Tag Archives: Supreme Court

Specialty License Plate Case Decided by the Supreme Court on Government Speech Grounds

The Supreme Court today decided Walker v. Sons of Confederate Victims, which dealt with a state’s capacity to deny a specialty license plate to a group that wanted to feature a Confederate flag and the words “Sons of Confederate Veterans.” In an opinion by Justice Breyer (and joined by Justice Thomas), the Court holds 5-4 that speech on license plates is “government speech,” and therefore that the First Amendment does not stop the state of Texas from choosing what sort of message it will endorse. It would be one thing, said the Court, if the state were demanding that individuals “convey the government’s speech”–in essence acting as the government’s mouthpiece. But “as a general matter, when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position. In doing so, it represents its citizens and it carries out its duties on their behalf.” The Court relied extensively on Pleasant Grove City v. Summum, another government speech case concerning a municipality’s rejection of a religious organization’s proposed monument in a public park that contained a Ten Commandments monument as well as several others. In Summum, the Court held that the municipality had not made the park available for private speech; all of the displays were government speech. The majority opinion here held that such was the case with the speciality license plates as well (oddly enough, since Texas had accepted applications from other organizations for specialty plates). Justice Alito dissented on the ground that Texas in fact does authorize specialty plates with distinctive messages that are obviously not government-endorsed speech (do see the Appendix beginning at page 18 of his opinion).

Religious Belief and Executive Power: A Thought on Zivotofsky v. Kerry

One prominent theme in Barack Obama’s presidency is that of the escalation of conflict between traditional religious belief and executive power–in particular the executive/administrative powers brought to bear against religious believers and institutions in a variety of contexts. One can agree with this description, of course, while seeing that escalation of conflict as either a favorable or regrettable development. A recent essay by Adam White in The Weekly Standard takes the latter view; more than a few other commenters and scholars take the former.

Today’s Supreme Court decision in Zivotofsky v. Kerry does not obviously concern this issue. It instead involved a separation of powers question: whether a congressional statute permitting a U.S. citizen born in Jerusalem to request a designation of his place of birth as “Israel” on his passport unconstitutionally interfered with the Executive’s power to recognize sovereign nations (while Israel has been recognized, the national status of Jerusalem remains unresolved). Ultimately the Court held, inter alia, that the Executive’s power to receive ambassadors gives him the exclusive power of recognition, and that this statute interfered with that power. So in a tussle between Congress and the President, the President won.

And yet this was not simply an inter-branch heavyweight fight. Consider the question of Jerusalem. Jerusalem’s status is not only a matter of geopolitical disagreement, but of deep geo-religious contention. That contention stretches back through the past millennia to innumerable wars and religious controversies. The function of this particular statute is plain: to allow those U.S. citizens born in Jerusalem and who, for religious reasons (that is, reasons that may implicate religious convictions), believe that Jerusalem is properly described as an Israeli city, the right to note that association on their passports. As Justice Scalia notes in his dissent: Zivotofsky’s parents believed “as a matter of conscience” that it was important to note “their son’s birthplace as part of Israel” and that his “Israeli nativity ‘not be erased’ from his identity documents.” In defending Congress’s power to enact the statute (under the Naturalization Clause and the Necessary and Proper Clause), Scalia continued: “[Congress may conclude] that regardless of international politics, a passport or birth report should respect its bearer’s conscientious belief that Jerusalem belongs to Israel.”

Whoever has the better of the argument as a matter of constitutional interpretation, one can see in this case another example of the conflict between Executive power and religious conscience: the Obama Administration refused to permit an individual citizen with a religious belief in the importance of listing Israel as the place of birth of his son to do so. It took an aggressive view of Executive power (both as to whether sovereign recognition powers are exclusive to the Executive and as to whether this particular designation of an individual citizen counts as sovereign recognition) in a context in which it was, once again, opposed to traditional religious conscientious belief. A notation by a private U.S. citizen on his passport, motivated by religious belief in the importance of the designation, is thus transformed into a usurpation of Executive power.

Justice Scalia cited Bowen v. Roy (1986), a religious liberty case where parents objected to government use of the Social Security number of their daughter, “Little Bird of Snow,” and to having to supply that number when they applied for benefits. According to the parents’ Native American beliefs, a person needs control over his life for spiritual reasons and use of the number would have “rob[bed] the spirit” of their daughter.” Ultimately the Court had no occasion to balance the government’s interest against a possible religious burden, because it held that the government can use the number for its own internal purposes without impairing anyone’s religious conscience. But a majority of five justices held that the parents should not be required to supply the number, because the government’s asserted interest in combating welfare fraud would not be much compromised if those with religious objections did not have to supply Social Security numbers.

Obviously Justice Scalia is not suggesting that the Zivotofsky parents have a religious freedom claim here. So why the citation to Bowen?

Perhaps for this reason. The argument is not about constitutional compulsion, but about religious (and other sorts of) accommodation. The government is not forced by the Constitution to make an exception for the Zivotofskys. But Congress did–here, and in other contexts (allowing those who wish to specify “Belfast,” rather than “United Kingdom,” to do so on their passports, for example). It grants these exceptions not because it is thereby recognizing Israel’s sovereignty over Jerusalem (as it is not thereby de-recognizing the United Kingdom’s sovereignty over Belfast), and not because the Constitution commands it, but because it understands that for some American citizens, religious and identity-based convictions about Jerusalem’s status are deeply important, and because people care about what the federal government says about them on official documents. The Obama Administration’s position, instead, was that this sort of conscience-based designation trenches on Executive authority. And in staking out that position (and now in vindicating it before the Supreme Court, in a ruling about which I have no comment) the Administration repeated the pattern of conflict with traditional religious belief that it has established in several other controversies and that have characterized its years in power.

Supreme Court Rules Against Abercrombie & Fitch in Headscarf Case

The Supreme Court yesterday decided a case we’ve discussed here at CLR Forum (including in this podcast), EEOC v. Abercrombie & Fitch, concerning the department store’s decision not to hire a job applicant because her head scarf conflicted with the store’s “look policy,” which prohibited all “caps.”  The rejected applicant sued pursuant to a federal nondiscrimination provision that prohibits “disparate treatment” on the basis of religion, among other categories. There was a dispute in the case about what the employer knew about the applicant’s reasons for wearing the headscarf and about whether the prospective employee must so inform the employer before bringing a claim.

The decision is short and not especially interesting. In an opinion by Justice Scalia, the Court held (8-1, with Justice Alito concurring only in the judgment and Justice Thomas concurring in part and dissenting in part) that in order to prevail on a disparate treatment claim under the “disparate treatment” provision of Title VII, a plaintiff need not show that a defendant had “actual knowledge” of the plaintiff’s need for a religious accommodation. The plaintiff need only show that the need for an accommodation was a “motivating factor” in the decision. Much of the rest of the majority’s opinion was consumed with interpreting the meaning of “because of” in the statutory phrase, “fail or refuse to hire…any individual…because of such individual’s…religion….” According to the Court, the provision prohibits certain motives, irrespective of the actor’s state of knowledge. The decision accords with what many scholars believe is the primary function of antidiscrimination statutes–to smoke out and punish illicit motivations, irrespective of what is known or not known as a factual matter.

One mildly interesting section of the opinion responds to Abercrombie’s claim that a religion-neutral policy like the Look Policy cannot “intentionally discriminate” against religion. As in the case of the Religious Freedom Restoration Act, Title VII, said the Court, requires more than a neutral policy:

But Title VII does not demand mere neutrality with regard to religious practices—that they be treated no worse than other practices. Rather, it gives them favored treatment, affirmatively obligating employers not “to fail or refuse to hire or discharge any individual . . . because of such individual’s” “religious observance and practice.” An employer is surely entitled to have, for example, a no- headwear policy as an ordinary matter. But when an applicant requires an accommodation as an “aspec[t] of religious . . . practice,” it is no response that the sub- sequent “fail[ure] . . . to hire” was due to an otherwise- neutral policy. Title VII requires otherwise-neutral policies to give way to the need for an accommodation.

Justice Alito concurred only in the result, arguing that the statute does impose a knowledge requirement but that there was sufficient evidence in the record to defeat summary judgment on the question whether Abercrombie knew that the applicant needed a religious accommodation. Justice Thomas dissented on the ground that application of a religion-neutral policy cannot constitute “intentional discrimination.”

Brady, “The Distinctiveness of Religion in American Law”

The recent Pew survey reveals that the percentage of Americans without a bradyreligious affiliation–the Nones–continues to grow. As I’ve written here on the blog, the rise of the Nones may pose a threat to religious freedom in America. By definition, Nones do not see organized religion as worthwhile; consequently, they may be less likely to endorse special legal protection for it. Supporters of religious freedom will have to work harder to convince our fellow citizens that religious liberty remains a vital asset, even for those who do not formally adhere to a particular religion.

Next month, Cambridge University Press will release what looks to be an interesting book on the subject, The Distinctiveness of Religion in American Law: Rethinking Religion Clause Jurisprudence, by Kathleen A. Brady (Emory). The publisher’s description follows:

In recent decades, religion’s traditional distinctiveness under the First Amendment has been challenged by courts and scholars. As America grows more secular and as religious and nonreligious convictions are increasingly seen as interchangeable, many have questioned whether special treatment is still fair. In its recent decisions, the Supreme Court has made clear that religion will continue to be treated differently, but we lack a persuasive account of religion’s uniqueness that can justify this difference. This book aims to develop such an account. Drawing on founding era thought illumined by theology, philosophy of religion, and comparative religion, it describes what is at stake in our tradition of religious freedom in a way that can be appreciated by the religious and nonreligious alike. From this account, it develops a new framework for religion clause decision making and explains the implications of this framework for current controversies regarding protections for religious conscience.

Panel: “Religious Exemptions After Hobby Lobby: Where Do We Go From Here?” (New York, May 14)

The New York City Bar will host a panel discussion, “Religious Exemptions After Hobby Lobby: Where Do We Go From Here?” on Thursday, May 14, 2015.

This panel presentation will review the legal and policy implications of the Supreme Court’s Hobby Lobby decision in the areas of religious accommodations generally, reproductive rights, health care, and employment law.

The event will run from about 6:30 PM to 8:30 PM, and attendance is free. Visit here to register.

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!