Mirror of Justice

Coeur D'Alene compelled marriage celebration lawsuit a sign of things to come

The City of Coeur D'Alene is a defendant in a federal lawsuit brought by Donald and Evelyn Knapp, a husband-wife team of ordained ministers who perform wedding ceremonies in their family business, The Hitching Post, LLC (also a plaintiff). The City has said that the Knapps' refusal to perform a same-sex marriage ceremony would violate the City's nondiscrimination ordinance. The Knapps contend that the City's threatened punishment of them would violate the First and Fourteenth Amendments and Idaho's Religious Freedom Restoration Act.  

The complaint quotes a deputy city attorney as setting forth the city's stance and explaining how that stance depends on the Ninth Circuit's recent judicial redefinition of marriage in Idaho to require inclusion of same-sex couples:

“For profit wedding chapels are in a position now where last week the ban [on same-sex marriages] would have prevented them from performing gay marriages, this week gay marriages are legal, pending an appeal to the 9th Circuit… If you turn away a gay couple, refuse to provide services for them, then in theory you violated our code and you’re looking at a potential misdemeanor citation.”

It is noteworthy that this deputy city attorney describes the celebration of marriage ceromonies as just another "service," and the Knapps' refusal to celebrate a same-sex marriage ceremony as a refusal to provide services on the basis of sexual orientation. States that have statutorily redefined marriage to be an institution open to same-sex couples have included statutory exemptions for churches and clergy that would not require them to solemnize same-sex unions. Generally speaking, they distinguish between solemnization and other services related to marriage. Because Idaho's marriage redefinition has been accomplished by the judiciary instead of the legislature, the scope of obligations that may be imposed by state law (with which municipal law must typically comply) is unclear. To be sure, it is also unclear whether the Knapps' business--in contrast with the Knapps themselves--would have fallen within a statutory exemption even if there had been one in Idaho. But cases like this highlight the kinds of questions that will arise over the next several years as cities, states, and everyone else negotiates the changes that come from the federal judicial redefinition of marriage.

Eugene Volokh has provided a persuasive analysis concluding that the city's application of its nondiscrimination ordinance to the Knapps and The Hitching Post, LLC would violate the First Amendment's prohibition of compelled speech and the Idaho Religious Freedom Restoration Act. I continue to believe that an initial question in cases like these is whether a refusal to perform marriage premised on one's understanding of what marriage is amounts to discrimination on the basis of sexual orientation so as to violate an anti-discrimination law. This is a question of the relevant municipal, state, or federal anti-discrimination law; here, a question of city law. I think that the city should reconsider its position on the meaning and application of that law. I further think that the city should reconsider its position on both First Amendment and state RFRA grounds. The best outcome very well could be a promise not to prosecute or impose liability under municipal law when doing so would violate federal law or state law, as would be the case here.

To the extent that this lawsuit is a sign of things to come, as I think it is, it would be nice if city and state officials could get the limits of anti-discrimination law right in the first instance without the need for judicial involvement. That said, it is a good tactical move to proceed directly to federal court. If one waits for prosecution in state court or to defend in state administrative proceedings, it will be much more difficult to get a federal forum for one's federal claims. 

Lethal Injection, Politics, and the Future of the Death Penalty -- 10/24 Symposium at University of Richmond

The University of Richmond Law Review has put together a superb symposium that is to take place in just under one week. The topic is "Lethal Injection, Politics, and the Future of the Death Penalty":

America's death penalty is in a tailspin.  That much is clear from headlines about botched executions and untested lethal injection protocols.  In this symposium, we bring together a diverse group of individuals--all experts with a unique viewpoint on the death penalty--to share their expertise and spark a thoughtful, engaging conversation with each other and our audience.  We hope you will join us.

Participants include Stephen Bright, Deborah Denno, Joel Zivot, Eric Berger, Frank Green, Mark Earley, Richard Roper, Corinna Barrett Lain, Stephen Smith, John Douglass, Brandon Garrett, and Richard Dieter. Free and open to the public (with advance registration). 4.5 VA MCLE pending approval. 

Full details available here.

The answer to this question is "no"

"Should Religion Be Blamed for the World's Bloodiest Wars?", is the title of this book review in The New Republic.  The review is John Gray's, of Fields of Blood: Religion and the History of Violence, by Karen Armstrong.   Here's a taste:

Consistently surprising and illuminating, Fields of Blood should be read by anyone interested in understanding the interaction of religion with violence in the modern world. Relying on detailed historical analysis, Armstrong argues convincingly against the prevailing idea that religion is uniquely prone to acting violently. She is less sure-footed in her account of secular faith and the violence that has been committed on its behalf. When she refers to the “secularist bias” of modern thinking, she seems to endorse the conventional perception of the modern world as having moved away from religion. Yet the logic of her argument pushes in another direction.

Few movements have been as single-minded in their commitment to modernization as Lenin’s Bolsheviks, and few have been so virulently hostile to mainstream faiths. Yet as Bertrand Russell observed in his forgotten 1920 classic The Practice and Theory of Bolshevism, written after he travelled to Russia and talked with Lenin, Soviet communism was from the beginning as much a religion as a political project. Oddly, though it was a rerun on a vaster scale of the French revolutionary terror that she analyzes so penetratingly, Armstrong says practically nothing about the Soviet experience, or about Maoism. Yet, together with Nazism, these 20th-century state cults plant a question mark over the very idea of secularization. Certainly there has been a decline in the old authority of churches, but that does not mean religion is becoming weaker. Simultaneous with the retreat of the mainstream faiths, there has been a rise of a plethora of political religions and an explosion of fundamentalism, sometimes fused in a single movement. . . .

My View About Whether Religious Exemptions Impose Third-Party Harms Is That They Always Do

Professor Amy Sepinwall has posted a paper entitled, "Conscience and Complicity: Assessing Pleas for Religious Exemptions in Hobby Lobby's Wake" to SSRN. The paper has a request not to be cited without permission, so of course I won't cite (or quote) any of it, not even its publicly available abstract. I will note, however, that it mentions my name in connection with the view that religious exemptions never impose cognizable harms on third parties.

In order to avoid any confusion about the matter, permit me to make my view plain. Religious accommodations always impose harms on third parties. I have said so repeatedly in my posts on the subject. Sometimes those harms will be legally cognizable, and I have never argued to the contrary. The tricky issues do not concern questions about per se legal cognizability of third party harms. They concern the context in which those harms are assessed as a legal matter, and the standard by which they are assessed. As to that question, it is true that I believe that the existing statutory frameworks of RFRA and RLUIPA incorporate an assessment of third-party harms. Within those statutory frameworks, third party harms may, indeed, sometimes be legally cognizable.

Religious accommodations and legal pluralism

In this piece, ("Religious accommodation's roots in legal pluralism"), Prof. Katherine Franke writes that "one way of understanding the accommodation of religion is to see them as making a claim to a kind of legal pluralism. From this vantage point, what they amount to is a demand that the state and other citizens acknowledge that the party asserting the exemption regards itself as governed by two competing legal systems—one secular the other religious, and when the demands of those two systems come into conflict the request for the exemption amounts to a claim that religious law should be treated as supreme."  She also writes, later in the piece, "the claim to an exemption grounded in religion represents a claim to authority made from sources exogenous to the secular legal system itself, and in profound ways poses a determined threat to the idea of state power and to singular legal authority."

Now, for me, unlike Katherine, to identify something's roots in "legal pluralism" is, generally speaking, to pay that something a compliment.  (I recommend, by the way, Prof. Victor Muniz-Fraticelli's new book, The Structure of Pluralism.)  But, put that general matter aside:  Although Madison's Memorial and Remonstrance certainly takes seriously the authority of "sources exogenous to the secular legal system itself," I do not think it is the case that our accommodation-through-exemption regime in the United States really reflects or constitutes a "threat to the idea of state power" or even to the idea of "singular legal authority."  In practice, and in most of the arguments for religious accommodation, the conversation happens in terms of interest-balancing, toleration, benevolence, getting-along, etc.  

It is true that -- for some of us, anyway --  the idea that the state's authority is both limited and non-singular is important and worth operationalizing through constitutional doctrines like the ministerial exception.  But again, most requests for religious exemptions, in practice, look and sound to me much more like requests (or pleas) for toleration and for the state to stay its hand, moderate its approach, and endure a little inconvenience in order to reduce unnecessary pain to certain citizens with religious objections to complying with otherwise generally applicable laws.  

We could hear, for example, Mr. Holt as making some kind of jurisdictional claim about the state's lack of authority to regulate the length of Muslim prisoners' beards and, to be sure, he is (at least implicitly) claiming that to the extent the relevant non-political authority's commands conflict with the political authority's, he believes the former authority's are the ones that, for him, control.  But, within the confines of our religious-liberty legal regime, he is simply invoking one of the political authority's valid and binding laws (RLUIPA) in support of his claim that another of the political authority's binding and valid policies (the prison-grooming regulation) can, all things considered, be modified in application in this particular case, and therefore should.   There is nothing -- to use Katherine's word -- particularly "radical" about that.

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.

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.

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.

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. . . .

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."