Tag Archives: Articles

“Constitutional Contraction: Religion and the Roberts Court”

I’ve posted a new paper, Constitutional Contraction: Religion and the Roberts Court. Here’s the abstract:

This essay argues that the most salient feature to emerge in the first decade of the Roberts Court’s law and religion jurisprudence is the contraction of the constitutional law of religious freedom. It illustrates that contraction in three ways. 

First, contraction of judicial review. Only once has the Roberts Court exercised the power of judicial review to strike down federal, state, or local legislation, policies, or practices on the ground that they violate the Free Exercise or Establishment Clauses. In this constitutional context the Court has been nearly uniformly deferential to government laws and policies. That distinguishes it from its two predecessors—the Rehnquist and Burger Courts—both of which exercised judicial review more regularly. 

Second, contraction in the range of voting patterns. The votes of the Justices in law and religion cases overwhelmingly are either unanimous or split 5-4, with relatively few separate dissents or concurrences expressing distinctive approaches, and with the split correlating with partisan political or ideological divisions. The “liberal” and “conservative” wings vote in bloc, and frequently reason in bloc as well. This again contrasts with the voting patterns of prior Courts in religious freedom cases.

Third, contraction in coverage. As a substantive matter, the Court is narrowing the religion clauses. Every member of the Court seems now to accept that Employment Division v. Smith properly interpreted the Free Exercise Clause. Matters are more complicated for the Establishment Clause, where there is far greater division among the Justices. Nevertheless, the essay claims that the Court is moving in a variety of ways toward a narrow interpretation of the Establishment Clause as well.

Whether the Roberts Court’s contraction of the religion clauses, and its general preference for narrow readings of both, are positive developments will depend on one’s views about fundamental questions of constitutional interpretation. Yet there is a conceptual unity to the Court’s approach—logical and complementary, even if not inevitable: just as the Rehnquist Court narrowed the scope of constitutional protection for free exercise, so, too, is the Roberts Court narrowing the scope of constitutional prohibition under the Establishment Clause. In this corner of constitutional law, the Court is gradually withdrawing from the scene.

Comments are welcome!

Finally, a Use for Reprints

reprintsA little end-of-summer humor for our academic readers.

Annicchino on the EU and Religious Freedom

Pasquale Annicchino (European University Institute) has posted an new paper on SSRN, Is the European Union Going Deep on Democracy and Religious Freedom. Here’s the abstract:

In recent years the European Union has begun to explicitly affirm a foreign policy role for freedom of religion or belief (FoRB). The initial reaction to this trend among many scholars and policy analysts has largely been that of caution—if not outright skepticism—regarding the practical import of the changes. However there are signs of continuing momentum. While the EU’s record thus far does not yet reflect a fully comprehensive strategy for integrating FoRB into its broader agenda for promoting deep democracy, it has been able to enlarge the role of FoRB in its external action on a step-by-step basis.

Meese and Oman on Hobby Lobby

Alan Meese and Nate Oman, both of William and Mary, have written an exceptionally lucid essay in the Harvard Law Review Forum on one of the main issues in Hobby Lobby: whether a for-profit corporation can qualify as a person for purposes of RFRA. It’s one of the best things on Hobby Lobby I’ve read and I recommend it to people trying to make sense of the issue.

Meese and Oman make three big points. First, closely-held corporations like Hobby Lobby fit naturally within RFRA’s language. Second, there is nothing unusual about closely-held corporations that embody shareholders’ religions. Many such firms exist, and they do not violate some elementary principle of corporate law. Third, limiting the exercise of religion to natural persons mistakes an important goal of religious freedom. “[R]eligious freedom is broader than an individualist concern with personal rights,” they explain. “Rather, it is about limiting the ability of the state to regulate a particular kind of conduct–religious exercise–even when corporate bodies engage in that conduct.”

To me, the second point is the most suggestive for the outcome of Hobby Lobby. Most people think of corporations as large, publicly-traded firms with thousands of passive shareholders who have little to do with day-to-day operations: Exxon Mobil. It would be strange for such a corporation to exercise a religion. But most corporations, like Hobby Lobby itself, are small, private firms with a handful of shareholders. It’s not at all strange to think that the five owners of Hobby Lobby could legitimately want to run their corporation in a way that advances their religious values.

Meese and Oman argue against drawing a distinction, for RFRA purposes, between large corporations like Exxon Mobil and close corporations like Hobby Lobby. But the distinction could be a way for the Court to avoid practical difficulties. The Court could hold that close corporations like Hobby Lobby are RFRA persons and save the question of large corporations for another day. Indeed, Chief Justice Roberts hinted at that outcome during oral argument.

We’ll see what the Court decides. Meanwhile, Meese and Oman have written a very worthwhile essay. You can read it here.

The Weekly Five

In this week’s list, articles on comparative law and religion, freedom of association, special protection for religion, and constitutional faith:

1. Larry Catá Backer (Pennsylvania State University – Dickinson School of Law), The Crisis of Secular Liberalism and the Constitutional State in Comparative Perspective: Religion, Rule of Law, and Democratic Organization of Religion Privileging States. This essay in comparative constitutional law addresses the “privileging” of institutional religion in political life. Solicitude for individual religious belief and practice is not the problem, the author suggests, but the “willingness to allow institutional religion a role in the political life of the state.” The author surveys the situation in foreign countries for “lessons that might be considered by the United States as it seeks to carve a privileged role for religion while protecting its status as something special that cannot be touched by politics.”

2. Neil J. Foster (Newcastle Law School – Australia), Christian Youth Camp liable for declining booking from homosexual support group. In this case comment, Australian legal scholar Neil J. Foster critiques a recent Australian appellate court judgment fining a Christian youth camping organization for refusing to book an event by a homosexual support group. Foster argues that the case is significant, among other reasons, for equating discrimination based on homosexual conduct with discrimination based on sexual orientation, and for holding that corporations are not “persons” who can exercise religion under Australian law.

3. Christopher P. Guzelian (Thomas Jefferson), False Speech: Quagmire? In this essay, the author describes the difficulties courts have in resolving “false speech” cases and argues that the difficulties result from disagreements about the nature of objective truth. Although the author does not advocate a coerced “biblical or natural law” jurisprudence, he does counsel a retreat from nihilism to “a certain kind of optimistic faith.”

4. Michael Stokes Paulsen (University of St. Thomas School of Law), Is Religious Freedom Irrational? This is a review of Brian Leiter’s recent book, Why Tolerate Religion? Paulsen argues that Leiter’s denial of special status for religion is based on “a surprisingly shallow, philosophically unsophisticated understanding of religious belief.” Paulsen writes, “religious belief, at least in certain forms, is entirely rational and reasonable and … the decision of the framing generation to protect specifically religious conscience and exercise is likewise entirely rational.”

5. Nelson Tebbe (Brooklyn Law School), Associations and the Constitution: Four Questions about Four Freedoms. This is a response to a recent article by John Inazu, in which Inazu argues that the four basic freedoms in the First Amendment—speech, press, religion, and assembly—together support the concept of “strong pluralism,” which would generally allow associations to limit membership on any ground, including race. Tebbe tackles the theoretical underpinnings of Inazu’s argument and questions whether Inazu’s “is the most principled and pragmatic solution available” to the problem of balancing associational and individual rights.

The Weekly Five

This week’s collection of five new articles from SSRN includes Corinna Lain’s history of Engel v. Vitale, the school prayer case; Anna Su’s review of Steve Smith’s new book on the decline of religious freedom; and pieces on corporate social responsibility in Asia; Christianity and other foundations of international law; and the will to live.

1. John D. Haskell (Mississippi College-School of Law), The Traditions of Modernity within International Law and Governance: Christianity, Liberalism and Marxism. According to Haskell, three traditions constitute “modernity” in international legal scholarship—Christianity, Liberalism, and Marxism. These three traditions differ from one another but also have some similarities. He writes, “my hope is that in studying each tradition, we can find a new synthesis that allows fresh analytical tools to conceive the dynamics of global governance today and how they might be addressed.”

2. Corinna Lain (University of Richmond), God, Civic Virtue, and the American Way: Reconstructing Engel. In this history of Engel v. Vitale, the 1962 Supreme Court decision that struck down school prayer, the author argues that the conventional wisdom has the case wrong. Engel was not an example of the Court’s standing bravely against a popular majority. If the Justices had understood how controversial their decision would be, she maintains, they would not have taken the case to begin with. Instead, Engel demonstrates the power of judicial review in stimulating democratic deliberation on the Constitution—what some scholars call “popular constitutionalism.” She argues that popular antipathy to the decision resulted from misunderstandings provoked by the media.

3. Marvin Lim (Independent), A New Approach to the Ethics of Life: The “Will to Live” in Lieu of Traditionalists’ Notion of Natural/Rational and Progressives’ Autonomy/Consciousness. The author maintains that both traditionalist and progressive justifications for protecting human life are inconsistent and unconvincing. In their place, he argues for an ethic of the “will to live.” What ultimately matters is whether actions respect or violate this ethic. This approach would allow abortion and assisted suicide in at least some circumstances, he says.

4. Arjya B. Majumdar (Jindal Global Law School), Zakat, Dana and Corporate Social Responsibility. In this essay, the author traces the tradition of charity in Islam, Hinduism, and Buddhism and explores the relevance of that tradition in corporate law. Especially in Asia, the author says, where corporations have relatively few shareholders and tend to be family or individual operations, religious traditions of charity can play an important role in boosting corporate social responsibility.

5. Anna Su (SUNY Buffalo), Separation Anxiety: The End of American Religious Freedom? This is a review of Steven D. Smith’s new book, The Rise and Decline of American Religious Freedom. Su disagrees with Smith that the Supreme Court’s twentieth-century Religion Clause cases threaten the existence of religious freedom. “These decisions,” she writes, though frustrating and incoherent as they might seem, in fact, are as responsible for the remarkable religious pluralism that exists in American society today as much as for the contemporary secular extremism that Smith deplores.”

The Weekly Five

This week’s collection of new pieces on SSRN includes an article on Catholic objections to Legal Realism by John Breen and Lee Strang;  a history of Just War theory by Robert Delahunty; an article by Zoe Robinson on the definition of “religious institutions” in connection with the Contraception Mandate litigation; and two essays by Micah Schwartzman on religious and secular convictions.

1. John M. Breen (Loyola University Chicago) and Lee J. Strang (University ofToledo), The Forgotten Jurisprudential Debate: Catholic Legal Thought’s Response to Legal Realism. This article examines the critique of Legal Realism by Catholic scholars in the 1930s and 1940s. Legal historians have unfairly neglected this critique, the authors say, which was both profound and systematic. Catholic legal thinkers who objected to Realism drew on the worldwide revival of Neo-Scholastic philosophy taking place at the time.

2. Robert J. Delahunty (University of St. Thomas), The Returning Warrior and the Limits of Just War Theory. In this paper, Delahunty traces the history of the Just War tradition in Christian thought. Before the twelfth-century Papal Revolution, he writes, the Catholic Church treated the subject in a pastoral, unsystematic way. Soldiers who had killed in wartime were typically required to do penance. In the Papal Revolution, however, the Church transformed itself into an early modern state, equipped with a military force. “As an essential part of this epochal transformation, the Papal program required the Church to abandon its earlier skepticism about war and to settle on the view that war could be justifiable, even sanctified.”

3. Zoe Robinson (DePaul University), The Contraception Mandate and the Forgotten Constitutional Question. Robinson maintains that arguments about the ACA”s Contraception Mandate often neglect the first question: whether the claimants are “religious institutions” that merit constitutional protection. She develops a list of four factors that identify such institutions: “(1) recognition as a religious institution; (2) functions as a religious institution; (3) voluntariness; and (4) privacy-seeking.” Applying these factors, she argues that religious universities qualify as religious institutions, but not for-profit businesses or religious interest groups.

4. Micah Schwartzman (University of Virginia), Religion as a Legal Proxy. In a response to Andrew Koppelman, Schwartzman argues that affording legal protection to religion as such unfairly discriminates against people with non-religious commitments. He argues that the concept of religion should be expanded to include secular claims of conscience. A wide range of international and domestic laws already do so, he points out. Against the backdrop of these laws, the First Amendment’s singling out of religion “feels somewhat antiquated.”

5. Micah Schwartzmann (University of Virginia), Religion, Equality, and Public Reason. This is a review of Ronald Dworkin’s posthumous work, Religion without God, in which Dworkin argues that, as a moral matter, both religious and non-religious convictions deserve legal protection. Schwartzman agrees, but argues that Dworkin unfortunately resisted using the concept of public reason, familiar from the work of John Rawls and others. Schwartzman believes that reliance on public reason is “inevitable” for those, like Dworkin, “who accept that believers and nonbelievers deserve equal respect for their competing and conflicting views.”

Movsesian on Dworkin

For those interested, my review of Ronald Dworkin’s last work, Religion without God, appears in the current edition of Religion and Human Rights. The link is here; subscription required, I’m afraid!

The Weekly Five

This week’s collection focuses on religious law and critiques. Steve Smith argues that Ronald Dworkin misunderstands theistic versions of morality; Oren Gross contrasts Jewish and secular ideas about amending the law; Martin Gardner addresses what Mormon Church doctrine has to say about retributive punishment; and Gustavo Kaufman takes on the UK Supreme Court’s decision in the Jews Free School Case. We also include Ian Bartrum’s assessment of the US Supreme Court’s grant of cert in Town of Greece, the legislative prayer case.

1. Steven Douglas Smith (San Diego), Is God Irrelevant? Smith reviews Ronald Dworkin’s posthumous work, Religion without God. Smith maintains that Dworkin misunderstands the disagreement between theists and non-theists. The divide is not between people with different views of morality, he says, but “between those who think that the universe, including the world of humanity, is the product of a loving and intelligent author or designer who created it according to a plan and for a good purpose, on the one hand, and on the other those who reject the belief in any guiding intelligence and any encompassing and mindful plan. That is a difference with profound implications for most of the great issues of life (including, almost certainly, issues implicating law and politics).”

2. Ian C. Bartrum (University of Nevada-Las Vegas), The Curious Case of Legislative Prayer: Town of Greece v. Galloway. Ian Bartrum considers why the Supreme Court granted cert in this case, currently under review, and why the Solicitor General has sided with the town. He infers that some of the Justices may hope to use the case to abandon the endorsement test, and that the Administration has intervened to limit the potential damage.

3. Oren Gross (University of Minnesota), Venerate, Amend … and Violate. This paper compares secular law, which people may amend to meet new circumstances, with divine law, which, in theory, people may not amend. Using Jewish law as an example, Professor Gross examines the way in which rabbis have justified deviating from the text of religious law in extraordinary situations.

4. Gustavo Ariel Kaufman (Independent), Racial Discrimination vs. Religious Freedom in the JFS Decision. Kaufman reviews the UK Supreme Court’s 2009 decision in the “Jews Free School case” from 2009, which held that a Jewish school’s decision to exclude a child based on parentage violated racial anti-discrimination laws. Kaufman argues that the court’s decision disparages religious freedom and contradicts European law.

5. Martin R. Gardner (University of Nebraska), Viewing the Criminal Sanction through Latter-Day Saint Thought. This paper addresses criminal law from the perspective of the doctrines of the Mormon Church. Specifically, the author argues that the church’s doctrines of agency and pre-mortal existence support some aspects of retributive theory.

The Weekly Five

The Weekly Five highlights articles about abortion, neutrality in First Amendment jurisprudence; the difficult but necessary task of speaking about religion in legal language; Augustine; and religion and legal pluralism.

1. Michael Stokes Paulsen (Minnesota), Kermit Gosnell and ‘Uncle Tom’s Cabin. Professor Paulsen argues that the events in the Gosnell case can serve the same function in the abortion context as did Harriet Beecher Stowe’s novel for the abolitionist context.

2. Corey L. Brettschneider (Brown), Value Democracy as the Basis for Viewpoint Neutrality: A Theory of Free Speech and Its Implications for the State Speech and Limited Public Forum Doctrines. Professor Brettschneider tackles the problem of the baseline in neutrality doctrines, arguing for the protection of the rights of people to make up their minds and speak free from the threat of coercive punishment, in conjunction with the state’s obligation to  defend the values that underlie these rights and to criticize expressions of hate that oppose them. With implications for free speech and religion clause doctrine.

3. James Boyd White (Michigan), Talking About Religion in the Language of the Law: Impossible But Necessary. An older paper of Professor White that has just been posted and is well worth checking out. The piece discusses various reasons for the difficulty of speaking about religion in legal contexts, including some internal to American constitutional history and structure, and others that are more sociological or conceptual in nature.

4. James Boyd White (Michigan), The Creation of Authority in a Sermon by St. Augustine. Another paper by Professor White published as part of a symposium honoring the work of Professor Joseph Vining. The piece discusses a sermon in which Augustine explicates the Ten Commandments and the transformation of those Commandments by Jesus in his Sermon on the Mount. Professor White uses that transformation to reflect on the nature of authority as the giving of life to text.

5. Haider Ala Hamoudi (Pittsburgh), Decolonizing the Centralist Mind: Legal Pluralism and the Rule of Law. Professor Hamoudi criticizes the view that the rule of law must give exclusivity or even primacy to state law systems and argues that those who are intent on rule of law centralization in the state are pressing a fantastical program. Professor Hamoudi draws on the example (one with which he has great familiarity) of Shi’i dominated central and southern Iraq to make these points.