Mirror of Justice

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Thursday, October 16, 2014

Bradley, "Religious Liberty at a Crossroads"

My colleague Gerard Bradley has a good essay at Public Discourse, called "Religious Liberty at a Crossroads," in which (among other things) he engages some of the criticisms that have been made of the accommodation-and-exemptions features of our religious-freedom-protection regime.   As he writes, "US religious liberty law is not perfect, but it still deserves our support. Religious exemptions witness to the value of religion as a transcendent good."  Of particular importance, Bradley makes it clear why Christians who understand the Christian faith to be true nevertheless have a (non-relativistic, non-emotivist) reason for defending the religious freedom of non-Christians, including the Muslim prisoner in Holt v. Hobbs.

October 16, 2014 in Garnett, Rick | Permalink

More Questions About Hobby Lobby, Holt v. Hobbs, and the Significant Harm to Third-Parties Establishment Clause Theory

In my last post on the subject, I wondered why there had not been more discussion on the part of advocates of the Significant Harm to Third-Parties Establishment Clause theory (abbreviated for convenience hereafter as SHTEC) regarding the application of that theory to the prison-beard case, Holt v. Hobbs. As Rick notes below, the application of SHTEC theory to both Hobby Lobby and Holt v. Hobbs was recently addressed by Nelson Tebbe, Micah Schwartzman, and Richard Schragger. I will rapidly pass over the characterizations of the existing doctrine, as Rick discusses some of this and I've talked about it before, except to observe that whatever virtues SHTEC theory may have, its status as an “established principle of constitutional law” seems an improbable one. As I have explained before, SHTEC theory represents a major extension of current law. I also read the Hobby Lobby vote breakdown differently. If Justice Kennedy really accepted SHTEC theory, and believed that third-party rights in Hobby Lobby would have been violated by an accommodation for Hobby Lobby, then it is confusing to me that he would have joined the Court's footnote 37. But he did join it (and of course he also said some very nice things about Justice Ginsburg).

On the application of SHTEC theory to Holt v. Hobbs, and to RLUIPA prison cases generally, I have some additional questions. My principal difficulties are terminological. I am having a hard time understanding what constitutes “significant” or “substantial” harm to “third party interests” and how that standard works in tandem with the RLUIPA standard.
First, the standard of significance seems elusive to me. With a slight tweak of the facts, maybe this becomes clearer. Suppose that the prison had a “No hair on the face or head longer than 1/4 inch” policy. And suppose it had evidence that exactly one person (or two, or five) had hidden a shank or a SIM card in their hair. What is the relationship for SHTEC purposes between frequency of harm and gravity of harm? Are one or two such instances enough to be “significant” because the gravity of the threatened harm is so great? Whatever one may think of the harm to third parties in Hobby Lobby, that harm is less grave than the third party harm I am positing (assuming one can agree that harm to life is graver than harm to access to employer-paid contraception), but of course the number of incidents of harm is greater in Hobby Lobby than in my modified Holt v. Hobbs hypo. SHTEC theory advocates can respond that Holt v. Hobbs didn't deal with any of that. And so what is really going on is a failure of evidence. That's fine, but that side-steps the issue. I'm less interested in the particular state of the evidence here than in understanding how SHTEC theory would apply in even a slightly more difficult prison case (surely these would fruitfully multiply after a favorable ruling for the prisoner in Holt v. Hobbs).
Second, I have difficulty with the distinction between third-party harms and government/state harms. Is there such a sharp difference? Or is it in the end all harm of various kinds to the state (that is to say, harms of multiple and varying kinds to the rest of us who are not being accommodated)? It may be some evidence in favor of the latter that there have been no separate SHTEC claims brought in the context of RFRA or RLUIPA actions. Everything has been analyzed pursuant to the statutory standard. Again, that’s because third party harm might be a kind of compelling interest that ultimately constitutes a state interest under RFRA or RLUIPA. Whether it rises to that level will depend on just how severely it burdens third parties (as Caldor put it, those accommodations which "take no account" of third parties are going to be in hot water). But notice what happens if one layers a SHTEC claim on top of the RFRA/RLUIPA compelling interest standard. Now it seems that third party harm claimants are on an equal footing with religious claimants. Religious claimants must allege a substantial burden; third party claimants can then allege a contravening "significant" burden; with the result that the government need not accommodate the religious claimant, and can circumvent its obligations to come forward with a compelling interest, by pointing to the SHTEC theory violation that would result from religious accommodation.
Third, in addition to administrative harms (which were not argued by the state in Holt v. Hobbs), there may be, as I've said before, symbolic harms of various kinds at issue (the state didn’t argue these either…but the state did a fabulously poor job of defending this case). Symbolic harms might affect the prison, the inmates, and the rest of us who support, in various ways, the system of criminal justice. As I indicated in my previous post, these are just as much harms to identifiable interests as are financial harms. They might include harms with respect to the equal treatment of prisoners and harms to the state’s interest (that is to say, to our interests, as well as the prisoners’ interests) in imposing discipline and uniformity on prisoners who very much need it. These are true harms. They are part of the purposes and functions of prisons in general. They even implicate certain important functions of punishment, including retributivism and rehabilitation, functions of punishment that Congress itself has recognized as important in the Sentencing Reform Act, among other places. Surely many state legislatures have done something similar in their own penological systems. To my mind, they may indeed be very significant. The egalitarian harms could be resolved in part by leveling up for non-believers, but that leveling up is extremely likely to produce other harms (resentments among those who cannot come up with a reason of “conscience” as well as rising administrative costs as more and more prisoners seek exemptions of various kinds). 
Fourth, a final point of puzzlement: why is there no discussion in SHTEC theory of different standards of deference in a case like Holt as opposed to a case like Hobby Lobby. Under existing law, there is no deference at all in the latter (the standard is one of strict scrutiny), while there is great deference to the state in the former. Indeed, one of the primary points of uncertainty in the oral argument in Holt was how to reconcile strict scrutiny with this substantial deference to prison administrators (cf. Grutter v. Bollinger). But I have not seen this difference in the amount of deference accorded to the state discussed by SHTEC theorists (I may well have missed it). Does SHTEC theory incorporate a deferential posture with respect to prisons (and the military, and perhaps certain other institutions)? It might not, because SHTEC theory is focused on non-state third party interests. But if, as I have suggested, the distinction between state interests and third party interests is not really a strong one (Arkansas was itself making arguments on behalf of its prisoners, who are third parties), then SHTEC theory certainly could grant deference to third parties in environments in which the state has greater experise, need for control, etc. If that is right, then it seems to me that such deference would take the form of giving a great deal more latitude to the state (or to third parties) on the issue of what is “substantial” or “significant” harm. Perhaps Arkansas still loses in Holt v. Hobbs. But it shouldn't take much more at all for it to win.

October 16, 2014 in DeGirolami, Marc | Permalink

More on the Establishment Clause, "third-party harms", and RFRA

My friends Nelson Tebbe, Micah Schwartzman, and Richard Schragger have a post up at Balkinization in which they discuss the aftermath of Hobby Lobby and the recently argued Holt v. Hobbs.  Among other things, they state that "longstanding Establishment Clause doctrine prohibits the government from accommodating religious actors when that means shifting significant burdens to third parties who may not share those beliefs."  And, they continue, "there are five votes on the Court for the proposition that depriving Hobby Lobby’s employees of contraceptive coverage because of the company’s religious objection violates the Establishment Clause. And that is exactly what is happening right now."

It could be, I suppose, that there would be five votes for that proposition (based on Justice Kennedy's concurring opinion) but, in any event, I continue to disagree with the claim -- a claim that, I realize, other very smart friends of mine accept -- "longstanding Establishment Clause doctrine prohibits the government from accommodating religious actors when that means shifting significant burdens to third parties who may not share those beliefs."  As I wrote, in this short essay, the argument that it would violate the Establishment Clause to accommodate Hobby Lobby (or Notre Dame, or the Little Sisters, etc.) pursuant to RFRA  relies on an overly broad reading of a few relatively short and thinly reasoned opinions, like Estate of Thornton v. Caldor.   This and the other cases relied on do not, in my view, "stand for a broad rule about the impermissibility of costly or cost-shifting accommodations.  And, to the extent that the Establishment Clause does place limits on accommodations that are excessively burdensome to the public or to identifiable nonbeneficiaries, RFRA would seem to incorporate those limits into its standard of review."  And, I added:

[T]here is broad agreement that the Constitution places some limits on the ability of governments to accommodate religious believers and institutions through exemptions from otherwise applicable rules.  An accommodation could be unconstitutional, for example, if it were not "administered neutrally among different faiths." And, again, it is true that in a few cases the Court has treated the burdens that an accommodation would impose on third parties or on the government as relevant to the question whether the accommodation is constitutionally permissible. At the same time, it is worth remembering that any imaginable legislative accommodation will benefit some (i.e., those whose religiously motivated practices are being burdened and from whom that burden is being lifted by the accommodation) more or rather than others. There is no constitutional requirement that the accommodation of religion, "permissive" or "mandatory," be entirely uncomplicated or completely cost-free."

(For a response to my essay, see Andy Koppelman's and Fred Gedick's paper, here.) 

As I see it, Nelson, Rich, and Micah are staking out a claim, and developing what is really a political-morality argument, about what ought to be the case and about how religious objections ought (or ought not) to be accommodated.  It does not seem to me that much in their argument really depends on the Court's authority, or on the binding authority of Caldor, Cutter, etc.  Caldor is just a few pages long, and contains just a few paragraphs of Chief Justice Burger's reasoning, and is devoted mainly to identifying the particular and very unusual features of the challenged law.  As I see it, it tells us very little either about what the Establishment Clause generally means and requires, and even less about the demands of political morality in a pluralistic society.

October 16, 2014 in Garnett, Rick | Permalink

Wieseltier on Sierra Leone, Ebola, and God

This piece ("This Room Is the Most God-Forsaken and Man-Forsaken Place on Earth") is gut-wrenching and heart-breaking.  Like so much of what the author does, it is -- putting aside the merits of all the claims -- brilliantly written.  Here's a bit:

The problem is that many victims will not be reached by the mitigations and the meliorations. Relief will come late or not at all. The hideous dying will proceed. And so the question of why the little girl perished cannot remain only a policy question. The death of a child deserves to be regarded as an event of cosmic significance, as a comment on the character of the universe. Gazing at Samuel Aranda’s photograph, how can one not recall Ivan Karamazov? The pandemic casts us into a search not only for causes but also for meanings. Theists can blame God, if they have the guts, since for them God exists, but atheists cannot blame God, since for them God does not exist. (“I hate You, God,” Maurice Bendrix acidly declared at the conclusion of The End of the Affair. “I hate You as though You existed.”) Atheists may blame the belief in God, but it is highly implausible to impute this disaster to the illusions of priests. Theists, who cannot tolerate the view that their God is vicious, will almost certainly invent a greater good in the great evil, and thereby protect their faith from the implications of the destroyed children. Atheists will insist that we ought to be acting practically instead of speculating metaphysically—discussing concrete fixes, not occult entities. But who is against fixes? Many of the heroes in the African charnel house are Christian missionaries. In the way of meaning, then, nobody has much to offer. Atheists ought to be struck dumb and theists ought to shut up. And neither a shaken fist nor a bowed head is a contribution to understanding. . . .

October 16, 2014 in Garnett, Rick | Permalink

Wednesday, October 15, 2014

A disenchanted courtwatcher names the best three or four cases? Not here.

Suppose one were to ask another to name the best three or four decisions that the Supreme Court has ever made, and that the answer is: Brown v. Board of Education, Marbury v. Madison, McCulloch v. Maryland, Gideon v. Wainwright, Baker v. Carr, and Reynold v. Sims. Would it be reasonable for the questioner to conclude that his interlocutor was someone disenchanted with the Supreme Court? I say no. The person providing such an answer obviously retains an enchanted understanding of the Supreme Court. But see Sahil Kapur on Erwin Chemerinsky, discussing "the progressive legal luminary's new book, provocatively titled "The Case Against The Supreme Court." 


October 15, 2014 in Walsh, Kevin | Permalink

On that controversial "relatio" from the Synod on the Family

Here is my take on the relatio released this week at the Extraordinary Synod on the Family:


October 15, 2014 | Permalink

Monday, October 13, 2014

Inazu on "Guidelines for Living in a Pluralist Society"

From Christianity Today.  A bit:

Almost all Americans agree about the background practicalities we need to live as a society. Most of us agree that we need public roads, national defense, fire departments, and the like. We also agree today on many basic features of a democratic society: the right to vote, the right to due process of law, the right to free speech. We disagree—sometimes sharply—about the contours of these rights, but we usually have enough of a baseline to recognize the nature of our disagreement. And importantly, we agree about many basic laws, like those protecting life and property, the payment of taxes, and the operation of courts and prisons.

But all of this common ground tells us surprisingly little about who we are as a people, what our goals should be, or what counts as progress. On these deeper questions, Americans remain a deeply divided and pluralistic people. . . .

I think, as a friendly amendment to Inazu, it is important to keep in mind that "pluralism" is not only "the state of things in which many reasonable people disagree reasonably with others in the political community."  It is also "the state of things in which non-state societies are real and do have and exercise authority, authority that is properly seen as constraining and marking the limits of the political authority." 

October 13, 2014 in Garnett, Rick | Permalink

Calo on "Constructing the Secular"

Here is Zachary Calo's "Constructing the Secular:  Law and Religion Jurisprudence in Europe and in the United States."  Abstract:

This paper compares the law and religious jurisprudence of the U.S. Supreme Court and the European Court of Human Rights across three legal areas: individual religious freedom, institutional religious freedom/freedom of the church, and religious symbols/church-state relations. Particular focus is given to the manner in which this jurisprudence reveals the underlying structure and meaning of the secular. While there remains significant jurisprudential diversity between these two courts and across these different legal areas, there is also emerging a shared accounting of religion, secularity, and moral order in the late modern the West. These legal systems will increasingly be defined by their similarities more than their differences.

Like The Man says, "download it while it's hot"!

October 13, 2014 in Garnett, Rick | Permalink

Weigel on Murray's "We Hold These Truths"

Something on the interwebs steered me to this paper, by George Weigel, called "Truths Still Held?  John Courtney Murray's 'American Proposition,' 50 Years Later."  ( Download Weigel on WHTT).  It might usefully be read in connection with the ongoing debate about "radical Catholicism", American liberal constitutionalism, etc.  Here is just a taste:

. . . The bonds of this civic friendship or solidarity in America reinforced that founding consensus that gave philosophical content to Murray’s American Proposition. This consensus was, in Murray’s words, “an ensemble of substantive truths, a structure of basic knowledge, an order of elementary affirmations” that reflect the truths we can and must know by reason about how we ought to live together. No true City, and certainly no true democracy, is possible if everything is in doubt. If there is to be genuine argument, and not just cacophony or the will-to-power, there must be, Murray wrote, “a core of agreement, accord, concurrence, acquiescence,” because only if certain truths are held can there be genuine arguments. Much of modernity, Murray knew, had this exactly backwards, thinking that argument ends when agreement is reached. The opposite is more fundamentally true, in both the sciences and the humanities: real argument is only possible within a pre-existing context of agreement on certain truths. . . .

I continue to find a lot to like in We Hold These Truths, and in Murray's work, stance, and approach generally (especially regarding the church/state/society nexus) -- notwithstanding the fact that I find a lot to like in the more critical writings of Brad Gregory, Alasdair MacIntyre, Patrick Deneen, etc.  At the same time, I definitely and increasingly share what I took to be Weigel's worry that "the third truth within [Murray's American Proposition] – that the state exists to serve society, which is ontologically and historically antecedent to the state – has become attenuated in its grip on our public culture." 

October 13, 2014 in Garnett, Rick | Permalink

Sunday, October 12, 2014

It never hurts to talk about good news . . . ACE at Notre Dame

My own view is that we are in challenging times for Catholic institutions and the challenge -- but also the need and the importance -- will only grow.  At Distinctly Catholic, Michael Sean Winters has a really good piece up, talking about Notre Dame's Alliance for Catholic Education (A.C.E.) program (for which the brilliant and talented Prof. Nicole Stelle Garnett works, in addition to her Notre Dame Law School gig).   Also, here is a piece I did ("Treasure A.C.E.") on the program, about 5 years ago.  MSW's post opens with this:

On Monday mornings, the staff and faculty associated with Notre Dame’s Alliance for Catholic Education (ACE) gather in a small chapel on the ground floor of Visitation Hall for Mass. This past Monday, Father Timothy Scully, CSC, who started ACE in 1993, was the celebrant when I joined the group for the Mass. The service is simple: guests, including myself, are welcomed, an introductory hymn (2 verses, very RC), a short homily, a song at communion. The passing of the peace takes awhile as these colleagues embrace each other at the beginning of their work week. Afterwards, I threaten to report the group to the Congregation for Divine Worship because I am not sure the passing of the peace was as somber as the CDW thinks it should be. After Mass, everyone heads upstairs for a breakfast together before heading off to their offices to set about their work.

And, what precisely is that work? In shorthand, some people think that ACE is trying to save Catholic parochial schools, the educational equivalent of an architectural preservation firm. This could not be more wrong. During a morning of meetings with different staff members it becomes clear that the group has no interest in maintaining the Church’s nineteenth century infrastructure for its own sake: They are passionate about educating today’s young people in schools that are not surviving but flourishing. . . .

October 12, 2014 in Garnett, Rick | Permalink