Author Archives: Marc O. DeGirolami

2014 AALS Law & Religion Newsletter

I am delighted to present the 2014 AALS Law & Religion Newsletter. The Newsletter contains several conferences of interest in 2015 as well as a few relevant panels at the 2015 AALS conference. It also offers an extensive bibliography of books and articles in the area published over the last year. Thanks to the Center for Law and Religion’s excellent fellows, John Boersma and Stephanie Cipolla, for assistance in assembling it.

Common Law Constitutionalism: The Meaning of Establishment Circa 1800

In this post, I speculated about the possibility that the meaning of “establishment” might be illuminated by the English experience of the term before the Constitution’s drafting. The idea would be to understand “establishment” not by reference to a fixed meaning traceable to the founding, but instead by reference to a general, but not limitless, range of meanings in use as a matter of the common law experience antedating the Constitution. That range might have a core and a periphery, and while the periphery, it is true, might change over time, any changes would be very gradual and always intimately connected with the historical common law meanings of establishment.

Our Center board member, Don Drakeman, helpfully points me to a different kind of common law evidence–uses of the term establishment in state courts after ratification of the Constitution. He argues that a shift was occurring in the meaning of the term during this period: from a narrow meaning limited to what Thomas Curry has called a meaning “modeled on the Anglican establishment in England,” to a broader meaning covering the issue of general assessments for funding churches. The former meaning would suggest a “sect preference” approach to the issue of establishment, while the latter would not.

In his book, Church, State, and Original Intent (at pages 216-229), Don describes the different post-First Amendment views in Massachusetts and New Hampshire circa 1800 about the meaning of establishment as expressed in three court cases—Avery v. Tyringham (1807), Barnes v. Falmouth (1810), and Muzzy v. Wilkins (1803).

Tyringham concerned Article III of the 1780 Massachusetts Constitution, the preamble of which at that time stated that “the happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion, and morality; and [that] these cannot generally be diffused through a community, but by the institution of the public worship of God, and of public instructions in piety, religion and morality.” Based on that rationale, the Massachusetts Constitution goes on to authorize towns “to make suitable provision, at their own expense, for the institution of the public worship of GOD, and for the support and maintenance of public Protestant teachers of piety, religion and morality.” But Article III also provided that “no subordination of any one sect or denomination to another shall ever be established by law.” The opinion of Justice Theodore Sedgwick (who also served as a member of the First Congress that adopted the Establishment Clause) concluded that in these “strong and energetic” provisions “the religion of Protestant Christianity is established. Liberty of conscience is secured.” (emphasis in original) That interpretation suggests that the sort of explicit public support for Protestant Christianity contemplated by the Massachusetts Constitution does constitute an establishment, even though Massachusetts never had an expressly authorized or designated official church establishment.

In a later Massachusetts case, Barnes v. Falmouth (1810), Justice Theophilus Parsons considered whether the minister of an unincorporated church could share in taxes raised under Article III. Justice Parsons wrote that the case provided an occasion to “consider the motives which induced this people to introduce into the constitution a religious establishment, the nature of the establishment introduced, and the rights and privileges it secured to the people, and to their teachers.” Here is Don’s description of the opinion:

According to Chief Justice Parsons, the rationale for an establishment is based on the fact that “[c]ivil government…availing itself only of its own powers, is extremely defective”; accordingly, “the people of Massachusetts…adopted and patronized a religion, which by its benign and energetic influences, might cooperate with human institutions, to promote and secure the happiness of its citizens.” Fortunately, he writes, “the people were not exposed to the hazard of choosing a false and defective religious system. Christianity had long been promulgated, its pretensions and excellences well known, and its divine authority admitted.” In particular, “This religion, as understood by Protestants, tending, by its effects, to make every man…a better husband, parent, child, neighbor, citizen, and magistrate, was by the people established as a fundamental and essential part of their constitution.” Pointing out that there is “liberty of conscience” for all, “whether Protestant or Catholic, Jew, Mahometan or Pagan, the constitution then provides for the public teaching of the precepts and maxims of the religion of Protestant Christians to all the people.” It is, therefore, “the right and duty of all corporate religious societies, to elect and support a public Protestant teacher of piety, religion, and morality.” Unincorporated churches could not share in taxes raised under Article III, concluded Parsons; otherwise, which teacher to be supported depends “exclusively on the will of a majority of each society incorporated for these purposes.”

221-222. Don argues that Justice Parsons’s description of this arrangement as an “establishment” shows that some Massachusetts jurists believed that the town-by-town assessments for Protestant teachers were themselves believed to be establishments. It is an interesting question whether the assessments themselves, or instead the assessments only as part of the general, if unofficial, privileging of Protestant Christianity as the civic religion, is really what Justices Parsons and Sedgwick are describing as an “establishment.” The latter possibility might narrow the meaning of establishment somewhat: the privileging of Protestant Christianity by all of the means described by these Justices in the Massachusetts Constitution—including the assessment scheme—comes perhaps closer to the meaning of establishment as “official” privileging than does a meaning which considers assessments favoring religion alone as an establishment.

A third piece of evidence can be found right over the border among some Justices in New Hampshire, where, Don writes, “at about the same time, a distinguished jurist who was a member of the Second through the Fifth Federal Congresses made a point of saying that the Granite State’s town-based general assessment tax system for the support of Protestant ministers, which was quite similar to the Massachusetts approach, was clearly not an establishment of religion.” 223

The issue arose in the 1803 case of Muzzy v. Wilkins, where Chief Justice Jeremiah Smith “considered whether a Presbyterian was entitled to an exemption from the town taxes in support of the Congregational church under New Hampshire’s constitution, which empowered the legislature to authorize the towns of the state to make provision for public protestant teachers of piety, religion, and morality.” According to Chief Justice Smith, the assessment system alone did not constitute an establishment: “No one sect is invested with any political power much less with a monopoly of civil privileges and civil offices. All denominations are equally under the protection of the law, are equally the objects of its favor and regard.”

Chief Justice Smith’s is that rare opinion where a judge actually provides a definition of an “establishment”: “A religious establishment is where the State prescribes a formulary of faith and worship for the rule and governance of all the subjects.”

This definition, it is true, is narrower than what can be discerned from the general approach in the two Massachusetts decisions. But New Hampshire’s state constitution at the time did not (so far as I know) contain the sort of language unofficially, but quite explicitly, privileging Protestant Christianity as was the case in Massachusetts. It might be that it was this general privileging (even if unofficial, and to include, in Massachusetts, state assessments) that was thought by both Massachusetts and New Hampshire jurists to constitute “establishment.”

At any rate, it would be worthwhile, as well as interesting, to explore the range of common law meanings of establishment before ratification of the First Amendment as well. As Don says in the book, it would probably be impossible to arrive at a single fixed meaning. But it might well be possible to reach consensus about a general range or spectrum of meanings, with core or uncontested meanings graduating outward toward peripheral or contested ones.

Fallon on Justice Breyer’s Van Orden Concurrence

The latest issue of the Harvard Law Review contains an extensive appreciation of a selection of Justice Breyer’s opinions. I thought to note one essay as particularly well done: Professor Richard Fallon’s discussion of Justice Breyer’s decisive concurrence in Van Orden v. Perry–one of two companion Ten Commandments decisions issued by the Court in 2005. In that concurrence, Justice Breyer decided for a variety of reasons that, he said, defied codification by test or iron rule, that the monument that had stood for many years on the grounds of the Texas state Capitol did not violate the Establishment Clause. Here is Professor Fallon (footnotes omitted):

Justice Breyer’s third ground for distinguishing prior cases, and especially McCreary County, seems to me to cut to the heart of the dilemma that the Supreme Court confronted. Even if the Texas monument’s long history did not dilute its religious message, that history served as a reminder that the Establishment Clause — read against the background of history — cannot, as Justice Breyer put it, “compel the government to purge from the public sphere all that in any way partakes of the religious.” From the beginning, religion has been woven in various ways into American public life. Recognition of this heritage does not, of course, point directly to the correct ruling in Van Orden. It does, however, help to identify the tension that Van Orden required the Court to resolve, or at least manage. Although the Supreme Court has frequently articulated a demand that the government must be neutral in matters of religion, neither that demand, nor what Justice Breyer referred to as the “Court’s other tests,” can “readily explain the Establishment Clause’s tolerance, for example, of the prayers that open legislative meetings; certain references to, and invocations of, the Deity in the public words of public officials; the public references to God on coins, decrees, and buildings; or the attention paid to the religious objectives of certain holidays, including Thanksgiving.”

Without purporting to offer a comprehensive resolution to the tension that the Court’s cases exhibit, Justice Breyer’s Van Orden concurrence suggests a narrow prescription that embodies pragmatic good sense. Although modern governments may not initiate novel forms of support for religious institutions and beliefs, the Establishment Clause should not be read to mandate the chiseling out — which in some cases might be quite literal — of all religious symbols and practices that have long formed part of the architecture of American public life, American public buildings, and American public monuments. To read the Clause so stringently would provoke anger at and resentment of the Supreme Court’s perceived hostility to religion far disproportionate to any good that this approach would achieve….

There is more, and it’s well-worth reading. I, too, admire Justice Breyer’s Van Orden concurrence, but while my reasons are similar to Professor Fallon’s, they are not identical. Perhaps the primary point of divergence in our perspectives is that my defense of historical settlements and practices as a guide to interpreting the meaning of the religion clauses does not depend either on judges’ pragmatic calculations about the comparative social divisiveness of ruling this way or that, or on an overarching or master commitment to religious neutrality, but instead on the intrinsic worth of long-standing historical settlements and customs (doctrinal and social) as a method of conciliating the conflicts that attend these controversies:

The past lies in us and is constitutive of who we are, and though history may be epistemically uncertain, logical certitude is hardly the point of a theory of religious liberty. This point serves as the connection to social history. If the doctrinal negotiations of the past are worthy, though imperfect, counselors for the predicaments of the present–if they are that which we know, and their memory is that which we have–then the objects of those negotiations deserve our attention as well. Political communities are not a-temporal or static associations. They are trans-generational enterprises that depend on the transmission of political and social histories….

The past, in sum, is a beacon. It is a consolation, sometimes effective, other times not, against the ravages of conflict, incommensurability, sacrifice, and tragic loss.

The Tragedy of Religious Freedom 123, 144.

Horwitz, “The Hobby Lobby Moment”

Our friend, Paul Horwitz, has just published his essay, The Hobby Lobby Moment, in the latest issue of the Harvard Law Review. The piece is well worth reading and reflecting on. It is written in Paul’s characteristically thoughtful and insightful manner, and it makes many points about the social and cultural context of the case that cut much deeper than most of the commentary on what has been, to put it mildly, a controversial decision. Even on those issues where I see things a little differently than Paul (for example, I am much more skeptical than is Paul about the degree to which there was ever consensus about the good of religious free exercise in the legal academy, and therefore about whether there is any substantial fragmentation of that consensus today), the points he makes are interesting, original, and thought-provoking.

The Becket Fund is Hiring

I’ve posted a job announcement forwarded to me by the Becket Fund below. If you are interested in law and religion and the law of religious liberty specifically, this is a terrific opportunity.

Legal Counsel

The Becket Fund for Religious Liberty seeks an attorney to join its team of legal counsel advocating for religious liberty for people of all faiths. The ideal candidate will have the following qualifications: (a) one to three years of active litigation experience, preferably in federal court; (b) excellent research, writing, and oral advocacy skills; and (c) a federal or state appellate clerkship.

Applicants should send a cover letter, resume, and two writing samples to Elizabeth Dobak at edobak@becketfund.org.

Rappaport on Common Law Constitutionalism

Professor Michael Rappaport has a really neat post about common law rights that are constitutionalized, and how one should interpret such rights. The post is particularly interesting for me because in my constitutional theory seminar, we are in between two classes that consider, respectively, the role of tradition and historical practice in constitutional interpretation, and the relationship between precedent and interpretive theory. But as Professor James Stoner has shown, there are many textual features of the Constitution that use terms rooted in common law understandings. What are the interpretive possibilities in such cases; what happens to a common law right that has been constitutionalized? Rappaport sets out 3 options:

1. Static: When the common law right is constitutionalized, it becomes fully frozen, as if it were written law. To determine the meaning of the right, one looks to the common law in 1789. The existing decisions regarding the common law constitute the full meaning of the right.

2. Dynamic: Although the common law right was written into the Constitution, it did not change its character. Instead, it remains as flexible as a common law right. Under this interpretation, one might see something like the living constitution view in the Constitution.

3. Intermediate: When the common law right was constitutionalized, it changed its character, but it did not become fully frozen as if it were written law. Under this view, one treats the right as a common law right as of the time it was enacted, but does not give it a dynamic effect with changing circumstances.

It is not surprising that Professor Rappaport ends up opting for choice #3, because this choice maps neatly on his general interpretive defense (with Professor John McGinnis) of original methods originalism! See the post for his reasons. What is of special interest to me is the extent to which the Constitution depends upon common law terminology and common law ideas. For this, you really can’t do better than Professor Stoner’s work. But I suspect there is much more to be done in that area. In fact, sometimes I wonder whether anybody has ever reviewed the English experience with the term “establishment of religion” in the centuries before the Constitution’s drafting (surely someone has).

Gray on the Ubiquity of Evil

John Gray has a long, superb essay on the subject (h/t L. Joseph), with scathingly acute criticisms of the modern sense in which evil is eminently conquerable through (of all things) politics, or really doesn’t exist, or must somehow be the result of somebody’s mistake, or could be cleared up as a simple matter confusion. Particularly keen are Gray’s comments about the way in which the old religious traditions offer certain insights on the matter, insights that are today largely either ignored or disbelieved. Read it all, including this:

It’s not that [most western leaders] are obsessed with evil. Rather, they don’t really believe in evil as an enduring reality in human life. If their feverish rhetoric means anything, it is that evil can be vanquished. In believing this, those who govern us at the present time reject a central insight of western religion, which is found also in Greek tragic drama and the work of the Roman historians: destructive human conflict is rooted in flaws within human beings themselves. In this old-fashioned understanding, evil is a propensity to destructive and self-destructive behaviour that is humanly universal. The restraints of morality exist to curb this innate human frailty; but morality is a fragile artifice that regularly breaks down. Dealing with evil requires an acceptance that it never goes away.

No view of things could be more alien at the present time. Whatever their position on the political spectrum, almost all of those who govern us hold to some version of the melioristic liberalism that is the west’s default creed, which teaches that human civilisation is advancing – however falteringly – to a point at which the worst forms of human destructiveness can be left behind. According to this view, evil, if any such thing exists, is not an inbuilt human flaw, but a product of defective social institutions, which can over time be permanently improved.

Paradoxically, this belief in the evanescence of evil is what underlies the hysterical invocation of evil that has lately become so prominent. There are many bad and lamentable forces in the world today, but it is those that undermine the belief in human improvement that are demonised as “evil”. So what disturbs the west about Vladimir Putin, for example, is not so much the persecution of gay people over which he has presided, or the threat posed to Russia’s neighbours by his attempt to reassert its imperial power. It is the fact that he has no place in the liberal scheme of continuing human advance. As a result, the Russian leader can only be evil. When George W Bush looked into Putin’s eyes at a Moscow summit in May 2002, he reported, “I was able to get a sense of his soul”. When Joe Biden visited the Kremlin in 2011, he had a very different impression, telling Putin: “Mr Prime Minister, I’m looking into your eyes, and I don’t think you have a soul.” According to Biden, Putin smiled and replied, “We understand each other.” The religious language is telling: nine years earlier, Putin had been a pragmatic leader with whom the west could work; now he was a soulless devil.

It’s in the Middle East, however, that the prevailing liberal worldview has proved most consistently misguided. At bottom, it may be western leaders’ inability to think outside this melioristic creed that accounts for their failure to learn from experience. After more than a decade of intensive bombing, backed up by massive ground force, the Taliban continue to control much of Afghanistan and appear to be regaining ground as the American-led mission is run down. Libya – through which a beaming David Cameron processed in triumph only three years ago, after the use of western air power to help topple Gaddafi – is now an anarchic hell-hole that no western leader could safely visit. One might think such experiences would be enough to deter governments from further exercises in regime change. But our leaders cannot admit the narrow limits of their power. They cannot accept that by removing one kind of evil they may succeed only in bringing about another – anarchy instead of tyranny, Islamist popular theocracy instead of secular dictatorship. They need a narrative of continuing advance if they are to preserve their sense of being able to act meaningfully in the world, so they are driven again and again to re-enact their past failures.

Many view these western interventions as no more than exercises in geopolitics. But a type of moral infantilism is no less important in explaining the persisting folly of western governments. Though it is clear that Isis cannot be permanently weakened as long as the war against Assad continues, this fact is ignored – and not only because a western-brokered peace deal that left Assad in power would be opposed by the Gulf states that have sided with jihadist forces in Syria. More fundamentally, any such deal would mean giving legitimacy to a regime that western governments have condemned as more evil than any conceivable alternative. In Syria, the actual alternatives are the survival in some form of Assad’s secular despotism, a radical Islamist regime or continuing war and anarchy. In the liberal political culture that prevails in the west, a public choice among these options is impossible.

There are some who think the very idea of evil is an obsolete relic of religion. For most secular thinkers, what has been defined as evil in the past is the expression of social ills that can in principle be remedied. But these same thinkers very often invoke evil forces to account for humankind’s failure to advance. The secularisation of the modern moral vocabulary that many believed was under way has not occurred: public discourse about good and evil continues to be rooted in religion. Yet the idea of evil that is invoked is not one that features in the central religious traditions of the west. The belief that evil can be finally overcome has more in common with the dualistic heresies of ancient and medieval times than it does with any western religious orthodoxy.

There follows an interesting discussion of Manicheanism and the views of Augustine, and then this:

In its official forms, secular liberalism rejects the idea of evil. Many liberals would like to see the idea of evil replaced by a discourse of harm: we should talk instead about how people do damage to each other and themselves. But this view poses a problem of evil remarkably similar to that which has troubled Christian believers. If every human being is born a liberal – as these latter-day disciples of Pelagius appear to believe – why have so many, seemingly of their own free will, given their lives to regimes and movements that are essentially repressive, cruel and violent? Why do human beings knowingly harm others and themselves? Unable to account for these facts, liberals have resorted to a language of dark and evil forces much like that of dualistic religions.

The efforts of believers to explain why God permits abominable suffering and injustice have produced nothing that is convincing; but at least believers have admitted that the ways of the Deity are mysterious. Even though he ended up accepting the divine will, the questions that Job put to God were never answered. Despite all his efforts to find a solution, Augustine confessed that human reason was not equal to the task. In contrast, when secular liberals try to account for evil in rational terms, the result is a more primitive version of Manichean myth. When humankind proves resistant to improvement, it is because forces of darkness – wicked priests, demagogic politicians, predatory corporations and the like – are working to thwart the universal struggle for freedom and enlightenment. There is a lesson here. Sooner or later anyone who believes in innate human goodness is bound to reinvent the idea of evil in a cruder form. Aiming to exorcise evil from the modern mind, secular liberals have ended up constructing another version of demonology, in which anything that stands out against what is believed to be the rational course of human development is anathematised.

Conference at EUI (Florence) on The Roberts Court and the Protection of Religious Freedom in the United States

I am delighted to be participating this Wednesday in a conference at the European University Institute in Florence, Italy, on The Roberts Court and the Protection of Religious Freedom in the United States, organized by Center friends Olivier Roy and Pasquale Annicchino. Regretfully, my intervention will be virtual rather than in person. Here’s the description of the conference (in Italian) and the program:

Contesto 

John Glover Roberts Jr. è stato nominato Chief Justice della Corte Suprema degli Stati Uniti il 22 settembre 2005, nomina confermata una settimana dopo dal Senato con 78 voti favorevoli e 22 contrari. In questi 9 anni si sono succedute numerose decisioni di assoluto rilievo del massimo organo giurisdizionale statunitense. Tra queste alcune hanno portato a definitivo compimento una nuova interpretazione ed una differente applicazione delle due clausole del primo emendamento costituzionale che si occupano di libertà religiosa: la Free Exercise Clause e la Establishment Clause. Dopo aver inquadrato nel contesto storico e politico la presidenza Roberts, questo workshop intende esaminare le principali pronunce della Corte Suprema sulla libertà religiosa.

Ogni relatore sarà chiamato a commentare una pronuncia e, mediante un approccio di “law in context” a darne una interpretazione nell’ambito del più ampio sviluppo della giurisprudenza della Corte.

L’obiettivo è quello di realizzare un volume collettivo (in italiano) che possa offrire agli studiosi nuovo materiale di riflessione e studio su un argomento che tocca gli interessi scientifici sia dei costituzionalisti che dei cultori delle materie ecclesiasticistiche.

Funded by European Research Council 7th Framework Programme

Programma 

12.00-12.05 Introduzione

12.05-13.00 La Corte Roberts e la tutela della libertà religiosa 

Fred Gedicks | BYU, USA

Marc De Girolami | St John’s University, USA (intervento via Skype)

13.00-14.00 Pranzo di lavoro 

14.00-15.30 Discussione casi – I sessione 

Valentina Fiorillo | Università di Roma “La Sapienza”, Italia

Adelaide Madera | Università di Messina, Italia

Pasquale Annicchino | EUI, Italia

Discussione generale

15.30-15.45 Pausa caffé 

15.45-17.00 Discussione casi –II sessione 

Marco Ventura | KU Leuven, Belgio

Susanna Mancini | Università di Bologna, Italia

Diletta Tega | Università di Bologna e Corte costituzionale italiana, Italia

Discussione generale

17.00-18.15 Discussione finale

More Questions on 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 Garnett notes, 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 certainly could, and 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.

Stendhalian Interlude

I’m listening to Stendhal’s The Charterhouse of Parma in the car, a wonderful

Farnese Tower, Castell'Arquato, Parma

Farnese Tower, Castell’Arquato, Parma

work of novelistic “realism” set in the early 19th century world of Italian city-state court life. Stendhal’s portrait of these small time courts is none too flattering, but neither is its chief alternative: “From the whole business one can derive this moral, that the man who mingles with a court compromises his happiness, if he is happy, and, in any event, makes his future depend on the intrigues of a chambermaid. On the other hand in America, in the Republic, one has to spend the whole weary day paying serious court to the shopkeepers in the street, and must become as stupid as they are; and there, one has no Opera.”

The hero of the story, Fabrizio del Dongo, is a figure of perfect aristocratic early Romantic integrity–the sort of man who brashly leaves his suffocating palace life in Como to join the army of Napoleon, only to reach him right as the Battle of Waterloo is concluding. For Fabrizio, the only thing that matters is to get confirmation that he has actually participated in a battle–any battle–something about which he is never quite certain.

Since prisons and prison life (and even prison escape!) have been a subject of discussion here at the Center for Law and Religion Forum this past week, and since a large portion of the key section of The Charterhouse of Parma occurs in a prison (the Farnese Tower in Parma, at right), I thought the following was interesting. The prison warden, a General Fabio Conti, is a detestable person and fairly universally hated, including by many of the guards (to say nothing of the prisoners). At one point, it appears that he may have died by poisoning. But he revives. Yet rather than feeling crushed by the news, the prisoners sing his praises. Stendhal writes:

Fabio Conti was a jailer who was always uneasy, always unhappy, always seeing in his dreams one of his prisoners escaping: he was loathed by everyone in the citadel; but misfortune inspiring the same resolutions in all men, the poor prisoners, even those who were chained in dungeons three feet high, three feet wide and eight feet long, in which they could neither stand nor sit, all the prisoners, even these, I say, had the idea of ordering a  Te Deum to be sung at their own expense, when they knew that their governor was out of danger. Two or three of these wretches composed sonnets in honor of Fabio Conti. Oh, the effect of misery upon men! May he who would blame them be led by his destiny to spend a year in a cell three feet high, with eight ounces of bread a day and fasting on Fridays!