Mirror of Justice

Law Professors Impacting the Highest Court

Well, it is a great honor for a lawyer to advocate and win in the Supreme Court once in one’s career.  To win 9-0 is even more impressive.  To win twice in two weeks, well that is something.  That is also exactly what my colleague here at The Catholic University of America, Mark Rienzi, has done with today’s announcement of the Hobby Lobby case.  As was previously blogged on MOJ he argued and won 9-0 in  McCullen v. Coakley and participated in and won Hobby Lobby.  A write up of his two victories are here and here. 

Not to be outdone, my colleague Robert Destro and recent alumnus, Austin Lipari, also tasted victory in the Supreme Court.  A write up regarding their case, Susan B. Anthony List v. Driehaus, is here.

Hobby Lobby Wins, Narrowly

The Court holds for Hobby Lobby, with Kennedy joining the majority but also writing a concurrence emphasizing the limits of the decision. The broad issues are resolved in the plaintiffs' favor (rightly in my view): for-profit closely-held corporations can be persons exercising religion, and the coverage mandate with accompaying fines and assessments imposes a substantial burden. The Court dodges the compelling-interest question and decides the case on "less restrictive means": the majority opinion and the Kennedy concurrence ultimately point to the insurer-pays accommodation for nonprofits as a less restrictive means of providing contraception coverage. I think the opinion and concurrence imply that some form of the nonprofit accommodation will be held a permissible solution (perhaps with tweaking about who the notification of opt-out must be sent to.)

Is it too crass to say that I predicted this as a likely result? (OK, guessed right.)

I also think this is a good result. RFRA should apply in the commercial sphere and should be taken seriously, but it also was not meant to--and should not--cut a swath of destruction through general commercial regulation.

Breyer and Kagan decline to join the part of Ginsburg's dissent that denies all religious-freedom rights to for-profit corporations.

Brendan Eich was only the beginning . . .

Anyone interested in understanding the most effective techniques for policing people's thinking and enforcing approved beliefs might learn a thing or two from the experience of a friend of mine who works at one of the nation's largest banks. Here is his recent message to me:

I've worked at Chase for the past 11 years. Yearly (sometimes skipping a year though) the bank will send out an Employee Survey to gauge how the employees feel about the bank and the management team they report up to. Every year that's all the questions ever related to: the bank in general and management. But this year there was a question that had many of us scratching our heads.

This is a company wide survey. All lines of business have the same survey. There was a question where it said to check the boxes that were applicable to you. You could select one, more than one, or none. Here it is:

Are you: 1) A person with disabilities; 2) A person with children with disabilities; 3) A person with a spouse/domestic partner with disabilities; 4) A member of the LGBT community.

I thought 4 was a little oddly placed, but oh well. It was the next option that pulled the needle off the record:

5) An ally of the LGBT community, but not personally identifying as LGBT.

What?! What kind of question was that? An "ally" of that community? What's the
alternative if you don't select that option? You're not a ally of the LGBT
community?

This survey wasn't anonymous. You had to enter your employee ID. With the way things are going and the fact that LGBT rights are being viewed as pretty much tantamount to the civil rights movement of the mid 50s to late 60s, not selecting that option is essentially saying "I'm not an ally of civil rights"; which is a vague way to say "I'm a bigot." The worry among many of us is that those who didn't select that poorly placed, irrelevant option will be placed on the "you can fire these people first" list.

The message to all employees is perfectly clear:  You are expected to fall into line with the approved and required thinking.  Nothing short of assent is acceptable. Silent dissent will no longer be permitted.

Irony and Tragedy: Reply to Marc

Thanks, Marc, for the thought-provoking responses to my questions about irony and tragedy as approaches to understanding religious-liberty (and other) conflicts. Here are a few quick responses. A tragic diagnosis might be more accurate than an ironic one*/ on balance, or for some range of cases—say, the most difficult and vexing ones. That is, there’s surely some point where values and ways of life become incommensurable, no moral appeal to more general commonalities is sufficiently relevant or persuasive, and the only possibility is a pragmatic compromise that heads off worse harms. Both I and (as you mention) Niebuhr acknowledge that. And many of the pro-religious-exemptions arguments made by Berg-Esbeck-Garnett-Laycock-Wilson et al. are self-consciously pragmatic. The question, I think, is how quickly we should reach the conclusion that case-by-case compromise is all there is; or whether moral appeals to a sense of irony or humility can have any significant effect in meaningful cases of conflict. I think you’re saying “No they can’t,” and I have a few reactions.   

1. That seems to me too much of a blanket denial. As I see it (and I think as Niebuhr saw it), human beings have highly divergent beliefs and projects stemming from their different situations, experiences, and attitudes; but they also share certain commonalities at more general levels, and they have some capacity to recognize those commonalities. You say that “[t]he opposing sides [in religious-freedom disputes] are not making the same sorts of claims, because the claims they make about liberty or equality are grounded in very different views of the human good and of the moral life.” You say that they cannot accept in principle any liberty or equality claims of the other side, because “[t]he other side’s success inevitably detracts from the larger moral vision.”

     I doubt that this reflects our constitutional system—even in its reality, not just in its rhetoric—or that it could sustain that system. The same things could be said be said about even the most basic rights of religious freedom—or to pick a value that seems to be accepted across the constitutional spectrum today, the most basic rights of freedom of speech. The other’s side ability to congregate even in private, or to exercise the most minimal ability to express its views, also “inevitably detracts from the larger moral vision” of its opponents. Is it the situation that there is no commitment in principle to any shared meaning of freedom of speech, even at the core—that every protection of even the most basic ability to speak reflects no more than a case-by-case compromise? I concede that as the cases get “harder,” they become more difficult, and eventually impossible, to resolve through consensus principles; each side will point to a plausible general-consensus principle that supports its position, and the conflict cannot be fully resolved by either principle. But before we reach that point, it seems to me, there are many cases where a lot of people can say, “I disagree strongly with your underlying beliefs or views—I may even despise them—but I can see that you are asserting a legal claim that in principle falls in the same category as mine.”

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The 5th Annual Law and Religion Roundtable

I recently returned from the 5th (!) Annual Law and Religion Roundtable, which met this year on the lovely campus of Washington University in St. Louis.  (Thanks very much to Prof. John Inazu and his colleagues for being such excellent hosts!).  We read and discussed about 20 works-in-progress and also had time for conversation and re-connecting over meals . . . and -- for some -- the World Cup.  (There was, no surprise, a lot of attention paid on Thursday morning to the ScotusBlog "live feed", as the announcement of a decision in Hobby Lobby would have been, it is safe to say, of some interest to many present.)

MOJers Michael Moreland and Kevin Walsh were also there, and I'd love to hear /read their impressions.  My own sense -- and Paul Horwitz presented a working paper that explored this possibility in more detail -- is that the law-and-religion/church-state/First Amendment controversies of recent years, which have had to do with hot-button and culture-war issues like abortion, contraception, sexual orientation, and marriage, have introduced (or maybe just surfaced and exposed) some tensions and edges that might have been absent (or at least hidden) during the previous decade or so, or perhaps even during the 20+ years since RFRA was enacted.  (Which is certainly not to say that the conversations among scholars in the field does not remain civil, collegial, engaging, and earnest.)  The debate is not limited to the (no small thing!) challenge of working out a balance among (i) concern for religious minorities whose practices can be burdened through discrimination, indifference, or failure to accord sufficient respect; (ii) the longstanding and continuing place of religious expression, values, institutions, believers and themes in public and political life; (iii) the desire to avoid "divisiveness" in our increasingly pluralistic society; and (iv) a respect for the integrity, autonomy, and -- in a sense -- "separateness" of religion.  More so now than before, it seems to me, "religion" (and religious accommodations, religious believers' claims and arguments, etc.) is seen by some as a problem to be managed, a threat to be guarded against, and/or an obstacle to be overcome.  If "religion" *were* seen in this way, it would (naturally?) be regarded as less deserving of respectful accommodation and as less welcome in civil society, outside the closely cabined "private" realm.    

The Becket Fund's response

The folks at the Becket Fund have posted a detailed response to a recent piece that ran recently (and to which I contributed some quotations) in the American Prospect.  The response states, "Much of the article is fair and balanced. But one of its core claims—that the Becket Fund has been drifting from its founding principles—misses the mark and misunderstands religious liberty. . . "

McCullen v. Coakley and Pro-Life Speech: "An Outstretched Hand," Not a "Strained Voice"

The Supreme Court unaimously decided Thursday that Massachusetts violated the First Amendment by excluding speech from a 35-foot "buffer zone" around abortion clinic driveways and entrances.  McCullen v. Coakley is a victory for pro-life speech rights, although just how broad a victory is uncertain.  The majority opinion by Chief Justice Roberts ruled for the sidewalk-counselor plaintiffs but rejected their argument that the Massachusetts law in question discriminated against pro-life speech.  Before I discuss the implications of those holdings, let me highlight a different, significant way in which McCullen may advance the pro-life cause.

1. The counselors’ “outstretched hand.”  The state law was challenged by Eleanor McCullen and other pro-life counselors who sought to engage women entering abortion clinics in quiet, personal conversation and offer them information and help concerning financial support, adoption, and other alternatives to abortion.  Roberts’s opinion (joined by Breyer, Ginsburg, Kagan, and Sotomayor) held that the law "burden[s] substantially more speech than necessary" to accomplish the state's asserted goals of protecting public safety and preventing harassment or obstruction of women entering clinics.  It noted that the state had plenty of more narrowly tailored means to prevent these harms; it also rejected the state’s argument that the plaintiffs could exercise speech from outside the buffer zone.

On the last point, the majority noted that McCullen, like other sidewalk counselors, sought to engage women with "a caring demeanor, a calm tone of voice, and direct eye contact" but that the 35-foot zone "often reduced her to raising her voice at patients from outside the zone—a mode of communica­tion sharply at odds with the compassionate message she wishes to convey."  As the Court explained, "It is easier to ignore a strained voice or a waving hand than a direct greeting or an outstretched arm....  If all that the women can see and hear are vociferous opponents of abortion, then the buffer zones have effectively stifled petitioners’ message."

Apart from its legal effect, this recognition, it seems to me, could be helpful in the ongoing battle for hearts and minds concerning abortion.  The majority opinion—joined by four pro-abortion-rights justices—has explicitly acknowledged that sidewalk counselors seek to engage women compassionately and offer them real choices besides abortion.  In an amicus brief I filed for the Democrats for Life of America and Clergy for Better Choices (a group of largely African-American clergy), we supported the counselors in arguing that the buffer zone wrongly “forced [them] into … a stereotyped mold … of a shouting protester.”  The majority opinion agrees with this and has memorialized a more accurate description of pro-life counselors in the pages of the U.S. Reports.  To employ the phrases from the Court’s opinion: The pro-life movement frequently offers—and it must offer—“an outstretched hand” rather than “a strained voice.”

“An outstretched hand” include the compassionate provision of alternatives that Eleanor McCullen and other sidewalk counselors offer.  It means the kind of assistance offered by crisis pregnancy centers. "An outstreched hand" also means more of the social supports for women, children, and families that reduce the perceived need for abortion: better family-leave policies, child-care options, nutrition and health benefits, and assistance with adoption.  A package of these benefits, the Pregnancy Assistance Fund, pushed by the Democrats for Life, was included in the Affordable Care Act.  We need to fight our way through the ideological barriers, right and left, to such programs. 

2. Abortion-speech buffers after McCullen.  Pro-lifers, although happy with the invalidation of the law, are likely disappointed that majority explicitly rejected the claim that Massachusetts had discriminated against speech with anti-abortion content, which would have put the law in the most suspect category under the Free Speech Clause.  The majority’s narrower ground—that the 35-foot zone covered far more speech than necessary—could leave in place other laws and injunctions that are less restrictive but that still specifically aim at speech outside abortion clinics.  By rejecting the broader attack on the neutrality of abortion-speech laws, the majority also reaffirmed one part of the reasoning of Hill v. Colorado, the Court’s 2000 decision that had upheld an 8-foot “floating” buffer zone around clinic patrons and staff as they moved near clinic property.  The Court had been asked to overrule Hill in McCullen, and there was some prospect it might do so.  The majority said nothing substantively about Hill, but it could be argued that the reaffirmation of one part of Hill’s rationale signals the Court will ultimately leave Hill undisturbed.

This possibility angered Justices Scalia, Thomas, and Kennedy enough that they refused to join any of the majority opinion even though they surely agreed with its holding that the 35-foot zone was too burdensome.  Scalia said in his concurrence that he “refuse[d] to take part in the assembling of an apparent but specious unanimity.”  Scalia had a point: since the majority held the law invalid based on one challenge, it was gratuitous to validate the law against the separate challenge that it discriminated against anti-abortion speech.  Moreover, the law is discriminatory in important ways: while setting up a very broad no-speech zone around clinic property, it allowed clinic employees to enter that space, where pretty clearly they could say favorable things about the clinic's work while pro-life critics were barred from entering.

On the other hand, parts of McCullen’s reasoning may still give grounds for challenging Hill.  As Kevin Russell has pointed out at the SCOTUS Blog, the alternative regulations that Roberts mentioned as available to the state all had to do with directly preventing intimidation, obstruction, and harassment: the majority never said that these concerns would justify a set buffer around individual patrons and staff, and it is at least possible to argue that they do not.  In any event, Roberts’s opinion signals—and he at least, among the five, will probably adhere to this—that any restriction will have to leave reasonable room for pro-life speakers to offer calm conversation (“the outstretched hand”), and not just distant shouting.

(Cross-posted, with minor differences, at The Whole Life Democrat)

Ramadan 2014

As our Muslim friends begin their observance of Ramadan, it is good for Catholics to remember the teaching of the Church on Islam as set forth in the magnificent declaration Nostra Aetate of the Second Vatican Council"

The Church regards with esteem also the Muslims. They adore the one God, living and subsisting in Himself; merciful and all-powerful, the Creator of  heaven and earth, who has spoken to men; they take pains to submit wholeheartedly even to His inscrutable decrees, just as Abraham, with whom the  faith of Islam links itself, submitted to God. Though they do not acknowledge Jesus as God, they revere Him as a prophet. They also honor Mary, His virgin Mother, at times even devoutly invoking her. In addition, they await the day of judgment when God will render what is deserved to all those who have been raised from the dead. Finally, they value the moral life and worship God especially through prayer, almsgiving and fasting.    

Since in the course of centuries not a few quarrels and hostilities have arisen between Christians and Muslims, this sacred synod urges all to forget the past and to work sincerely for mutual understanding and to preserve and promote together for the benefit of all mankind social justice and moral values, together with peace and freedom.

Best wishes to our Muslim friends for spiritual growth and renewal in the month of Ramadan. May your prayers, fasting, and good deeds be pleasing to God. And may we, as the Declaration calls upon us to do, work together in the cause of justice and morality, sincerely seeking the great goods of peace and freedom for all people.

Pope Francis's Remarks on Religious Freedom for Our Conference (DeGirolami trans.)

I took a shot at translating Pope Francis’s remarks on religious freedom, which he addressed to the participants at our conference on international religious freedom (an official translation will be issued later). I have tried to be faithful to the text, sacrificing a bit of readability. I have done this in part because some partial translations I’ve seen are not true enough to the original, even if the resulting translation here still leaves some open spaces in meaning (which, at any rate, should not be filled by the translator). Here is the original in Italian. I’ve also got a few comments at the end of the translation.

I welcome you on the occasion of your international conference, dear brothers and sisters. I thank Professor Giuseppe Dalla Torre for his courteous words. 

Recently the debate about religious freedom has become very intense, asking questions of both governments and religious denominations. The Catholic Church, in this respect, refers to the Declaration Dignitatis Humanae, one of the most important documents of the Ecumenical Council Vatican II.

In effect, every human being is a “seeker” of truth about his own origins and his own destiny. In his mind and in his heart arise questions and thoughts that cannot be repressed or suffocated, inasmuch as they emerge from the deeps and are by nature connected with the intimate essence of the person. These are religious questions and they demand religious freedom to manifest themselves fully. These questions seek to shed light on the authentic meaning of existence, on the ties that connect it to the cosmos and to history, and they mean to pierce the darkness by which the human condition would be surrounded if such questions were not asked or if they remained answerless. The Psalmist says: “When I see your heavens, work of your fingers/ the moon and the stars that you have fixed, / what then is man that you would remember him, / a son of man that you would care for him?” Psalms 8: 3-4.

Reason recognizes in religious freedom a fundamental right of man that reflects his highest dignity, that of the capacity to seek the truth and to adhere to it, and recognizes in that right an indispensable condition in order to deploy his own potentialities. Religious freedom is not only the freedom of a thought or of a private sect. It is freedom to live according to ethical principles consequent to discovered truth, whether privately or publicly. This is a great challenge in the globalized world, where weak thought—which is like a disease—lowers the general ethical level, and in the name of a false notion of tolerance ends by persecuting those who defend the truth about man and that truth’s ethical consequences.

Legal regimes, national or international, are called to recognize, guarantee, and protect religious freedom, which is a right that inheres intrinsically in the nature of man, in his dignity as a free being, and is also an indicator of a healthy democracy and one of the principal fonts of the legitimacy of the state.

Religious freedom, implemented in constitutions and in laws and translated into coherent behaviors, favors the development of relationships of mutual respect among the different faiths and their healthful collaboration with the state and political society, without confusion of roles and without antagonisms. In place of the global conflict of values, coming from a nucleus of universally shared values, a global collaboration in view of the common good becomes possible. 

By the light of the acquisitions of reason, confirmed and perfected by revelation, and of the civil progress of peoples, it is incomprehensible and worrisome that, even today, in the world there remain discriminations and restrictions of rights for the sole reason of belonging to and professing publicly a certain faith. It is unacceptable that true and actual persecutions exist for reasons of religious membership! And wars too! This wounds reason, attacks peace, and humiliates the dignity of man.

It is a motive of great pain for me to observe that Christians in the world suffer the largest number of such discriminations. Persecution against Christians today is even more powerful than in the first centuries of the Church, and there are more Christian martyrs than in that era. This is happening more than 1700 years after the edict of Constantine, which granted freedom to Christians to profess their faith publicly.

I hope profoundly that your conference illustrates with depth and scientific rigor the reasons that today oblige the legal order to respect and defend religious freedom. I thank you for this contribution. I ask you to pray for me. From my heart I wish you the best and I ask God to bless you. Thank you.

Some brief thoughts (and I hope others will add theirs as well):

1. A note on the fourth paragraph with Patrick Brennan’s good questions in mind (Patrick was getting the English translation from a different source). According to my translation, the Pope did not say that “every person has a right to seek the freedom to live according to ethical principles, both privately and publicly, consequent to the truth one has found.” The full paragraph fragment in Italian is:

La ragione riconosce nella libertà religiosa un diritto fondamentale dell’uomo che riflette la sua più alta dignità, quella di poter cercare la verità e di aderirvi, e riconosce in essa una condizione indispensabile per poter dispiegare tutta la propria potenzialità. La libertà religiosa non è solo quella di un pensiero o di un culto privato. E’ libertà di vivere secondo i principi etici conseguenti alla verità trovata, sia privatamente che pubblicamente.

The phrase in question, as well as the entire paragraph fragment, is, I think, more faithfully translated as “discovered truth” rather than “the truth one has found” ; “discovered truth” refers back to the same truth that is being sought for in the previous section of this paragraph.

2. Note the reference to the “global clash of values” in paragraph six–a specific comment on our conference–and the Pope’s statement that such a clash can be overcome. That struck me as relevant to the discussion that Tom Berg and I have been having here, here, and here.

3. Nevertheless, in spite of his optimism about the prospects for religious freedom, the Pope expresses great distress about the plight of Christians in the world today, as can be seen in the paragraphs toward the close of the speech.

The Boss was right about McCullen v. Coakley

The Supreme Court's unanimous judgment yesterday in McCullen v. Coakley was correct: Massachusetts violated the First Amendment by prohibiting peaceful speech on public sidewalks outside of abortion clinics. The Chief Justice's opinion for the Court puts some real teeth into narrow tailoring and should be very speech-protective in application to a range of speech restrictions down the road. I was disappointed, however, in the Chief Justice's content-neutrality ruling. 

Justice Scalia's concurrence in the judgment powerfully sets forth the case for understanding the Massachusetts law as content-based, and therefore deserving of strict scrutiny. Lest this be viewed as just another episode in the series which the Chief Justice refuses to overturn a problem precedent while Justice Scalia lambastes the Chief's faint-heartedness/moderation (readers' choice), it is worth taking note of a couple ways in which this case departs from that pattern. First, Justice Alito wrote separately from the Chief Justice to take the even stronger First Amendment position that the Massachusetts law was viewpoint-based. (Contrast that with a case like Hein v. Freedom from Religion Foundation.) Second, Professor Laurence Tribe agrees with Justices Scalia, Kennedy, Thomas, and Alito, while disagreeing with Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan. How often does that happen?

On this last point, I can't help but add a personal perspective on the decision in McCullen. Yesterday's decision marks the culmination of the first "real" federal litigation I have been involved in. As a law student, I was there at the beginning, helping out with the earlier First Amendment challenge (McGuire v. Reilly) to the (also-unconstitutional) predecessor to the law held unconstitutional yesterday. And I've had the opportunity to help out some with the McCullen case along the way as well. It has been a professional privilege to work with excellent lawyers who never gave up on meritorious First Amendment claims over the course of well over a decade. But perhaps the most encouraging aspect of the litigation for me has been to see Professor Tribe and Justice Scalia agree on the application of core First Amendment principles in a case like this. More than once, I've received strange looks and skeptical questions from people who wonder how anyone could have worked for both of these men. Yet there are a handful of us. And though I can't speak for the others, it's fair to say that I agree with Justice Scalia more than Professor Tribe about matters of constitutional law. The occasions that they agree on constitutional substance, even while many others disagree, are occasions that give me confidence in the capacity of legal principle (often more fragile in application than it should be) to direct sound reasoning about difficult and divisive issues.