Tag Archives: Supreme Court

Munoz, “Religious Liberty and the American Supreme Court: The Essential Cases and Documents, Updated Edition”

In March, Rowman & Littlefield released “Religious Liberty and the American Supreme Court: The Essential Cases and Documents, Updated Edition” by Vincent Phillip Munoz (University of Notre Dame). The publisher’s description follows:

Throughout American history, legal battles concerning the First Amendment’s protection of religious liberty have been among the most contentious issue of the rights guaranteed by the United States Constitution. Religious Liberty and the American Supreme Court: The Essential Cases and Documents represents the most authoritative and up-to-date overview of the landmark cases that have defined religious freedom in America. Noted religious liberty expert Vincent Philip Munoz (Notre Dame) provides carefully edited excerpts from over fifty of the most important Supreme Court religious liberty cases. In addition, Munoz’s substantive introduction offers an overview on the constitutional history of religious liberty in America. Introductory headnotes to each case provides the constitutional and historical context. Religious Liberty and the American Supreme Court is an indispensable resource for anyone interested matters of religious freedom from the Republic’s earliest days to current debates.

Free Exercise by Moonlight

I have a new article in draft called Free Exercise by Moonlight. It is about the current condition of permissive religious accommodation. It is pervasively lugubrious. Here is the abstract:

How is the current condition of religious free exercise, and religious accommodation in specific, best understood? What is the relationship of the two most important free exercise cases of the past half-century, Employment Division v. Smith and Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC? This essay explores four possible answers to these questions.

  1. Smith and Hosanna-Tabor are the twin suns of religious accommodation under the Constitution. They are distinctively powerful approaches.
  2. Hosanna-Tabor’s approach to constitutional free exercise is now more powerful than Smith’s. Smith has been eclipsed.
  3. Hosanna-Tabor has shown itself to be feeble. It has been eclipsed by Smith.
  4. Smith augured the waning of religious accommodation, which proceeds apace. Hosanna-Tabor does little to change that.

In describing these possibilities, the essay considers the cases themselves, various doctrinal developments (focusing on subsequent Supreme Court cases as well as lower court decisions interpreting Hosanna-Tabor), and the broader political and social context in which claims for religious accommodation are now received. It concludes that though each possibility has persuasive points (perhaps with the exception of the second), the last is most accurate.

Smith’s approach to free exercise continues to control for constitutional purposes and is, for more general political purposes, more entrenched than ever. Its admonition about fabulously remote threats of anarchy in a world where each “conscience is a law unto itself” has ironically become more apt as a warning against the multiplying number of secular interests argued to be legally cognizable than against religious accommodation run amok. There is no clearer manifestation of these developments than the recent emergence of theories maintaining that new dignitary and other third party harms resulting from religious accommodation ought to defeat religious freedom claims. These theories reflect the swollen ambit of state authority and defend surprising understandings of the limits of religious accommodation—understandings that pose grave threats to the American political tradition of providing generous religious exemptions from general laws. The ministerial exception simply represents the refracted glow of constitutional protection in the gathering gloom. It is free exercise by moonlight.

DeGirolami at University of San Diego Law School Conference on Free Exercise

I’m here in lovely and warm San Diego (Mark went east and I went west) attending this conference organized by Larry Alexander and Steve Smith’s impressive Institute for Law and Religion at the University of San Diego Law School. Here is the conference description:

Hosanna-Tabor and/or Employment Division v. Smith?

The Supreme Court’s decision in Hosanna-Tabor Evangelical Lutheran School v. EEOC raised crucial questions. Was the decision reconcilable with the doctrine articulated in Employment Division v. Smith? If so, how? Did Hosanna-Tabor represent a passing anomaly or a major new direction in the constitutional jurisprudence of religious freedom? Such questions are still very much with us, and they can be addressed both normatively and descriptively and from a variety of standpoints: conventional legal analysis, history, political science, or political theory. This conference will consider such questions and their significance for the future of religious freedom in this country.

And here’s the abstract for my paper, Free Exercise by Moonlight (more on it by and by):

How is the current condition of religious free exercise, and religious accommodation in specific, best understood? What is the relationship of the two most important free exercise cases of the past half-century, Employment Division v. Smith and Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC? This essay explores four possible answers to these questions.

1. Smith and Hosanna-Tabor are the twin suns of religious accommodation under the Constitution. They are distinctively powerful approaches.
2. Hosanna-Tabor’s approach to constitutional free exercise is now more powerful than Smith’s. Smith has been eclipsed.
3. Hosanna-Tabor has shown itself to be feeble. It has been eclipsed by Smith.
4. Smith augured the waning of religious accommodation, which proceeds apace. Hosanna-Tabor does little to change that.

In describing these possibilities, the essay considers the cases themselves, various doctrinal developments (focusing on subsequent Supreme Court cases as well as lower court decisions interpreting Hosanna-Tabor), and the broader political and social context in which claims for religious accommodation are now received. It concludes that though each possibility has persuasive points (perhaps with the exception of the second), the last is most accurate. Smith’s approach to free exercise continues to control for constitutional purposes and is, for more general political purposes, more entrenched than ever. Its rhetorical hostility to religious accommodation—its admonitions about fabulously remote threats of anarchy in a world where each “conscience is a law unto itself”—has ironically become more apt as a description of the multiplying number of secular interests deemed legally cognizable than of religious accommodation run amok. There is no clearer manifestation of these developments than the recent emergence of theories that expound on the legally cognizable harms—dignitary and otherwise—to third parties that result from religious accommodation. These theories both reflect the enlarged ambit of state authority and defend novel understandings of the limits of religious accommodation. The ministerial exception simply represents the refracted glow of constitutional protection in the gathering gloom. It is free exercise by moonlight.

Podcast on Oral Argument in EEOC v. Abercrombie & Fitch

In our latest podcast, Mark and I discuss last week’s Supreme Court oral argument in EEOC v. Abercrombie & Fitch Stores, Inc., the Title VII headscarf case. We analyze the legal issues, discuss implications for religious accommodations generally, and predict the outcome.

Movsesian at Federal Bar Council

L-R: Noel Francisco, MLM, Judge Brian Cogan, David Schaefer

On Monday, I participated in a panel discussion, “The Evolution and Implications of the Religious Freedom Restoration Act,” at the Federal Bar Council’s annual Winter Bench & Bar Conference. (Honor compels me to reveal that the conference took place at the Casa de Campo resort in the Dominican Republic, where the February weather is much nicer than in Queens. But I returned to Queens right after my panel to teach my classes. The sacrifices scholars make). Founded in 1932, the Council is an organization of lawyers who practice in federal courts within the Second Circuit. The winter conference attracts not only lawyers, but also judges–Supreme Court Justice Samuel Alito is on the program this year–and discussions are substantive and enlightening.

My panel concerned a topic we’ve covered often here at the Forum, namely, religious accommodations under RFRA. I gave a twenty-minute overview of the topic, addressing the history of religious accommodations in American law, RFRA itself, the Court’s decisions last term in Hobby Lobby  and Wheaton College, and their immediate aftermath. Moderator Judge Brian Cogan (EDNY) then led the discussion, which included a mock argument on a hypothetical case involving the federal Family and Medical Leave Act–attorneys Steven Edwards (Hogan Lovells) and Steven Hyman (McLaughlin & Stern) took opposite sides–and interventions by Noel Francisco (Jones Day) and David Schaefer (Brenner Saltzman & Wallman). We wrapped up with audience Q&A.

I wasn’t the only member of the Center family to participate in the conference. Board member Mary Kay Vyskocil (Simpson Thacher) worked hard to coordinate the RFRA panel, though she unfortunately could not attend the conference, and Board member Judge Richard Sullivan (SDNY) will appear on a panel later this week.

Thanks to the Council for inviting me and to my fellow panelists for an engaging discussion!

 

Vaccination, the Nones, and Hobby Lobby

measles-facts-1422935523285-master495

Map from the New York Times

Measles is back. In recent weeks, an outbreak that originated in Southern California has spread across the nation (above). Public health officials seem confident the outbreak is explained, in large part, by the fact that significant numbers of parents no longer have their children vaccinated. These parents rely on exemptions that state laws, like California’s, provide for parents who object to mandatory vaccination programs. Perhaps surprisingly, the resistance is disproportionately high in wealthier, better educated, bluer neighborhoods, the sort of communities that pride themselves on their enlightened, progressive outlook.

The outbreak has obvious, unsettling public health implications. We are witnessing the recurrence of a serious, highly contagious disease we thought we had eradicated. In this post, though, I’d like to discuss some important cultural and legal implications. Culturally, the outbreak suggests the growing influence of the Nones—those Americans, maybe as many as 20% of us, without a formal religious affiliation. As I’ll explain, many of the parents who object to vaccination reflect the spirituality of the Nones. Legally, the outbreak seems likely to provide ammunition for opponents of last term’s decision in Hobby Lobby, the Contraception Mandate case. As I’ll explain, though, Hobby Lobby wouldn’t allow parents to claim religious exemptions in this context.

Let’s start with the cultural implications. To understand why the measles outbreak suggests the growing influence of the Nones, consider the reasons parents give for refusing to vaccinate their children. Some parents, it’s true, worry about the threat of toxins and an alleged link with autism. But the link with autism has been debunked; scientifically, there’s nothing to it. Some parents belong to religions that oppose vaccination. But the number of religions that forbid or even discourage vaccination is actually quite small. Conventional religious teachings cannot explain the widespread resistance we’re seeing, particularly in those blue, progressive neighborhoods.

Based on media accounts, much of the resistance comes from parents who object to vaccination, not because of science or conventional religion, but “personal belief.” Indeed, California law speaks in terms of a “personal belief exemption.” Many of the objectors have an intuitive conviction that vaccination is not right, natural, or wholesome. They associate it with capitalism and anti-environmentalism, which they see as morally deficient. Immunization makes these parents sincerely uncomfortable on a gut level. One told the New York Times, simply, “Vaccines don’t feel right for me and my family.”

Now, it’s impossible to hear these objections without thinking of the Nones. The Nones are a diverse group with varied commitments and philosophies. But sociologists have identified a common characteristic. Nones reject organized religion, not faith. In fact, they tend to be quite comfortable with spirituality, as long as it is personal and authentic: they are the “Spiritual but Not Religious.” So when a parent says vaccination seems wrong to her on a visceral level, and that she therefore refuses to allow her children to go through the procedure, she is reflecting the spirituality of the Nones. Of course, I don’t claim that all Nones reject vaccination, or even that all the parents who object to vaccination are Nones. But the Nones’ worldview pretty clearly provides the anti-vaccination movement with much of its considerable force.

Next, the legal implications. It seems to me very likely that opponents will use the outbreak to attack the Court’s decision last term in Hobby Lobby, the Contraception Mandate case. In fact, in her Hobby Lobby dissent, Justice Ginsburg argued that that, under the Court’s reading of RFRA, employers with religious objections could refuse to cover vaccinations for employees. This argument is a bit ironic, since, as I say, most religions don’t object to vaccinations. But some religions do object, and anyway, under Supreme Court precedent, the personal, anti-vaccination beliefs of Nones could be treated, for legal purposes, like traditional religious convictions. So Justice Ginsburg’s argument has a surface plausibility.

The Hobby Lobby Court expressly declined to address the implications of its holding for vaccination requirements. But Justice Ginsburg’s argument is misleading. Under RFRA, the government must offer an accommodation where a less restrictive alternative exists, that is, one that would allow the government to fulfill its compelling interest without substantially burdening the claimant’s exercise of religion. In Hobby Lobby, an alternative did exist. The government could have allowed the employer to opt out of coverage and have the plan administrator itself pay for the contraception. A similar accommodation could be worked out for vaccinations. If an employer didn’t want to pay, the plan administrator could be required to do so.

But here’s the important point: the vaccinations would take place. Hobby Lobby would not allow parents with religious objections to refuse to have their kids vaccinated at all. This is because there is no less-restrictive alternative to a mandatory vaccination protocol. For vaccination to work in preventing the spread of serious disease –surely a compelling government interest—more than 90% of a population must be vaccinated. (Scientists refer to this as the percentage necessary to create “herd immunity”). If the government allowed exemptions for people with religious objections, the percentage of vaccinated children could quickly fall below this number, endangering the whole population. In one California location, for example, the Times reports that exemptions have allowed 40% of schoolchildren to skip their measles vaccination.

Now, there is a complication. All states allow parents to claim exemptions from mandatory vaccination requirements for medical reasons. In some very rare cases, vaccination can endanger the health of a child, and in those circumstances, parents can decline to have their child vaccinated. Well, you might ask, doesn’t the possibility of medical exemptions suggest that the government doesn’t have a compelling interest in vaccinating absolutely everybody? And doesn’t that mean the government must also allow religious exemptions?

Maybe—some lower court caselaw does suggest that outcome. But I doubt it. No medical protocol is ever completely categorical; we don’t insist that doctors carry out a course of treatment even if it’s not medically indicated. It’s hard to imagine the Supreme Court would hold that allowing any medical exemption at all would necessarily require an exemption for religious reasons. It wouldn’t make sense.

Anyway, an outbreak of the sort we’re experiencing now is not an inevitable consequence of Hobby Lobby. It’s worth keeping that in mind in the weeks ahead.

Holt v. Hobbs Podcast

Mark and I have recorded a podcast on this week’s Supreme Court decision in Holt v. Hobbs, the prison beard case. We discuss the facts, the holding, and broader implications for RFRA and religious liberty.

 

Who Speaks on Your License Plate?

The Supreme Court recently granted cert in Walker v. Texas Division, Sons of Confederate Veterans, Inc. The issues presented in that case are whether specialty license plates are a form of government speech, and whether Texas engaged in viewpoint discrimination when it rejected the SCV’s plate design featuring the Confederate battle flag. In a 2011 article in the Tulane Law Review, I wrote about license plate speech more extensively from a perspective slightly different than that presented in the Walker v. SCV case. My focus was on the question of Establishment Clause responsibility for religious messages on license plates. But the issues raised overlap significantly.

Imagine a state decides to display religious symbols or text on a license plate. South Carolina, for instance, created a specialty plate featuring a stained glass window with a superimposed cross and the words “I Believe.” Efforts to create a plate with a similar design failed in Florida. A federal court ultimately permanently enjoined South Carolina from issuing the plates.

Does a state’s specialty license plate program create a public forum for speech? If religious messages are displayed on the license plates, is the message purely private religious speech, or is it attributable to the state for Establishment Clause purposes?

Continue reading

Interesting Law and Religion Case Before the Supreme Court Next Week

The Supreme Court’s January calendar begins next week with argument in Reed v. Town of Gilbert, Arizona, a law and religion case that has gotten very little attention. The case relates to some of the issues that Mark Movsesian and Perry Dane have been talking about involving the New York City subway regulations concerning advertising. I found Perry’s phrase, “mental maps,” to be useful in thinking through the categories that we use to divide up both meanings and the motivations for expressing certain meanings. This case tests our mental maps.

It seems that the Town of Gilbert has a complex set of regulations governing the display of signs. It categorizes signs into five groups: political signs, ideological signs, “qualifying event” signs, homeowners’ association temporary signs, and real estate signs. Different rules regarding the size, duration, and location of the sign (among other variables) apply depending on the category of sign that one wishes to display.

The petitioners in the case are representatives of the Good News Community Church, a small Christian church that “holds services on Sundays, where attendees worship and fellowship together, learn biblical lessons, sing religious songs, pray for their community, and encourage others whenever possible.” Good News depends on signs to advertise its presence and invite people to join.

The Town has classified Good News as the sort of organization entitled to “qualifying event signs.” A “qualifying event sign” is a “temporary sign intended to direct pedestrians, motorists, and other passersby to a ‘qualifying event.’ A ‘qualifying event’ is any assembly, gathering, activity, or meeting sponsored, arranged, or promoted by a religious, charitable, community service, educational, or other similar non-profit organization.”

By contrast, a “political sign” is a “temporary sign which supports candidates for office or urges action on any other matter on the ballot of primary, general and special elections relating to any national, state or local election.”

And an “ideological sign” is a “sign communicating a message or ideas for non- commercial purposes that is not a Construction Sign, Directional Sign, Temporary Directional Sign Relating to a Qualifying Event, Political Sign, Garage Sale Sign, or a sign owned or required by a governmental agency.”

The petitioners’ basic complaint is that by lumping the Church in with organizations entitled only to a “qualifying event” sign, the Town is engaging in viewpoint discrimination against it, because it is only entitled to a tiny sign of very limited duration that can only be displayed in limited locations. The Town’s justification for this highly reticulated set of requirements and classifications? “Safety and aesthetics.” Also of interest is that at some point in the procedural history (which looks rather involved), the Town amended certain locational requirements for “qualifying events signs,” replacing them with a requirement that “qualifying events signs” must “relate to events in the Town of Gilbert.” That requirement does not apply to political or ideological signs. The Church claims that this amendment was made specifically to target it for unfavorable treatment.

At any rate, it will be interesting to see how the argument goes. Here is an interesting contrast contained in the Petitioners’ Brief:

Screen Shot 2015-01-09 at 1.16.50 PM

Screen Shot 2015-01-09 at 1.18.45 PM

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.