Tag Archives: First Amendment

DeGirolami, “Virtue, Freedom, and the First Amendment”

I’ve recently posted this paper, Virtue, Freedom, and the First Amendment. Here is the abstract.

The modern First Amendment embodies the idea of freedom as a fundamental good of contemporary American society. The First Amendment protects and promotes everybody’s freedom of thought, belief, speech, and religious exercise as basic goods — as given ends of American political and moral life. It does not protect these freedoms for the sake of promoting any particular vision of the virtuous society. It is neutral on that score, setting limits only in those rare cases when the exercise of a First Amendment freedom exacts an intolerable social cost.

Something like this collection of views constitutes the conventional account of the First Amendment. This essay offers it two challenges. First, the development of the First Amendment over the past century suggests that freedom is not an American sociopolitical end. It is a means — a gateway out of one kind of political and legal culture and into another with its own distinctive virtues and vices. Freedom is not a social solution but instead gives rise to a social problem — the problem of how to allocate a resource in civically responsible ways, so as to limit freedom’s hurtful potential and to make citizens worthy of the freedoms they are granted. Only a somewhat virtuous society can sustain a regime of political liberty without collapsing, as a society, altogether. Thus the First Amendment of the conventional account has not maximized freedom for all people and groups. It has promoted a distinctive set of views about the virtuous legal and political society.

Second, the new legal culture promoted and entrenched by the conventional account is increasingly finding that account uncongenial. In fact, the conventional account is positively harmful to its continued flourishing. That is because the new legal culture’s core values are not the First Amendment freedoms themselves but the particular conceptions of political and social equality and individual dignity that the conventional account has facilitated and promoted. Proponents of the new legal culture in consequence now argue for aggressive limits on First Amendment freedoms.

One prominent group has invented a new legal category: “enumerated rights Lochnerism.” These scholars denigrate any First Amendment resistance to multiplying forms of expansive government regulation in the service of egalitarian aims as retrogressively libertarian. Another group argues for novel limits on the First Amendment in the form of balancing tests that would restrict speech that injures the dignity of listeners and religious exercise that results in vaguely defined and vaguely delimited harms to third parties. What unites these critics is the desire to swell features of the Court’s post-New Deal Fourteenth Amendment jurisprudence, and particularly the law concerning sex as a civil right, by protecting progressively expansive conceptions of equality and individual dignity. The critics see the conventional account of the First Amendment as an obstacle in the path of progress.

Part I of this essay presents the conventional account of the First Amendment in three theses. It then critiques the conventional account in Part II by offering three revised theses, developed through the somewhat unusual route of exploring the First Amendment thought of the late political theorist and constitutional scholar, Walter Berns. Freedom, for Berns, gave rise to a problem — the problem of making men sufficiently virtuous to merit their freedom. It was a problem that he thought had been ignored or even forgotten by defenders of the conventional account of the First Amendment.

But the problem of virtue and freedom has been remembered. Part III argues that contemporary defenders of the new legal culture have remembered the problem just as their own cultural and legal mores are ascendant. The new civic virtues — exemplified in multiplying anti-discrimination regulations for the protection of thickening conceptions of equality and individual dignity, particularly as those concepts relate to sexual autonomy — are those that were fostered by the conventional account of the First Amendment in tandem with significant components of the Supreme Court’s post-New Deal Fourteenth Amendment jurisprudence. And those civic virtues are already informing new criticisms of the conventional account and arguments about new limitations on the scope of religious freedom and freedom of speech. Berns’s arguments about freedom and virtue, it turns out, are highly relevant today since progressive opinion is no longer committed to First Amendment “absolutism.”

The essay concludes with two speculations. First, it seems we are no longer arguing about whether to restrict freedom, but for what ends. If that is true, then those arguments should neither begin nor end with egalitarian and sexual libertarian fervor. Second, there is no account of the First Amendment that maximizes freedom for everyone — for all persons and groups. There is only the society that America was before the rise of the conventional account of the First Amendment and the society that it is becoming after it.

Religious Freedom in America

I have been reading this collection on “Religious Freedom in America,” edited by Allen Hertzke. The authors cover the subject from a number of perspectives, including Thomas Kidd and Vincent Philip Muñoz with perspectives on the Founding, and important contributions from the Sikh and Muslim traditions, which are not often heard in these debates.

There is also an empirical essay of particular interest for those trying to figure out the current state of religious freedom. America post-Smith has a welter of “mini-RFRAs” establishing balancing tests meant to offer more protection to religious exercise than a “rational basis” standard. The results are not encouraging. Professors Robert R. Martin and Roger Finke collected thousands of religious liberty cases and coded them according to various metrics. One metric was how often courts invoked a “compelling” government interest in considering a religious liberty claim. In an earlier post, I had noted the relative lack of detail in judicial opinions concerning what constitutes a “compelling” interest in federal law that, along with the least restrictive means to meet that interest, would overcome a substantial burden on religious freedom.   The authors provide some answers from their review of state court decisions. Their review indicated that states have articulated at least some compelling interests; these include “completing a trial without a three-day delay in deliberations, maintaining a zoning district as a single-family residential zone and … public safety and ‘aesthetics’”.  Among other things, they conclude that although the United States remains a stronghold for religious liberty by comparison with other countries, religious freedom prevails in less than half the cases, and that “free exercise claimants remain at a stark disadvantage in the face of generally applicable, religiously neutral laws.”

From the results of this study, it seems the legacy of Smith has worked all too well. Despite RFRA and state-level initiatives, the state under cover of “neutral” laws, still wins most of the time. And there is much reason to believe many of these neutral laws are not neutral at all, especially when we consider initiatives like the contraceptive mandate. But this study does give the lie to the arguments of some secularists that religion is too powerful in our society. The contrary seems to be increasingly the case.

Should Catholic Hospitals be Catholic?

This is the kind of essay that we will see more of. Jerry Coyne argues that religious liberty has no place in hospitals, “even Catholic ones.” The piece nicely combines bigotry in the name of science with an innocence of what actually would happen if he were heeded. It is somewhat shameful that The New Republic would publish such a tendentious piece, but then again, that magazine is not what it once was.

Coyne makes two points. First, he argues that the mere prevalence of Catholic hospital networks means they should have to waive objection to treatments they find morally objectionable – in Coyne’s tragic real life example, that of a woman who needs a caesarean and a tubal ligation. The Catholic hospital agreed to perform the first but not the second (leave aside for a moment whether this is congruent with Catholic teaching, and it is unclear whether the tubal ligation was necessary at the time).

Second, Coyne basically says Catholic institutions can’t be Catholic:

One could [love that could! – ed.] argue that yes, individual doctors who are pious Catholics should not be compelled to perform birth control, even when necessary to save a woman’s life. But, as noted above, the Church Amendment also stipulates that a Catholic hospital itself cannot be forced to perform practices [sic] sterilizations or abortions. Even if its doctors aren’t Catholic, then, and are willing to do the ligation, they must abide by the law and tell Mann to go elsewhere.

Coyne ignores a couple of key points. First, the reason why rights are considered immune from state interference is precisely to avoid the lazy utilitarian argument Coyne sets out. It doesn’t matter if there are many religious institutions or a few, the state cannot abrogate religious freedom in the name of secular goals.

The second point Coyne tries to make is simply unrealistic. If Catholic hospitals allowed non-Catholic doctors to perform procedures contrary to Catholic doctrine, how would a patient even know? Would the hospital be required to keep such doctors on staff, just in case? How about nurses or other employees; would there have to be a quota for them as well? This is another reason why institutional affiliation and exercise of corporate rights makes sense; it eliminates confusion and burden in the exercise of a right. And as Hobby Lobby shows, there is nothing unconstitutional about an institution acting on its beliefs.

Bittker et al., “Religion and the State in American Law”

In October, Cambridge University Press will release “Religion and the State in American Law” by Boris I. Bittker (Yale Law School), Scott Idleman (Marquette University), Frank S. Ravitch (Michigan State University). The publisher’s description follows:

Religion and the State in American Law provides a comprehensive and up-to-date overview of religion and government in the United States, from historical origins to modern laws and rulings. In addition to extensive coverage of the religion clauses of the First Amendment, it addresses many statutory, regulatory, and common-law developments at both the federal and state levels. Topics include the history of church-state relations and religious liberty, religion in the classroom, and expressions of religion in government. This book also covers the role of religion in specific areas of law such as contracts, taxation, employment, land use regulation, torts, criminal law, and domestic relations as well as in specialized contexts such as prisons and the military. Accessible to the general as well as the professional reader, this book will be of use to scholars, judges, practicing lawyers, and the media.

About Those Religion Surveys …


Image from Patheos

The latest edition of First Things magazine, currently available only in print, contains an important piece by Princeton sociologist of religion Robert Wuthnow, “In Polls We Trust.” Actually, it’s one of the most important pieces on American religion I’ve read in quite a while. Not for what it says about American religion, necessarily. Wuthnow’s piece is important because of what it says about the polls on which everyone, academics included, rely for insights on American religion.

It’s hard to overestimate the importance of these surveys. Scholars pore over the results to ascertain trends, and, on the basis of those trends, to evaluate the state of American institutions: churches, government, courts. For example, the much touted rise of the “Nones,” the percentage of Americans with no religious affiliation, has implications for our First Amendment jurisprudence. The fewer Americans who identify with institutional religion, the weaker we can expect First Amendment protections to get.  Or so some scholars, myself included, have argued.

Of course, everything turns on the accuracy of the surveys. Most of us, not being statisticians, more or less take them on faith. If Wuthnow is right, though, our faith is misguided. He points out that many surveys of American religion have serious methodological flaws. For example, religion does not always lend itself to straightforward yes/no questions of the sort surveyors ask. In addition, pollsters sometimes fail to account for regional and racial variations.

Most important, response rates are very low. The typical response rate nowadays is about nine or 10%, and rarely exceeds 15%. “In other words,” Wuthnow writes, “upwards of 90% of the people who should have been included in a poll for it to be nationally representative are missing. They were either unreachable or refused to participate.” With such poor response rates, it’s hard to know what the polls reveal about religion in America. This problem is compounded by the fact that the media present the results as accurate representations of what Americans believe – a misimpression that the polling industry, now worth a billion dollars a year, is understandably reluctant to correct – and by the fact that most of us “are unlikely to wade through obscure methodological appendices to learn if the response rate was respectable or not.”

Consider the rise of the Nones, for example. Maybe we really are seeing an explosion in the number of Americans without a religious affiliation, as these surveys suggest. But maybe we aren’t. Maybe the number of Nones is actually much lower. Maybe the number is much higher. Wuthnow’s point is, it’s hard to know on the basis of flawed polls. Now, to be sure, there are other indications that organized religion is declining. Some churches keep membership records; these are harder numbers, and they show that some churches are experiencing declining memberships. Still, one has to be a little careful about declaring trends on the basis of limited information.

The inaccuracy of the polls is more than just an academic matter, because polls may actually help drive social change. It’s human nature to want to follow the crowd. If you think that Nones are the wave of the future, you’re more likely to call yourself one; if you think that church is a dying institution, you’re more likely to leave. On the basis of these polls, pundits will write stories about the new religious movement; advertisers and other cultural influencers will take note of the polls and factor them into their work. Before you know it, the decline of religion and the rise of the Nones will be matters of conventional wisdom people take for granted. In other words, polls can have a disproportionate social impact, even if they are unreliable.

None of this is to say that organized religion isn’t in fact experiencing a decline; as I say, there are plenty of indications, other than these polls. But I wonder how major polling firms will respond to Wuthnow’s criticisms. At the very least, his essay suggests we should treat surveys on American religion with more caution than we do.

More on Subway “Viewpoint” Ads

Here’s a follow up to last week’s post about disclaimers on “viewpoint” ads in the New York City subway. In the post, I complained about the unfair treatment the policy affords to ads with religious messages, like the one I described from Marble Collegiate Church.

As Perry Dane explains, though, the disclaimer policy is not directed at religion per se. It applies generally to noncommercial ads that express viewpoints on “political, religious, or moral issues or related matters.” The Metropolitan Transit Authority adopted the policy after losing a 2012 lawsuit over display of anti-Islam ads. A federal district court ruled that, because the subway is a public forum, the MTA could not constitutionally refuse to display the ads. So the MTA decided to add the disclaimer to them and all other “viewpoint” ads, in order to avoid any implication of government endorsement. (The sponsor of the 2012 ads, the American Freedom Defense Initiative, is currently suing the MTA over display of a new anti-Islam ad, which the MTA refuses to display even with the disclaimer, on the ground that the ad may incite violence).

Still, whatever the formal policy, the MTA appears to apply it in a rather arbitrary way. I did a little research over the weekend. From what I could find, the policy has been applied to the AFDI ads; an ad for a Spanish-language Catholic television station; an ad from the Brooklyn Diocese featuring Pope Francis; and the Marble Collegiate ad I wrote about last week. All religious. What about disclaimers on ads that express viewpoints on political, moral, and related matters? Perhaps there are examples, but I couldn’t find any. More importantly, in no time at all I found three such ads without disclaimers.

IMG_20141221_174338_374First, there’s this ad for New York Cares, a volunteer organization that runs an annual coat drive. The ad clearly expresses a moral viewpoint, namely, that many New Yorkers go without winter coats, and the community has a moral obligation to respond. In fact, the ad’s use of the Statue of Liberty, a symbol of America and the refuge it has provided for the world’s “huddled masses,” adds a political dimension. How can we tolerate such poverty in this great republic of ours? To be sure, these messages are non-verbal, but that’s what makes them so powerful. There’s no MTA disclaimer.

08-airbnb-2.w529.h421.2xOr take this ad for Airbnb, a website that helps people rent space in their apartments to strangers for short stays. This ad campaign, which features New Yorkers saying how great Airbnb is for the city, has a political message as well, though you might not spot it if you’re not from New York. The company is trying to get the state legislature to loosen a law that restricts the use of private apartments as hotels. The ads are an obvious attempt to win public support for that effort. Still, notwithstanding the ad’s political implications, there’s no MTA disclaimer.

HillaryFinally, here’s the latest ad campaign for Manhattan Mini Storage. The company is famous for ironic, edgy ads that appeal, I guess, to sophisticated New York subway riders. Here, the political message seems pretty clear. True, this might be just another ironic ad (“Can you believe she’s running again?”) but I don’t think so, given the partisan messages in the company’s past ad campaigns, like ones poking fun at Michelle Bachmann and advocating gay marriage. Yet, again, no MTA disclaimer.

Now, the MTA would presumably defend its choice not to put disclaimers on the Airbnb and Manhattan Mini Storage ads because the policy formally applies only to noncommercial ads. But that seems arbitrary. As Marc DeGirolami pointed out last week, it’s very difficult to disentangle “commercial” from “noncommercial” expression. To my mind, the Hillary ad is the most obviously political, even though its sponsors are only trying to make money. Besides, the New York Cares ad is surely noncommercial–it’s for a volunteer organization.

As I say, perhaps the MTA has put disclaimers on non-religious viewpoint ads and I simply haven’t found them. It’s significant, though, that it’s so easy to find the disclaimer on religious viewpoint ads, and so easy to find political and moral viewpoint ads without the disclaimer. Here’s a thought: perhaps the MTA should stop trying to distinguish among ads and put disclaimers on all of them–commercial, noncommercial, political, moral, and religious. That would solve the appearance-of-endorsement problem, if the problem genuinely exists, and free up MTA resources for doing something important: running the subway.

Event at Hunter College: “American Education and the Separation of Church and State: Fact vs. Fiction”

The CUNY Institute for Educational Policy is hosting a discussion entitled “American Education and the Separation of Church and State: Fact vs. Fiction,” on December 4th at Hunter College. The discussants include Philip Hamburger (Columbia), Ashley Berner (CUNY), and Matthew Yellin (Hillside Arts and Letters Academy):

Most Americans know the term “separation of church and state,” but few understand it. Howhas the phrase influenced education policy and practice? How has the Supreme Court’s interpretation of the First Amendment evolved? Are tax credits and vouchers that enable funding for religious schools Constitutional? Are public school teachers allowed to talk about religion in the classroom? If so, how can they do so without violating the Establishment clause of the Constitution?

These are timely questions for New Yorkers: Albany is considering a tax credit bill that would provide support for Catholic, Jewish, and Muslim, and other non-public schools; international leaders are calling for better religious literacy in K-12 classrooms, so that young citizens are prepared to negotiate our diverse and increasingly interconnected world. For many Americans, however, public funding for religious schools, and open discussions about religious beliefs in public school classrooms, raise important concerns.

On December 4, the nation’s leading scholar of First Amendment jurisprudence will set out the history and current interpretation of separation, and a master teacher will discuss some challenges and solutions to navigating religious literacy in New York’s public school system.

Get details and register here.

“Religious Freedom in America” (Hertzke, ed.)

This January, Oklahoma University Press will release “Religious Freedom in America: Constitutional Roots and Contemporary Challenges” by Allen D. Hertzke (University of Oklahoma).  The publisher’s description follows:

Religious Freedom in AmericaAll Americans, liberal or conservative, religious or not, can agree that religious freedom, anchored in conscience rights, is foundational to the U.S. democratic experiment. But what freedom of conscience means, what its scope and limits are, according to the Constitution—these are matters for heated debate. At a moment when such questions loom ever larger in the nation’s contentious politics and fraught policy-making process, this timely book offers invaluable historical, empirical, philosophical, and analytical insight into the American constitutional heritage of religious liberty.

As the contributors to this interdisciplinary volume attest, understanding religious freedom demands taking multiple perspectives. The historians guide us through the legacy of religious freedom, from the nation’s founding and the rise of public education, through the waves of immigration that added successive layers of diversity to American society. The social scientists discuss the swift, striking effects of judicial decision making and the battles over free exercise in a complex, bureaucratic society. Advocates remind us of the tensions abiding in schools and other familiar institutions, and of the major role minorities play in shaping free exercise under our constitutional regime. And the jurists emphasize that this is a messy area of constitutional law. Their work brings out the conflicts inherent in interpreting the First Amendment—tensions between free exercise and disestablishment, between the legislative and judicial branches of government, and along the complex and ever-shifting boundaries of religion, state, and society.

What emerges most clearly from these essays is how central religious liberty is to America’s civic fabric—and how, under increasing pressure from both religious and secular forces, this First Amendment freedom demands our full attention and understanding.

Winer & Crimm, “God, Schools, and Government Funding: First Amendment Conundrums”

In January, Ashgate Publishing will release “God, Schools, and Government Funding: First Amendment Conundrums” by Laurence H. Winer, (Sandra Day O’Connor College of Law, Arizona State University) and Nina J. Crimm (St. John’s University School of Law). The publisher’s description follows:

In recent years, a conservative majority of the U.S. Supreme Court, over vigorous dissents, has developed circumventions to the Establishment Clause of the First Amendment that allow state legislatures unabashedly to use public tax dollars increasingly to aid private elementary and secondary education. This expansive and innovative legislation provides considerable governmental funds to support parochial schools and other religiously-affiliated education providers. That political response to the perceived declining quality of traditional public schools and the vigorous school choice movement for alternative educational opportunities provokes passionate constitutional controversy. Yet, the Court’s recent decision in Arizona Christian School Tuition Organization v. Winn inappropriately denies taxpayers recourse to challenge these proliferating tax funding schemes in federal courts. Professors Winer and Crimm clearly elucidate the complex and controversial policy, legal, and constitutional issues involved in using tax expenditures – mechanisms such as exclusions, deductions, and credits that economically function as government subsidies – to finance private, religious schooling. The authors argue that legislatures must take great care in structuring such programs and set forth various proposals to ameliorate the highly troubling dissention and divisiveness generated by state aid for religious education.

Gans & Shapiro, “Religious Liberties for Corporations?”

Next month, Palgrave Macmillan will release “Religious Liberties for Corporations? Hobby Lobby, the Affordable Care Act, and the Constitution” by David H. Gans (Director of the Human Rights, Civil Rights, and Citizenship Program, Constitutional Accountability Center, USA) and Ilya Shapiro (Senior Fellow, Cato Institute).  The publisher’s description follows:

9781137484673.inddThis engaging book provides a comprehensive analysis of the issues in Burwell v. Hobby Lobby, the blockbuster legal challenge to the Affordable Care Act regulation that requires employer-sponsored health plans to provide contraceptive coverage. Through a series of debates between advocates on both sides of the case, the book tackles questions such as: whether for-profit corporations can assert religious-exercise claims under the First Amendment or federal law, whether businesses with religious objections to certain contraceptives should be exempt from coverage requirements, and what the consequences are of the Supreme Court’s June 2014 ruling in favor of Hobby Lobby. This case will be discussed for years to come, and the spirited debate between the authors provides fascinating and informative food for thought to scholars, students, and the public as they grapple with fundamental questions of corporate personhood, religious liberty, and health care policy.