Monday, January 26, 2015
"Protest too much"? A response to Schragger, Schwartzman, and Tebbe on the so-called Establishment Clause third-party harms doctrine
Richard Schragger, Micah Schwartzman, and Nelson Tebbe say that I (and it is just me, not "commentators," as far as I can tell) "protest too much" in interpreting Justice Ginsburg's two-sentence Holt v. Hobbs concurrence:
[S]ome commentators have argued that Justice Ginsburg’s concurring opinion does not ground the third-party harms doctrine in the Establishment Clause. But they protest too much. Justice Ginsberg cites to her dissenting opinion in Hobby Lobby, which in turn relies explicitly upon Establishment Clause precedents inEstate of Thornton v. Caldor and Cutter. In applying the RFRA and RLUIPA balancing tests, an important reason why the state has a compelling interest in avoiding exemptions that cause substantial harms to third parties is because the Establishment Clause requires it to do so. That is the lesson of Cutter, and in Holt, Justice Ginsburg reminds us of its continuing significance.
Some points in response:
(1) The "third-party harms doctrine" is a term coined by these scholars, not one that Justice Ginsburg or anyone on the Court has used. It’s not the term I would prefer to use to describe the kind of analysis used by the Court in Caldor and Cutter. A more precise label would be something like the “no unyielding weight doctrine.” See Cutter (explaining that "[w]e held the law invalid under the Establishment Clause because it 'unyielding[ly] weigh[ted]' the interests of Sabbatarians 'over all other interests.'") (quoting Caldor). But whatever.
(2) Justice Ginsburg would have made the same type of third-party burdens argument in the application of RFRA and RLUIPA if there were no Establishment Clause and if neither Caldor nor Cutter had ever been decided. The argument would take the form it took in United States v. Lee (decided three years before Caldor) or in Justice Jackson’s opinion in Prince v. Massachusetts (decided before the Establishment Clause was incorporated). We know this because Justice Ginsburg already relies on these cases, and these cases do not rely on Caldor or Cutter. See also part I.B.1 of the scholars' own amicus brief ("The Court’s mandatory accommodation decisions under the Free Exercise Clause reflect the same aversion to cost-shifting exemptions as its Establishment Clause decisions.") (emphasis added).
(3) This reliance on non-Establishment Clause cases in Justice Ginsburg’s opinions was part of the argument I offered in my interpretation. These scholars did not address it. Instead, they supported their “protest too much” claim by pointing to a feature of Justice Ginsburg’s opinions that I already addressed--its citation of some Establishment Clause cases. But as Marc and Rick and others have argued, one need not and should not understand Caldor and Cutter as providing a basis for freestanding Establishment Clause objections to accommodations required by RFRA. Cutter held that RLUIPA does not, on its face, violate the Establishment Clause because it does not provide for the unyielding weighting of religious interests over non-religious interests (as the Supreme Court understood the uncostitutional statute in Caldor to have done). In this respect, RFRA is just like RLUIPA. Both statutes, on their face and therefore as properly applied, require courts to take account of other interests in the application of strict scrutiny. One such interest may be in avoiding harm to third parties.
(4) When courts, properly applying RFRA, account for potential harm to third parties, they do so in applying a feature of the statutory strict scrutiny test. This feature that they apply insulates RFRA from a Caldor claim, as Cutter holds. But to say that courts consider third-party harm as part of the compelling interest test because of the Establishment Clause is to confuse a statutory feature that defeats an Establishment Clause claim with a reason for applying a statutory requirement that needs no reason to be applied other than that it is in the law. (As Schragger, Schwartzman, and Tebbe know, moreover, the compelling interest test is in RFRA because it was in prior Free Exercise jurisprudence, not because of anything stemming from the Establishment Clause.) And when courts consider third-party harms in applying RFRA's compelling interest prong, the relevant compelling interest is not avoiding an Establishment Clause violation. (RFRA already does that by authorizing substantial burdens on the exercise of religion when strict scrutiny is satisfied.) The relevant compelling interests, instead, are whatever interests the the government claims to be advancing in the regulatory scheme from which the religious believer seeks an exemption.
(5) If ever a debate were “academic” (as some use the term pejoratively), this would be it. I posted about a narrow disagreement with Rick and Marc to stir the pot a little bit here at MOJ. Because it’s not healthy (and not interesting) for us always to agree on everything, it’s helpful to occasionally flag disagreements, especially on points that may be of interest to law nerds like me and are disputed by others. To be clear, though, a two-sentence concurrence on behalf of two Justices who dissented in Hobby Lobby is not a “significant statement.” (If Justice Ginsburg's concurrence is a "significant statement," is it significant that Justice Breyer and Justice Kagan did not join it (just like they did not join Justice Ginsburg's analysis of RFRA's alleged non-coverage of Hobby Lobby in Hobby Lobby)?) Nor does such an opinion necessarily imply that a particular "doctrine" is alive and well. (For example, Justice Thomas's understanding of Establishment Clause non-incorporation is not "alive and well" in Supreme Court doctrine even though it has appeared in the U.S. Reports.)
(6) For actual significance, consider instead the unanimous Court’s confirmation of the correct approach to substantial burden analysis and its application of “exceptionally demanding” strict scrutiny.
Now, I suppose, I actually do “protest too much.” I offer no defense, but instead plead guilty because charged.