the fourth biennial (how many years is that?) Colloquium in Law and Religion, to be hosted at St. John's in fall 2018. This seminar invites leading law and religion scholars and judges to share their work in law and religion before a small audience of students and faculty. Here is the slate of speakers:
September 17: Professor Robert Louis Wilken (University of Virginia, Emeritus)
October 1: Professor Philip Hamburger (Columbia Law School)
October 15: Professor John Inazu (Washington U. St. Louis School of Law)
October 29: Professor Micah Schwartzman (University of Virginia School of Law)
November 12: The Honorable Diane S. Sykes (U.S. Court of Appeals for the Seventh Circuit)
November 26: Professor Vincent Phillip Muñoz (University of Notre Dame)
To read more about past colloquia, please see these links:
Wednesday, February 7, 2018
I have a review of Patrick Deneen's book, Why Liberalism Failed, at the Liberty Fund blog. A bit:
[L]aw is liberalism’s most potent instrument. Law plays a legitimating role in many political regimes, but it performs unique work in Deneen’s account of the liberal state.
Legal liberalism is the device that replaces non-liberal social structures and institutions—the very structures and institutions that once sustained it—and establishes itself as the exclusive fount of authority. Legal liberalism substitutes informal relationships derived from non-liberal institutions with administrative directives and centralized controls, whether of the surveillance state, the Title IX bureaucrat, or the carceral network. Legal liberalism elevates the Constitution to the status of sacral cultural object, in the process consecrating the legal state: new citizens and officeholders swear an oath not to the nation, but to the Constitution and the law. Legal liberalism trumpets the ceaseless progression of individual freedoms and rights, even as its laws generate and consolidate greater power, wealth, and control in the state. Legal liberalism’s contemporary master right, as announced by its oracles—to “define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”—requires a correspondingly enormous and engulfing positive law and regulatory armamentarium. Legal liberalism is predisposed toward cosmopolitanism, globalism, and internationalism, and against local custom, culture, and tradition. And it seems to me that Deneen would take legal liberalism’s educational hubs—the elite American law schools—as archetypes of the sorts of pathologies afflicting institutions of higher learning.
Indeed, one might well suppose that the partisans of legal liberalism would be the least receptive to what Deneen has to say, devoted as they are to maintaining and enlarging the power structures and ideological commitments of the liberal status quo. Lawyers and legal academics will be particularly prone to dismiss Deneen. The legal elite is adept at inventing stratagems of self-validation. It is quick to enforce internal codes of civility, conformity, right thinking, and right speaking that mark membership in the club. It drives itself to distraction in the latest Supreme Court intrigues, investing its preferred justices with a superhuman heroism and a cult of personality (while demonizing the others). It jealously guards its own birthright. It will not like this book.
Yet even those within the legal liberal establishment who are inclined to hear him out might doubt that Deneen has shown that legal liberalism has “failed,” or that its weaknesses are so pervasive as to suggest imminent regime collapse. In the first place, legal liberalism, and the society that it has supported and been supported by, have generated vast economic wealth. To be sure, the allocation of that wealth has been, to put it gently, uneven. But its resources are nevertheless formidable. Second, legal liberalism has made several great social and political advances possible. It has helped to ameliorate, if not correct, certain profound injustices affecting various marginalized groups and it has expanded social and economic opportunity. These are genuine contributions. Deneen rapidly acknowledges this point early on, but the balance of the book does not demonstrate that the political and legal framework of liberalism either is an abject failure or has reached the point of breakdown.
What Deneen has shown, and to great effect, are a series of dynamics internal to the claims, logic, and aspirations of liberalism that produce extremely serious problems. Yet of all the variations of liberalism discussed in the book, legal liberalism is perhaps least likely to adapt to overcome these difficulties because of its deep investments in maintaining its own position. Deneen might welcome this resistance as the beginning of the end, since it would confirm a piece of the book’s thesis. But if the end is coming, legal liberalism’s tail is likely to be a long one.
Monday, January 22, 2018
Journal of Catholic Legal Studies Symposium on "Christian Legal Thought: Materials and Cases" by Brennan and Brewbaker
My excellent students, Liam Ray and Nick DeMarco, have put together a symposium as part of their work on the Journal of Catholic Legal Studies at St. John's on the new casebook on Christian Legal Thought by Patrick Brennan and William Brewbaker. The announcement for the event is below:
This Friday, January 26, the Journal of Catholic Legal Studies (a publication of St. John’s University School of Law) will host a symposium on the new casebook Christian Legal Thought: Materials and Cases (2017) by Patrick M. Brennan (Villanova) and William S. Brewbaker III (University of Alabama). The symposium will take place at the New York Athletic Club in Manhattan from 3 PM to 6 PM, with a reception at the Club following from 6 PM to 7 PM. It will feature as panelists both casebook authors, as well as Professors Randy Beck (University of Georgia), Angela C. Carmella (Seton Hall), Richard W. Garnett (Notre Dame), Michael P. Moreland (Villanova), and David A. Skeel, Jr. (University of Pennsylvania). The event is free and open to the public (please note the New York Athletic Club’s dress guidelines). More information, including whom to contact with questions, is available here. The January 19 deadline to RSVP has been extended to January 25.
Tuesday, December 12, 2017
My partner in crime, Mark Movsesian, and I have a podcast on last week's oral argument in Masterpiece Cakeshop. We discuss the back and forth among the justices and the lawyers on both the compelled speech and the free exercise claims, the analogy to race, the status/conduct distinction, and much else (bookended by a little François Couperin (dit "le Grand")).
Tuesday, December 5, 2017
The Masterpiece Cakeshop case was argued today before the Supreme Court. Most of us ordinary folk thought that the compelled speech argument was going to be the show. That still may turn out to be the case, since reading oral argument for clues as to the decision is not so reliable.
Still, reading through the transcript today, and in particular the colloquy among JJ. Kennedy, Alito, Gorsuch, the Chief, and counsel for Colorado, it seemed to me that the Free Exercise Clause was the surprise of the day. Those justices were pretty focused on the "animus" exhibited by one of the Colorado Civil Rights commissioners, additional comments in a similar vein by a second, and (especially in J. Alito's questioning--see 58-59) evidence that the Commission found no fault with bakers who refused to make cakes for clients who espoused views critical of homosexuality--indeed, that approved such decisions "in light of the offensive nature of the requested message." See Masterpiece Cakeshop, 370 P.3d at 282 n.8.
I didn't expect the Free Exercise Clause claim to make any headway. But this is exactly what Tom Berg and Doug Laycock emphasized in their fine brief (which was noted by counsel at oral argument). I've got my own reservations about animus arguments. But kudos to the two of them for making this argument. Who would have thought that this might be the case to give the utterly desiccated Free Exercise Clause a little juice?