Tag Archives: Religious Freedom

Is More Less? Or is More More?

The titular questions refer to the issue of the reduction in the strength and integrity of rights by the increase in their number and scope. The issue is: do you weaken rights by multiplying them and broadening them? Or instead, as the size and scope of government itself expands, is the concomitant expansion of rights (in number and coverage) necessary simply to keep pace?

The best defense of the view that more is less with respect to the First Amendment belongs to Philip Hamburger. Hamburger’s key claim is that as one expands the scope of the rights protected under the First Amendment, one weakens those rights inasmuch as the degree to which one conceives of them as something approaching inviolable (though never actually inviolable) decreases. Where the scope of rights is limited, it requires some really and truly compelling rival concern to overcome the right. But as the scope of the right increases, so too does the need to “balance” the right against rival interests.

That particular “more-is-less” claim depends on the scope given to a protected right. A related “more-is-less” claim focuses on the expansion of the number of protected rights. That’s the claim Steve Smith makes in a hot off the presses post at the Liberty Law blog (if you haven’t seen it, Steve is writing up a storm over there). Steve writes:

[S]uppose we relax our standards, and relax them again, and expand our thinking, and fine-tune our sensibilities and sensitivities, to the point that anything that any favored constituency really, really wants comes to be viewed as a “right.” In other words, we follow the path that the Warren Court– and, truth be told, the Burger Court, and to a significant extent the Rehnquist Court, and even in some respects the Roberts court– followed. Or we heed the prescriptions of political theorists and constitutional scholars to codify as “rights” all manner of privacy and dignitary and equality and self-fulfillment interests. Perhaps we use as a guide Martha Nussbaum’s list of essential human “capabilities” without which it is ostensibly impossible to be “truly” or “really human.” These would include things like the use of senses, imagination, and thought; bodily health; and bodily integrity (including “opportunities for sexual satisfaction”). Without “opportunities for sexual satisfaction,” your life is not “really human”; so surely you must have a right to such opportunities.

Under this impulse, rights would multiply like rabbits. But given some such vastly expanded inventory of rights, it will be impossible to give all of these rights…“compelling interest” protection. For one thing, government would thereby be effectively paralyzed, because just about anything government might do will run up against one of more of the newly articulated “rights.” For another, some of these diffuse rights are sure to conflict with others. For still another, government’s rights-oriented obligation now is not just to leave people alone in certain respects, but affirmatively to supply people with lots of desired things: and in a world of scarcity there is only so much that government can supply (or can mandate that employers, say, must supply)….

Now, to say that something is a right is basically to say that it should be taken into account, or given “weight,” in the balancing of competing interests that goes into the formulation and assessment of laws and government policies. Government should not infringe the “right”– unless, of course, there is some good reason to do so.

Though this is strictly speaking a claim about how the increasing number of rights weakens the protection of such rights, the connection to the issue of scope is evident. Take the RFRA rule that only those religious burdens that are “substantial” trigger the law’s protection. A religious burden isn’t enough. It has to be a really, really big, terrible burden. The more-is-less claim is that by broadening the scope of protection and increasing the number of things that we protect in the name of religious freedom, we’ve now got to have some mechanism to limit the kinds of claims that merit protection in the first place. So we superimpose the language of “substantiality” and we talk about the shifting of burdens and the balancing of interests because we’ve watered down the basic right so much that we don’t even really know what it is that counts as the right in the first place any longer.

But there is another side to the story. That side is admirably represented by John Inazu in this paper–More is More: Strengthening Free Exercise, Speech, and Association. John argues, to the contrary, that the thesis of “rights confinement” as giving strength to existing rights does not account for the ways in which cultural developments can affect the scope of rights. In the First Amendment context, some explanations for weakening of the right of religious freedom include decline in popular support for the right, the ideological cabining of the right (as, John argues, has happened to religious freedom but not to the freedom of speech), and (most importantly I believe) changing cultural views about what constitutes a government interest–that is, in what government ought to be interested in at all.

Here I want to note an overlapping position in the more-is-less and more-is-more views. They seem opposed. But I wonder. Both recognize that a major part of the difficulty is not the individual right in question and our feelings about it, but the expanding scope of what is deemed a concern of the state. Both, that is, locate the crux of the more/less debate in changing societal perspectives on the fundamental nature of government and its role in the lives of the citizen.

If that is true, let me offer a point of agreement with John Inazu, and then perhaps a point of difference. The point of agreement is that in a society in which the government takes on more and more of a place and a role in the life of the citizenry, the protection of rights becomes a zero sum game. More is more, because every inch gained is a gain for the right, and every inch lost is a gain for the state. The point of difference is that if this is so, then one should expect that with time it will begin to affect all rights, very much including the right of free speech. That is, the particular explanations for the more is more thesis that affect religious freedom (loss of the right’s prestige in popular sentiment) will eventually hit other freedoms too. That is because the key issue is not evolving cultural perceptions of the right’s strength and ambit, but evolving cultural perceptions of the strength and ambit of the state’s proper power.

My Review of Steve Smith’s Rise and Decline of American Religious Freedom

I’ve got a review of Steve’s book over at The University Bookman. A bit from the beginning:

In legal scholarship, as in any literature, style matters as much as content. The subjects authors explore, their manners and patterns of thought, the metaphors and idioms they select, the grace with which they address the audience and carry it along—in sum, the personal qualities that emerge in the telling of the tale—are remembered long after the details of the argument have faded. Over the duration of a scholarly life, a writer constructs a personality. And as the relationship of author and reader matures across the years, the publication of a new piece is the occasion to look not so much for argumentative roundhouse punches that could have been thrown anywhere by anybody, as for an old friend.

This is the way I come to the work of Steven D. Smith, the most penetrating and thoughtful scholar of religious freedom of our generation, and that rare author in American legal academia whom it is a joy to read. His new book, The Rise and Decline of American Religious Freedom, represents a distinctively and recognizably Smith-esque contribution. His authorial method has always been primarily diagnostic: he describes the existing legal and historical landscape, and in so doing brings a particular critical perspective that generally runs more or less against the current. Toward the conclusion of his work, Smith often gestures toward several possible resolutions to the problems he has discussed, but they are rarely more than that: soft speculations, almost afterthoughts, about a few pathways out of the forest. But the heart of a Steve Smith book is in the careful exposition of a problem. He has cultivated this method over the years with consistent, wry panache to great effect—whether the subject is the healthful absence of a single theory of the religion clauses of the First Amendment, or the contemporary obsession with the value of equality, or the unsustainable claims about the “reason” that inheres in constitutional law and scholarship. Always, Smith offers an alternative historical and doctrinal description. Always, he hints suggestively at contrarian possibilities and ends. Always, the leitmotivs are skepticism and decline.

Some Notes on the Libertas Project’s Religious Freedom Workshop

I am just back from passing a wonderful few days of fellowship and reflection at the Libertas Project’s workshop on religious freedom, hosted by the gracious and erudite Michael Moreland at Villanova Law School and sponsored by the generous Templeton Foundation. Together with other MOJ denizens Kevin Walsh and Michael Scaperlanda, I had the pleasure of talking together with a terrific group of learned political theorists, historians, theologians, and law professors about various issues–old and new–concerning the historical trajectory and current condition of the right of religious freedom.

Zak Calo and I had the privilege of moderating the seven sessions of the workshop. And the three of us–Michael, Zak, and I–worked together to assemble a panoramic set of readings to direct the group’s attentions and reflections:

  • Chapters from Brad Gregory’s The Unintended Reformation and Mark Lilla’s The Stillborn God kicked things off
  • A historical session on Burke, the relationship of establishment and regimes of religious toleration, and the intellectual history of the maxim, “Christianity is part of the common law”
  • A session that included readings by Murray and Niebuhr set against United States v. Seeger
  • A session that considered Pope Benedict XVI’s Regensburg Address, Micah Schwartzman’s article about the moral justifiability of religion’s special constitutional protection, and Town of Greece v. Galloway
  • And finally a few sessions devoted to Steve Smith’s recent book, The Rise and Decline of American Religious Freedom, with applications and speculations about various contemporary controversies

In all it was an extremely successful and productive event bringing together a broad range of disciplinary expertise and insight. I’ll have a bit more to say about some of the more particular subjects that interested me, but for now just want to congratulate Michael on organizing this excellent conference.

Shiffrin on Hobby Lobby

First Amendment scholar Steven Shiffrin has a typically thoughtful post on the Hobby Lobby decision. Part of what makes the post so good is that it follows from Steve’s own longstanding and (to me) persuasive criticisms of the extraordinary lengths to which we are prepared to recognize rights of free speech. Parenthetically, the last time I checked, Steve is not particularly well-known for his dyed-in-the-wool conservatism. But setting aside that rather tedious ideological point, it is quite striking to see the expansive interpretation of the rights of speech (whatever the source–constitutional or statutory) in conjunction with what critics of decisions like Hobby Lobby argue should be a narrowing of the rights of religious freedom. Steven goes through a few of the issues, but among the best parts of Steve’s post is the following:

I am puzzled by the selective tolerance of secular liberals. These liberals are prepared to protect speech involving depictions of animal cruelty, gruesomely violent video games sold to children, and the intentional infliction of emotional distress at military funerals. They would also agree that the state should not compel people to violate their conscience without substantial justification.

Although the Court’s decision in Hobby Lobby makes clear that none of the involved employees would be denied access to insurance coverage for contraceptives, most secular liberals would deny the freedom of religion claim….

Why protect those who traffic in depictions of the abuse of animals and the like, but not protect the conscience of conservative Christians?

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.

What Explains the Reaction to Hobby Lobby?

I confess I’ve been surprised at the vitriol last month’s decision in Hobby Lobby has drawn from the Left. To me, the case seems a narrow victory in favor of religious freedom. But critics, including some on the Court, see the case as a major defeat for freedom and equality. In their view, the Court has allowed religious zealots–for, in truth, who else would object to the contraceptives at issue?–to impose their beliefs and affect the life choices of their women employees. Once again, the forces of regression have attempted to coerce women. And the Court has allowed it.

This is perplexing. It’s worth repeating: Hobby Lobby objected to covering only four contraceptives out of the 20 HHS mandated. It did not threaten to fire or discipline women employees who used one of the contraceptives; it objected only to paying for the contraceptives itself. Moreover, the Hobby Lobby Court endorsed an accommodation that allows employees who wish to obtain the contraceptives to do so at no cost. In short, no Hobby Lobby employee who wishes to use one of the four contraceptives will be prevented from doing so.

So why all the vitriol? Why all the talk of coercion? In a very insightful post at Bloomberg View, blogger Megan McArdle (left) explains the situation. In fact, it’s one of the better posts I’ve seen on the controversy.

McArdle says three factors are involved. First, the Left cannot understand why religion should merit this sort of deference. Although “the religious right views religion as a fundamental, and indeed essential, part of the human experience,” she writes, “the secular left views it as something more like a hobby.” For the Left, therefore, “it’s as if a major administrative rule was struck down because it unduly burdened model-train enthusiasts.” In fact, although McArdle doesn’t put it this way, the Court has allowed religion to interfere with sex, which really is “a fundamental, and indeed essential, part of the human experience.” It just seems crazy.

Second, about coercion. From the classical liberal perspective, in which rights are principally negative rights, the Hobby Lobby case does not involve coercion. As McArdle writes, “How is not buying you something equivalent to ‘imposing’ on you”? But if we consider that our society confers many positive rights as well as negative ones, the situation becomes much more complicated:

“Do what you want, as long as you don’t try to force me to do it, too” works very well, which is why this verbal formula has had such a long life. But when you introduce positive rights into the picture, this abruptly stops working. You have a negative right not to have your religious practice interfered with, and say your church forbids the purchase or use of certain forms of birth control. If I have a negative right not to have my purchase of birth control interfered with, we can reach a perhaps uneasy truce where you don’t buy it and I do. But if I have a positive right to have birth control purchased for me, then suddenly our rights are directly opposed: You have a right not to buy birth control, and I have a right to have it bought for me, by you.

Third, she writes, the classically liberal distinction between the state and civil society has broken down. Classical liberalism accepted a large public space that did not belong to the government. Now, however,

For many people, this massive public territory is all the legitimate province of the state. Institutions within that sphere are subject to close regulation by the government, including regulations that turn those institutions into agents of state goals — for example, by making them buy birth control for anyone they choose to employ. It is not a totalitarian view of government, but it is a totalizing view of government; almost everything we do ends up being shaped by the law and the bureaucrats appointed to enforce it. We resolve the conflict between negative and positive rights by restricting many negative rights to a shrunken private sphere where they cannot get much purchase.

In this context, it’s possible to believe that Hobby Lobby’s founders are imposing their beliefs on others, because they’re bringing private beliefs into the government sphere — and religion is not supposed to be in the government sphere. It belongs over there with whatever it was you and your significant other chose to do on date night last Wednesday. In that sphere, my positive right to birth control obviously trumps your negative right to free exercise of religion, because religion isn’t supposed to be out here at all. It’s certainly not supposed to be poking around in what’s happening between me and my doctor, which is private, and therefore ought to operate with negative-right reciprocity: I can’t tell you what birth control to take, and you can’t tell me.

McArdle agrees with the Hobby Lobby decision, by the way (as do I), which makes her willingness to see things from the opposite perspective all the more welcome. Read the whole thing.

Lupu & Tuttle, “Secular Government, Religious People”

The long partnership of Ira “Chip” Lupu and Robert Tuttle (both of GW Law) has resulted in a Secular Government Religious Peopledistinctive view of and approach to religious freedom in the United States through the years, and so I will be very interested to read the product of their latest collaboration, Secular Government, Religious People, to be published by Eerdmans Publishing Company in August. The publisher’s description follows.

In this book Ira Lupu and Robert Tuttle break through the unproductive American debate over competing religious rights. They present an original theory that makes the secular character of the American government, rather than a set of individual rights, the centerpiece of religious liberty in the United States.

Through a comprehensive treatment of relevant constitutional themes and through their attention to both historical concerns and contemporary controversies — including issues often in the news — Lupu and Tuttle define and defend the secular character of U.S. government.

Justice Sotomayor’s Puzzling Dissent in the Wheaton College Case

Sonia_Sotomayor_in_SCOTUS_robe

Justice Sonia Sotomayor

The battle over the ACA’s Contraception Mandate continues. Yesterday, the Supreme Court granted a temporary injunction to Wheaton College, a religious nonprofit that is challenging the mandate in federal court. As a religious nonprofit, Wheaton qualifies for a regulatory accommodation. It can avoid the mandate by completing a form stating that it opposes covering contraceptives for its employees and giving this form to its third-party plan administrator; the administrator must then provide contraceptive coverage to the employees at its own expense. Wheaton objects that completing the form and submitting it to the administrator would make it complicit in providing coverage for contraceptives, which it opposes on religious grounds. As a consequence, Wheaton argues, the accommodation itself violates RFRA.

Yesterday, by 6-3 vote, the Court ruled that the government may not enforce the mandate against Wheaton pending final disposition of Wheaton’s legal challenge. As a result, until the case is resolved, Wheaton need not complete the form or provide it to the plan administrator. The government, which obviously knows about Wheaton’s challenge, may arrange contraceptive coverage for Wheaton’s employees in the meantime. The Court expressly stated that its grant of a temporary injunction “should not be construed as an expression of the Court’s views on the merits” of Wheaton’s challenge.

Justice Sotomayor, joined by Justices Ginsburg and Kagan, dissented. Her dissent is puzzling. On the one hand, she makes a valid point about the standard for granting this sort of injunction. Traditionally, a high bar exists. The Court will grant an injunction only if the legal rights at issue seem “indisputably clear.” At this point, it’s hard to say that about Wheaton’s claim. There are arguments on both sides and, as Justice Sotomayor points out, the district court hasn’t yet determined the facts and adjudicated the case.

But Justice Sotomayor didn’t stop there, and the rest of her opinion is unfortunately problematic. Here are three quick examples:

  • Internal Inconsistency: Notwithstanding her complaint that the Court had preempted the trial judge’s adjudication of the merits of Wheaton’s claim, Justice Sotomayor presumes to decide the merits herself. “Wheaton has not stated a viable claim under RFRA,” she writes. That seems rather a prejudicial statement, especially as Wheaton’s case, or one very like it, will undoubtedly reach the Court soon. Besides, the Court expressly stated that it wasn’t ruling on the merits of Wheaton’s claim. One should note that, later in her dissent, Justice Sotomayor says only that “Wheaton’s claim is likely to fail.” So perhaps her first statement was  just  a little careless. But one expects more in a Supreme Court opinion.
  • Unfair Criticism: Justice Sotomayor sharply criticizes the Court for going back on its word earlier this week in Hobby Lobby. In Hobby Lobby, the Court indicated that the accommodation is a less restrictive means of promoting the government’s interest in women’s health than the mandate itself. If the accommodation is an acceptable alternative in Hobby Lobby, she asks, why not in this case? This criticism is unfair. The Hobby Lobby Court didn’t say the accommodation is the least restrictive means of promoting the government’s interest, only that it is a less restrictive means than the mandate itself. True, the Court’s language in Hobby Lobby was a little opaque. But it’s wrong to suggest the Court is being sneaky or indecisive.
  • Pot and Kettle: You’d hardly know it from reading Justice Sotomayor’s opinion, but last January she herself joined the Court in granting a similar injunction to another religious nonprofit challenging the mandate, the Little Sisters of the Poor. In a footnote in yesterday’s opinion, Justice Sotomayor tries to distinguish the January case, but not very convincingly. The Little Sisters’ third-party administrator wasn’t going to cover contraceptives anyway, she writes, so, unlike Wheaton’s employees, the Little Sisters’ employees had nothing to lose. But does anyone think Wheaton’s employees will lose contraceptive coverage during the course of this litigation? Both Wheaton’s third-party administrator and the government are aware of the situation and will undoubtedly make such coverage available.

As I say, Justice Sotomayor could simply have discussed the high standard for a temporary injunction and left it there; that would have made for a much stronger opinion. As it is, her dissent suggests a level of frustration that the Court’s ruling yesterday really doesn’t merit. Perhaps Justice Sotomayor knows something she’s not saying about how the Justices will likely decide the next challenge to the mandate that reaches them.

Liberty Fund Comments on Hobby Lobby

I have a comment on the Hobby Lobby case over at the Liberty Fund’s blog in which I offer some speculations about the case (I do not know that they are “deeper meaning” speculations; they’re just some thoughts). There you will also see other good comments on the case by former CLR Forum guest Steve Smith, John McGinnis, Peter Lawler (with whom I strongly agree about judicial minimalism), and Hadley Arkes.

European Human Rights Court to France: Do Whatever You Want

This week, Americans understandably have been occupied with the Hobby Lobby case and its implications for religious freedom in our country. But across the Atlantic, the European Court of Human Rights was handing down its own decision on the scope of religious freedom, S.A.S. v. France. The European Court held that France’s ban on clothing designed to cover one’s face in public–what everyone knows, for obvious reasons, as the “burqa ban”–does not violate the European Convention on Human Rights. The court’s ruling reveals the challenges of enforcing a regional, European standard with respect to religious expression.

Some background: Article 9 of the European Convention recognizes a right to manifest one’s religion or belief, subject to limitations that are necessary to promote certain legitimate state interests, including public safety and “the protection of the rights and freedoms of others.” Any such limitation must be proportionate to the interest the state asserts. The European Court has made clear that Article 9 need not apply uniformly across Europe. Given different national histories and cultures, states have discretion to adapt article 9 in light of the needs and values of their particular societies. The Europeans refer to this discretion as the states’ “margin of appreciation.”

France argued that the ban on burqas is necessary to promote public safety and protect the rights and freedoms of others–specifically, the right of people to live in an “open society” characterized by “civility” and “social interaction.” The court rejected the first argument. Even assuming the burqa posed a risk in some circumstances, it held, a blanket ban is disproportionate. If the concern were public safety, a more targeted ban would be appropriate–in the context of security checks, for example.

The court agreed with France, though, that the ban could be justified on the basis of promoting an “open society”–at least, an open society in the French manner. Obviously, not all societies see the burqa as problematic. In Europe, only Belgium has a similar ban. But the French people had decided that the burqa violates “the ground rules of social communication” in their country. This decision deserved deference, the court held. Given the margin of appreciation in such matters, the court would honor France’s determination that “the voluntary and systematic concealment of the face is … incompatible with the fundamental requirements of ‘living together’ in French society.”

This level of deference is really quite breathtaking. Essentially, the European Court is saying, a state can ban religious expression in order to maintain local norms of “living together.” What ban on religious expression would not be allowed under such a standard? Let’s pose a hypothetical case. France already prohibits conspicuous religious dress in public schools. Let’s assume France decides to extend this ban to all public places, arguing that conspicuous religious dress in public creates unnecessary tension and interferes with social interaction à la française. Under the court’s deferential approach, wouldn’t such a ban be permissible? What would be the basis for second guessing France’s assertion about what French social norms require?

The deference to national norms is unavoidable in the context of the Council of Europe, a regime that includes scores of states with widely varying cultures and histories. One size simply doesn’t fit all. If the European Court is to have any legitimacy, it will often need to defer to national judgments on sensitive issues. Still, the European Court purports to pursue a common European standard in respect of human rights. Decisions like S.A.S. suggest that pursuit has a long way to go.