Tag Archives: Constitutional Law

Weisberg, “In Praise of Intransigence”

This past June, Oxford University Press released “In Praise of Intransigence: The Perils of Flexibility” by Richard Weisberg (Cardozo School of Law).  The publisher’s description follows:

In Praise of IntransigenceFlexibility is usually seen as a virtue in today’s world. Even the dictionary seems to dislike those who stick too hard to their own positions. The thesaurus links “intransigence” to a whole host of words signifying a distaste for loyalty to fixed positions: intractable, stubborn, Pharisaic, close-minded, and stiff-necked, to name a few.

In this short and provocative book, constitutional law professor Richard H. Weisberg asks us to reexamine our collective cultural bias toward flexibility, open-mindedness, and compromise. He argues that flexibility has not fared well over the course of history. Indeed, emergencies both real and imagined have led people to betray their soundest traditions.

Weisberg explores the rise of flexibility, which he traces not only to the Enlightenment but further back to early Christian reinterpretation of Jewish sacred texts. He illustrates his argument with historical examples from Vichy France and the occupation of the British Channel Islands during World War II as well as post-9/11 betrayals of sound American traditions against torture, eavesdropping, unlimited detention, and drone killings.

Despite the damage wrought by Western society’s incautious embrace of flexibility over the past two millennia, Weisberg does not make the case for unthinking rigidity. Rather, he argues that a willingness to embrace intransigence allows us to recognize that we have beliefs worth holding on to — without compromise.

Second Circuit Holds that National Motto, “In God We Trust,” on the Currency is Constitutional

In a decision last week, the U.S. Court of Appeals for the Second Circuit joined four other circuits (the D.C. Circuit, the Tenth Circuit, the Fifth Circuit, and the Ninth Circuit) in upholding the constitutionality of two federal statutes that require that the national motto, “In God We Trust,” be placed on all coinage and paper currency. The court affirmed the dismissal of the complaint by the district court (Baer, J.).

The panel noted that there was some dispute and confusion about the proper Establishment Clause standard to apply in the case. It settled on the Lemon test, which is the “prevailing test in this circuit.” How odd that there is a “prevailing test” in a circuit that may well have been rejected by a current majority of the Supreme Court. And yet while the Second Circuit applied a test whose viability is in question, it also deferred to repeated Supreme Court dicta on the issue, indicating that the motto and its inclusion on the currency is a reference to our religious heritage and therefore satisfies the “secular purpose” and “primary secular effect” prongs of Lemon. The court then saw fit to rely on statements in several dissenting Supreme Court opinions. Even Justice Stevens in his Van Orden v. Perry dissent believed that “In God We Trust” was ok as “an appendage to a common article of commerce” (not quite sure what that means). And Justice Brennan once stated in dissent that “In God We Trust” did not violate the Constitution because the words have lost “any significant religious content” through “rote repetition.” That, too, was claimed by the panel to be persuasive.

The plaintiffs also brought free exercise and RFRA claims. These were rejected as well.

Bloomberg Law Interview About Town of Greece and Elmbrook School District

I was interviewed today on Bloomberg Law about the petition in the Elmbrook School District decision out of the Seventh Circuit and the possible effect of the Supreme Court decision in Town of Greece. You can download the podcast here. My segment starts at about the 7.30 minute mark.

Yesterday’s Decision in Town of Greece

Another Establishment Clause case, another 5-4 decision. Another fact-specific ruling in which Justice Kennedy provided the deciding vote. Another separate opinion by Justice Thomas arguing that it makes no sense to apply the Establishment Clause against the States in the first place. More high-blown rhetoric about What American Means and why the Court’s decision honors our traditions or betrays them. Just another day at the office for the Justices.

It’s possible to see yesterday’s decision in Town of Greece, the legislative prayer case, as just one more, muddy Establishment Clause case that doesn’t settle much of anything. Justice Kennedy’s opinion for the Court doesn’t announce a hard-and-fast rule. Indeed, he wrote, “it is not necessary to define the precise boundary of the Establishment Clause where history shows that [a] specific practice is permitted.” Legislative prayer has a very long history in America, dating back at least to the Framing. The Town of Greece’s practice of having prayer before the start of  town board meetings fell within that tradition. The Justices adduced several facts to support this: the town had made reasonable efforts to be inclusive, selecting clergy at random from a community guide; prayers took place before the part of the meeting devoted to legislative business; people could come and go as they pleased; there was no indication that the town had deliberately discriminated against minority religions. In a helpful concurrence, Justice Alito pointed out that the difference between the Court’s opinion and Justice Kagan’s dissent turned on disagreements about the proper interpretation of one or two facts.

All this is true. We may look back at Town of Greece as a narrow holding without great consequence. Yet something tells me this decision could turn out to be quite significant. Let me make two quick observations about what I see as important themes in the case: the rejection of nonsectarianism and the embrace of localism.

First, the Court stated very clearly that neutrality does not require that legislative prayer be nonsectarian. It is constitutionally permissible, the Court held, for a town to invite only Christian clergy–or just about–to offer prayers, as long as the town does not intentionally discriminate against minority religions and as long as the prayers do not create a pattern of proselytizing or disparagement of other religions.

This suggests an important shift. A major theme (among others) in the Court’s recent public religious display cases–cases involving creches and the like–is that government displays must be nonsectarian. Religious displays that suggest a preference for one religion over another are unconstitutional. In the context of legislative prayer, however, the Court now seems to be moving away from that principle. Of course, the Court may continue to insist on nonsectarianism outside the legislative prayer context; future cases will tell. But the Court’s willingness to allow sectarian religious expression in this case is a development worth watching.

Second, the Court’s opinion gives a great deal of deference to local governments. The town’s employees could have taken additional steps to make sure the clergy they invited were not so overwhelmingly Christian. Instead of relying on a community guide listing places of worship within the town–all of which were Christian–they could have expanded their search to the surrounding area. For example, many Jewish residents of Greece worshiped at synagogues across the town line in Rochester. If the employees had done a little more research, they would have known this, and they could easily have asked the rabbis from those synagogues to participate.

The Court was not willing to require any more from the town, however. In fact, in his concurrence, Justice Alito argued that it wouldn’t be fair to require more, since “the informal, imprecise way in which the town lined up guest chaplains is typical of the way in which things are done in small and medium-sized units of local government.” To require more could dissuade “local officials, puzzled by our often puzzling Establishment Clause jurisprudence and terrified of the legal fees that may result from a lawsuit claiming a constitutional violation,” from allowing legislative prayer at all.

The deference the Court showed the Town of Greece is significant, I believe. Steve Smith has written about the desirability of local solutions in Establishment Clause cases. The Court seems to be endorsing localism in this case. Towns are not required to have legislative prayer, of course. But those many towns that do wish to start their meetings with prayer–even exclusively Christian prayer–will now be able to do so, as long as they show that they made reasonable efforts to be inclusive. And if the only places of worship in town are Christian, then it’s reasonable for the town to have only Christian prayers. That’s the upshot of the Court’s decision.

In my law and religion seminar, I tell students that most of our fights about the Establishment Clause boil down to this: What can a religious minority reasonably require of the majority? Or, put differently, how far must the majority go to accommodate the sensibilities of the minority? Here, the Court seems to be saying, if a town is overwhelmingly Christian, non-Christians cannot legitimately expect that legislative prayers will be anything but overwhelmingly Christian. To insist on something else would be unreasonable. What about those few citizens who do object to the repeated recitation of Christian prayer at town meetings, who feel genuinely offended? What word does the Court have for them? Well, there are other towns.

Center Sponsors Successful Joint Colloquium with Villanova Law School

Here’s an article, from the St. John’s Law School website, on the inaugural session of the Joint Colloquium in Law and Religion, which the Center hosted with Villanova Law School this semester. The Joint Colloquium, which featured leading law and religion scholars, used innovative “virtual classroom” technology to allow students and faculty at both schools to participate simultaneously through a synchronous video link.

2014_joint_colloquium

Joint Colloquium with Michael Walzer

From the article:

Michael Walzer (Institute for Advanced Studies) discussed the ethics of war in classical and contemporary Jewish law. Legal historian Sarah Barringer Gordon (University of Pennsylvania) explained how the availability of the corporate form empowered African-American congregations in the early national period. Kristine Kalanges (Notre Dame University School of Law) explored the relationship between Islamic law and contemporary ideas about constitutionalism and human rights. Kent Greenawalt (Columbia Law School) and Donald L. Drakeman (Cambridge University) both presented papers on Originalism. Greenawalt argued that factors other than the original understanding inevitably will and should play an important role in constitutional interpretation. Drakeman offered a methodological middle ground, one that takes account of both original intent and original meaning. Steven D. Smith (University of San Diego School of Law) critiqued the standard account of American religious freedom, and asked whether religious freedom in America today is suffering a decline.

The virtual classroom enriched the discussions by allowing for a fruitful exchange between participants at the two host schools. After the speakers presented their papers, students had the opportunity to ask questions and present their own insights and opinions on the issues.

This was our first experience with virtual classroom technology, and it was highly successful. You can read more about the joint colloquium, and view a photo gallery, here. Thanks to everyone who made it possible, and see you next time!

 

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.”

Dixon & Ginsburg (eds.), “Comparative Constitutional Law in Asia”

comparative-constitutional-lawThis April, Edward Elgar Publishing will publish Comparative Constitutional Law in Asia edited by Rosalind Dixon (University of New South Wales, Australia) and Tom Ginsburg (University of Chicago). The publisher’s description follows.

Comparative constitutional law is a field of increasing importance around the world, but much of the literature is focused on Europe, North America, and English-speaking jurisdictions. The importance of Asia for the broader field is demonstrated here in original contributions that look thematically at issues from a general perspective, with special attention on how they have been treated in East Asian jurisdictions. The authors – leading comparativists from around the world – illuminate material from Asian jurisdictions on matters such as freedom of religion, constitutional courts, property rights, emergency regimes and the drafting process of constitutions. Together they present a picture of a region that is grappling with complex constitutional issues and is engaged with developments in the rest of the world, while at the same time pursuing distinctive local solutions that deserve close attention. This unique scholarly study will prove an important research tool for Asian scholars, constitutional lawyers within Asia and comparative constitutional scholars around the world.

Hair and Prison in Nineteenth Century Law

Professor Chris Green points me toward a fascinating case decided by Justice Stephen Field in 1879 when he rode circuit in the District of California–Ho Ah Kow v. Nunan–also involving hair and prison. The case concerns a Chinese man who was imprisoned after he failed to pay a fine for violating a law limiting the number of people who could sleep in spaces of certain designated dimensions. While in prison, the man’s queue (a long braid worn on the back of the head) was cut off by the sheriff of the prison. The plaintiff claimed that the cutting off of his queue was a disgrace, a violation of his religious rights, and “is attended…with misfortune and suffering after death.” The sheriff defended on the ground that a San Francisco city ordinance required that every male prisoner’s hair must be “cut or clipped to an uniform length of one inch from the scalp thereof.” The plaintiff argued that the City lacked the authority to enact the ordinance and that the ordinance imposed “a degrading and cruel punishment upon a class of persons who are entitled, alike with all other persons within the jurisdiction of the United States, to the equal protection of the laws.”

The court agreed with the plaintiff. This particular so-called “queue ordinance” was specifically targeted against Chinese people (the opinion comments on the hostility of Californians toward the Chinese at the time) and enforced exclusively against them, notwithstanding the ordinance’s neutral and generally applicable language. The court also noted the importance of the burdensome effects of an ostensibly neutral and generally applicable law: “Many illustrations might be given where ordinances, general in their terms, would operate only upon a special class, or upon a class, with exceptional severity, and thus incur the odium and be subject to the legal objection of intended hostile legislation against them.” The ordinance was struck down on this ground alone.

But the court’s remarks about the relationship between hair-length regulations and various types of interests that the prison might advance are also worth thinking about:

The cutting off the hair of every male person within an inch of his scalp, on his arrival at the jail, was not intended and cannot be maintained as a measure of discipline or as a sanitary regulation. The act by itself has no tendency to promote discipline, and can only be a measure of health in exceptional cases. Had the ordinance contemplated a mere sanitary regulation it would have been limited to such cases and made applicable to females as well as to males, and to persons awaiting trial as well as to persons under conviction. The close cutting of the hair which is practiced upon inmates of the state penitentiary, like dressing them in striped clothing, is partly to distinguish them from others, and thus prevent their escape and facilitate their recapture. They are measures of precaution, as well as parts of a general system of treatment prescribed by the directors of the penitentiary under the authority of the state, for parties convicted of and imprisoned for felonies. Nothing of the kind is prescribed or would be tolerated with respect to persons confined in a county jail for simple misdemeanors, most of which are not of a very grave character. For the discipline or detention of the plaintiff in this case, who had the option of paying a fine of ten dollars, or of being imprisoned for five days, no such clipping of the hair was required. It was done to add to the severity of his punishment….

The claim, however, put forth that the measure was prescribed as one of health is notoriously a mere pretense. A treatment to which disgrace is attached, and which is not adopted as a means of security against the escape of the prisoner, but merely to aggravate the severity of his confinement, can only be regarded as a punishment additional to that fixed by the sentence. If adopted in consequence of the sentence it is punishment in addition to that imposed by the court; if adopted without regard to the sentence it is wanton cruelty.

Supreme Court Agrees to Hear Muslim Prisoner Beard Case

The United States Supreme Court has agreed to hear Holt v. Hobbs, the case of a Muslim prisoner in Arkansas who claims that prison officials violated his religious freedom under the Religious Land Use and Institutionalized Persons Act when they enforced their grooming policy against him. The policy forbids the growing of a beard. Here’s the opinion of the 8th Circuit.

The case is important because it zeroes in on the government’s burden under RLUIPA, and whether it needs to consider alternatives to its policy as well as policies that other prison systems have tried in order to satisfy the least restrictive means leg of RLUIPA. In 2005, the Supreme Court held unanimously in Cutter v. Wilkinson that RLUIPA does not violate the Establishment Clause.