Tag Archives: Supreme Court

Pantagruel Comes for the Establishment Clause

That is the title of an essay I have up at the Library of Law and Liberty. Here’s the beginning:

In the second book of the sixteenth century novel by Rabelais, the voracious young giant Pantagruel, “large as life and much nosier,” is sent to Paris for his education. There he displays prodigious academic aptitude, mastering every conceivable subject with the greatest ease and besting the most able rhetoricians and philosophers in debate. So great is his reputation that he is summoned to adjudicate a law suit—a “controversy so involved and jurisprudentially abstruse that the highest court in the land found it about as clear as Old High German.” When the lawyers and jurists propose to give Pantagruel the relevant texts, writs, historical records, learned treatises, and legal authorities, he orders all of this “scribble-scrabble foolscrap” immediately burned. These materials, he scoffs, are “pure subversions of equity,” for “the law grew up out of the field of natural and moral philosophy.” After a perfunctory hearing and by the light of “philosophical and evangelical justice,” Pantagruel rules with swift panache, and his judgment is hailed as wiser than Solomon’s.

Pantagruel is coming for the Establishment Clause. He comes today bearing the standard of equality, and the manifestations of equality that he would have courts superimpose on the Constitution. In several disputes ostensibly involving the constitutional prohibition on “laws respecting an establishment of religion,” courts are interpreting this provision of the First Amendment to require adherence to a kind of pure principle of equality, or its close cousin, neutrality. And just as Pantagruelic justice beguiled Rabelais’ fictional Parisian intelligentsia, so, too, is the egalitarian justice of today’s courts extolled by the legal professoriate. Yet though certain forms of unequal treatment by the state on the basis of religion surely do create questions of constitutional dimension, we now face something like the obverse situation: courts so rigorously adhere to notions of egalitarian justice that the Establishment Clause is bloated to the point of collapsing of its own weight.

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.

Conference at EUI (Florence) on The Roberts Court and the Protection of Religious Freedom in the United States

I am delighted to be participating this Wednesday in a conference at the European University Institute in Florence, Italy, on The Roberts Court and the Protection of Religious Freedom in the United States, organized by Center friends Olivier Roy and Pasquale Annicchino. Regretfully, my intervention will be virtual rather than in person. Here’s the description of the conference (in Italian) and the program:

Contesto 

John Glover Roberts Jr. è stato nominato Chief Justice della Corte Suprema degli Stati Uniti il 22 settembre 2005, nomina confermata una settimana dopo dal Senato con 78 voti favorevoli e 22 contrari. In questi 9 anni si sono succedute numerose decisioni di assoluto rilievo del massimo organo giurisdizionale statunitense. Tra queste alcune hanno portato a definitivo compimento una nuova interpretazione ed una differente applicazione delle due clausole del primo emendamento costituzionale che si occupano di libertà religiosa: la Free Exercise Clause e la Establishment Clause. Dopo aver inquadrato nel contesto storico e politico la presidenza Roberts, questo workshop intende esaminare le principali pronunce della Corte Suprema sulla libertà religiosa.

Ogni relatore sarà chiamato a commentare una pronuncia e, mediante un approccio di “law in context” a darne una interpretazione nell’ambito del più ampio sviluppo della giurisprudenza della Corte.

L’obiettivo è quello di realizzare un volume collettivo (in italiano) che possa offrire agli studiosi nuovo materiale di riflessione e studio su un argomento che tocca gli interessi scientifici sia dei costituzionalisti che dei cultori delle materie ecclesiasticistiche.

Funded by European Research Council 7th Framework Programme

Programma 

12.00-12.05 Introduzione

12.05-13.00 La Corte Roberts e la tutela della libertà religiosa 

Fred Gedicks | BYU, USA

Marc De Girolami | St John’s University, USA (intervento via Skype)

13.00-14.00 Pranzo di lavoro 

14.00-15.30 Discussione casi – I sessione 

Valentina Fiorillo | Università di Roma “La Sapienza”, Italia

Adelaide Madera | Università di Messina, Italia

Pasquale Annicchino | EUI, Italia

Discussione generale

15.30-15.45 Pausa caffé 

15.45-17.00 Discussione casi –II sessione 

Marco Ventura | KU Leuven, Belgio

Susanna Mancini | Università di Bologna, Italia

Diletta Tega | Università di Bologna e Corte costituzionale italiana, Italia

Discussione generale

17.00-18.15 Discussione finale

Podcast on Holt v. Hobbs

Mark and I have recorded another in our podcast series, this time on the “prison beard case,” Holt v. Hobbs, argued this week at the Supreme Court. We discuss the claim and the oral argument, and make some predictions. To get our other podcasts, click here.

Holt v. Hobbs and the Third-Party-Harms Establishment Clause Theory

Readers may recall that during the course of the Hobby Lobby litigation, some contraceptives mandate supporters argued that religious accommodations that impose “significant” harms or burdens on third parties constitute violations of the Establishment Clause. In this post, I argued that this view of the reach of the Establishment Clause was not convincing. It was based on a misreading (and substantial extension) of the relevant case law but also on a controversial conceptual view of the permissible scope of religious accommodation that, I claimed, should be rejected.

Virtually all accommodations impose harms or burdens of some kinds on others, though both the nature and the degree of the harms will vary. Some harms are financial, others are symbolic, and still others are to value systems more generally. Some harms are acute and others are mild. Yet it would reflect an impoverished conception indeed of what is valuable in life to claim that only financial costs are real or cognizable harms: it simply isn’t true that the only way in which a person can be harmed or burdened is through the pocketbook. Some financial burdens may be much less harmful than some symbolic harms, and vice versa, depending on factors too numerous to list. Whether money is involved or not, choices to accommodate or not to accommodate are often choices between ways of life that specify totally different virtues, or if they specify the same virtues, weigh them completely differently. In Goldman v. Weinberger, for example, a choice to accommodate Goldman would have been a choice against the set of values that the military was bringing to bear, and there were many of them. Ultimately I disagree with the outcome in Goldman. But the reason is not that the military would not have been harmed at all by accommodating him. In fact, it’s only by ignoring, flattening out, or misdescribing the military’s interests and concerns that we can say that the only issue in the case was accommodating Goldman, and the military was simply being obtuse. Perhaps there are rare situations in which the costs on third parties are so small as to be invisible (O Centro?). But in the main, it is in the nature of these kinds of conflicts that when one side loses, so does its way of life to some greater or lesser degree. The Hobby Lobby majority discussed the third-party-harm theory briefly at footnote 37, where it made the point that if all that was required to invalidate a religious accommodation was that a law conferred a benefit on a third party, and consequently that the deprivation of that benefit would be a burden, then the effect might (depending on what exactly “significant” means) be to destroy RFRA and render many religious accommodations unconstitutional.

Now that Holt v. Hobbs is in the offing (argument is scheduled for today, I believe), I am curious why nobody is making the third-party harm claim. Perhaps it is because the degree of deference ostensibly due to prison authorities in the Arkansas system is so great. Still, I would have thought that for somebody who subscribed to the third-party-harm theory of the Establishment Clause, Holt v. Hobbs would present a far clearer case than Hobby Lobby in which there might be serious, or significant, or at the very least cognizable, or tangible, harms to third parties–and a class of readily or easily identifiable third parties at that. I am writing this in haste (for a much more thorough treatment, see this excellent student note by Taylor Stout, The Cost of Religious Accommodation in Prisons), but I can think of three:

1. Increased risk of prison escape, harm to other inmates, and harm to those who must be in physical contact with the prisoner. This is a particularly vicious prisoner, who has shown himself capable of very violent behavior using a knife. He slashed at a woman’s throat with a knife. And while in prison, he held a knife to another prisoner’s throat as a result of a religious dispute. Though Arkansas prisons do not themselves have experience with prisoners hiding weapons and other contraband in their facial hair (naturally, since they don’t allow beards) other state prison systems do (see page 25 and following of this brief). Again, I recognize that it is perhaps the total deference to prison administrators which makes this particular prison policy specially objectionable. But I would have thought that these sorts of harms—harms to the personal security and safety of other people in physical proximity to the prisoner—are not obviously less “significant” than the harms to third parties in Hobby Lobby.

2. Administrative and financial harm to the prison system. The administration of religious accommodations in a prison system is burdensome. It requires more decision-making, more exercise of discretion, more manpower in the monitoring of the exceptions, and therefore more cost. One can dismiss these costs as de minimis, or unimportant, but that seems to me a cavalier view that can be bought rather cheaply at a great distance (which is where most of us are privileged to live) from the actual operations of prisons.

3. Symbolic harm, including harm to the idea of equality in the treatment of prisoners. A prison’s legitimacy depends in part on treating its prisoners equally and fairly, without privilege or favor. Dissimilarity of treatment can breed resentment on the part of the “disadvantaged” prisoners and on the part of the prison population more broadly. Moreover, prisons have important interests in uniformity of treatment that go not to equality concerns, but instead to interests in order and discipline. Prisons are dangerous places. They are populated with people who have been convicted of crimes. Sometimes, as in the case of this particular prisoner, those crimes are extremely violent. Prisons therefore need systems to regularize and impose discipline on such people. It is at least a symbolic harm—but quite possibly much more than that—to burden the efforts of prisons to cultivate uniformity in the service of prison discipline.

To be clear, I believe that the prisoner should win in this particular case. But the reason is certainly not that the prison is simply being obtuse inasmuch as accommodations of this kind are harmless or nothing at all to it. Yet the absence of the third-party-harms theory of the Establishment Clause in general public debate has puzzled me. Setting aside the issue of the remoteness of the potential harms, the nature of the potential harms relating to accommodation under RLUIPA in a case like this goes to deeply important interests in personal and institutional safety—interests that do not seem categorically less important than those of the third parties at stake in Hobby Lobby.

Estrada and Boizelle on the Obama Administration and Religious Accommodation

In the latest issue of the Cato Supreme Court Review, there is a useful essay by Miguel Estrada and Ashley Boizelle discussing the upcoming Supreme Court term and some of the major cases that the Court will hear. As readers of the Forum are aware, one of these cases is Holt v. Hobbs, concerning a claim by an Arkansas prison inmate–who is serving a life sentence for burglary and domestic battery stemming from an incident in which he attempted to slash his girlfriend’s throat–that prison rules forbidding him to grow a 1/2 inch beard in accordance with his religious views violate the Religious Land Use and Institutionalized Persons Act. One interesting feature of the case is that the Solicitor General has filed an amicus brief on behalf of the prisoner. The authors comment:

Solicitor General Donald Verrilli filed an amicus brief in support of Holt’s challenge, calling the no-beard policy “religious discrimination” and “a substantial burden on religious exercise.” Interestingly, this brief was filed only a few months after the government’s reply brief in Hobby Lobby, which insisted that the requirement that employers provide their employees with no-cost contraceptives did not constitute a substantial burden on the religious beliefs of those employers. In the government’s view, prisons can advance their legitimate safety objectives in some other way that is more respectful of the inmate’s religious beliefs; the federal government, on the other hand, need not be troubled to accommodate the sincere religious beliefs of business owners.

The federal government’s differential treatment of these two cases is odd because RLUIPA was intended to make available to prisoners protections that replicate those available to the general citizenry under RFRA. Whatever the relationship between the two statutes, it would be bizarre if those whose liberty is restricted on account of proven antisocial behavior were better protected from the government’s incursions on their religion than members of the law-abiding public. Be that as it may, given the Supreme Court’s disposition in Hobby Lobby, we should not be surprised to see a ruling invalidating the no-beard policy as an unjustified burden on Holt’s religion.

Meadors, “American Public Religion in Frankfurter and Scalia Opinions”

This November, LFB Scholarly Publishing will release “American Public Religion in Frankfurter and Scalia Opinions” by David C. Meadors (Pastor at Broadus Memorial Baptist Church, Charlottesville, VA).  The publisher’s description follows:

Meadors demonstrates weaknesses in the originalist methodology for interpreting the religion clauses of the First Amendment. He concludes that even though courts have an important role to play in protecting religious liberty via the First Amendment this protection needs supplementation by robust advocacy among citizens and mediating institutions in the democratic process. His thesis is that Felix Frankfurter and Antonin Scalia found different forms of American public religion constitutional in their religion clause jurisprudences. Both applied originalist methodology in their religion clause opinions, but came to different conclusions. More specifically, Frankfurter focused primarily on the views of Thomas Jefferson and James Madison whereas Antonin Scalia has looked more broadly to the views and practices of John Adams, George Washington, and John Marshall in addition to Jefferson and Madison.

“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!

Satanists Claim Hobby Lobby Exemption from Abortion Informed-Consent Laws (via Huffington Post)

The Huffington Post reports that The Satanic Temple believes that its religious rights are infringed when its members receive anti-abortion pamphlets and information in those states that require informed consent before proceeding with an abortion. The Satanists seem to believe that they can use the Hobby Lobby decision to press their claim. You can see some of the other beliefs of the Satanists at the link.

But the informed-consent laws that the Satanists object to are state laws. This is the document that the Huffington Post pastes onto its story purporting to evidence the claim. Although it does tend to be forgotten and get lost in the nonsense (even by some Supreme Court Justices who took part in the decision), it’s important to remember that Hobby Lobby was a decision under the Religious Freedom Restoration Act. RFRA applies only against the federal government. Perhaps there are some federal abortion informed-consent laws that the Satanists object to as well (though the Huffington Post did not list any of those). At any rate, RFRA won’t be of much help to the Satanists if they are objecting to state informed-consent laws.

That’s of course all before getting to the test that RFRA actually sets out, even if RFRA applied (which it doesn’t). The Satanists would need to show that the mere reception of information about abortion intended to render their consent to an abortion informed imposed a substantial burden on their religious exercise. That seems rather different to me than the threats of financial penalty imposed by the contraceptives mandate on Hobby Lobby. The Satanists would also need to counter the government’s compelling interest in ensuring that a person’s consent was indeed informed before proceeding with an abortion, as well as satisfy the least restrictive means analysis. That would be a challenging standard to meet as well.

Obama Administration Announces Plans to Revise the Contraceptives Mandate

This CNN story reports that the White House has announced “revisions” to the contraceptives mandates that was the subject of both the Hobby Lobby and more particularly the Wheaton College litigation. But after reading the body of the story, it may be more precise to say that the White House has announced that it plans to revise the mandate. Here’s a quote from an Administration official: “In light of the Supreme Court order regarding Wheaton College,” said the official, “the Departments intend to augment their regulations to provide an alternative way for objecting nonprofit religious organizations to provide notification, while ensuring that enrollees in plans of such organizations receive separate coverage of contraceptive services without cost sharing.” Though the Wheaton College order was not a final disposition on the merits but only a preliminary injunction, the announcement suggests that the Administration believes that it may lose on the merits as well.

The story reports that the revised rule will be issued “within the month.”