Category Archives: Marc O. DeGirolami

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.

Corey on DeGirolami on Religious Freedom

In the University Bookman, Baylor’s Elizabeth Corey has a nice review of Marc’s book, The Tragedy of Religious Freedom:

DeGirolami suggests an alternative way of thinking about the conflicts inherent in religious liberty jurisprudence. He calls this the “tragic” approach. It shares with the extreme skeptics a doubt about the efficacy of theory as a magic bullet for solving real-world disputes. But it also agrees with the comic monist assumption that abstractions—equality, neutrality, noncoercion—are not empty of meaning but rather can be emblems of important values that law aims to protect….

The book merits a much more in-depth treatment than I can give it here. But perhaps what is most striking about it is its appreciation for theory—indeed, the whole work is an assessment of the value of theorizing—that is simultaneously grounded in the concrete and particular: case law. At once philosophical and practical, this book is a must-read for anyone who cares about religious freedom.

Read the whole review here.

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.

CLR Podcast on Sebelius v. Hobby Lobby

In our most recent podcast, Center Director Mark Movsesian and Associate Director Marc DeGirolami discuss last week’s oral argument in Sebelius v. Hobby Lobby, the Contraception Mandate case. We address the background of the litigation, the rhetorical strategies adopted by each side, and the major doctrinal questions the Court will need to resolve. We also make predictions about how the Justices will ultimately rule. The podcast will be useful for students and others looking for an introduction to this extremely important case.

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.