Category Archives: CLR Forum Guest

Ballard and Sincere Religious Beliefs, Part II

In an earlier post, we considered United States v. Ballard and its attempt to draw a workable line between protecting religious exercise and enforcing the law.

That case involved fraud and taking money from others, and the court distinguished between beliefs (whose veracity could not be questioned), and whether the defendants actually believed (if not, they were committing fraud). In the world of the 1940s, and its relatively monolithic Christian culture, it is not hard to understand how the jury reasoned its way to a conviction. One should not commit fraud whatever one’s religious beliefs.

But in the contemporary administrative state those questions are much more complicated, both because of the reach of the law and our much more openly pluralistic society. Given the myriad aims and interests the government now purports to serve, the chances of Ballard being applied more broadly increases. The danger of outright religious persecution is not yet as dire as Justice Jackson contemplated in his Ballard dissent, but under this logic the substantial burden part of the balancing test seems less secure.

There are a number of ways a court might assess whether the sincerity of religious belief applies to a given regulatory situation.

A court might conduct a fact finding exercise to see whether the religious beliefs, even if sincere, could actually apply to the law at issue. This seems to be the process followed in Zubik. But the court disagreed with the objectors’ view that accommodation would implicate them in activity they believed morally wrong. One could take the Jackson position, that a court cannot question either the substance of the beliefs or whether defendants actually believe them. People often believe things that seem outlandish to others, and to draw the line where the Ballard majority did would invite unwelcome scrutiny of religious conduct.

But another way is to look at the sincerity of the government’s beliefs, which has the advantage of being compatible with the current balancing test framework for analyzing substantial burden, is to look at the government’s sincerity. RFRA does part of the work. As the Supreme Court has stated, “RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’ — the particular claimant whose sincere exercise of religion is being substantially burdened.” But that does not go to whether the government’s interest is, in fact, compelling. The law of free speech has some categories of compelling interests that justify narrowly-tailored restrictions on speech. Religious freedom cases, generally, have not articulated similar standards. Courts have often just assumed that the interest the government asserts is compelling, even if it is pitched at a high level of generality, such as “health” or “equality.” Even the contraceptive mandate cases focus more often on the least restrictive means part of the balancing test, but do not question the legitimacy of the governmental interests. The mandate cases have the opportunity to declare that generic interests, as applied to particular plaintiffs, are not sufficiently clear to be compelling without further evidence of what those interests actually mean.

Ballard and “Sincere” Religious Beliefs

Marc DeGirolami kindly referred me to United States v. Ballard on the question of how, or whether, courts should analyze a person’s “sincere” religious beliefs. The defendants in Ballard had been convicted of fraud. The misrepresentations concerned the religious “I AM” movement, which the Ballards had founded. The court instructed the jury not to consider whether the defendants’ beliefs were true or false, but whether the defendants believed them to be true. If so, they were to be acquitted. The jury convicted them of a scheme to defraud. The Court of Appeals reversed, arguing that the question of truth or falsity also needed to be presented to the jury.

The Supreme Court reversed, and found the district court had properly excluded the question of truth from the jury. The majority opinion (written by Justice Douglas) affirmed that “[t]he law knows no heresy, and is committed to the support of no dogma, the establishment of no sect.”  Yet the majority found that the defendants could be convicted of fraud for not really believe what they said, even if the content of that belief was outside judicial notice. Justice Jackson, in dissent, stated that he could “not see how we can separate what is believed from what is ‘believable’” and warned of the potential for religious persecution. He would have affirmed the reversal of the conviction.

Ballard is regularly cited (for example in the contraceptive mandate cases) for the proposition that courts cannot question the sincerity of religious beliefs. That is true, but the result in Ballard was upheld nonetheless. The Supreme Court determined that a court could rule on the acts of the plaintiffs (there, misrepresentations) without caring whether their belief was true. Cases like the Third Circuit Zubik case are doing something similar when they hold that “free exercise jurisprudence instructs that we are to examine the act the appellees must perform—not the effect of that act—to see if it burdens substantially the appellees’ religious exercise.” There, the Court found that requiring religious institutions to fill out the accommodation form was not prohibited, because it disagreed that doing so interfered with the exercise of their religious beliefs, as the Court interpreted them.

So although the strict terms of the balance-shifting test may seem to support those seeking the accommodation, that is only a matter of drafting a statute that is better tailored to further government interests. The more basic question – who gets to decide “substantial burden” and on what grounds – still weighs against believers.

Is Christianity Part of the National Heritage?

There is a fair amount of moral preening in this article from Slate on an ill-advised (at best) move by a city council in Coolidge, Arizona to allow Christian-only prayers at their meetings. The piece, by Dahlia Lithwick, is a little overheated. The resolution went nowhere. She acknowledges that prayers at council meetings are allowed under a 2014 Supreme Court decision. Town of Greece v. Galloway, so long as there is no intent to discriminate, and that the Coolidge City Council rescinded the resolution shortly after the 4-2 vote in favor (which in any event needed to be voted on again to pass). Not to mention that the council assured one member that if he didn’t like what he was hearing from another faith, he didn’t have to listen.

Lithwick thinks both the actual proposed Coolidge resolution and one that simply permitted religious groups within the town limits to offer prayers at council meetings are examples of religious “intolerance” (Lithwick calls the latter “sneaky and subversive” even though it is perfectly reasonable and constitutional to only allow those groups actually present in a town to offer prayers). This theocracy-under-every-bed approach is tiresome and implausible, without disagreeing that the council’s decision was not a good one.

What interests me here is that Lithwick and others (such as historian Kevin Kruse, who has written a very interesting book on the rise of the Religious Right) mocked the proponent of the resolution for saying that Christianity was “our heritage.” As a historical matter, I don’t think this is remotely debatable, and Lithwick has the losing side. Further, as a constitutional matter, there is voluminous evidence that the Founders were very much influenced by the Reformed Protestant tradition, which is reflected in the documents they wrote.

This topic came up during a recent Libertas conference I had the privilege of attending, and has deep roots. (Thomas Jefferson, for example, argued that Christianity did not form part of the “law of the land.”) Lithwick’s view dovetails with a good article by Stuart Banner on Christianity and the common law. Banner finds that the decline of the belief that “Christianity forms part of the common law” coincides with the rise of a notion that the law was made by judges and not simply reflective of underlying truths, be they religious or otherwise. He writes: “Law was a body of principles separate from other bodies of principles, not just in its source (the decisions of government officials), but in its field of application. Religious norms, even those universally subscribed to, did not qualify as ‘law,’ not just because they were not made by government officials, but also because they were not enforced by government officials.” This conception of law increased (unsurprisingly) the power of lawyers and judges, who now presided over an autonomous realm untouched by the beliefs of the people, yet somehow superior to it.

Holding that law and culture are not the same is different from believing that culture need not influence law. Lithwick’s position has its own history, one that is not self-evidently true (and, in light of the “clerisy” theme these posts have been developing, arguably not desirable as well).

The Value of the Humanities and Heterodoxy

Readers of the CLR Forum see every day how scholarship in the humanities and social sciences directly affects the laws and policies that govern our lives. That important perspective is not shared widely enough. On that score, two items of interest appeared last week.

First, TIME reported that “[m]ore than two dozen Japanese universities … will reduce or altogether eliminate their academic programs in the humanities and social sciences, following a dictum from Tokyo to focus on disciplines that ‘better meet society’s needs.'”

In tough times, policymakers tend to think of the academic disciplines outside the sciences as a luxury good, easily abandoned in favor of more practical pursuits. But, in fact, really good scholarship across the humanities and social sciences is necessary to help us try to figure out what kind of society we want to be, and what it will take for us to figure out how to work together to get there.

One reason for society’s lack of enthusiasm for the humanities and social sciences is that it tends to be politically monotonal. The best recent studies suggest that less than 5% of academics in these fields at research universities have right-of-center social and political views. Not surprisingly, this can lead to scholarship that downplays, misunderstands, or simply overlooks views widely held among the public and policymakers.

The Heterodox Academy, recently reported in The American Interest, looks like a very important effort to bring more balance into academic scholarship. A politically diverse group of scholars is setting out to bring a greater degree of viewpoint diversity to scholarship, especially in the social sciences. This effort should not only make scholarship more useful, but it will make it more intellectually invigorating, as well.

For what it’s worth, I have much more to say on these topics in a book coming out in just a few weeks called, Why We Need the Humanities.

Another Mandate Defeat Teed up for the Supreme Court

Another defeat for the government. The Becket Fund is reporting that the Eighth Circuit, in two decisions released last week, affirmed a lower court’s grant of a preliminary injunction in favor of Dordt College and Cornerstone University, both religious nonprofits, among other entities, against enforcement of the Affordable Care Act’s contraceptive mandate, as well as the so-called “accommodation,” which permits religious entities not to comply with the direct provision of contraceptive coverage by signing a certification (the “Form 700”) that is then sent to a third-party administrator. That administrator then notifies the objecting party’s insurer, who then is supposed to arrange for coverage. This accommodation has its own problems, most clearly that many religious organizations do not feel comfortable appointing a third-party to do something which they themselves find objectionable.

The decision found that “by coercing Dordt and Cornerstone to participate in the contraceptive mandate and accommodation process under threat of severe monetary penalty, the government has substantially burdened Dordt and Cornerstone’s exercise of religion.” Because of that substantial burden, the government was required to show that the ACA mandate and accommodation served compelling government interests and did so through means least restrictive of the constitutional protection of free exercise. Relying on a similar, recent case, the appellate panel determined that the government had not used the least restrictive means, but did not rule on whether the government was furthering a compelling interest.

Significantly, the Court did not question Dordt and Cornerstone’s “sincere religious beliefs” that opposed them to the mandate and accommodation. This is in contrast to the case we looked at last week, where the dissenters argued that was precisely what the panel did in rejecting similar claims.

A number of religious non-profit petitions are now waiting Supreme Court review, though it is unclear whether the differing Circuit opinions are going to move the Supreme Court to take a case so soon after Hobby Lobby. However, the fault lines of the decisions are clear. It seems difficult to believe that the government would prevail on whether the ACA mandate and accommodation is the least restrictive means of achieving its interests, whatever the Court’s view of what those interests are. It is worth noting that those interests are not without challenge, including by federal appellate courts, as in a 2013 opinion by Judge Janice Brown, although they were assumed for the purposes of argument only in Hobby Lobby. Yet the stubborn, unknown fact on which the decision may hinge is not strictly a legal one: can the Justices understand that the accommodation itself can burden religious freedom, even if the government does not think it does? That in turn will require them to decide whether the challengers’ beliefs are sincere and given their place in the “scribal” hierarchy, that conclusion may be too much to expect.

Scribes and Holidays

Thanks to Marc and Mark for asking me to blog with them for the next few weeks. As I am just a law-and-religion amateur, being able to exchange thoughts with scholars of their caliber is a real honor.

To get things started, I haven’t seen much about this dissent a couple of weeks ago by a group of five Tenth Circuit judges from a denial of an en banc hearing in cases involving the contraceptive mandate as applied to non-profits.  The tenth Circuit, sua sponte, considered whether to rehear the cases en banc; the plaintiffs, who were challenging the mandate, had lost before the initial panel. The full court denied rehearing en banc , but five judges were sufficiently disturbed to write a strongly-worded dissent. The core of their argument is as follows:

Put another way, the panel majority may be saying that it is the court’s prerogative to determine whether requiring the plaintiffs to execute the documents substantially burdens their core religious belief, regardless of whether the plaintiffs have a “derivative” religious belief that executing the documents is sinful. This is a dangerous approach to religious liberty. Could we really tolerate letting courts examine the reasoning behind a religious practice or belief and decide what is core and what is derivative?

This is the real danger, I think. You have what John McGinnis calls a “scribal” caste without much (as Mark rightly notes) personal connection to traditional religious thought or concepts determining what is “really” important to the religion of the litigants.  It is no surprise that in such cases, the judges favor the state, because how serious could religious people actually be about matters the scribes see as unimportant?

A second, non-legal topic. My wife and I have three grade-school children, and for the first time this year, I heard multiple conversations over the summer about the multitude of school holidays that need to be accommodated into the schedule. Not just Rosh Hashanah, Yom Kippur, Christmas and Easter, but also Eid and the Lunar New Year are now recognized in the New York public schools; the Hindu festival Diwali is also being considered. So on the one hand, legal scribes reject accommodation for beliefs not considered “core,” yet other arms of the state are increasingly conceding the centrality of expression of religious beliefs in a very public way. Since as a general matter, I believe culture eventually prevails over formal legal doctrine, this kind of contrast is something to watch.

Welcome to Gerald Russello

Mark and I are delighted to welcome Gerald Russello to the Forum as our guest Gerald Russello
for the next month or so. Gerald is a partner at an international business law firm, where he has specialized in securities enforcement and regulatory matters. But he also has a “second life” as a frequent and thoughtful commenter on many matters of immediate concern to our readers. I’ve learned greatly from his incisive essays. And he is the tireless editor of The University Bookman, the arm of the Russell Kirk Center For Cultural Renewal devoted to essays and reviews about books that “diagnose the modern age and support the renewal of culture and the common good.”

Welcome Gerald!!

Thanks to Nate Oman

Just a quick note to say thanks and goodbye-for-now to Nate Oman of William & Mary, who blogged with us for the month of April. Nate’s very interesting posts covered markets, same-sex marriage, and the British monarchy, among other topics. We were delighted to have you with us, Nate, and hope you come back soon!

Indiana and Doux Commerce

Amidst the often disappointingly vacuous cacophony over Indiana’s recently passed RFRA legislation, Jacob Levy, a political philosopher at McGill, raised the fascinating question of how we ought to think about the relationship between religious freedom and commerce.

Levy raises two sets of concerns with Indiana’s law, one of which is largely illusory and one of which merits serious thought. The illusory concern is that the Indiana RFRA is a radical innovation that by applying the compelling state interest test to private causes of action threatens to undermine the basic legal infrastructure – property, contract, and tort – of the market.

It’s important to remember that we have decades of experience applying some version of the compelling state interest test to religious claims. We have the nearly three decades from Sherbert to Smith as a matter of constitutional law, and then the more than two decades from the passage of RFRA to the present as a matter of federal statutory law. Beginning in the mid-1990s some states began passing their own RFRAs, and during this entire period numerous states applied some version of the compelling state interest test as a matter of state constitutional law. If antinomian chaos were going to break forth one would think that after a half century it already would have happened.

In terms of concrete conflicts between RFRAs and basic private law, it seems to me that the most dangerous ones would be cases involving bodily harm or the invasion or destruction of property. I think that in cases involving bodily integrity, courts would have no problem saying that the state had a compelling government interest in protecting bodily integrity and in providing recourse to those suffering bodily injury. I think that for most property cases, we can dispose of them by saying that property law places no substantial burden on religious exercise. Saying that you have to build your sukkah on in your yard rather than my yard is not a substantial burden. There might be issues if we have a property owner who for some reason owned religiously significant land, as has been the case with some Native American claims against the federal government. Depending on the facts, I am not convinced that chaos would result if we granted an exemption from certain rules of property law. To give an analogy, lots of private property owners have land that contains graves. In many states there is a common law doctrine granting descendants an easement on the land to visit the graves. The market has not been threatened.

His rather fanciful legal concerns aside, however, Levy raises a deeper issue, one that deserve far more attention that it has received. His concern is with the way in which allowing religious believers to claim exemptions from otherwise applicable laws might inject the question of religious identity into commerce.  He quotes Voltaire’s famous statement of the doux commerce argument:

Take a view of the Royal Exchange in London, a place more venerable than many courts of justice, where the representatives of all nations meet for the benefit of mankind. There the Jew, the Mahometan, and the Christian transact together, as though they all professed the same religion, and give the name of infidel to none but bankrupts. There thee Presbyterian confides in the Anabaptist, and the Churchman depends on the Quaker’s word. At the breaking up of this pacific and free assembly, some withdraw to the synagogue, and others to take a glass. This man goes and is baptized in a great tub, in the name of the Father, Son, and Holy Ghost: that man has his son’s foreskin cut off, whilst a set of Hebrew words (quite unintelligible to him) are mumbled over his child. Others retire to their churches, and there wait for the inspiration of heaven with their hats on, and all are satisfied.

Voltaire’s insight – one he shared with thinkers such as Montesquieu and Adam Smith – was that markets are more than simply a mechanism for organizing economic production. They are also moral and political institutions that structure relationships and inculcate certain moral habits. For the eighteenth-century apologists for commerce, the effect of markets in this area was largely beneficent. They allowed those of very differing religious convictions to peacefully cooperate and tended to inculcate habits of tolerance and, if not respect, at least peaceful co-existence.

Levy suggests that by allowing religious people to claim exemptions from the demands of contract or property, RFRA statutes might undermine this order. As explained above, I think that this is the wrong thing to worry about. The scope of anti-discrimination laws, however, does raise this issue. As near as I can tell, Levy himself favors rather narrow antidiscrimination laws on largely libertarian grounds. What happens, however, when we apply the doux commerce argument itself to the question of antidiscrimination laws?

Normally we think of contract as structuring relationships in the market. Antidiscrimination laws, however, deprive certain market participants of the ability to avoid contracting. This raises two questions. First, does such forced contracting undermine doux commerce by replacing contractual norms with non-contractual equality norms, or does it enhance doux commerce by requiring people to trade across tribal and religious boundaries? Second, when thinking about religion in our society, how desirable is the Royal Exchange of Voltaire? On one hand it tends to promote tolerance and peacefully mediate religious pluralism. At the end of the day, however, Voltaire was no great friend of religious faith and for him one of the great attractions of commerce was the corrosive effect he hoped that it would have on religious communities, which he wished to see submerged in the universal, secular identity of citizenship.