Mirror of Justice

History repeats itself. Or, an implication of a state-established church?

From Sweden:  

Sweden's Prime Minister says no priest working for the Church of Sweden should be allowed to refuse to wed same-sex couples. . . .  

Löfven, who is not religious himself, said the state church should an "open democratic church...that stands for equal rights of all people. People who love each other, regardless of their sex, should have the same right to marriage."

He favors changes in church law that would make a willingness to perform same-sex weddings a requirement for ordination.

 

Are there any John Fishers in waiting in Sweden, I wonder?

More on Trinity Lutheran: Responses to Rick and Marc

     Thanks to Rick and Marc for the good additional thoughts on Trinity Lutheran.

     Rick rightly says that the fact that church daycare admitted students of different faiths was not relevant to the Court's free exercise holding. It makes little sense as a matter of constitutional doctrine to say that the church has constitutional status of religious equality but loses that status as a constitutional matter if it does what a church does, like choose members or employees based on its faith. On the other hand, I think it would get a little trickier (under precedent, that is) if the state adopted a regulation saying that all recipients of the funding must obey rules of nondiscrimination based on religion. The Court in Christian Legal Society v. Martinez treated that as a neutral, generally applicable rule and upheld it. Now, Martinez was a terrible decision--among other things because so-called "religious discrimination" by a religious group is simply an act defining the group around its mission in the way that all mission-oriented groups do. That reality is not changed merely because a state passes a regulation calling it impermissible discrimination. Nevertheless Martinez is out there and--like other regulatory conditions on access to benefits--will probably be the major sort of issue going forward, as I suggested in part 2 of my first post.

     Marc asks why the arguments about the animus behind Blaine Amendments didn't figure in the Trinity opinion. One answer is that the arguments were not very strong concerning Missouri Article I, section 7, the exclusion of churches, the provision to which the state pointed. Exclusion of churches from funding predates the Catholic-Protestant controversies (including Blaine) by decades--unlike exclusion of religious schooling, which was intimately bound up with mid-19th-century anti-Catholicism and Protestant-oriented public school policies.  Moreover, claims of "animus" (and similar claims like "gerrymandering" or "intentional targeting") end up being stronger or weaker according to the degree of disproportionate effect on the allegedly targeted group. (Say what you want about the Trump travel ban, its restriction falls almost entirely on Muslims; no one has ever claimed Trump's anti-Muslim campaign statements would invalidate the order in the absence of this strong discriminatory effect.) Missouri's exclusion of churches may have been enacted during the anti-Catholic period around the Blaine Amendment, but it hit Protestants too because, well, they have churches--while the exclusion of K-12 schools (especially of "sectarian" schools) hit almost solely Catholics and very few Protestants. As such, the Blaine/animus arguments did not resonate particularly well in Trinity and were a minor part of the church's briefing. What resonated far more was the simple wrongness of disqualifying a church, whose playground serves kids whose interests matter as much as any other kids.' But I suspect that Blaine arguments will remain central in cases like Douglas County (see their amicus brief here) from Colorado, whose 1876 provision focused on "sectarian" schools. (I assume Douglas County will be GVRed, the Colorado courts on remand will continue to reject the Blaine and other arguments, and they'll all come back to the Supreme Court in a year or two.)

More on Trinity Lutheran

I have very little to add to Marc's and Tom's helpful reflections on today's Trinity Lutheran case.  Like Marc, I'm struck by the complete irrelevance to the Court's reasoning of the Blaine Amendments' anti-Catholic history, context, and purpose (for more on that, see, e.g., this).  I wonder what (if anything) this silence means for the "animus" argument in the context of the "Travel Ban" litigation?   

I do think it is worth noting -- primarily by way of a response to a suggestion made by Melissa Rogers in this news story -- that nothing in the case turned on the fact that Trinity Lutheran's pre-school (quoting the Chief Justice's opinion) "admits students of any religion."  That is, contrary to the argument in this amicus brief, it would not be the case that allowing a church-run daycare that did prefer co-religionists to participate in an evenhanded, secular-purpose program like the one at issue somehow constitutes government subsidization of (invidious) "discrimination." 

Where are the "Blaine Amendments"? Where is the "Animus" Inquiry?

Trinity Lutheran Church has just come down, and Tom has a nice summary and set of good comments below. I agree with much of what he says, though I have a different sense of the considerable staying power of separationism than he does. More on that in the coming months.

For now, here's one thought: this case concerned Missouri's Blaine Amendment, which is quoted in full by the Court. Many states have similar amendments, enacted frequently sometime after the failure of James G. Blaine's proposed federal constitutional amendment. The Blaine Amendments are the subject of great controversy in legal scholarship because of the anti-Catholicism that has been shown to have motivated them--the "animus" in the conventional argot. Some scholars believe that this motivational evidence is overblown. Others believe that even if the evidence exists, these provisions can be justified today on "neutral" grounds, or grounds of public reason liberalism, or some such grounds. Discussion about the Blaine Amendments' tainted genesis--their anti-Catholic animus--has been on the law and religion scholarly agenda for years. And in Locke v. Davey, the opinion of CJ Rehnquist for the Court focused very much on animus issues (Justice Scalia, in his dissent, disputed that animus was relevant, insisting instead that what the law did was relevant). In Mitchell v. Helms, another funding case where the challenge was on Establishment Clause grounds, Justice Thomas devoted a chunk of his plurality opinion to disavowing the claim that aid to "sectarian" schools is justified on Establishment Clause grounds as tainted by wicked animus:

Finally, hostility to aid to pervasively sectarian schools has a shameful pedigree that we do not hesitate to disavow....Although the dissent professes concern for “the implied exclusion of the less favored,” the exclusion of pervasively sectarian schools from government-aid programs is just that, particularly given the history of such exclusion. Opposition to aid to “sectarian” schools acquired prominence in the 1870's with Congress' consideration (and near passage) of the Blaine Amendment, which would have amended the Constitution to bar any aid to sectarian institutions. Consideration of the amendment arose at a time of pervasive hostility to the Catholic Church and to Catholics in general, and it was an open secret that “sectarian” was code for “Catholic.” 

Mitchell did not involve a state Blaine Amendment. Trinity Lutheran did. And yet you will search in vain for any reference to Blaine Amendments, the constitutional history of the period, "animus" analysis (or even the word "animus"), the motivation of those who excluded Trinity Lutheran from the funds at issue, or indeed any inquiry as to motivation. The focus is squarely on what the law did here, in this case, seemingly for this day only. In classic Roberts style, it is exquisitely minimalist. Just like Hosanna-Tabor, it goes in for hyper-particularism. This is why I very much agree with Tom's point # 3 below. Indeed, the Chief's opinion is taken to task by Justice Gorsuch for being insufficiently "principled." Justice Gorsuch would have preferred a decision more maximal in nature. 

But quite apart from the scope of the decision, nobody, but nobody, went in for deep dives into motivational inquiry in this case. It will be interesting to see just how that methodological preference works itself out in future disputes.

Strong Win in Trinity Lutheran, but with Important Issues Left Open

The Court has ruled, 7-2, that the state of Missouri violated the Free Exercise Clause when it disqualified Trinity Lutheran Church, because it was a church, from a general program under which it could have applied to receive state funds to purchase recycled tires and resurface its playground. The Court held that "[t]he Department’s policy expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.... [S]uch a policy imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny."

A few initial thoughts:

1. It's a strong win for equal participation of religion, and free religious choice, in government benefits. For one thing, this is the first time the Court has held that a religious organization, indeed a church, must be included on equal terms in a general program of government funding. Rosenberger (1995) involved a university program of funding student organizations to engage in speech; the Court there held that the particular program created a limited public forum for speech, from which religious viewpoints could not be excluded. The Court has refused--and still does--to treat government funding programs for substantive policy purposes (education scholarships, K-12 vouchers, etc.) as creating forums for speech. So this case, relying on the Free Exercise Clause, is an important step in preventing states from singling out religious schools for exclusion from school-choice programs. Most previous decisions had merely allowed equal inclusion of religious entities/persons; Trinity requires it.

      It's also strong because the vote is 7-2 and includes Kagan and Breyer (although the latter concurred in the judgment only). The once-dominant strict separationist position that barred aid broadly to religious organizations, especially to houses of worship, is represented only by Sotomayor and Ginsburg. Trinity gives further confirmation of the sea change that has happened in aid cases over the last 30 years: a strong tide away from no-aid separationism and toward equal participation in aid programs--which I think, on the whole, also serves the values of choice and freedom in matters of religion.

      Finally, the majority narrowly reads Locke v. Davey (2004), which approved (7-2 the other way!) the exclusion of "devotional theology" students from a broad program of state-funded college scholarships. The broad readings of Davey--that denial of funding is simply not a burden on religion--are now decisively rejected. Instead, the Court emphasized that the denial there was based on a particular use of funds (for pursuing a degree in devotional theology) and that Davey had many ways of including religious elements in his state-funded education: he "could use his scholarship to attend a religious college," includnig a "pervasively religious" college, "and take devotional theology courses there," as long as he didn't pursue a major. Davey might now be narrowed to its facts; it may only involve exclusions of clergy education (which the Court discussed a lot in the Davey opinion); at the very least it is a much smaller obstacle now to suits challenging the exclusion of religious institutions or their students from generally available aid programs. 

2. In important ways, the state-religion issues have bypassed the aid cases. It's important that there is now such a strong consensus against broad exclusions of religious institutions from government aid. But since about 2010, the action in religious liberty cases has shifted to conflicts between government regulation and religious conscience or identity, as exemplified in the cases over same-sex marriage (cert granted today in the Masterpiece Cakeshop case), the Obama HHS contraception mandate, and exclusions of student religious groups that requires standards of belief or conduct for their leaders (CLS v. Martinez, 2010). If religious groups or individuals can participate in benefit programs on equal terms, but those terms regularly include general conditions that conflict with their religious convictions or identity, then not much has changed in practice. So the location of the fights between traditionalist religious organizations and their more secular, separationist, or progressive counterparts has shifted to another part of the battlefield. Trinity has something to say about those fights to the extent they involve government benefits: the decisions rests on the proposition that "the Free Exercise Clause protects against 'indirect coercion or penalties on the free exercise of religion, not just outright prohibitions,'” meaning that application of, say, nondiscrimination laws to deny a religious organization benefits (like tax-exempt status) does create a free exercise burden. But the main questions in those fights--such as whether the government's regulation is generally applicable or (if RFRA is involved) serves a "compelling interest"--are different from those in Trinity.

3. The decision is strong, but it scope is uncertain. Trinity says that the state cannot deny aid on the ground of the recipient's religious status, character, or identity; the remaining question is whether it can deny aid on the ground that it will be used for religious purposes (this is the ground of some of the state exclusions, although not others). If religious uses can still be singled out for exclusion, then states will still be able to deny K-12 vouchers to religious education, since a voucher inevitably covers the religious element of schooling.

      Trinity leaves this question open. Footnote 3 in the majority opinion expressly does so. Justices Thomas and Gorsuch did not join that footnote, so it reflects only four votes rather than six. But Justice Breyer, in concurring in the judgment, also said he was deciding only the question of exclusion from public health and safety benefits and was "leav[ing questions concerning] other kinds of public benefits for another day." (And he thinks that including religious schools in K-12 vouchers actually is forbidden; see his dissent in Zelman (2002).) Plus the two dissenters, Sotomayor and Ginsburg, presumably will not vote to extend Trinity to forbid exclusions based on religious use rather than religious status.

      That leaves Thomas and Gorsuch, who each wrote concurrences (and joined each other's) suggesting that they would strike down the singling out of religious uses for exclusion. Thomas noted, approvingly, that the majority opinion seemed to confine Locke v. Davey to the very narrow context of "ministerial training." Gorsuch likewise suggests Davey is limited to ministerial training, but his opinion is more extensive and, like other separate opinions he wrote this term, announces he will make his intellectual and rhetorical marks on the Court:

[T]he Court leaves open the possibility a useful distinction might be drawn between laws that discriminate on the basis of religious status and religious use. Respectfully, I harbor doubts about the stability of such a line. Does a religious man say grace before dinner? Or does a man begin his meal in a religious manner? Is it a religious group that built the playground? Or did a group build the playground so it might be used to advance a religious mission? ... Often enough the same facts can be described both ways....

      Neither do I see why the First Amendment’s Free Exercise Clause should care. After all, that Clause guarantees
the free exercise of religion, not just the right to inward belief (or status).... I don’t see why it should matter
whether we describe that benefit, say, as closed to Lutherans (status) or closed to people who do Lutheran things
(use). It is free exercise either way.

      For these reasons, reliance on the status-use distinction does not suffice for me to distinguish Locke v. Davey....  [C]an it really matter whether the restriction in Locke was phrased in terms of use instead of status (for was it a student who wanted a vocational degree in religion? or was it a religious student who wanted the necessary education for his chosen vocation?). If that case can be correct and distinguished, it seems it might be only because of the opinion’s claim of a long tradition against the use of public funds for training of the clergy, a tradition the Court correctly explains has no analogue here.

      Thomas and Gorsuch are only two votes, so the question whether states can single out religious uses for exclusion remains open. But Trinity nevertheless sends a clear signal: the Court will treat exclusions of religion from general benefits program with far more skepticism than the deference given in Davey. And if it takes the next step, striking down exclusions of religious uses, Gorsuch's attack on the status-conduct distinction will provide at least a section of the road map.

Justice Declaration

Earlier this week, Christian leaders gathered in Washington to express their support for criminal justice reform.  With Attorney General Sessions putting the brakes on the developing bipartisan consensus that we face an incarceration crisis in our country, it is reassuring to see conservative Catholic and evangelical leaders stepping up to affirm that "our over-reliance on incarceration fails to make us safer or restore the people and communities who have been harmed."  The initiative is another reminder that Prison Fellowship (founded by Chuck Colson after he served his time for Watergate) remains one of the most effective Christian ministries today, particularly in its capacity to draw conservative Christians' attention to issues that do not often appear on voter scorecards.  You can read the "Justice Declaration" here.

The Rage of Henry VIII

 

A short note on the feast-day of the martyr-saints John Fisher and Thomas More: I believe that the spiritual biography of Henry VIII has yet to be written, and may never be. There are a number of good secular and political biographies, and those are important and worthy. To understand the deep tap-roots of Henry's part in the English reformation, however, would in my view require a treatment of his spiritual degeneration. Perhaps syphilis and kingship and the Tudor character explain it all. Perhaps, however, something worse was at work.

Consider the nature of Henry's rage. When Paul III made Bishop John Fisher a Cardinal, seeking to protect him -- what decent Christian would lay hands on a Prince of the Church? -- the effect was the opposite of the intention. As the Catholic Encyclopedia recounts, "Henry forbade the Cardinal's hat to be brought into England, declaring that he would send the head to Rome instead." Who, or perhaps I should say what, could speak with such flippancy and relish of beheading a venerable priest? Who or what is so wicked and yet so childish?

Another example: I remember vividly a tour of Christchurch Priory in Dorset, the former domain of the Countess of Salisbury, a peeress in her own right, relative of kings and the last of the great Plantagenets. She is perhaps better known to Catholics as the Blessed Margaret Pole, gruesomely martyred by Henry in the Tower for refusing to abjure her son, Cardinal Reginald Pole, the last Catholic Archbishop of Canterbury. (I do not say "for the crime of refusing to abjure" because Henry in his urgency bypassed regular judicial procedure). The Countess was seventy years old, was hacked to death, and was buried in the Tower graveyard because Henry refused to allow her to be buried in her own chantry chapel at Christchurch Priory. Who or what could be so bitterly vengeful against an old lady, whose great fault was to be a faithful and loving mother?

Indeed, our tour guide at Christchurch Priory showed us the Countess' partially despoiled chantry chapel, and recounted -- English localities have very long memories indeed -- that Henry's men had come with specific orders to deface the decorations within the chapel, even the ones not visible from the ground. (The tale is confirmed by a letter from the King's Commissioner). Who or what would care to deface what is visible only to God? "What rough beast, its hour come round at last..."

The spiritual biography of Henry, then, would have to comprehend the nature and source of the malevolent rage that consumed him. A model might be Patricia Snow's explanation for the cold gleeful fury at the heart of Hilary Mantel -- and the Culprit might well turn out to be the same in both cases.

 

Prof. Philip Hamburger on the Blaine Amendments and Anti-Catholic Prejudice

Over at First Things, Prof. Philip Hamburger lays out the history, context, and meaning of the so-called Blaine Amendments and their relevance to the pending Trinity Lutheran case.  Here's a bit:

In fact, the Blaine Amendments are among the clearest examples in the nation’s history of a state establishment of religion—and the only reason they have not been recognized as such is that they establish a theologically liberal vision of religion. The formal establishment of relatively orthodox churches came to an end in the early nineteenth century, and the Blaine Amendments mark the political ascendancy and establishment of theological liberalism—an establishment not of any particular, let alone orthodox church, but of a vision of individual spirituality unimpeded by ecclesiastical authority.

This theological vision is now so pervasive that judges barely recognize the Blaine Amendments as having established a distinctive religious point of view. But this is the reality, and the amendments are thus unconstitutional in ways that go far beyond the questions raised in Trinity Lutheran.

If the courts are to be taken seriously on questions of religious liberty, they cannot whitewash theological prejudice and the resulting discrimination. For approximately 75 years, the Supreme Court has enforced the Constitution’s religion clauses against the states—often razing to the ground relatively innocuous practices. The Blaine Amendments, however, still stand as monuments to theological animosity and discrimination. A constitutional accounting is long overdue.

The Freedom of Speech at SCOTUS today

It's a "Captain Obvious"-level obvious point, but the Court handed down two cases today -- Matal v. Tam and Packingham v. North Carolina -- that seem entirely consistent with the Justice-Kennedy-era Court's highly libertarian, regulation-skeptical approach to the First Amendment's Freedom of Speech.  Although there were some concurring opinions, it's striking that, at the end of the day, the free-speech claimant won in both cases unanimously. It strikes me as plausible that the justices are sending signal to those who have been suggesting recently that the First Amendment does not protect offensive, hurtful, divisive, or "hateful" speech and, perhaps, mean to shape the debate about speakers, speech, protests, etc., on public-university campuses.   Justice Kennedy wrote, in his concurring opinion (joined by three of the Democratic appointees):

The danger of viewpoint discrimination is that the government is attempting to remove certain ideas or perspectives from a broader debate. That danger is all the greater if the ideas or perspectives are ones a particular audience might think offensive, at least at first hearing. An initial reaction may prompt further reflection, leading to a more reasoned, more tolerant position. Indeed, a speech burden based on audience reactions is simply government hostility and intervention in a different guise. The speech is targeted, after all, based on the government’s disapproval of the speaker’s choice of message. And it is the government itself that is attempting in this case to decide whether the relevant audience would find the speech offensive. 

As many Prawfs readers will know, groups of law professors weighed in on both sides of the case (see, e.g., here and here).

Fast-Tracking ACA Reform

I'm not sure what the most effective response to the dearth of civil, respectful political debate in our country is, but I certainly don't think the answer is to quelch all dialogue.  But that seems to be exactly what the Republican leadership in the Senate is doing with its response to the House's American Health Care Act.  As this Washington Post article reports, Senator McConnell has invoked the fast-track procedure that will bring the bill right to the floor for a vote, without any committee hearings.  The bill itself is being negotiated in private, with the expectation that it would be released within 24 hours of a vote, leaving nobody who might want to undertake a thoughtful examination of these important issues with any time to do so.  I don't pretend to understand all the details of the complexities of the ACA or its reform, but I am seeing desperate appeals from disability advocacy groups (like this from the National Down Syndrome Congress, and this from The Arc), describing the devastating effect the changes to Medicaid currently in the House bill, and likely to be in the Senate bill, will have on services to people with disabilities.  If you don't have a family member with a disability, have you heard anything at all about this aspect of ACA reform?

This really isn't any way to run a country, is it?