Author Archives: Marc O. DeGirolami

The Weekly Five

This week we feature new work on the rhetoric of US Supreme Court opinions; a comparative study of same-sex unions; more specific studies of polygamy and gay marriage; the legal status of women in Pakistan; and claims of religious accommodation in the workplace.

1. Steven Douglas Smith (University of San Diego), The Jurisprudence of Denigration: Smith reflects on Justice Kennedy’s majority opinion in United States v. Windsor (2013). Specifically, he criticizes Kennedy’s claim in the opinion that supporters of Section 3 of DOMA acted from a  a “purpose…to demean,” “to injure,” and “to disparage.” He concludes that this type of denigrating jurisprudence reflects more general patterns in constitutional and moral discourse, in which “the only kind of admissible and potentially persuasive argument is one that attacks the character or motives of one’s opponent.”

2. W. Cole Durham (BYU), Robert Theron Smith (BYU), William C. Duncan (Marriage Law Foundation), A Comparative Analysis of Laws Pertaining to Same-Sex Unions: The authors survey various countries’ approach to the regulation of same-sex unions, and they argue that, as to those countries that recognize same-sex unions, legal change through legislative processes has certain advantages over legal change through the courts.

3. Danièle Hervieu-Léger (French National Center for Scientific Research & Ecole des Hautes Etudes en Sciences Sociales) and Janet Bennion (Lyndon State College), The Meanings of Marriage in the West: Law, Religion and ‘Nature’: Both authors discuss the sense in which law rejects “natural” conceptions of marriage. Bennion focuses on polygamous communities in Montana, Utah, and Mexico. She “reject[s] the notion that polygamy is uniformly abusive, anti-feminist, and dysfunctional.” Hervieu-Léger instead focuses on gay marriage. She is puzzled by, and criticizes, “the way in which the Catholic Church (by which I refer to its institutional representatives) has tried to use this debate to reassert its normative capacity within the public sphere.”

4. Zia Ullah Ranjah (International Islamic University–Islamabad) & Shahbaz Ahmad Cheema (University of the Punjab), Protection of Legal Status of Women in Pakistan: An Analysis of the Role of the Supreme Court: The authors discuss the function of the Supreme Court of Pakistan within Pakistan’s constitutional structure and the court’s role in protecting the rights of women, offering various recommendations.

5. Dallan Flake (BYU), Image is Everything: Corporate Branding and Religious Accommodation in the Workplace: Flake claims that courts should more closely scrutinize claims of religious accommodation within the workplace “because a company’s image is one of its most valuable assets.” Among his recommendations are that courts reject claims of accommodation if they impose anything more than de minimis burdens on employers and that they defer more broadly to the employers’ interest.

Mayor de Blasio Reverses NYC Dept of Education Policy of Exclusion

New York City Mayor Bill de Blasio has reversed the New York City Department of Education’s policy of exclusion of religious groups that engage in “worship” from the use, on equal terms with other groups, of public school classrooms–a policy that was upheld several times by the Second Circuit as vindicating “interests favored by the Establishment Clause.” The Mayor concluded that “[a] faith-based organization has a right like anyone else” to use the public school space.

Machiavelli’s Civil Religion

This review by Professor Cary Nederman of Professor Maurizio Viroli’s Redeeming the Prince: The Meaning of Machiavelli’s Masterpiece is very interesting (h/t Matt Lister). I have not read Viroli’s book yet (saving it for the summer!), but his reading of Machiavelli–and in particular his interpretation of the famously perplexing Chapter 26 (“Exhortatio ad capessendam Italiam in liberatemque a barbaris vindicandam”)–makes a fine textualist case for a kind of civil religion in his work. Here, Machiavelli pleads for an Italian redeemer who–”favorita da Dio e dalla Chiesa” (“favored by God and the Church”)–will deliver Italy from its present troubles. The troubles are pretty bad: “sanza capo, sanza ordine, battuta, spogliata, lacera, corsa, e avessi sopportato d’ogni sorte ruina” (“without a head, without order, beaten, denuded, wounded, run down, and having sustained all manner of ruin”). Here’s a bit from the review concerning what Machiavelli had in mind concerning the divine agent who would unify Italy and redeem its national promise:

In contrast to most scholars, for whom Chapter 26 cannot be reconciled with the previous body of the text, Viroli insists that Machiavelli’s “Exhortation” represents the very crescendo of The Prince. How does Viroli arrive at such an unconventional reading?….His overarching insight, I take it, is that we ought to take Machiavelli at his word when he speaks of religious matters and, in particular, mentions the workings of God. The prevailing tendency, of course, has been to dismiss such references as reflective of either his impiety or his wicked sense of humor. On this important point, I believe Viroli to be largely correct. Scholars have all-too-often filtered their readings of Machiavelli through a set of preconceived notions or impressions of what they assume he was saying, according to his longstanding reputation, rather than what the text actually states. This does not mean that Machiavelli’s political thought lacks an underlying agenda, but rather that we must always commence our investigations by taking the words he wrote seriously and at face value….

In particular, Machiavelli’s invocation of prophetic wording in Chapter 26, according to Viroli, reflects the overarching purpose of The Prince: the call for a redeemer, presumably Lorenzo de’ Medici, to unify Italy in order to remove the foreign elements that have dominated its politics. Machiavelli says that such a redeemer is sanctioned by God, who has rendered the moment propitious for such action. Viroli insists that we must take Machiavelli at his word in this regard, rather than dismissing it as incompatible with the general message of The Prince.

That supposed “general message” helps us to grasp the sense in which Machiavelli may be characterized as a realist for Viroli. Specifically, Viroli asserts that Machiavelli adopts the stance of a “realist with imagination.” By this he means that Machiavelli perfectly well understood the situation of Italy as it existed in his own day; this is his “realist” dimension. Yet he posits that Machiavelli was also engaged in an imaginative way to change such reality by promoting a savior, a redeemer, capable of instituting the reforms necessary to transform the realities of his day. On Viroli’s account, Machiavelli pursued this agenda by mythologizing the great men of bygone times as well as some of his contemporaries. Thus, he mythologizes the redeemers whom he lauds in Chapters 6 and 26 — such as Moses, Cyrus and Theseus — as well as recent political figures such as Caterina Sforza and (especially) Cesare Borgia, both of whom he had encountered during his days in the Florentine civil service. Their deeds are transformed by him without regard to their actual behavior, for which Machiavelli has no use. Machiavelli’s realism, then, is not confined to an effort to analyze and explain political events and personalities, past and present, in the manner of a political scientist. Rather, he renders his favored subjects larger than life, with the purpose of exhorting the redeemer to aim at their example, even if he falls short.

Supreme Court Declines to Hear Wedding Photographer Dispute

The Supreme Court today denied certiorari in Elane Photography v. Willock, the case involving a claim by a photography business that it was compelled to create images celebrating a gay wedding pursuant to New Mexico’s public accommodations statute, in violation of the business owner’s First Amendment rights.

The decision by the Supreme Court not to hear the case leaves in place the New Mexico Supreme Court’s decision against Elane Photography.

The Weekly Five

This week’s list offers articles on religion and the war on terror and the relationship between secular and religious authority. We then feature three pieces from the handsomely reconstituted Journal of Law and Religion.

1. Malick W. Ghachem (MIT; Maine Law School), Religious Liberty and the Financial War on Terror: Professor Ghachem focuses particularly on the way in which the religious freedom of Muslim Americans has been affected by the war on terror, including the effect of cases such as Holder v. Humanitarian Law Project on Muslim American charities.

2. Benjamin Berger (Osgoode Hall Law School), Belonging to Law: Religious Difference, Secularism, and the Conditions of Civic Inclusion: Professor Berger argues that the idea of and appeal to secular law is a kind of “technique” or “repertoire of moves” that may be used to negotiate the relationship between civil and religious authority.

3. Luke Timothy Johnson (Emory, Theology), Happiness and the Restless Heart: An Augustinian Confession: Professor Johnson examines and reflects on the meaning of certain lines from Augustine for the “elusive yet all-important dimension of human life we call happiness–or, more often for Christians, joy.”

4. John Witte, Jr. & Christopher J. Manzer (Emory Law School), A Prequel to Law and Revolution: A Long Lost Manuscript of Harold J. Berman Comes to Light: Fascinating intellectual history in which Professor Witte and Mr. Manzer explore an early text by Professor Berman titled, “Law and Language,” which adumbrates several themes that later emerged and were developed in Berman’s masterwork, Law and Revolution. Berman had already mentioned his interest in reviving historical jurisprudence in the early volume.

5. M. Christian Green (Fellow at the Emory Center for the Study of Law and Religion), Between Blasphemy and Critique: Freedom of Religion and Freedom of Speech: A massive review of five books (by Amos Guiora, Paul Marshall & Nina Shea, Austin Dacey, Jeremy Waldron, and an edited volume on blasphemy and free speech) each of which treats the subject of defamation of religion and freedom of speech. The questions addressed in the review include: “Should speech that is critical of or hostile to religion or particular religions be banned if it offends religious feelings? What if the speech rises to the level of incitement to hatred or violence? Absent confirmed correlation of incitement to actual violence and its effects, how can we describe the harm that speech about religion can inflict? Can the boundaries of acceptable speech about religion be defined broadly enough to include legitimate critique of religion, and if so, who determines the parameters of acceptability? Or, as the title question of one recent book put it, Is critique secular?”— such that there is an inherent and inevitable conflict between freedom of religion and the possibility of its critique?”

More Establishment Clause Bloat from the Second Circuit

As Ms. Wright reports below, the United States Court of Appeals for the Second Circuit has issued its latest decision in Bronx Household of Faith v. Board of Education of the City of New York. For lots of background on the case, which involves equal access to a limited public forum–public school classrooms–after hours for a religious organization that engages in, among other things, “worship,” just type “Bronx” into the search tool at right, and see this post in particular. The court found for the City, with a dissent by Judge Walker.

Writing for the panel majority, Judge Leval framed the case in these terms:

This appeal raises the question whether the Board of Education of The City of New York (the “Board”), in making the City’s school facilities available outside of school hours for use by outside users and subsidizing such use, may, in furtherance of interests favored by the Establishment Clause of the First Amendment, refuse to permit the holding of religious worship services.

The trouble ought to be evident already. What exactly are “interests favored by the Establishment Clause”? Are they the same as interests the violation of which would be unconstitutional? Clearly not. If they were such interests, then it would be unconstitutional for the City to permit Bronx Household of Faith to use its facilities. But it isn’t unconstitutional for the City to do so. So what are these “interests”? How is the City acting consistently with “its constitutional duties” here? What “duties”? The City has no “constitutional duties” to exclude this organization.

After resurrecting the hoary distinction between “expression” and “conduct” (never mind that the Free Exercise Clause protects “exercise”), the court continues:

the Hialeah ordinances [in the Lukumi Babalu case] were motivated by the city council’s disapproval of the targeted religious practice. The Board has no such motivation. There is not a scintilla of evidence that the Board disapproves of religion or any religion or religious practice, including religious worship services. Its sole reason for excluding religious worship services from its facilities is the concern that by hosting and subsidizing religious worship services, the Board would run a meaningful risk of violating the Establishment Clause by appearing to endorse religion. This difference is of crucial importance in determining the reach of Lukumi’s reasoning that a burdensome regulation focused on a religious practice is constitutionally suspect and therefore subject to strict scrutiny. This reasoning makes perfect sense when the regulation’s focus on religion is gratuitous, and all the more so when it is motivated by disapproval of religion (or of a particular religion or religious practice). On the other hand, it makes no sense when the regulation’s focus on religion is motivated by the governmental entity’s reasonable interest in complying with the Establishment Clause….The Establishment Clause prohibits government from engaging in conduct that would constitute an establishment of religion, such as endorsing, or seeming to endorse, a religion. It is only to the extent that governmental conduct affects religion that the restrictive force of the Religion Clauses is operative. Accordingly, rules and policies designed to keep a governmental entity in conformity with its obligations under the Religion Clauses must of necessity focus on religious subject matter.  If the focus is not religious, the Religion Clauses have no application. Such focus on religion is neither an invidious discrimination nor constitutionally suspect. To the contrary, it is inevitable.

(12-13, emphasis added). I see. So a municipality can exclude religious people and organizations from access on equal terms to a limited public forum such as a public school classroom if including them would be not only “endorsing” religion but also “seeming to endorse” religion.

What does it mean to “seem to endorse religion”? I’m reminded of triple inchoate crimes in criminal law, like attempting to attempt to solicit somebody to commit a crime. What government exclusion of religion would be impermissible under a standard that protects an interest in appearing or seeming to favor religion? The court says that it would not be constitutionally impermissible for the government to issue the following rules: “This city shall not adopt any rule or practice that constitutes an improper burden on the free exercise of religion, or that constitutes an establishment of religion.” Or, “No school or teacher shall compel any student to participate in religious exercises, or seek to persuade any student to alter his or her religious beliefs.” I don’t understand the point of these examples. Of course those rules would be permissible. Those rules reflect what the Religion Clauses actually prohibit, not what they “appear” or “seem” to prohibit.

There are other debatable features of the majority opinion, including the extension of Locke v. Davey, which involved state subsidies, to this limited public forum case. More to the point, however, appearance of endorsement is not the standard under the Establishment Clause as misguidedly interpreted by the Supreme Court even since the Allegheny case. But as I have explained before, the endorsement test, with its emphasis on hurt feelings, offenses taken (and given), and the delicacy of personal sensibilities is at least partly to blame for what is an “inevitable” and deeply regrettable bloating of the Establishment Clause.

Toobin: Hobby Lobby Challenge is About Hurting Poor People

Jeffrey Toobin has an article in The New Yorker (no, not the one about how Justice Thomas is incompetent because he is overweight) that expresses the view that the challenge to the contraceptives mandate in Hobby Lobby is really just part of a larger effort to deprive poor people of needed medical care. Here’s his evidence:

The political nature of the case was an open secret during the argument at the Court. Sotomayor told Paul Clement, the lawyer for Hobby Lobby, who was a solicitor general under George W. Bush, “You picked great plaintiffs.” (Customarily, of course, it is the plaintiffs who pick the lawyers.) Elena Kagan pointed out to Clement that he was really attacking the entire law. “Isn’t that just a way of saying that you think that this isn’t a good statute, because it asks one person to subsidize another person?” she asked. “But Congress has made a judgment and Congress has given a statutory entitlement and that entitlement is to women and includes contraceptive coverage. And when the employer says, no, I don’t want to give that, that woman is quite directly, quite tangibly harmed.”

It comes as news to me that what Hobby Lobby objects to is the concept of a legislative subsidy, rather than a government regulation–and not a statute–that decides how the subsidy will be financed. And I’m sure Hobby Lobby will be surprised to learn that it doesn’t care about poor people–say, the poorer of its own employees for whom it provides health plans–health plans that some have urged it simply to abandon if it feels so strongly about its religious objections.

And here is a line from Peter Berger’s latest column: “I am not overly fond of The New Yorker magazine with its incongruous mix of politically correct articles and advertisements for outrageously expensive goods.”

Reflections on the Hobby Lobby Oral Argument: On the Establishment Clause Claim

It is of course always difficult to predict how the Court will rule on any issue, and this is certainly true in the Hobby Lobby case. From my read of the transcript of the oral argument, the least restrictive means analysis stole the show. There sure was a lot of discussion about the accommodation to religious nonprofits as a less restrictive means than what the administrative agency had decided on for for-profits. Justice Kennedy asked repeatedly about the issue of regulatory, as opposed to legislative, exemptions as a Free Exercise Clause and RFRA problem. See, e.g. 56 (“Now what–what kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined?”).

On another matter, though, there was greater clarity in the argument. The government rejected the specific claim that an exemption in this case would violate the Establishment Clause. Here is the colloquy:

Justice Alito: Well is it your argument that providing the accommodation that’s requested here would violate the Establishment Clause

General Verrilli: It’s not our argument that it would violate the Establishment Clause. But it is our argument that you–in any RFRA case, including this one, you have to consider the impact on third parties, because otherwise, you will be skating on thin constitutional ice.

43. I am not quite sure what this means. But what it seems to mean is that, first, the government takes the position that this exemption, if granted, would not violate the Establishment Clause. And second, it seems to mean that RFRA itself, properly interpreted and applied, incorporates within itself Establishment Clause limits that relate to third party interests. That’s the claim I have made here. It is also the claim that this amicus brief makes. It also reflects the language in Cutter v. Wilkinson. It is a claim about the interpretation of a statute. It is not a claim that the statute violates the Establishment Clause if it violates a particular externally imposed threshold that is not spelled out in the statute itself. Solicitor General Verrilli went on to say that whatever third party interests are contemplated by RFRA are subsumed within the compelling government interest analysis right within RFRA: “[C]ertainly compelling interest analysis certainly does require consideration of the interests of third parties.” 44

Of course, that the government disavows a claim does not mean that the Court can’t go retrieve it on its own. But it was really only Justice Ginsburg who said anything at all about the Establishment Clause, and what she said seems also to be consistent with the point that RFRA (like RLUIPA) incorporates certain Establishment Clause limits. Justice Kennedy asked Attorney Clement how he “would suggest that we think about the position and the rights of the–of the employees[.]” Justice Kennedy then remarked that “the employees are in a position where the government, through its healthcare plans is…allowing the employer to put the employee in a disadvantageous position. The employee may not agree with these religious–religious beliefs of the employer. Does the religious beliefs just trump?” 33

After a response from Mr. Clement, here’s what Justice Ginsburg said:

But, Mr. Clement, you made the analogy to RLUIPA. And the one thing that has not been mentioned up till now is the Establishment Clause. The Court was very clear when it came to RLUIPA, which you said is similar to RFRA, that the accommodation must be measured so it doesn’t override other significant interests. And that was true of Sherbert and that was true of Yoder. The–and the Cutter case, and this Court made it very clear, that the accommodation has to be balanced and you have to take into account other significant interests.

34. Later in the discussion, Justice Kagan referred specifically to the “tangible harm[]” that women will suffer who don’t get the benefit of the statute. But neither Justice Kagan nor Justice Kennedy specifically talked about the Establishment Clause. And the discussion of tangible harms on third parties then turned toward the issue of alternative means of accommodating those interests without burdening the religious objector.

Britain to Recognize Sharia-Compliant Wills

An interesting story about The Law Society’s decision to recognize the legitimacy of Islamic law by permitting solicitors to draft wills that are compliant with principles of Islamic law. A bit:

Under ground-breaking guidance, produced by The Law Society, High Street solicitors will be able to write Islamic wills that deny women an equal share of inheritances and exclude unbelievers altogether.

The documents, which would be recognised by Britain’s courts, will also prevent children born out of wedlock – and even those who have been adopted – from being counted as legitimate heirs.

Anyone married in a church, or in a civil ceremony, could be excluded from succession under Sharia principles, which recognise only Muslim weddings for inheritance purposes.

Nicholas Fluck, president of The Law Society, said the guidance would promote “good practice” in applying Islamic principles in the British legal system.

The story reports that some of the existing Islamic law tribunals also “have powers to set contracts between parties, mainly in commercial disputes, but also to deal with issues such as domestic violence, family disputes and inheritance battles.”

It may be that The Law Society will eventually make the same decision with respect to private parties who wish to engage in commercial transactions that conform to Islamic law, or who wish to avoid commercial transactions with those who hold what are taken to be religiously objectionable views. Interesting that the reception to similar claims in this country has been rather different.

UPDATE: See Frank Cranmer’s comment for various clarifications.

Hamburger on “Equality and Exclusion”

Philip Hamburger has this short piece, which distills arguments that he makes in this very interesting article. I highly recommend both. The abstract of the long piece and a few quick highlights:

Religious Americans are substantially excluded from the political process that produces laws, and this prompts sobering questions about the reality of religious equality. Put simply, political exclusion threatens religious equality.

The exclusion is two-fold. It arises partly from the growth of administrative power, which leaves Americans, including religious Americans, no opportunity to vote for or against their administrative lawmakers. It also arises from section 501(c)(3) of the Internal Revenue Code. As a result of this section, even when law is made in Congress (or an elected state legislature), religious organizations are restricted in their freedom to petition and to campaign for or against their lawmakers. There thus is a broad exclusion of religious Americans and their organizations from the political process that shapes lawmaking, and Americans thereby have lost essential mechanisms for persuading their lawmakers to avoid burdening their religious beliefs.

Religious liberty thus comes with an unexpected slant. Courts blithely assume that America offers a flat or even legal landscape — a broad and equitable surface on which all Americans can participate equally, regardless of their religion. The underlying exclusion, however, tilts the entire game, so that apparently equal laws actually slant against religion. What is assumed to be a flat and natural landscape turns out to be an artificially tilted game.

The conceptual framing of religious liberty therefore needs to expanded. The central conceptual problem for the free exercise of religion is usually understood as the choice between exemption and equality — the choice between a freedom from equal laws, on account of one’s religion, and a freedom under equal laws, regardless of one’s religion. The conceptual problem, however, turns out to be more complicated. In addition to the constitutional choice between exemption and equality, one must also consider the role of exclusion.

Of course the political exclusion of Americans as a result of the growth of the administrative state would not affect only religious Americans, and Philip recognizes this in the paper. But his particular focus is on the political exclusions that the administrative process has worked on those with religious convictions–and particularly on those whose religious convictions run contrary to or are in tension with the commitments of those in political power.  “Those who are sailing with prevailing winds, theological and political, do not suffer much from the exclusion.”

The argument about section 501(c)(3) is particularly interesting. As is well-known, this provision offers a kind of deal to religious, educational, and charitable organizations: so long as you do not campaign and advocate for political persons and causes, the state will not tax you. The common justification for the imposition of these constraints is that they are merely conditions on spending, but Philip argues here (as he has before) that limits on government power cannot be waived by consent–”private consent cannot enlarge constitutional power.” Constitutional rights are not “tradable commodities.” So the government cannot cut the deal it has cut in section 501(c)(3); it has no power to do so. Philip also questions the idea that exemptions are the same as expenditures for purposes of the spending power. “If refraining from taxing amounted to spending, then all Americans continually would be recipients of government largesse, for the government might have taxed them at a higher rate, and the decision not to impose the higher rate would be a tax expenditure.” If that were true, the government could apply 501(c)(3) against all Americans.

The idea here is that the reason not to tax churches and religious organizations is not that they made a deal with the government in exchange for which they are get the privilege of an exemption. The reason not to tax them is that taxes are not proper as against organizations whose principal mission is nonprofit. Exemptions here are merely mechanisms for recognizing that a tax is inappropriate for organizations that ordinarily have no income. Philip then takes aim at the various justifications for the partial political exclusion worked by 501(c)(3)–that the restriction is “not draconian,” that allows other avenues for religious groups to participate in the political process (the Russian Doll analogy to what is permitted by 501(c)(4) was particularly effective), the ‘we need a mechanism to stop tax deductible political contributions’ claim–arguing that none of them is sufficient to counter the constitutional problems.

Here’s a thought experiment in the piece: suppose the government attempted to apply 501(c)(3 restrictions to professors. Professors are supposed to be disinterested observers, so the government decides to make a distinction between academics and politics. Therefore, as professors (as opposed to as private individuals), they cannot engage in any campaigning or substantial petitioning. After all, professors benefit from a whole lot of federal spending on their students and their univerisities, so it’s perfectly ok to condition federal aid to universities on the absence of political participation of various kinds by professors. And, anyway, if they were true academics, they wouldn’t engage in politicking anyway. I suspect many would think this quite absurd. And as Philip says, “[t]he larger constitutional point is that the reasons for suppression are plentiful, but this does not mean that they make the suppression constitutional.”