Mirror of Justice

Piece on Travel-Ban Decision

I've posted a piece at America critiquing the travel-ban decision. A bit:

       [T]here was room in [the immigration] precedents for the court to write a narrow opinion focusing on Mr. Trump’s uniquely blatant and irresponsible statements that suggested his intent as the sole decision-maker. True, such a ruling would have to have been narrow, to keep from setting a precedent for serious intrusions on executive authority in future cases.

       But the risks from such an opinion would have been worth taking. The president’s statements were virtually unprecedented in modern times in explicitly labeling all members of a religion a danger to the nation....

       And the consequences of the statements extend [beyond those directly connected to immigrant applicants], poisoning the culture in the country for Muslims already here. Reports of anti-Muslim vandalism and other crimes have spiked in the wake of Mr. Trump’s statements.

       The consequences are also harmful for religious freedom as a general principle. Republican support of Mr. Trump’s hostility to Muslims from the beginning (one March 2016 poll showed that 71 percent of Republican voters backed a temporary “total and complete shutdown” of Muslims entering the United States) has helped accelerate the perception that religious freedom is nothing more than a tool for each side to use or discard according to what supports its preferred policy positions. Progressives are selective, too, in denigrating the religious freedom of social conservatives. To preserve religious freedom as a principle, not a tool, we must enforce it for all.

Among the sources of comfort:

       [G]iven the court majority’s clear emphasis on the immigration context, we can have reasonable confidence that courts will still act decisively to forbid official animus against Muslims in domestic matters: hostile local resistance to mosques, officials’ attacks on copies of the Quran and so forth. The travel ban decision specifically endorses, and must not be read to undermine, that bedrock principle.

Janus, Abood, and the End of the Free Speech Disco Era

Although much of the commentary about yesterday’s decision in Janus v. AFSCME couldn’t resist jumping right to politically partisan conservative/liberal descriptions of the case, it seems to me lawyers and law profs should spend a little time on the free speech doctrinal aspects of Janus. So here’s one rough take: Janus is a great vehicle for understanding the differences between formalism and functionalism (along the lines, say, of this piece by Bill Eskridge) in First Amendment law, or, stated otherwise, Justice Alito’s opinion overruling Abood v. Detroit Board of Education marks the ongoing demise of the disco era in free speech jurisprudence.

Reading the characterizations of Abood in the majority opinion by Justice Alito and the dissent by Justice Kagan, I was struck by how much Abood was a creature of the 1970s Supreme Court. There’s scarcely a doctrinal test or free speech category to be found in Justice Stewart’s opinion, but there is a lot of gesturing toward fairness (“free rider” problems), legislative judgments in the labor area, policy considerations (the concern with “labor peace”), and splitting the difference (in Abood, by separating out agency fees for chargeable collective bargaining expenses and fees that go to political activities). In those respects, Abood is broadly of a piece with other free speech cases from the era such as Buckley v. Valeo, Wooley v. Maynard, Virginia State Pharmacy Board v. Virginia Citizens Consumer Council, and the series of obscenity cases coming out of Miller v. California.

Following Eskridge’s description of functionalism, these cases employed standards rather than rules, favored multi-factor balancing tests (when a test is formulated at all), often discussed various policy “interests” that were in play as part of a process of induction from those interests to a holding, and sometimes invoked ad hoc principles that resisted wider application (such as the “secondary effects” doctrine of Renton v. Playtime Theatres, which is at the outer edge of the era in 1986). Even the case that has come to be seen as the beginning of the distinction between content-based and content-neutral regulation of speech, Chicago v. Mosley from 1972, is a gauzy discussion of free speech and the Equal Protection Clause. (There is probably a similar story about the Free Exercise Clause cases of that period, most especially Wisconsin v. Yoder.)

But just like Josh Neff in Whit Stillman’s The Last Days of Disco tries too hard in one of the final scenes of the movie to hold on to the era (“Disco was too great, and too much fun, to be gone forever! It's got to come back someday. I just hope it will be in our own lifetimes.”), free speech law has left behind the functionalism of the 1970s and 80s and moved in a decidedly more formalist direction. Cases now come in sharply delineated categories, the application of strict scrutiny to all content-based regulation of speech does a lot of work across a wide range of cases (as seen this week in NIFLA v. Becerra), and opinions often begin with a principle (in Janus, no compelled subsidization of speech) and reason deductively to the holding (Abood got around to a brief discussion of the "impact upon [employees'] First Amendment interests" after several pages of discussion about agency shop arrangements and labor policy). It's hard to know when the disco era started coming to an end, but Justice Scalia's opinion in RAV v. St. Paul in 1992 is a good marker.

This is all very general, of course, with a lot of details to be filled in. But in the opinions by Justices Alito and Kagan, I think we can see the difference between the functionalism of the free speech disco era and the formalism of today. For what it’s worth, my own views are strongly in the direction of formalism, and I think Justice Alito’s opinion is thoroughly correct—a topic for another day.

Court invalidates agency-fees requirement for public employees

The Supreme Court's decision in Janus is here.  In my view, while the stare decisis concerns about overruling Abood (which I have always thought was, to quote Justice Aliton, "poorly reasoned"), this result is the correct one, in that Abood and mandatory agency-fees had become outliers in the Court's First Amendment doctrine and precedents.  There will, of course, be a flood of commentary focusing on the political /partisan implications of the ruling, but I don't believe that commentary should obscure what I regard as the basic point that a public employee should not be required, as a condition of public employment, to support financially (and therefore, under the Court's precedents, to associate with) partisan and political activities to which he or she objects.  

I'll also note -- as I have many (Ed.:  Too many, Rick) times on this blog, that it is (with all due respect to the USCCB) mistaken to claim that Rerum Novarum, or the Church's social teaching on work and workers' rights more generally, requires or even counsels support for legal requirements that public employees support the partisan activities of today's public-employee unions. Nor is it "libertarian," or "individualistic," or "Randian," etc., to conclude that a Supreme Court charged with enforcing the First Amendment should invalidate such requirements.

Workers (in the public and in the private sectors) have a constitutional and moral right to form associations and to advocate in and through those associations for their interests. They do not, in my view, have either a constitutional or a moral right to enlist government power to require those who have different views about those interests to contribute to their partisan or inescapably political activities. (It is clear that the pre-Janus requirements that public-employee unions allow objecting workers to withhold funds for ideological activities are not strictly observed.)

I welcome others' reactions, of course! 

Religious Freedom Gestalts

When the big Obamacare case came down in 2012, one of the most interesting features of the resulting ferment was Larry Solum's insight that the disagreement between the sides could be understood as a fundamental divergence as to overarching conceptions of the scope of the Commerce Clause and the validity of the "New Deal Settlement." A "gestalt" is an organizing framework for understanding a particular legal issue--a jurisprudential weltanschauung. A gestalt is "the big picture that integrates a high-level description of doctrine with vindicating narratives and justifying normative theories." The gestalt does not mandate a particular outcome. But it situates and shapes the general perception of a case in such a way as to orient the interpreter in a very particular direction. 

Larry's insight was that there are competing gestalts when it comes to the Commerce Clause. One gestalt--informed heavily by the New Deal--has it that "Congress had plenary and virtually unlimited legislative power—subject, of course, to the limits imposed by the individual rights provisions of the Constitution." "Imagine," wrote Larry,

a sea of federal power that spans the globe. The New Federalism decisions of the Rehnquist Court created islands of state power, including the anticommandeering principle of Printz v. United States and New York v. United States, the expanded Eleventh Amendment sovereign immunity doctrine of Pennhurst State School and Hospital v. Halderman, and the Lopez and Morrison limits on the Commerce Clause. Thus, the prevailing gestalt underwent modification—the ocean of federal power was dotted with isolated islands of state sovereignty—but the basic pattern (the sea of federal power) remained intact.

The alternative gestalt, in Solum's telling, accepts the New Deal Settlement but adopts a "this far and no further" attitude toward it. The New Federalism cases (Lopez, Morrison, and now possibly NFIB, etc.) correct the errors of the most extreme of the New Deal gestalt cases (e.g., Wickard) and invert the oceanic metaphor. It is state, not federal, power that controls the gestalt. Or at least it should and it will.

I want to suggest that recent cases involving religious freedom, and many future cases, reflect a working out of a parallel set of gestalts as to religious freedom. And the competing gestalts are likely to become more fixed in the coming years--more distinct and therefore less capable of reconciliation. They are fundamentally different ways of seeing things.

In what one could call the "dominant" or perhaps "establishment" gestalt--the Everson dispensation, let's call it--the Court vigorously polices any suggestion that what has been the historically dominant religion in this country--Christianity--appears to receive any preferential treatment, recognition, or even historical acknowledgment by the government. That has been, as I discuss here, the primary way in which "separation of church and state" has been worked out as informing the Establishment Clause since 1947. The working out of the Everson dispensation was a project undertaken over decades by its champions, ostensibly under the banner of "religious neutrality" but in reality with a very distinctive effect (if not an intent) that was not neutral whether or not so perceived. Free exercise, for the Everson dispensation, existed in the majority of the 20th century primarily as a gesture of noblesse oblige to the unthreateningly strange and exotic. It was never intended to extend a set of legal defenses for traditional forms of Christianity, since Christianity held a dominant historical and socio-cultural position that needed to be destabilized. The effect of this dual action of the dominant gestalt was systematically to shrink the public political presence of Christianity in the national civic ethos and at the same time to increase the importance of "religion" as an individual right of spiritual self seeking. This was "religious freedom" in the dominant gestalt, and it was an enormously successful jurisprudential project from the early 20th century through the early 21st. For this project, the objective was continuing progress along the lines mentioned. To continue to shrink the civic and political influence of Christianity while at the same time rendering the idea of "religion" as an individual good more powerful. But a vital part of this project involves the monitoring of Christian civic influence and efforts towards its continuing diminution. For adherents of the dominant gestalt, cases like Hobby Lobby, Masterpiece Cakeshop, and Town of Greece, are evidence of dangerous stalling. Cases like Trump v. Hawaii in combination with Masterpiece are deeply threatening because they are evidence that Christianity (or, in even more strongly held versions of the claim, "white" Christianity) continues to be preferred over other religions despite the best efforts of the Everson dispensation's champions. It is no consolation at all to hear the Trump v. Hawaii majority's reassurance that the Everson dispensation still controls for holiday displays and high school graduations. Failure to progress is regression.

The other gestalt (I don't have a catchy name for it--let's go with gestalt #2) accepts certain basic understandings of church-state separation. Just as in the Commerce Clause division, there is not a wholesale rejection by gestalt #2 of gestalt #1. But whatever gestalt #2's "this far and no further" stance might look like, it was bypassed years ago. Gestalt #2 holds that the Everson dispensation largely has done its work: to diminish the public influence of Christianity and replace it with "religion"--always ill-defined or intentionally non-defined--as an individual experience. There are divisions within this gestalt. Some of its proponents feel that Christianity merits a special place in the national culture; some take the weaker view that it is at least not unconstitutional to recognize such a place, whether it actually exists or not; and some believe that Christianity merits at least similar (or even equal) favorable treatment to other religious traditions, generally through application of free exercise principles.  These divisions have not been fully plumbed because gestalt #2 has never achieved any real salience in 20th-21st century religion clause law. Where it generally attempts to hold the line as to Christianity today is in issues of compelling Christian believers to act in ways that violate their own convictions (Hobby Lobby, Zubik, Masterpiece, Becerra in its way). And this is precisely where, today, it comes into some conflict with the Everson dispensation, whose imperative is to continue to diminish Christianity--or at least conservative Christianity--as a force in American public life. This is gestalt #2's "this far and no further" stand, having been soundly defeated over decades in making its stand at previous possible way stations (just follow the path of Establishment Clause jurisprudence since 1947 for the grand tour). When those who favor the alternative gestalt hear proponents of the dominant gestalt cry out that Masterpiece plus Trump v. Hawaii represents a retrogression--Christianity beating back and beating out other religions--most do not share that view. It is a view that does not account for the massive losses sustained by Christianity at the Court's hands for the last near-century, and the massive reconception of the nature of "religion" undertaken by the Court's jurisprudence in that period. Of course, those losses and reconceptions were not occasioned by the Court alone. But the Court was much more than sympathetic to them; it did what it could to push them along, and successfully too. And the losses have not been limited to religious freedom cases proper. Just have a look, say the proponents of gestalt #2, at the havoc wrought by the Court's substantive due process cases. Those, in combination with the religious freedom canon of the dominant gestalt, have been devastating. Telling a Christian baker that he doesn't have to bake a cake for a ceremony he finds immoral, or a Christian company that it doesn't have to pay for contraceptive products for its employees, or a Christian pregnancy center that it doesn't have to advertise the availability and desirability of abortion...these are tiny and rather pathetic victories (most of them achieved by a bare 5-4 vote) in a wasteland of failure, to be followed in future by more failures. They are hardly signs that gestalt #2 is suddenly ascendant. They are not even signs of, as Larry puts it, a "gestalt shift."

Here's a final prediction. The divisions are likely to increase, in part because of gestalt #1's imperative of progress and gestalt #2's imperative of stasis (at best). If the prediction is correct, and if the Court's members break fairly evenly as between the two gestalts, we can reliably expect more spasms of outrage and disappointment with each new case in this area. These are not disputes over doctrine or even principle. They are deep disagreements over worldview, and over the kind of society we wish to be and become. 

Prof. Carl Esbeck on Trump v. Hawaii and the Establishment Clause

MOJ-friend and law-and-religion expert Prof. Carl Esbeck (Missouri) has shared this essay on today's Trump v. Hawaii decision and its implications for Establishment Clause claims:

The President’s Immigration Travel Ban:

What Trump v. Hawaii Has to Say About Stating a Claim Under the Establishment Clause

Carl H. Esbeck[*]

 It is little appreciated that the United States Supreme Court’s decision today in Trump v. Hawaii, No. 17-965, in addition to addressing the scope of presidential power concerning the entry of foreign nationals into the country, concerns the First Amendment on religious freedom. In particular, the case is instructive regarding the elements for stating a claim under the Establishment Clause, as well as clarifying those harms that are redressable by the clause.

Writing for a 5-4 Court, Chief Justice Roberts held that President Trump did not exceed his authority as outlined in congressional legislation. He also said that he did not today reach the Establishment Clause question, but only because a lower standard of review is applied to constitutional claims in this context of immigration and national security concerns. The case is far from over, however, as the matter was remanded back to the lower courts for further proceedings. That could entail additional fact finding and renewal of claims not before the Court today.

At the center of Trump v. Hawaii is Proclamation No. 9645, an order captioned Enhancing Vetting Capabilities and Process for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats.[1] The proclamation is the third iteration of President Trump’s so-called “immigration travel ban” directed at foreign nationals from eight nations, six of which are Muslim-majority in population. The central allegation is that the President, by targeting nations with overwhelming Muslim majorities, was motivated by discriminatory intent toward those of the Islamic religion. Throughout the country lawsuits were filed alleging that the executive order: (i) conflicted with the President’s authority as detailed in congressional legislation; (ii) exceeded the President’s power in the Constitution; and, (iii) violated the First Amendment on religious freedom. Finding the pleadings meritorious, federal district courts entered nationwide preliminary injunctions against the President and the departmental secretaries charged with implementing the proclamation. The injunctions were later upheld in various circuit courts of appeal.[2]

Trump v. Hawaii came to the Supreme Court from the Ninth Circuit. The case was decided in the circuit on the bases that in issuing Proclamation No. 9645 the President exceeded his authority under congressional statutes.[3] The Ninth Circuit did not reach the Plaintiffs’ alternative claims, among which were claims under the Free Exercise Clause and the Religious Freedom Restoration Act (RFRA). The Supreme Court granted certiorari on the question concerning presidential powers, as well as on the claim that the proclamation violated the Establishment Clause.[4]

The suit was brought by three types of plaintiffs.[5] The State of Hawaii alleged proprietary harms to its own agencies and loss of revenue, including hindering the operation of the state university in enrolling students and recruiting qualified faculty.[6] Three individual Plaintiffs, Dr. Ismail Elshikh and John Does 1 and 2, alleged that as U.S. citizens they had a statutory right to bring family that are closely related by blood or marriage to live in the United States. But the planned relocations were waylaid by the proclamation. Finally, an associational Plaintiff, Muslim Association of Hawaii, Inc., likewise had members whose family relocations were interrupted, and it reported that the entity was losing members because they found affiliation with an Islamic organization brought members unfavorable attention.[7] These individual and associational Plaintiffs are Muslim and, unlike the State of Hawaii, they can allege religious injury. Aliens abroad typically have no constitutional rights, but these domestic Plaintiffs raised their own legal rights and averred losses and injuries specific to themselves.

Deferential Review Under the Establishment Clause?

Because the alleged religious discrimination was directed at foreign nationals, the Government argued that Plaintiffs’ constitutional claims were subject to a standard of review that was highly deferential to the Government. Kleindienst v. Mandel[8] held that courts should engage in only limited judicial review when a U.S. citizen contends that the denial of a visa to an alien abroad violates the citizen’s own constitutional rights. Under Mandel, the Government need only give “a facially legitimate and bona fide reason” for its adverse decision toward entry of a foreign national said to have caused harm to the U.S. citizen filing suit.[9] Once the Government has stated to the court a lawful reason for its actions and the reason appears truthful, that is the end of the matter. The citizen-plaintiff does not get to probe into whether the Government’s explanation is pretextual.

In a parallel case, the Fourth Circuit earlier found that the Government’s proffered national security rationale for the proclamation was not bona fide.[10] There also have been exceptions to the rule in Mandel involving constitutional rights like free speech and due process. So far, however, the exceptions are few and the direction of the law is uncertain. Finally, some Justices were on record as wanting to modify Mandel and permit pretextual challenges. Chief Justice Roberts, for the Court, noted the conventional Mandel rule but elected not to apply it. Slip op. 30-32. Instead, he applied a rational-basis standard of review which does permit pretextual challenges. Slip op. 32. He likely took this path so as not to lose his majority, divided as there likely were over Mandel. The Chief Justice proceeded to find that the proclamation was rational and so administered. Slip op. 33-38.

While claiming to not reach the Establishment Clause claim, the majority proceeded to lower the rigor of its protection to rational basis in this limited context. This drew a dissent by Justice Sotomayor. Slip op. 15-16 n. 6 (Sotomayor, J., dissenting). This is so, rejoined the Chief Justice, not just as to the Establishment Clause but as to all constitutional rights and restraints. Slip op. 32-33 n.5. It is all because of the special context of executive authority concerning national security and immigration. So, on remand, the less rigorous standard will apply to the Plaintiffs’ Free Exercise Clause claim, but not to the RFRA claim and its requirement of strict scrutiny. Citing Romer v. Evans, the Court says that a showing of animus against a class would show irrationality. Slip op. 33. What is not clear is if a law can fail rational-basis review in the absence of animus.

The Supreme Court, however, did not need to resolve whether to follow the Mandel rule here, or fashion a new one of rational-basis review. As will be shown below the Establishment Clause claims fail on bases as straightforward as the Constitution’s text.

What Does the Establishment Clause Prohibit?

            The Supreme Court’s case law has developed two lines of authority or rules under the Establishment Clause that are possibly relevant here.

Rule 1 is that the Establishment Clause prohibits government from intentionally discriminating among religions, that is, preferring one religion over another. In such cases the injury is a type of discrimination, such as a religious claimant missing out on some governmental advantage afforded those of other religions.

The leading case is Larson v. Valente.[11] In Larson, the Supreme Court held that the Establishment Clause was violated by state legislation regulating solicitation by charities where the statute purposefully favored long-standing or well-known churches over new religious movements. There was evidence that legislators explicitly sought to assist well-known or familiar churches because they were deemed not in need of oversight, whereas certain new religions were suspect and their fund-raising methods aggressive and so unwelcome.[12] To intentionally favor one group of religions over another group of religions is to advance the former and suppress the latter. So it makes sense to regard the legislation in Larson as a forbidden “establishment” of the favored churches.

            Instances of government openly favoring one religion over another are uncommon. Gillette v. United States[13] is the only other Establishment Clause case of this sort to reach the High Court. In Gillette, the complaint was that a religious exemption to the military draft accommodated those who opposed all wars for religious reasons but did not accommodate those who opposed only unjust wars for religious reasons. The claimant was deemed to have stated a prima facie claim under the Establishment Clause for government preferring one religious doctrine over a competing doctrine. However, the Court went on to hold that Congress had sufficient nonreligious reasons to justify making the distinction. Because there was no intent to favor one religion over another religion, there was no violation of the Establishment Clause.[14] Larson is thus the only case decided by the Court where the religious claimant actually succeeded in proving a violation of Rule 1.

Rule 2 is that the Establishment Clause prohibits government from enforcing a religious preference, that is, an intentional preferring of religion over the secular. In such cases the injury is temporal or nonreligious. For example, the harm is a pecuniary or economic loss, as in Estate of Thornton v. Caldor[15] and Larkin v. Grendel’s Den.[16] Or the temporal injury is a state’s hindrance of open academic inquiry, as in Edwards v. Aguillard[17] and Epperson v. Arkansas.[18] Or the harm is the inability to hold a public office due to a religious test, as in Torcaso v. Watkins.[19] In each of these cases there was an intentional favoring of religion over the secular, which fits the First Amendment’s text of forbidding the “mak[ing of a] … law respecting an establishment of religion.“[20] As can be seen, a claimant does not have to first subscribe to a religion to successfully state a claim under the Establishment Clause.

The reverse of Rule 2, namely, the government favoring the secular over the religious, is not a forbidden establishment. This is only common sense. The plain text of the clause forbids the “mak[ing of a] … law respecting an establishment of religion.” Nothing in the text prohibits going the other way, namely: preferring the secular over religion. Government cannot establish a religion by aiding the secular. Rather, any favoring of the secular over religion will have to be framed as a challenge under the Free Exercise Clause.

In their briefs, Plaintiffs quote McCreary County v. ACLU of Kentucky,[21] where courts seeking to determine whether an act by an official had an improper “religious purpose” are instructed to look to “the text, legislative history, and implementation of the statute, or comparable official act” in question.[22] Applying this test, Plaintiffs aver that a governmental law disfavoring religion can implicate the Establishment Clause.[23] That is not just wrong, but silly—a mindless application of the three-prong Lemon test wholly disconnected from the constitutional text the Plaintiffs are invoking. A government cannot establish a religion by disfavoring it. To make matters worse, in its Opening Brief the Government seems to go along with Plaintiffs and repeats the error that official acts “of favoring or disfavoring religion can implicate the Establishment Clause.”[24]

In her dissent, Justice Sotomayor cites McCreary County, as well as Larson, Edwards, Epperson, and other cases decided under the Establishment Clause for the proposition that the clause is violated not only when religion is favored over the secular but when the secular is favored over religion. Slip. op. 2-3 (Sotomayor, J., dissenting). But all the cases cited are ones where government favored religion over the secular, never the reverse. And for good reason: it makes no sense to say the government is establishing religion when under the facts it is suppressing religion.

Application of these Rules on Remand

The State of Hawaii is not a religion, nor does it subscribe to one. So Rule 1, which requires discrimination among religions, is of no use to the State. Rule 2 requires an intentional preferring of religion over the secular. But the State’s claim goes in the other direction, to wit:  by discriminating against Muslims the proclamation prefers the secular concern for national security over religion. So Rule 2 is of no use to the State. Hawaii cannot state a claim under the Establishment Clause.

            The individual and associational Plaintiffs are Islamic and allege a colorable claim of religious injury. Rule 1 is that the Establishment Clause prohibits government from intentionally preferring one religion over another religion. Islam is disfavored. But does Proclamation No. 9645 advance Christianity, Judaism, or some other religion by discriminating against Muslims? I suppose it is remotely possible to envision Christianity or Judaism as receiving some benefit from Proclamation No. 9645, but it is just as likely or more so that the fortunes of other religions are unaffected or even damaged by the proclamation.[25] In any event, that either Christianity or Judaism are advanced by the proclamation is wholly speculative and unproven by the Plaintiffs. Rule 1 is out.

Nor does Proclamation No. 9645 establish or otherwise prefer Islam over the secular, the subject of Rule 2. Indeed, if anything the proclamation does the opposite: preferring the secular concern for national security over religion. Preferring the secular over religion is the opposite of establishing religion. Rule 2 is out.

It follows that neither the State of Hawaii nor the individual and institutional Plaintiffs can state a claim under the Establishment Clause.

What About the Free Exercise Clause?

A pleading framed as the government preferring the secular over religion requires turning to the Free Exercise Clause. However, from the plain language of the clause’s text (“make no law … prohibiting the free exercise of [religion].”), a person or organization must first have a religion before it can be exercised.[26] The State of Hawaii has no religion to exercise and thus can suffer no religious burden or injury. Hawaii cannot state a claim under the Free Exercise Clause.

The individual and associational Plaintiffs do have a colorable claim of religious injury and did set out in their amended complaint a count under the Free Exercise Clause. Under Oregon Employment Division v. Smith[27] and Church of Lukumi Babalu Aye, Inc. v. City of Hialeah,[28] the federal government is prohibited from singling out a religion, such as Islam, for adverse treatment. Animus need not be shown, just intent.[29] Normally such laws receive strict scrutiny and will be sustained only if the government can satisfy the compelling interest test.[30]

The Plaintiffs’ Free Exercise Clause and RFRA claims were not in the Court’s grant of certiorari. However, today Trump v. Hawaii was remanded to the lower courts for further proceedings. Slip op. 38-39. Normally the individual and associational Plaintiffs would have an opportunity to show that the proclamation was issued with discriminatory intent. However, the Court today held that all constitutional rights were subject to mere rational basis review. Slip op. 32-33 n.5. In the holding today and given this record, the Court found the proclamation rational, so on remand it will be difficult to prevail on the Free Exercise Clause unless the record is reopened and new and rather damming evidence is admitted. The RFRA claim, however, is by its own terms not limited by the special context of national security and presidential authority.

* * *

Nothing in the foregoing is to be taken as condoning governmental discrimination against Muslims or the President’s intemperate remarks on Islam and immigration. Both are to be deplored.

 

[*]R.B. Price Professor Emeritus and Isabella Wade & Paul C. Lyda Professor of Law Emeritus, University of Missouri.

 

[1] 82 Fed. Reg. 45,161 (Sept. 24, 2017).

[2] See, e.g., Int’l Refugee Assistance Project v. Trump, 883 F.3d 233 (4th Cir. 2018) (en banc), petition for cert. filed U.S. Sup. Ct. No. 17-1270.

[3] Hawaii v. Trump, 878 F.3d 662, 683-98 (9th Cir. 2017) (per curiam).

[4] 138 S. Ct. 923 (Jan. 5, 2018). A few weeks earlier the Court had granted a stay of the injunction pending appellate review. 138 S. Ct. 542 (Dec. 4, 2017).

[5] The multiple counts in Plaintiffs’ third amended complaint are summarized in Hawaii v. Trump, 878 F.3d at 674.

[6] Id. at 682.

[7] Id. at 678, 681-82.

[8] 408 U.S. 753 (1972).

[9] Id. at 770.

[10] Int’l Refugee Assistance Project, 883 F.3d at 264-65.

[11] 456 U.S. 228, 253-54 (1982).

[12] Id. at 231-33, 246-47 n.23, 250-51, 254-55.

[13] 401 U.S. 437 (1971).

[14] In contrast to a claim of intentional discrimination among religions, when a general law has a disparate effect among religions the Establishment Clause is not violated. See Hernandez v. Commissioner of Internal Revenue, 490 U.S. 680, 696 (1989) (limitations on charitable deductions in federal income tax law that had disparate impact on the giving patterns of members of a particular church did not violate the Establishment Clause); Bob Jones University v. United States, 461 U.S. 574, 604 n.30 (1983) (discrimination among religions that have differing beliefs concerning race was not purposeful, but the unintended effect of the IRS’s facially neutral regulation); cf. Larson v. Valente, 456 U.S. 228, 246 n.23 (1982) (dicta to effect that state regulatory act was not generally applicable legislation having disparate impact, but intentionally drafted to favor well-known churches while targeting new religious movements).

[15] 472 U.S. 703 (1985) (upholding claim by department store against Sabbath labor law).

[16] 459 U.S. 116 (1982) (upholding claim by tavern seeking liquor license blocked by nearby church).

[17] 482 U.S. 578 (1987) (striking down state law that required teaching of creation in public school science classes if evolution is taught).

[18] 393 U.S. 97 (1968) (striking down state prohibition on teaching evolution in public school science classes).

[19] 367 U.S. 488 (1961) (atheist kept from public office because state required oath professing belief in God).

[20] Care must be taken not to confuse a religious preference with a religious exemption. The Establishment Clause will strike down an unyielding religious preference. Religious exemptions are altogether different, however, and have been consistently upheld by the Supreme Court because exemptions do not entail “state action” that causes harm to others. See Carl H. Esbeck, Do Discretionary Religious Exemptions Violate the Establishment Clause?, 106 Kty. L. J. no. 4 (June 2018).

[21] 545 U.S. 844 (2005).

[22] Id. at 862 (internal quotation marks omitted).

[23] Cf. Int’l Refugee Assistance Project, 883 F.3d at 256 (“The Plaintiffs allege that the Proclamation violates the Establishment Clause by disfavoring Muslims.”).

[24] Trump v. Hawaii, U.S. Sup. Ct. No. 17-965, Brief for the Petitioners, p. 65 (filed Feb. 21, 2018) (emphasis added).

[25] When a Muslim community believes it is under persecution by a democratic state, that may cause tension with Christians, Jews, or other religions, or at least engender resentment toward those of other faiths who have the votes stop the persecution but fail to do so. Thus, it might be conjectured that every religion is harmed by the rise in tensions among them.

[26] There is no claim under the Free Exercise Clause unless a plaintiff first professes a religion. Frazee v. Illinois Dep't of Empl. Security, 489 U.S. 829, 833 (1989) (noting that only beliefs rooted in religion are protected by the Free Exercise Clause; secular views will not suffice); Thomas v. Review Bd., 450 U.S. 707, 713-14 (1981) (noting that only beliefs rooted in religion are protected by the Free Exercise Clause); Wisconsin v. Yoder, 406 U.S. 205, 215-16 (1972) (identifying religious claims that are “personal” and “philosophical” and those "merely a matter of personal preference" as not protected by free exercise). This understanding aligns with the drafting history of the Free Exercise Clause in the First Federal Congress of 1789. See Carl H. Esbeck, Uses and Abuses of Textualism and Originalism in Establishment Clause Interpretation, 2011 Utah L. Rev. 489, 525-67 (2011); see especially id. at 563.

[27] 494 U.S. 872, 884 (1990).

[28] 508 U.S. 520 (1993).

[29] Shrum v. City of Coweta, 449 F.3d 1132, 1145 (10th Cir. 2006).

[30] See Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418, 430-32 (2006) (describing the focused, case-by-case nature of the compelling interest test in the Religious Freedom Restoration Act, which is the same test as under the Free Exercise Clause).

The Red Hen & Resistance

Over the weekend, the President’s press secretary, Sarah Huckabee Sanders, was asked to leave a Virginia restaurant by the owner after employees voted to refuse service based on the press secretary’s behavior defending the President’s policies.  There are reasons to be concerned with this and similar incidents. The Red Hen’s owner explained, “We just felt there are moments in time when people need to live their convictions. This appeared to be one.”

I’m all for moral agency in the commercial sphere, but I need some clarity about the moral claims at issue here.  A question for the Red Hen owner: what conviction – moral? political? culinary? -- would have been implicated, much less violated, by serving a meal to Sanders and her family? The Red Hen was not asked to cater a Trump rally or administration meeting.  If our moral convictions expand to encompass a guilt-by-association mindset applicable to all aspects of officials’ private lives, our era promises to become even more corrosive to political discourse and meaningful respect for rights of conscience, properly understood.

Would a Catholic restaurant owner be justified in refusing service to a late-term abortion provider, for example? I don’t think so.  What would be the objective of that exclusion?  What is the risk of scandal being avoided?  What edifying moral claim is being presented to the community?

Note that I’m not arguing that the Catholic restaurant owner or Red Hen owner should be legally prohibited from denying service based on a person's political views or practices – just that denying service for those reasons would not be morally justified.  (Even on the moral dimension, I don't think there is much helpful insight to draw from the Masterpiece Cakeshop case -- refusing service because you are morally opposed to what a person stands for is different than refusing to participate in an act that you believe is immoral.)

A broader point about emerging strains of “resistance” in American politics. The Church teaches that “[r]esistance to authority is meant to attest to the validity of a different way of looking at things.” (Compendium para. 400) Resistance, understood in this light, is not about public shaming, virtue signaling, or the intentional destruction of lives and reputations. It is not the all-consuming “No!”  It is, in the end, about the “Yes”—articulating and living out of an alternative vision of what can be.  Denying someone service in a place of public accommodation based on who they are or what they have done might feel good, but it is not resistance.

A RFRA-Based Defense in a Criminal Prosecution?

I received an email two days ago announcing that five professors of law and religion, including Virginia Law's Micah Schwartzman and Cornell Law's Nelson Tebbe, had

filed an amicus brief in support of Dr. Scott Warren, a humanitarian aid worker who faces up to twenty years in prison for providing food and shelter to migrants crossing the Arizona desert. The amicus was filed in an Arizona federal court, and contends that Dr. Warren is entitled to an accommodation from being criminally prosecuted for acting on his sincerely held religious beliefs. Dr. Warren, is a member of No More Deaths/No Mas Muertes, a humanitarian aid organization that works to reduce deaths and suffering along the US-Mexico border by providing water, food and clothing to migrants crossing the Arizona desert. When doing this work, humanitarian workers routinely discover the bodies of migrants who have died due to lack of water, food or shelter in the rugged and remote desert terrain.

Last January, Warren was arrested and charged with three felonies for “harboring migrants” after Border Patrol agents allegedly witnessed him giving food and water to two migrants in the desert near Cabeza Prieta national wildlife refuge in Southern Arizona. Warren was arrested shortly after No More Deaths released a report documenting the systematic destruction by Border Patrol of water and food supplies left in the desert for migrants. Over a nearly four-year period, 3,856 gallons of water had been destroyed by federal officials. The report linked to video showing border patrol agents kicking over gallons and pouring them out onto the ground.

Warren has filed a motion to dismiss the indictment in his case under the Religious Freedom Restoration Act (RFRA), arguing that his sincerely held religious beliefs compel him to provide aid to people who are suffering — and dying — in the desert. Warren testified at the evidentiary hearing on his RFRA motion that for him “providing humanitarian aid is a sacred act.” He also described how spiritually devastated he has been when he has come upon human remains in the desert: “The work that we do in discovering, working to identify and recover the people who have died is one of the most sacred things that we can do as humanitarian aid workers in Southern Arizona and in the desert … we witness and we are present for people and for their families, the people who have died and who have perished.” When asked why he risked violating the law by providing water, food and clothing to migrants in the desert, he testified “Based on my spiritual beliefs, I am compelled to act. I’m drawn to act. I have to act when someone is in need.”

Katherine Franke, Sulzbacher Professor of Law at Columbia Law School, authored the brief on behalf of herself and Caroline Mala Corbin, Professor of Law at the University of Miami School of Law, Micah J. Schwartzman, Joseph W. Dorn Research Professor of Law at the University of Virginia School of Law, Elizabeth Sepper, Professor of Law at Washington University School of Law, and Nelson Tebbe, Professor of Law at Cornell Law School.

“Given that this is the first case in which a RFRA claim has been raised as a defense in a federal criminal prosecution under immigration law we felt it was important that we provide the judge guidance on how to structure his consideration of a religious liberty claim in this context,” said Professor Franke. “The relation of religion to immigration law enforcement is all the more compelling given that Attorney General Jeff Sessions has quoted biblical text to justify the federal government’s aggressive immigration policies,” she continued. The law professors’ amicus brief is available here.

I wonder what MOJ's religious liberty scholars--Tom Berg, Rick Garnett, et al.--think of the argument presented in the brief.

Bray on Liturgical Change and Doctrinal Change

Sam Bray has an extremely interesting reflection on a change in the language of a central prayer in the Book of Common Prayer, the General Confession in Morning and Evening Prayer. The prayer contains the line "And there is no health in us," whose meaning is either that there is no spiritual health in us or that we are not the authors of our own salvation. Either way, the phrase suggests, as Sam puts it, that "we are prone to curve inward away from God, we need his forgiveness."

But the phrase has proved troublesome and has been touched up in several revisions. The cause of the trouble is that it is felt to sound a little rough to modern speakers and hearers. It needed some kind of toning down. Really, no health at all in us? Not even a little bit of health?

The Anglican Church in North America, in a recent update, changed the language to: "And apart from your grace, there is no health in us." That keeps Cranmer's original phrase, but softens it a little bit to reassure people that God does not think us totally irredeemable just the way we are. And the added phrase is surely not wrong; it's true that God's grace is necessary for spiritual health as well as salvation.

And yet, as Sam notes, "truth does not quite settle the question," since many things that are true do not make it into the prayer. Sam shows how the absolute language and sentiment of the original is in keeping with many other Biblical passages (Isaiah, Psalms, Daniel, and even in Luke). This is language without qualification, a pattern of speaking that may be seen even in the Beatitudes ("Blessed are the poor in spirit," not Blessed are those who are often, even if not 100% of the time, spiritually impoverished) and elsewhere. As Sam says, "Even where a qualification is denotatively true, its destruction of the proper attitude can make it connotatively false."

There is much more in Sam's rich reflection, which considers the rhetorical power of the original and the changed versions (matters of style are not only matters of style, and, as Sam says, "the form can be an integral part of the message") as well as the genuine difficulties facing would-be revisers who wish not to damage the true sense of the original. You should read it.

Religious Condemnation of Family-Separation Policy

    Thankfully, the administration's policy of separating migrant children from parents at the border--including in the case of families who present themselves as asylum seekers [SEE UPDATE BELOW]--is coming under condemnation from religious leaders, including several who have supported President Trump in most other ways. The Catholic bishops, unsurprisingly, took the lead.

    There have also been good critical analyses--some with nuance--of Jeff Sessions' invocation of Romans 13 as a defense for the policy. From The Atlantic:

       Romans 13 is significant to American history because it played a critical role in the American Revolution. Loyalists who favored obedience to King and Parliament quoted Romans 13 for obvious reasons. “Let every soul be subject unto the higher powers,” the text read in the language of the time....

       But surprisingly, political and religious leaders who favored the American Revolution were even more eager to quote Romans 13. Their reasoning turned on the justification that Paul gave for obeying government. Sessions said that government was created “for the purpose of order,” but Revolutionary clergy quoted Paul directly: “Rulers are not a terror to good works, but to the evil.” In a study of how the Bible was used in the American Revolution, the historian James Byrd argues that “American patriots” rejected against the notion that Romans 13 required unconditional obedience. Instead, he wrote, they preached from the text “to deny that Paul gave kings the right to be tyrants.”

And following up, evangelical historian John Fea:

       Romans 13 teaches that Christians should submit to government,  but it does not seem to require unconditional submission.  It is not an easy verse to apply and we must be very careful about applying it universally....

       Is the stripping of children from their families at the Mexican border atrocious enough for Christians to violate Romans 13?  I would say yes.  Of course this entire point is moot because, as far as I understand it, there is no American law requiring ICE officials to take children away from their parents. [emphasis added]

UPDATE: Good point from Rick about taking parental rights seriously in all contexts. And I'll amend to language closer to his for describing most of the cases: "the US government is separating families who seek asylum in the US by crossing the border illegally." Although in some cases it appears to have been applied even to persons who present themselves at a port of entry and claim asylum consideration.

Parents' Rights in the border context . . . and beyond

One of the first papers I published, after becoming a law professor, was about parents' rights -- both generally and in the education and medical-treatment-refusal contexts more specifically.  It was called "Taking Pierce Seriously:  The Family, Religious Education, and Harm to Children" (available here).  Here is the abstract:

Many States exempt religious parents from prosecution, or limit their exposure to criminal liability, when their failure to seek medical care for their sick or injured children is motivated by religious belief. This paper explores the question what, if anything, the debate about these exemptions says about the state's authority to override parents' decisions about education, particularly religious education. If we accept, for example, that the state may in some cases require medical treatment for a child, over her parents' objections, to avoid serious injury or death, should it follow that it may regulate, or even forbid, a child's religious training or religious-school education to prevent an analogous, though perhaps less tangible, harm? 

The Supreme Court famously proclaimed, in Pierce v. Society of Sisters, that parents enjoy a fundamental right to direct and control the education of their children, but do we really accept, or even understand, the premises, foundations, and implications of this pronouncement? Recent calls for a thicker liberalism and for the harnessing of education to create truly liberal citizens make it all the more important that we take Pierce seriously. And if we do, it is suggested that state functionaries, guided and restrained by a proper humility about their authority and competence, should override parents' educational decisions only to prevent harm, carefully defined, to a child. The problem is, how do we define harm. This paper proposes that the content of religious instruction, traditions, or beliefs should not be viewed as harmful in the sense necessary to justify government second-guessing or supervention of parents' decisions about such instruction. In a free society, one that values religious freedom, the state should not entertain, let alone enforce, a belief that children would be better off without religious faith.

I took (and still hold) a strong view of parents' rights to direct and control the upbringing of their children and I disagreed with those scholars who contended that (a) it is a mistake to talk about "parents' rights" because no one has a "right" to control another person's upbringing and development, (b) that it is a concession -- but only that -- by the state that we presumptively defer to (most) parents' choices about their children's upbringing and education, and (c) that the transmission of traditional or otherwise illiberal religious views and positions by parents to children can "count" as a "harm" that warrants state interference with the parents' practices.

This is, again, still my view.  That said, my impression is that -- in both the family-law and the constitutional-law fields -- the merits of the Pierce rule are quite contested and that many scholars hold the view that parents' power or authority to raise their children is merely delegated and should be subject to closer state supervision, in order to resist the successful transmission of illiberal or traditional religious views.  That is, the Douglas view in Yoder seems more popular than the Pierce decision.

In recent days, there has been a lot of close attention paid to the gravity of the state's decision to separate parents and children for public-policy (or, as we are seeing now, in terrorem) reasons.  I'm not an expert, but I'm inclined to agree with those who insist that it is unjust and unnecessary to have a blanket policy of separating and detaining the children of people who cross the border unlawfully and then present themselves for asylum consideration.  One hope I have for this current debate is that it will remind people of the moral and constitutional significance of the parental/family relationship and that we'll see some re-consideration by parents'-rights skeptics.