Category Archives: Marc O. DeGirolami

“Catholic Legal Theory: Aspirations, Challenges, and Hopes” at Villanova Law School

I’m delighted to be participating over the next couple of days in this year’s John F. Scarpa Conference on Law, Politics, and Culture at Villanova Law School: Catholic Legal Theory: Aspirations, Challenges, and Hopes. My subject is “Tradition and Catholic Legal Theory.”

The (Anticipated) Depth of Progressive Skepticism Toward Religious Freedom

Nate writes: “I think, however, it is also possible that once it becomes clear that priorities on gay marriage and antidiscrimination laws are not threatened that progressive hostility to religious freedom will wane. I don’t know if this is the case, but it seems possible that really there is nothing deeper going on here than gay marriage and antidiscrimination laws.”

I see things a bit differently. But at least part of the difference may be the result of definitional uncertainties. I’m not sure what Nate means to include within the compass of antidiscrimination laws. I’m more certain of the sorts of harms to personal dignity that antidiscrimination scholars do see at the heart of those laws. And I’m even more certain of what Nate rightly describes as the ambitions of Justice Kennedy, especially in the jurisprudence of dignity that has animated his opinions over the last 25 years or so (from substantive due process all the way to state sovereign immunity). As I put it in this essay (footnotes omitted):

The issue of symbolic or “dignitarian” harm is particularly problematic. If perceived affronts or injuries to one’s personal dignity constitute a “significant” or “material” harm to a third party, then it is difficult to see how many permissive religious accommodations could survive. Laws reflect morally and politically charged messages. Whether the subject is education, public health, drugs, sexuality, commerce, prisons, insurance, the environment, or the military, laws embody particular moral convictions and impose, even if tacitly, particular moral views on those subject to them. Religious accommodations are decisions by the government to permit limited dissent from these moral messages. In accommodating religious objectors, the state might be perceived not merely to authorize limited disagreement with the law, but to countenance disrespect for the moral views underlying it or even for the moral dignity of those who are its intended beneficiaries. But if the state comes to have powerful legal interests in remedying symbolic or dignitarian offenses, then that may well render many permissive religious accommodations illegal….

A leading antidiscrimination scholar has likewise noted that the prevention of harms to “dignity” and the stigmatization of discrimination are two of the three “canonical” functions of antidiscrimination laws generally. Religious accommodations, it is said, have the power to “stigmatize and demean” those who disagree with the religious claimant’s dissenting position on these matters, even when such objections are “not stated explicitly.” The feeling of being “judged” by those who raise religious objections to certain conduct, and the indignity of knowing that the state has countenanced that judgment by permitting a religious accommodation, may themselves be independent harms….

The government’s vindication of third-party dignitary harms has the potential to destroy religious accommodation. The core function of religious accommodations, again, is to authorize limited, but sometimes socially powerful and politically controversial, dissent from the law’s moral messages. There is an important difference between dissent from a law’s moral message and the denigration or vilification of the law’s intended beneficiaries. “Hate the sin, love the sinner,” is the Christian aphorism sometimes used to express this distinction, but it has proved elusive and generally unpersuasive (or worse) to those whose dignity is felt to be injured by claims for religious accommodations. A government that assumes the power to confer dignity on individuals may also subject itself to legal claims by individuals whose dignity has been harmed as the deprivation of an entitlement. And there is reason to worry that the legal conferral of dignity is expanding, as the Supreme Court increasingly justifies its constitutional jurisprudence based on ever-thickening concepts of human dignity. Lurking just beneath these dignitarian clashes are bottomless mysteries concerning the foundations of human identity—religion or sex? higher duty or worldly satisfaction?—that, one may anxiously hope, neither the Supreme Court nor any other government institution will ever assume the power to resolve.

Perhaps in the end the issue is not so much “progressive skepticism” toward religious freedom as “progressive aspirations” for antidiscrimination law–not the winning back of progressives to the cause of religious liberty (or even to its toleration), but the damage to religious liberty that the ever-expanding scope of antidiscrimination law portends.

Ventura, “From Your Gods to Our Gods”

I’m slightly late in noting this, but our friend Professor Marco Ventura (Siena; Ventura, FYGTOGKU Leuven) has recently published this very interesting book, From Your Gods to Our Gods: A History of Religion in Indian, South African, and British Courts (Cascade Books 2014). Marco’s work is always penetrating and insightful, and this looks to be no exception. Here is the description:

The global world debates secularism, freedom of belief, faith-based norms, the state’s arbitration of religious conflicts, and the place of the sacred in the public sphere. In facing these issues, Britain, India, and South Africa stand out as unique laboratories. They have greatly influenced the rest of the world. As single countries and together as a whole, the three have moved from the colonial clash of antagonistic religions (of your gods) to an era when it has become impossible to dissociate your god from my god. Today both belong to the same blurred reality of our gods. Through a narrative account of British, South African, and Indian court cases from 1857 to 2009, the author draws an unconventional history of the process leading from the encounter with the gods of the other to the forging of a postmodern, common, and global religion. Across ages, borders, faiths, and laws, the three countries have experienced the ambivalent interaction of society, politics, and beliefs. Hence the lesson the world might learn from them: our gods promise an idealized purity, but they can only become real in the everyday creation of mixed identities, hybrid deities, and shared fears and hopes.

Shiffrin on Progressive Preference for Speech Over Religion

Professor Steve Shiffrin is an enormously thoughtful scholar of the First Amendment. He is a constant and welcome reminder to me that alignment in political views is in the end rather minor indeed in the greater scheme of scholarly affinity and insight. My own work has been very much influenced by Steve’s even as his politics and my own differ in various ways.

Steve has a smart post on the religious accommodation controversy. In it, he picks up a theme that has characterized some of his work on the Speech Clause–that is, its arguably indefensible modern scope. He writes:

Why do liberals value freedom of speech over freedom of religion? Why should the state tolerate hate speech on the basis of sexual orientation (not to mention race)? If permitting some religious individuals the ability to discriminate against gays and lesbians in the purchasing of products and services is a stigmatizing denial of equality, how much more stigmatizing is virulent hate speech? In addition, however difficult it might be for many liberals to muster any empathy for the evangelical Christian who feels a religious obligation not to serve gays or lesbians, the explicitly homophobic hate monger is surely worthy of substantially less respect which is to say – no respect.

Some liberals will say that the hate speech example involves speech, and discrimination is conduct. But speech is conduct, as is defamation, most forms of fraud, and perjury. Other liberals will say that in the area of free speech, we do not take the value of speech into account. This is true much of the time, but there are exceptions (obscenity, fighting words, commercial speech, near obscene speech, and private speech) and there should be more of them (depictions of animal cruelty targeted to sadists or masochists, gruesomely violent video games). Why shouldn’t this be one of the exceptions? Note these are the same liberals who believe that equality on the basis of sexual orientation should be a Constitutional right. In other words, they believe that homophobia like racism should be renounced in our Constitution. Of course, everyone should have a right to question the wisdom of our constitutional rights, even the equal protection clause, but that should not implicate a right to stigmatize and libel citizens on the basis of sexual orientation (or race).

It’s an interesting set of questions. For more on the reasons for the decrease in broad American social investment in religious freedom by comparison with free speech, see Part IV of this paper (and in particular my friendly wager with Professor John Inazu about whether it is, or is not, only a matter of time before the Speech Clause suffers a similar fate).

On the State RFRA Contretemps: Doug Laycock (and Me)

Two little items to report. First, Professor Doug Laycock has a very good piece at the Religion and Politics Blog.

Second, I participated in a Bloomberg Law podcast with Professor Robert Katz on these issues. I thought we had a useful exchange. At the end of the interview, however, Rob was asked a question about the relevance of Hobby Lobby to these matters, to which he responded essentially that the two were disconnected. I didn’t get a chance to jump in (had to leave to teach class!) but I have a different view and thought this quote from Doug’s piece was apt:

For the first time in American history, government had made it unlawful, at least if you were an employer, to practice a well-known teaching of the largest religions in the country. The same-sex marriage debate has the same feature. This attempt to suppress practices of the largest faiths is a new thing in the American experience. And this huge escalation in the level of government regulation of religious practices is of course producing a reaction from religious conservatives, and is part of the reason for the current polarization.

“Weaponizing”

Rather an unfortunate metaphor in the by-line of Professor Dale Carpenter’s recent post: “What started out as a shield for minority religious practitioners like Native Americans and the Amish is in danger of being weaponized into a sword against civil rights.”

One might have thought, even relatively recently, that religious freedom was a “civil right.” But no longer: it is now said to be the enemy of “civil rights.” And I suppose that what is “weaponized” will depend on one’s perspective. From a different point of view, one might instead believe that it is the vast arsenal of antidiscrimination norms, and the staggering expansion of the state’s interest in vindicating specific sorts of dignitarian harms, that have been “weaponized.” But Professor Carpenter need not worry about one small sword in Indiana or Arkansas; the armamentarium arrayed against it is truly stunning.

Here’s how I see the situation, as described in my essay, Free Exercise By Moonlight, from which I’ll post a few selections in the coming days as it is intimately connected to these topical concerns (footnotes omitted):

The modern expansion of the reach of the state has resulted in a concomitant increase in the kinds of recognition, and validation, that it can now confer. As the ambit of state authority has expanded, the ways in which people may be negatively affected, or “harmed,” by a state-sanctioned religious accommodation have likewise expanded. Religious accommodations are now said, for example, to implicate injuries to the “dignity” of those who oppose them, the implication of which is that the state’s authority includes the power to confer individual dignity as a self-standing civic good. People want to be dignified by the state, their self-worth to be accorded official validation, and they perceive state-countenanced indignities meant for the protection of religious freedom as real injuries demanding state remediation.

Yet offenses to dignity are only the most extreme example of the overall expansion of government interests. For we are now at some considerable distance from Smith’s dystopian warnings about the threat of anarchy or governmental impotence that would result from overgenerous religious accommodations. In a society in which the government assumes an increasingly large role in the life of the citizenry, more injuries are transformed into legally (and perhaps even constitutionally) cognizable rights. The number and type of state interests that qualify as “compelling” swell to match the new dignitarian and other harms caused by permissive religious accommodations. And the protection of rights becomes a zero sum game, as every win for religious accommodation is a legally cognizable, but unvindicated, loss for somebody else.

Free Exercise by Moonlight

I have a new article in draft called Free Exercise by Moonlight. It is about the current condition of permissive religious accommodation. It is pervasively lugubrious. Here is the abstract:

How is the current condition of religious free exercise, and religious accommodation in specific, best understood? What is the relationship of the two most important free exercise cases of the past half-century, Employment Division v. Smith and Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC? This essay explores four possible answers to these questions.

  1. Smith and Hosanna-Tabor are the twin suns of religious accommodation under the Constitution. They are distinctively powerful approaches.
  2. Hosanna-Tabor’s approach to constitutional free exercise is now more powerful than Smith’s. Smith has been eclipsed.
  3. Hosanna-Tabor has shown itself to be feeble. It has been eclipsed by Smith.
  4. Smith augured the waning of religious accommodation, which proceeds apace. Hosanna-Tabor does little to change that.

In describing these possibilities, the essay considers the cases themselves, various doctrinal developments (focusing on subsequent Supreme Court cases as well as lower court decisions interpreting Hosanna-Tabor), and the broader political and social context in which claims for religious accommodation are now received. It concludes that though each possibility has persuasive points (perhaps with the exception of the second), the last is most accurate.

Smith’s approach to free exercise continues to control for constitutional purposes and is, for more general political purposes, more entrenched than ever. Its admonition about fabulously remote threats of anarchy in a world where each “conscience is a law unto itself” has ironically become more apt as a warning against the multiplying number of secular interests argued to be legally cognizable than against religious accommodation run amok. There is no clearer manifestation of these developments than the recent emergence of theories maintaining that new dignitary and other third party harms resulting from religious accommodation ought to defeat religious freedom claims. These theories reflect the swollen ambit of state authority and defend surprising understandings of the limits of religious accommodation—understandings that pose grave threats to the American political tradition of providing generous religious exemptions from general laws. The ministerial exception simply represents the refracted glow of constitutional protection in the gathering gloom. It is free exercise by moonlight.

“It is by obeying the judgments of our predecessors that we are empowered to make judgments of our own.”

At perhaps one click removed from law and religion proper, but still deeply relevant, is Joel Alicea’s superb essay on originalism and “the rule of the dead” (from which I have drawn the title quote) in the latest issue of National Affairs. Alicea’s piece is particularly useful on the necessary connection of obedience to the will of the dead and the concept of written law (and the disconnection between the concept of written law and obedience to the will of the living). A bit more:

By obeying the dead, the living can demand obedience. As Judge Frank Easterbrook once remarked, “Decisions of yesterday’s legislatures…are enforced…because affirming the force of old laws is essential if sitting legislatures are to enjoy the power to make new ones.” That is, “[p]eople accept old contracts and old laws because they know that this is the only way to ensure that promises to them are kept.” We, the living, accept the binding force of laws passed before our time so that our laws will be obeyed, both in our own time and beyond.

This dynamic between the living and the dead not only undergirds written law; it is foundational to a proper conception of popular sovereignty under the Constitution. Indeed, it is at the heart of what Whittington has called the dualist conception of democratic theory. Under this framework, “the people” exist in their sovereign capacity only when they engage in higher lawmaking — the making and amending of the Constitution. This lawmaking is of a higher order, as it sets the rules by which all other laws can be made and sets the limits of what those laws can do. At all other times and for all other lawmaking, ordinary politics is the norm, and in such circumstances, the people do not act as the sovereign — though they retain the power to reassert their sovereignty at any moment through the process of constitutional amendment. This is not to deny, of course, that the people remain the ultimate source of authority in a polity during a time of ordinary politics; it is simply to say that they and their representatives are acting under or subordinate to the rules that the people established in their sovereign capacity.

This conception of popular sovereignty stems from the same kinds of considerations that uphold written law. In the same way that the dead-hand argument is hostile to any form of written law, saying that the people act in their sovereign capacity in everyday politics is hostile to a written constitution. A constitution is meant to guide and limit ordinary politics, and if ordinary politics were the domain of the people acting as sovereign, then every statute would be the equivalent of a constitutional amendment, and the idea of a written constitution would become meaningless.

….

These philosophical assumptions underlying written law are the essence of originalism. We must submit to the commands of the dead in order to govern ourselves, and in order to submit, we must understand those commands according to their original meaning. It would be farcical to claim that we are being obedient to a rule if we arrogated to ourselves the power to change the meaning of that rule. It would be tantamount to telling past generations: “We will obey your laws — so long as they mean what we say they mean.” The rejection of the dead-hand argument is therefore not just about defending the validity of written law in general; it is about defending originalism’s core philosophical assumptions.

Similarly, we see that the argument over the dead-hand of the past is about far more than the viability of originalism. At stake is the idea of written law, of popular sovereignty, and of society as an intergenerational partnership between the living and the dead.

Faith or Tradition? A Bolognese Easter Controversy

Here’s an interesting story about an Italian controversy concerning the giving ofGIOSUE-CARDUCCI a blessing at the public Giosuè Carducci Elementary School in Bologna in advance of Easter. Apparently there is an objection by a parent to the blessing that has generated a law suit against the school. In a lovely exemplar of the privatization of religion, the objecting parent opined, “Everything has a place, and the school is not the place for these blessings.” One wonders whether the public square is the place for San Petronio. And in a clear echo of the “endorsement test’s” concern for offended feelings and excluded sensibilities, there is this: “‘Is it fair that everyone has to see this, even if some students are Muslims, Buddhist or atheists?’ asked Adele Orioli, legal adviser to Italy’s Union of Atheists and Rationalistic Agnostics.” There is also some dispute among the school board members about where the blessing should be given, whether in a central garden location or instead in a less central (and probably danker and less sweet smelling) gymnasium. Finally, there is this from the Reverend Raffaele Buono, who oversees religious education in Bologna’s schools:  “It is not a matter of faith. It is a matter of belonging to a tradition.” Must it really be either/or, Reverend Buono?

Welcome, Italy, to issues that have plagued the United States for the last quarter century! You had your first taste with Lautsi, but believe me when I tell you that these will be sources of limitless acrimony and contention for you. We over here are waiting with bated breath to see whether Bologna will be compelled to rip down its statues of San Petronio and house them in privately owned palestre. (parenthetically, Carducci himself (pictured), a late Risorgimento nationalist writer whose poetry I have generally found to be abominably pompous, would almost certainly have held the Christian blessing in the greatest contempt).

DeGirolami at University of San Diego Law School Conference on Free Exercise

I’m here in lovely and warm San Diego (Mark went east and I went west) attending this conference organized by Larry Alexander and Steve Smith’s impressive Institute for Law and Religion at the University of San Diego Law School. Here is the conference description:

Hosanna-Tabor and/or Employment Division v. Smith?

The Supreme Court’s decision in Hosanna-Tabor Evangelical Lutheran School v. EEOC raised crucial questions. Was the decision reconcilable with the doctrine articulated in Employment Division v. Smith? If so, how? Did Hosanna-Tabor represent a passing anomaly or a major new direction in the constitutional jurisprudence of religious freedom? Such questions are still very much with us, and they can be addressed both normatively and descriptively and from a variety of standpoints: conventional legal analysis, history, political science, or political theory. This conference will consider such questions and their significance for the future of religious freedom in this country.

And here’s the abstract for my paper, Free Exercise by Moonlight (more on it by and by):

How is the current condition of religious free exercise, and religious accommodation in specific, best understood? What is the relationship of the two most important free exercise cases of the past half-century, Employment Division v. Smith and Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC? This essay explores four possible answers to these questions.

1. Smith and Hosanna-Tabor are the twin suns of religious accommodation under the Constitution. They are distinctively powerful approaches.
2. Hosanna-Tabor’s approach to constitutional free exercise is now more powerful than Smith’s. Smith has been eclipsed.
3. Hosanna-Tabor has shown itself to be feeble. It has been eclipsed by Smith.
4. Smith augured the waning of religious accommodation, which proceeds apace. Hosanna-Tabor does little to change that.

In describing these possibilities, the essay considers the cases themselves, various doctrinal developments (focusing on subsequent Supreme Court cases as well as lower court decisions interpreting Hosanna-Tabor), and the broader political and social context in which claims for religious accommodation are now received. It concludes that though each possibility has persuasive points (perhaps with the exception of the second), the last is most accurate. Smith’s approach to free exercise continues to control for constitutional purposes and is, for more general political purposes, more entrenched than ever. Its rhetorical hostility to religious accommodation—its admonitions about fabulously remote threats of anarchy in a world where each “conscience is a law unto itself”—has ironically become more apt as a description of the multiplying number of secular interests deemed legally cognizable than of religious accommodation run amok. There is no clearer manifestation of these developments than the recent emergence of theories that expound on the legally cognizable harms—dignitary and otherwise—to third parties that result from religious accommodation. These theories both reflect the enlarged ambit of state authority and defend novel understandings of the limits of religious accommodation. The ministerial exception simply represents the refracted glow of constitutional protection in the gathering gloom. It is free exercise by moonlight.