Monday, December 05, 2016
Jews, race, ethnicity, and religion
A good read in The Atlantic on whether Jews are "white" or whether we constitute a distinct racial or ethnic group, and what that means for our place in American society. It is a question that may be more relevant in the coming years, on both sides of the political spectrum.
Friday, November 18, 2016
Remarks on "The Future of Religious Liberty" at the Federalist Society's National Lawyers Convention
I participated yesterday in a panel discussion on "RFRA and the Future of Religious Liberty" at the Federalist Society's annual National Lawyers Convention. After noting that recent events had dramatically undermined any confidence one might have in my ability to say anything useful about "the future", I briefly discussed "one big-picture idea, two reasons for cautious optimism, and three causes for concern."
The big-picture idea (such as it is) was this: In any society where there is (a) religious and moral diversity and (b) an active, regulatory welfare state, there will -- necessarily -- be conflicts and tensions between (i) duly enacted, majority-supported, generally applicable laws and (ii) some citizens' religious beliefs and exercise. What Justice Jackson called "the uniformity of the graveyard" is not an attractive way to manage these conflicts and tensions; the toleration-and-accommodation strategy, however, is. RFRA-type laws are, in my view, effective and workable mechanisms for carrying out the latter strategy and so, yes, I think such laws are and should be part of the "future of religious liberty."
The two "reasons for cautious optimism": First, the (unanimous) Hosanna-Tabor case shows that the Court recognizes that religious freedom is not entirely about "balancing interests" but also imposes, in some contexts, real limits on the government's ability -- even when its pursuing important goals like reducing employment discrimination -- to interfere with individuals' and institutions religious decisions. Second, as the (unanimous) Holt case (among many others) illustrated, outside of a few well-known cases (e.g., Storman's) and hot-button-issues (e.g., wedding ventors), religious-liberty claimants are very often winning. The Becket Fund, etc., and the Department of Justice, do a lot of good work.
Next, three causes for concern -- that is, three demographic, cultural, and sociological facts and trends, or three things about the culture (and "law is downstream from culture") that were true before and are still true after the election: (1) the "rise of the nones" presents the danger that fewer people will see themselves as having a "stake" in the religious-freedom issue (when, in fact, we all -- whether or not we are religious -- do); (2) the relative decline in the role and footprint of religious institutions and communities (whether because of scandals, or atomizing individualism, or something else) reduces a sense of solidarity and makes it more difficult for people to resist incursions on religious liberty when they threaten; and (3) the increasing willingness of the government to shrink the civil-society space and to expand the "public" sector, by leveraging its licensing, accrediting, spending, grant-making, taxing, contracting, and social-welfare functions -- that is, by using conditions in addition to regulations to affect non-state actors' practices.
Then followed a lively discussion!
Tuesday, October 11, 2016
Greenberg, Koufax, and Yom Kippur
I have an essay today in Tablet Magazine, When They Were Kings: Greenberg and Koufax Sit on Yom Kippur. The piece compares Sandy Koufax and Hank Greenberg in their respective decisions not to play on Yom Kippur 31 years apart. I argue that Greenberg's decision was especially significant given the different, and more precarious, position of Jews in America and the world in 1934 compared with 1965. The essay elaborates on what I wrote here last Yom Kippur, on the fiftieth anniversary of Koufax sitting out.
Monday, July 25, 2016
Thoughts on Reason-Based Regulation of Reproductive Decision-Making: Part II
In an earlier post, I blogged about the rise of reason-based bans on abortion (such as laws banning abortion for sex selection, or because of fetal anomaly), and I hypothesized that there is the constitutional privacy right includes a right to make a constitutionally protected decision for whatever reasons one chooses. In this post, I want to consider another type of law that arguably implicates this privacy right, and also places it in conflict with other individuals’ religious freedom–specifically, laws that require employers to provide insurance coverage for contraceptives when they are needed for particular reasons.
About half of the states currently require insurers in the state to provide coverage for contraceptives. These state-law contraceptive coverage mandates are separate from the regulation requiring contraceptive coverage under the Affordable Care Act and apply independently of it. Because these mandates are enforced by state governments rather than the federal government, the federal RFRA—construed in Hobby Lobby to require an accommodation for employers that object on religious grounds—does not apply directly to them. Nonetheless, in many of these states, religious employers may still be able to access insurance plans without contraceptive coverage, either because the state contraceptive coverage laws also have religious exemptions written into them, or because those exceptions are available via state RFRA analogs.
In a handful of states, employers may opt out of providing insurance coverage of contraceptives for contraceptive purposes but not for therapeutic purposes. For example, Arizona law, which requires insurers to provide contraceptive coverage if they cover other prescription drugs, also provides that “a religiously affiliated employer may require that the corporation provide a contract without coverage for” contraceptives. However, it goes on to specify that the insurance policy cannot exclude coverage for prescription contraceptive methods prescribed "for medical indications other than for contraceptive, abortifacient, abortion or sterilization purposes.” Similarly, North Carolina law allows religious employers to offer plans without contraceptive coverage but does not exempt them from covering prescription contraceptives "for reasons other than contraceptive purposes, or ... that is necessary to preserve the life or health of a person covered under the plan.” Presumably, these sorts of provisos would cover women who seek contraceptive drugs for purposes of avoiding or curing particular medical conditions (such as certain skin conditions or menstrual disorders) as well as women who need contraception because pregnancy would be life-threatening or harmful to their health. At least in the latter scenario, it seems clear that such provisos distinguish between valid and valid reasons for the same reproductive conduct.
These sorts of laws set up a potential conflict between a woman’s right to privacy with respect to the deliberative process and an employer’s right to act based on religious motivations. Because the right to autonomous decision-making has constitutional stature (as I argue in Part I) and the right to act based on religious motivations does not (as explained below), it seems clear that the woman’s right to access contraception for any reason whatsoever should prevail.
These state laws, while presumably intended to ensure that women’s physical health is protected while safeguarding the religious freedom of employers, nonetheless have the effect of regulating the reasons for which women may engage in constitutionally protected conduct. Women who work for religious employers taking advantage of these exceptions may access covered contraception if it is necessary to avoid harm to their health but not for family-planning purposes. According to the framework outlined in Part I, laws that distinguish between acceptable and unacceptable reasons for choosing contraception would be unconstitutional. Similarly to the selective abortion bans discussed in Part I, they allow the employer to dictate the terms of the woman’s reproductive decision, interfering with the woman’s deliberative process as clearly as if the law itself denied women contraceptive access for certain reasons and not others. By empowering employers to privilege certain grounds of decision over others, the government picks and chooses among the reasons a woman may or may not have access to contraception.
The privacy right related to contraceptives is constitutionally protected. However, there is no constitutional free exercise right to be exempt from a generally applicable health insurance mandate because of one’s religious beliefs. The right claimed by Hobby Lobby was based on RFRA, not the Constitution, and the Supreme Court made clear in Employment Division v. Smith that there was no general free exercise right to an exemption from a neutral and generally applicable law. Thus, the woman’s right to choose contraception without regard to the reason should trump.
Ironically, however, one consequence of this analysis is that laws providing blanket exemptions from contraceptive coverage are on firmer constitutional ground than more carefully tailored exemptions. A blanket exemption allowing religious employers to opt out from covering contraceptives would not unconstitutionally privilege certain reasons over others and therefore would not burden the constitutional right to deliberate autonomously, because it would not distinguish between valid and invalid reasons. Is this result a correct one, or a desirable one?
Although this result seems counter-intuitive, it may nonetheless be the correct one based on existing constitutional doctrine. Once the government begins carefully tailoring exemptions, problems can ensue. For example, a statute with a narrowly drafted religious exemption that excludes certain religious groups while protecting others would likely be more problematic than one with no exemption.
Moreover, it may be worth considering the political implications of a decision requiring states to exempt all religious employers from covering contraception in all circumstances, even when it is needed to protect the woman’s health, or none at all. It is possible that the result would be that the practice of covering oral contraceptives for non-family-planning purposes would continue but without the sanction of law; employers and insurers could continue to make the distinction between therapeutic and non-therapeutic contraception, but through private, internal policies. (For example, Catholic employers generally do not have a problem with covering contraception for “therapeutic,” as opposed to family planning purposes.) Since no law would be implicated, there would be no state action and no constitutional problem. On the other hand, there might be value in highlighting the conflict between religious beliefs and private reproductive decision-making in this context. It is worth considering, perhaps in a more public way, whether the distinction between therapeutic and non-therapeutic contraception is one that the government should make and whether the government should be deciding which uses of contraception are sufficient to outweigh an employer’s religious claims. Currently, this debate is submerged by Hobby Lobby and the post-Hobby Lobby discourse, which treats religious exemptions from contraceptives coverage as an all-or-nothing issue.
Saturday, March 12, 2016
Religious Accommodations and Third-Party Harms at Pepperdine
I had an engaging and helpful conversation yesterday, in the context of two panels at an ongoing, fascinating conference at Pepperdine, "Doing Justice Without Doing Harm," sponsored by the Nootbaar Institute on Religion, Law & Ethics. A group of us discussed various aspects of the problem of identifying, describing, and justifying the limits on accommodations of religion, with a primary focus on the recent and important article on the subject by Profs. Douglas NeJaime and Reva Siegel.
In my own remarks, I tried to engage (and push back on) the article's claim that we and the law should be hesitant and concerned about granting accommodation claims that touch on matters in "democratic contestation" or concerning with there is ongoing "political mobilization." I suggested that, in a way, this claim is a reworking of the Lemon reasoning (with which I took issue here) that the Establishment Clause authorizes judges to identify and invalidate laws that risk "political divisiveness along religious lines."
Friday, March 04, 2016
The IRS Needs to Pay Attention to Pulpit Freedom Sunday 2016
In just over eight months, we'll be voting for our new president. Irrespective of who's on the ballot--and, for that matter, irrespective of who ultimately wins--one thing is for certain: in seven months or so, a bunch of church-goers are going to hear their spiritual leader endorse a candidate.
Sometime during the month leading up to the presidential election,[fn1] the ADF will sponsor its annual Pulpit Freedom Sunday, an act of civil disobedience by churches[fn2] and an attempt to challenge the campaigning prohibition in court.
Basically, in 1954, Congress added a short phrase to section 501(c)(3) of the Internal Revenue Code. That phrase prevents an organization from qualifying for a tax exemption unless it
does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.
The ADF believes that this campaigning prohibition is unconstitutional, at least as applied to churches. So for the last eight years, it has encouraged pastors to flout the rule, to include an explicit endorsement of a candidate in their sermons leading up to Election Day, and then to send a copy of the sermon to the IRS.
During the last presidential election, more than 1,500 pastors apparently participated. And how many churches lost their tax exemptions? None.
The ADF has organized Pulpit Freedom Sunday deliberately to create a test case that it can take to the courts. It expects the courts to strike the campaigning prohibition down as unconstitutional. But it's not just the ADF that wants the test case: Americans United for Separation of Church and State also wants the IRS to enforce the campaigning prohibition.
Clearly, the two groups think the case will turn out differently. Which is right? It's unclear. Scholars (including me!) have argued extensively about whether the prohibition is constitutional as applied to churches. But the question has only been adjudicated once, by the D.C. Circuit. The D.C. Circuit upheld the prohibition as constitutional, and, for whatever reason, the church didn't appeal to the Supreme Court.
Note that, for various procedural reasons, nobody has standing to challenge the prohibition unless and until the IRS revokes a church's exemption.
Why hasn't the IRS acted until now? Probably because there's really no upside to revoking a church's tax exemption; it's not going to significantly increase the government's revenue, and it would likely be unpopular at best in a world where politicians run against the IRS as a central part of their platform.
But at some point, the reticence becomes too much, as it has here: in 2012, the Freedom From Religion Foundation sued the IRS for not enforcing the prohibition, and eventually settled with the understanding that the IRS would eventually start enforcing it.[fn3]
And, as I lay out in my recent University of Colorado Law Review article, now's the time. Pulpit Freedom Sunday has reduced the search costs to nearly nothing--pastors send their sermons in to the IRS. I mean, the IRS has to actually look at the sermons, because there's no guarantee that participating pastors fully understand how to violate the campaigning prohibition. (Check out this sermon, for instance: the pastor makes a strong case for religious involvement in politics, but churches aren't prohibited from being involved in politics. Just from endorsing or opposing candidates, which the pastor doesn't do here.)
So what should the IRS do? It should announce, today, that is will revoke the tax exemption of every church that endorses or opposes an candidate for political office as part of Pulpit Freedom Sunday. Then it can sit back and wait for the sermons to arrive, follow through, and get ready to litigate.
That way, both the ADF and Americans United will be happy, and we can have closure on the constitutional status of the campaigning prohibition, at least as applied to religious organizations.
[fn1] I'm pretty sure that I read that the ADF is expanding Pulpit Freedom Sunday this year to encompass the whole month of October, but I can't currently find anything that gives a date or dates.
[fn2] Also, presumably, synagogues and mosques and other religious organizations. But honestly, the ADF seems to be thinking Christian-centric, with its choice of Sunday as the relevant day.
[fn3] BTW, though this has nothing to do with this post, isn't the perma.cc thing awesome? The link is already broken, but the University of Colorado Law Review has given it a permanently-findable home.
Wednesday, January 20, 2016
How Being a Struggling Student of Talmud Made Me a Better Professor of Law
My mother passed away last March. With my dad’s passing six years earlier, my brother and I suddenly found ourselves parentless while still in our 30s. Dealing with the grief has been difficult enough. Equally difficult in many ways has been the challenge of administering my mom’s estate—working through the modern morass of medical forms, bills, taxes, mail and magazine subscriptions, bank accounts, and credit cards is essentially a second full-time job. It turns out that dying in the twenty-first century involves a tremendous amount of paperwork.
The silver lining to all this, I suppose, is that acting as personal representative of my mom’s estate has allowed (forced?) me to employ several long-dormant aspects of my legal education. I have reviewed more contracts, communicated with more federal and state agencies, and spent more time at the probate court clerk’s office in the last year than at any time since I left full-time practice (and maybe ever). Like working an underused muscle for the first time in a long time, doing this kind of legal work is simultaneously invigorating, exhausting, and humbling. I am despondent about the circumstances, but grateful for the experience.
The circumstances have created another unexpected educational benefit: I have been reintroduced to the awesome challenge of Talmud study. In a year when many things have been cloudy and overwhelming, a weekly dip into Talmudic debates has sharpened my mind and changed some of my perspective on teaching.
The Talmud is a compilation of commentaries surrounding Judaism’s Oral Law (that is, the law said to be provided directly to Moses and orally transmitted through the generations, before the teachings were compiled in written form around 200 CE). Serious Talmud scholars intensely focus on a single page of text each day (Daf Yomi). A statement of law or practice in the center of the page is accompanied (literally surrounded) by a variety of rabbinic debates on the meaning and application of the statement, or offering proof for the statement. Commentaries build upon commentaries, and pull in citations from a variety of other textual sources. For a very rough sense of what it feels like, imagine a treatise on the First Amendment written by a squabbling committee of brilliant academics over the course of several centuries, and referencing a dizzying array of cases, law review articles, statutes, regulations, and local practices.
My entry into the Talmudic waters has been far less intense than daily study, but still offers plenty to digest. I meet with a small group of adult learners once a week shortly before evening minyan (the service that permits me to say Kaddish, the obligatory mourning prayer said daily for eleven months after a parent’s death). We have an excellent instructor, who is both prepared and patient. I dutifully bring my book, puzzle over the debates with the others around the table, and try to understand each strand of argument line by line, paragraph by paragraph.
In some ways, my legal training has been immensely helpful for this kind of work. I can easily recognize and appreciate some of the tools of argumentation: reasoning by analogy, reasoning from history, reasoning by custom, etc. It’s Cardozo, 1500 years before Cardozo. In other ways, my American legal training is virtually useless: because the debates in the Talmud operate in a closed environment in which text, history, and practice are of divine origin, the policy arguments that animate difficult legal questions in our time are noticeably absent. You cannot just say, “Why does any of this matter? “ One must take it as a given that it matters—even when the debate is about something as arcane as when to celebrate the New Year for Vegetables. (Yes. Really.) Nor can one simply dismiss a purported proof text as wrong; since the point of the exercise is to explain the law rather than develop or discover it, rejection of one proof requires the submission of an alternative proof. Once you accept these parameters, it’s a wonderful stretching exercise for the logical mind.
More strikingly, my journey into Talmud study has been humbling. If you were to ask me at the end of each study session whether I understood what we covered, the answer would be an unequivocal yes—and an unequivocal no. I understand the scope of the debate as presented in the limited form we discussed, but at the same time I realize how little I understand of how it fits into the larger discussion. So I get it—and I don’t. And it occurs to me that only years of consistent and rigorous study will truly make some of it clear (or more accurately, clearer).
This realization has had effects on the way I teach civil procedure. My own experience suggests to me that student silence (especially among 1Ls) almost certainly does not have a uniform meaning. Some students may be quiet because they are unprepared and cannot follow the discussion in a meaningful way. Others may think they understand, but need time to process the discussion and rearticulate it in their own words. They are not ready to ask questions or jump in. Still others may understand the terms of the specific discussion we are engaged in at the moment, but (like me at Talmud study) don’t know enough (or don’t feel comfortable enough) trying to tie it together to other topics in the course. I have to try to reach all of these groups in different ways—through classroom discussion, formative assessment methods, and one-on-one meetings.
So I will stick with Talmud study, even when my other executor duties are complete. I think my mom would approve.
I would be curious to hear from others who had the simultaneous experience of being a teacher in one discipline and a student in another. How did your experience in one area influence your approach to the other?
Monday, December 07, 2015
50 Years Ago Today: The Declaration on Religious Freedom
On Dec. 7, 1965, Pope Paul VI promulgated Dignitatis Humanae, the Second Vatican Council's Declaration on Religious Freedom, "on the right of the person and of communities to social and civil freedom in matters religious." Here're the opening lines:
A sense of the dignity of the human person has been impressing itself more and more deeply on the consciousness of contemporary man,and the demand is increasingly made that men should act on their own judgment, enjoying and making use of a responsible freedom, not driven by coercion but motivated by a sense of duty. The demand is likewise made that constitutional limits should be set to the powers of government, in order that there may be no encroachment on the rightful freedom of the person and of associations.
The Declaration and its anniversary were the subject of a really good conference, organized and hosted by the Notre Dame Law Review, a few weeks ago. John Garvey, the President of the Catholic University of America (and the former dean of the Boston College Law School) gave the keynote.
Thursday, December 03, 2015
My Trip to the Town of Greece
In the book I'm writing now (and by "writing" I mean I've signed a contract for something I should be writing but actually haven't written a word of) for Stanford University Press, I'm looking at how non-Christians--Wiccans, Hindus, Atheists/Humanists, Satanists, the Summum, etc.--are increasingly trying to participate in public life by, for instance, giving legislative prayers and invocations, putting up displays on government property, and using public voucher funds for their schools, etc. I'm calling the book, tentatively, "Our Non-Christian Nation: How Atheists, Wiccans, Satanists, and Other Non-Christians are Demanding Their Rightful Place in American Public Life."
Like in two of my other books about religion, this too will be a book where I travel places to observe actual events and to talk to people involved in the controversies I'm writing about. My first trip was to the Town of Greece back in October. You may remember that a couple of years ago, plaintiffs successfully challenged in the Second Circuit the town's policy of beginning each of its town hall meetings with a prayer because almost all of the prayers were given by a Christian, and they were usually extremely sectarian in nature (meaning they expressly invoked Jesus and the like). The Supreme Court, in a 5-4 decision, reversed the Second Circuit and held that sectarian prayers were okay so long as towns like Greece don't prohibit other groups from also giving invocations and/or prayers.
One of the plaintiffs in that case was Linda Stephens, a wonderful lady who has lived in Greece for many years and who happens to be an atheist. Following the Supreme Court's decision, she asked the town council if she could give a secular invocation, and the council agreed. Somehow I came across the schedule for the town's prayers/invocations online, and when I saw that Linda was giving the invocation, I decided to take a plane to Rochester and check it out myself.I met with Linda at her home and talked with her for a long time about the case, and then later in the day headed over to the town hall. The town Councilor, whom I also met with, is apparently a huge pickle ball fan, which is a game I had never heard of before, sort of like tennis but not tennis, and there are a set of pickle ball courts next to the town hall. This is not relevant. I was interested in seeing if there would be any controversy at the meeting, given that Linda was one of the people who brought the suit that had brought so much attention to this small town. Linda's was actually the second secular invocation given in Greece since the case came down, and at the first one, the only sign of dissent was a single man holding up a sign that said something like "Jesus Saves." I thought, however, that this event might be different since it was Linda doing the invocation.
In fact, there was no controversy whatsoever. Not even that one guy seemed to be there, and if he was there, he was not holding a sign. Linda gave the invocation. It was very nice (I thought). Everyone was very respectful. Nobody seemed to sigh. Nobody left or groaned audibly. The guy sitting next to me had removed his baseball hat when the Councilor announced that it was time for the "prayer," but when the baseball hat guy realized that Linda was not really giving a prayer, he put his hat back on. It was a Red Sox hat, incidentally.
There's more, but for that you'll have to wait for the book.
Also, here is a picture of me and my hedgehog.
Wednesday, September 23, 2015
Yom Kippur, Sandy Koufax, and (the forgotten) Hank Greenberg
Something that had not clicked until my rabbi discussed it last night: This Yom Kippur marked the fiftieth anniversary of Sandy Koufax not pitching Game 1 of the World Series (it was October 6, 1965, on the English calendar). This story forms a big piece of Koufax's legend as one of the greatest pitchers of all time, the greatest Jewish player of all time, and a hero to American Jews who saw in his actions a place for their faith within American society (Three thousand years of beautiful tradition, from Moses to Sandy Koufax...).
My rabbi also told the oft-repeated addendum to the story. Don Drysdale (himself a future Hall of Fame pitcher, so it is not like there was such a drop-off in WAR by Koufax not pitching) started and lasted less than three innings. The story goes that when Dodgers manager Walter Alston came to the mound to remove Drysdale from the game, Drysdale said something to the effect of "Bet you wish I was Jewish, too." But a baseball historian told me there is some doubt about when this comment actually was made and by whom. One version is the common one. Another has Drysdale saying it in the clubhouse after the game. And in a third version, it was not Drysdale who said it, but a former Dodger player who was watching from the stands. The historian was unable to get underneath the most-common version of the story.
Koufax's decision has completely overshadowed a similar decision by the previous greatest Jewish player, Hank Greenberg, who played for Detroit and Pittsburgh in the '30s and '40s (his life, and this event, is covered in a wonderful 2000 documentary). In the heat of a close pennant race in 1934, Greenberg played on the first day of Rosh Hashanah (after obtaining permission from a local rabbi, who searched the texts to find that "play" was permitted on that day), but did not play on Yom Kippur. Although no one in 2014 marked the eightieth anniversary of Greenberg, in some ways, his stand was more courageous than Koufax's. For one, Greenberg was an everyday player who would have been expected to play every game; as a pitcher, Koufax only could pitch in one of the first two games, so holding him to Game 2 was not an enormous lineup change or loss. For another, the position of American Jews in 1934 was far more precarious than in 1965. While there was still anti-Semitism, both de facto and de jure, in 1965, it was far worse thirty years earlier. This was one year after Hitler came to power. And Greenberg played in Detroit, home of Henry Ford and Father Coughlin.
Greenberg was similarly lauded for his act of conscience and seen as similarly inspirational by American Jews. Yet his stand has been lost to history. Some of it is that the World Series is a bigger deal than a pennant race. Some of it is that Koufax is closer to being the greatest pitcher of all time than Greenberg is to being the greaterst first-baseman of all time, so all of his actions are magnified. Some may be recency bias.
In any event, with all the additional post-season rounds and games, no Jewish player will ever again have to skip a World Series game for Yom Kippur. It is more likely he would miss a World Series game for Thanksgivukkah 79811.
Wednesday, September 02, 2015
New Jersey’s Legislature Takes a “Grave” Misstep
Other than fellow “property law geeks,” not many people may wonder about property rights in cemeteries, but it is a surprisingly complex and varied topic about which I’ve pondered and about which Professor Tanya Marsh of Wake Forest has developed national expertise. She has recently written the definitive casebook on cemetery law (co-authored by recent law school graduate Daniel Gibson), has launched a venture with the Urban Death Project to work for “ecologically beneficial meaningful death care” worldwide, and has recently been quoted in the national media with respect to death and internment issues. Monday, in a short but completely compelling piece on Huffington Post, Professor Marsh took the New Jersey legislature to task for passing a law limiting churches’ ability to manufacture and sell tombstones, vaults, and private mausoleums.
As Professor Marsh clearly explains, creation and care for tombstones in church-owned and operated cemeteries is a religious practice. After all “rituals that mark the transition from life to death are a central part of most modern religions.” (I’d go even further and say that such rituals have always been a central part of all religions.) But this new New Jersey law, Bill 3840, that was signed into law by Governor Chris Christie in March 2015, limits churches’ ability to fully participate in those rituals – even on their own land and on behalf of their own members. The law seems to be a blatant anti-competitive, special-interest-group spearheaded “win” by the Monument Builders of New Jersey, who agitated for government assistance to preserve their de facto monopoly on manufacturing graves, memorials and vaults. Not only does this law serve no state interest at all – let alone a compelling one – it violates religious freedom in an essential and inexcusable way. Professor Marsh sums it up thus:
This law is an amazing act by the New Jersey legislature and governor. It was adopted at the behest of a group of private market participants for a reason no more noble than to protect themselves from competition. This blatantly anti-competitive effort is even more stunning because the product at issue–headstones and memorial tablets–are not regulated. No license is required to manufacture or sell them. Literally anyone in New Jersey can manufacture and sell tombstones, vaults, and private mausoleums–everyone, that is, except religious organizations and non-profit corporations that own or manage cemeteries.
Happily for those who care about justice and religious freedom and economic liberty, the Archdiosese of Newark, assisted by the Institute for Justice, have brought a lawsuit against the State of New Jersey, seeking to have the law struck down. There are several asserted grounds pursuant to which the court could invalidate the law, including violations of Due Process, Equal Protection, the Privileges and Immunities Clauses, and the Contracts Clause (Art. 1, Section 1) of the Constitution.
Monday, August 31, 2015
Big Mountain Jesus update
Back in March of 2014, I blogged about the Establishment Clause challenge brought by the Freedom From Religion Foundation against "Big Mountain Jesus." Here's a picture I took, during my own trip to enjoy the great Montana snow:
The monument, which also included a plaque dedicated to the WWII soldiers, was built and maintained by private efforts. Every 10 years the permit for the monument was renewed with the Flathead National Forest.
The FFRF lost in the District Court. Judge Dana Christensen wrote:
"To some, Big Mountain Jesus is offensive and to others it represents only a religious symbol," Chistensen wrote. "But the court suspects that most who happen to encounter Big Mountain Jesus, it neither offends nor inspires."
He said that to many the statue "serves as a historical reminder of those bygone days of sack lunches, ungroomed runs, rope tows, T-bars, leather ski boots, and 210 cm. skis."
Well, the Ninth Circuit's ruling is just in, and Big Mountain Jesus is safe again. (The opinion is here: Download SANFRAN-#160648-v1-Ninth_Circuit_Affirmance.) Among the several factors that prompted the Court to conclude that the "endorsement test" did not require the statue's removal was this: "the flippant interactions of locals and tourists with the statue suggest secular perceptions and uses: decorating it in mardi gras beads, adorning it in ski gear, taking pictures with it, high-fiving it as they ski by, and posing in Facebook pictures[.]"
Judge Pregerson dissented.
Monday, May 11, 2015
Governments do not simply encounter religious beliefs and teachings, they also do and seek (without always admitting it) to shape and manage them, their content, and their development. A recent reminder: Hillary Clinton was in the news recently when she said, in a speech, that "deeply seated religious beliefs" "will have to be changed" in order to secure broader abortion rights and access to reproductive health care and contraception.
Another: this story ("China orders Muslim shopkeepers to sell alcohol, cigarettes, to 'weaken' Islam") shows a modern government seeking, for its own purposes, to weaken the hold of religious beliefs on its subjects by, in part, undermining those beliefs. Here's a bit:
Chinese authorities have ordered Muslim shopkeepers and restaurant owners in a village in its troubled Xinjiang region to sell alcohol and cigarettes, and promote them in “eye-catching displays,” in an attempt to undermine Islam’s hold on local residents, Radio Free Asia (RFA) reported. Establishments that failed to comply were threatened with closure and their owners with prosecution.
Facing widespread discontent over its repressive rule in the mainly Muslim province of Xinjiang, and mounting violence in the past two years, China has launched a series of “strike hard” campaigns to weaken the hold of Islam in the western region. Government employees and children have been barred from attending mosques or observing the Muslim fasting month of Ramadan. In many places, women have been barred from wearing face-covering veils, and men discouraged from growing long beards.
Both stories, it seems to me, are reminders that claims about government "neutrality" with respect to religion are as much aspirational as historical or descriptive. Governments care about religious beliefs and always have. Our constitutionally expressed hope is that we can meaningfully constrain our authorities from doing what, as authorities, they could be expected to do, i.e., manage the content of religion for their own purposes (which might, of course, be entirely good purposes).
It's worth remembering, I think, that governments are not limited to heavy-handed tactics like China's -- licensing requirements, accreditation standards, spending conditions, and (as we have been reminded recently) tax exemptions are also available to good, liberal, constitutional governments. I explored this idea, a decade or so ago, in this article, "Assimilation, Toleration, and the State's Interest in the Development of Religious Doctrine":
Thirty-five years ago, in the context of a church-property dispute, Justice William Brennan observed that government interpretation of religious doctrine and judicial intervention in religious disputes are undesirable, because when "civil courts undertake to resolve [doctrinal] controversies..., the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern." This statement, at first, seems wise and fittingly cautious, even unremarkable and obvious. On examination, though, it turns out to be intriguing, elusive, and misleading. Indeed, Justice Brennan's warning presents "hazards" of its own, and its premises - if uncritically embraced - can subtly distort our constitutional discourse.
This Article provides a careful and close examination of the statement's premises and implications, and concludes that, far from being a "purely ecclesiastical concern," the content of religious doctrineand the trajectory of its development are matters to which even a secular, liberal, and democratic government will almost certainly attend. It is not the case that governments like ours are or can be "neutral" with respect to religion's claims and content. As this Article shows, the content, meaning, and implications of religious doctrine are and have long been the subjects of government power and policy. Secular, liberal, democratic governments like ours not only take cognizance of, but also and in many ways seek to assimilate - that is, to transform - religion and religious teaching. And, it is precisely because such governments do have an interest in the content, and, therefore, in the "development," of religious doctrine - an interest that they will, if permitted, quite understandably pursue - that authentic religious freedom is so fragile.
UPDATE: Prof. Steve Lubet sends me this note (and gave permission for me to add it to the post):
My question is whether you have seen a transcript of the Hillary Clinton speech that you characterize as “managing religion.” I have not seen one (and I am not sufficiently motivated to listen to the 22 minute video), but I think it is likely inaccurate that she was suggesting that “attitudes have to be changed” by the government. You are reading a lot into the words “to be.” It is at least as plausible, I think, to assume she meant that attitudes will simply have to change – as social attitudes often do – on their own, before there is widespread acceptance of reproductive rights.
Clinton does not, as far as I can tell, identify the change agent. Lumping such a statement along with Chinese government coercion is, I think, quite a stretch.
Monday, February 09, 2015
Measels--An Update and Some Constitutional Issues
So things are moving fast on the Measles front. Today I’m going to do a quick overview of mandatory vaccination for childhood disease and later this week what it tells us about our efforts to prepare for a bioterrorism event (spoiler, nothing good).
The measles outbreak has spread now to 17 states and the District of Columbia. And things are worse than they seem. The current “outbreak” (the number of cases that can be traced back to the original Disneyland exposure) signals how many people in the U.S. lack immunity not just to measles, but most likely to the other two deadly diseases which the MMR vaccine protects against—Mumps and Rubella (German Measles). For an overview of the damage done by Andrew Wakefield’s now discredited article see here. See how Megyn Kelly explains it here. Last year I gathered some resources specific to young adults, and they are here.
Rubella poses a serious risk to developing fetuses. According to the CDC A pregnant woman has “at least a 20% chance of damage to the fetus if….infected early in pregnancy.” This damage is called CRS-congenital rubella syndrome. Warning-you may want to take my word that this potential damage is serious rather than read this very descriptive CDC report . Mumps is also quite serious. Again a warning, it may be enough to know that the virus causes swelling in various body parts and can be a contributing factor to infertility or low fertility in a small but real percentage of men who become infected.
Moreover, it seems unlikely that MMR is the only vaccine these children lack. They are also at risk for polio, diphtheria, tetanus, whooping cough, chickenpox, hepatitis B(and no, it’s not just a sexually transmitted disease),meningococcal disease , and something really unpleasant for which there is now a vaccine—rotavirus. Here’s the list.
The public focus has turned very quickly to law and ending vaccination exemptions, see here and here, —so these are some resources if this comes up. Top legal experts like Professor Lawrence O. Gostin are making clear, there is no Constitutional requirement to exempt anyone from mandatory vaccination in the face of a credible threat to the public’s health. The Supreme Court in held Jacobson v. Massachusetts that the individual states have full authority to pass mandatory vaccination laws and that they are not obligated to give exemptions for reasons of philosophy or preference. For more background on the Constitutional issues see Prof. Parmet here, here, and here and Professor Edward P. Richards. The situation is a closer call when it comes to religion, but not much. As Justice Ginsberg points out in her dissenting opinion in Burwell v. Hobby Lobby, “Religious objections to immunization programs are not hypothetical.” 134 S.Ct. 2751, 2805, n. 31 (2014). And in terms of an adult’s right to claim a religious exemption from medical care for a minor, the law is if anything clearer. Even when making a “martyr” of oneself doesn’t pose a threat to others, a state still has the power to intervene when the religious belief is claimed on behalf of a minor. Here’s a helpful overview by the Congressional Research Service about vaccination laws in the US and here's one that looks at laws overseas.You may be interested to know that the CDC is tracing several outbreaks at the moment including Listeria monocytogenes from caramel apples and sprouts
Monday, February 02, 2015
First, I am delighted to be back on Prawfblawgs and want to thank Howard and the team very much for coordinating this. It’s wonderful to see how what Dan started continues to grow and thrive.
Second, in thinking about how to make best use of my time I’ve decided to focus on public health law--to shed some light on the ever-present conflict between an individual's right to manage her own health and the government (state and federal) ability to interfere.
As everyone knows, we in the United States are in the middle of an outbreak of measles that started when two un-vaccinated children who had been exposed to measles visited Disneyland. My focus will be on legal issues, but lets start with an overview. As of today, there are 102 cases reported in 14 states-anyone interested in tracking the outbreak can so here. Measles is that “worst case scenario” virus that Ebola wasn’t—it is highly contagious, spreads through the air, can live a long time on surfaces, and is infectious well before people feel sick enough to stay at home. This is a very helpful graphic. In 2000 measles was “declared eliminated in the United States” because, for an entire calendar year, there had not been a case of one person catching measles from another in the United States. But measles is nowhere near eliminated globally and we haven't had a year like 1999 in a long time. Globally, 400 (mostly) children die of measles every day, 16 die every hour. Unfortunately, “globally” does not, in measles’s case, mean remote areas of the planet, Europe, India the Philippines and Vietnam—are all seeing increases in measles cases.
The good news about measles is that there is a highly effective, widely available vaccine that fully protects 97 out of every 100 people vaccinated. It’s a “threefer” in that the vaccine provides immunity from not just Measles but two other very serious viruses, Rubella (German measles) and Mumps.
Like most vaccines, however, it can’t be given to infants younger than six months old and in the absence of an immediate threat, usually isn’t given until a child is twelve months old. There are also counter-indications (more about them later) about who shouldn’t get the vaccine. Finally, people on chemotherapy or who have had bone marrow transplants lose whatever immunity they had before. Without doing the math that means at any one time, even if every person in the United States eligible to vaccinated had one, many people would still be susceptible to infection. And of course the point of this post on a law site, is that far from everyone eligible to be vaccinated has taken advantage of the opportunity.
The current controversy is a great teachable moment for any law school class considering the balance between the rights of an individual and that of the state. Over the next month, I will be diving deeper into this area of the law to examine the parameters of state authority under the Tenth Amendment and then the different aspects of federal power that create the parameters of governmental authority to prevent, and control outbreaks through public health measures like mandatory vaccination, treatment, quarantine and isolation. Spoiler alert—neither sincerely held religious belief nor autonomy to raise one’s children have prevailed against a state’s interest in requiring vaccination for attending public school.
To be continued.
Posted by Jennifer Bard on February 2, 2015 at 03:10 PM in Constitutional thoughts, Current Affairs, First Amendment, International Law, Law and Politics, Religion, Science, Teaching Law | Permalink | Comments (0)
Hello, and a Question About Hobby Lobby
Many thanks to the fine folks at Prawfsblawg for the invitation to guest-blog this month. I’ll start my stint by flagging a passage from the Hobby Lobby opinion that I’ve lately been scratching my head about. One of the questions at issue in Hobby Lobby was whether the government had “substantially burdened” the religious beliefs of the plaintiffs by requiring them to offer employer-provided health insurance plans that covered various methods of contraception. (The plaintiffs said “yes,” the government said “no”.) And on this question, several amici for the government advanced an argument that the government itself had not raised: The amici claimed that the plaintiffs could tolerably evade the contraceptive mandate by dropping their employees’ coverage and incurring a financial penalty instead. The argument, in other words, was that the penalty was small enough to make effectively available to the plaintiffs the option of not offering an employer-provided health care plan at all. And therefore, the amici continued, no “substantial burden” could result from rules applicable to plans that the plaintiffs were not in fact required to provide.
Anyway, my question concerns not so much the substance of this claim as it does the Court’s chosen means of addressing it. First and foremost, Justice Alito’s majority opinion observed that the government itself had never raised the claim, which in turn militated against any resolution of the issue by the Court. See id. at 2776 (“We do not generally entertain arguments that were not raised below and are not advanced in this Court by any party, and there are strong reasons to adhere to that practice in these cases.” (citations omitted)). Almost immediately thereafter, however, the Court went on to highlight various shortcomings in the argument itself. But how, you may wonder, did the Court manage to reconcile its stated refusal to reach the issue with its subsequent reaching of the issue? It did so by explaining that: “[E]ven if we were to reach this argument, we would find it unpersuasive.”
So, my question is this: What is the difference between saying (a) “We find this argument unpersuasive,” and (b) “Even if we were to reach this argument, we would find it unpersuasive”? The best I can come up with is something involving precedential effect; the latter statement, unlike the former, might more easily be dismissed as dicta in a later case, thus affording the Court a bit more flexibility in confronting a similar issue down the road. But even so, the statement still strikes me as unusual. I’m not aware of many cases in which the Court has consciously flagged a part of its opinion as non-binding dicta (normally, the “dicta” label gets applied after the fact, as a means of doing away with some difficult language from a prior opinion that a subsequent majority of Justices would rather not follow). And in any event, if the Justices really did find the argument unpersuasive, why were they reluctant to say so directly?
Anyway, I’m curious whether anyone has any thoughts on what the Court was up to here. I probably didn’t follow the Hobby Lobby litigation closely enough to offer an opinion on this language, but if I were to opine on it, I’d say it was confusing.
Tuesday, January 20, 2015
Some thoughts on Holt v. Hobbs
First, it seems to me that the opinion by Justice Alito is exceptionally well crafted. It should win a Green Bag award or something. It touches the necessary bases and stops. The language is clear and functional. (It reveals no idiosyncratic aversion to adverbs and includes no cringe-inducing attempts at grandeur.) One knows, at every point in the analysis, where one is.
Second, Justice Alito confirmed (as he had in Hobby Lobby) that RLUIPA (and RFRA) should not be read narrowly so that it reaches no farther than did the more narrow of the Court's Free Exercise Clause decisions. Here, he rejected the notion (which some earlier cases might have endorsed) that "the availability of alternative means of practicing religion is a relevant consideration" for purposes of deciding whether RLUIPA's protections are triggered.
Third, Justice Alito reminded readers that "RLUIPA . . . applies to an exercise of religion regardless of whether it is 'compelled'" by the claimant's religious beliefs or traditions. (Put another way, RFRA and RLUIPA do more, as Justice Alito reads them, than protect religious claimants from being compelled to do what they believe their religion absolutely forbids.) Fourth, and related, the lead opinion insists that "the protection of RLUIPA, no less than the guarantee of the Free Exercise Clause, is 'not limited to beliefs which are shared by all of the members of a religious sect.'" So, it would not be relevant to the "substantial burden" inquiry under RLUIPA if not all Muslims believe men must grow beards.
These last three points, together, are very helpful, I think, in helping me think about the idea of "substantial burdens" in the accommodation-of-religion context. What it is that we are asking about, I think, when we ask about "substantiality" is not the power or weight of the belief, or its centrality, or its orthodoxy, or its plausibility. We are asking, instead, about the nature, weight, size, etc., of the government's imposition on the sincerely asserted religious belief or practice-obligation. There is no question, for example, that a Roman Catholic's obligation to worthily receive the Eucharist at least once a year is a very serious one, but a neutral and generally applicable law that, in application, (somehow) increased the cost to Catholics of doing so by $.01 would not impose a "substantial" burden on religious exercise. Here, in Holt, the question is whether the penalty imposed or threatened by the government is substantial. And, it is.
Next, the Court was appropriately underwhelmed by the invocation - in broad and general terms -- of a "compelling interest" in prison security and safety. Rather, "RLUIPA, like RFRA, contemplates a 'more focused' inquiry and 'requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law 'to the person'––the particular claimant whose sincere exercise of religion is being substantially burdened." And, relatedly, the Court meaningfully -- while giving appropriate consideration to the prison context -- engaged the question whether applying the prison-grooming rule to the claimant, without exception, was the least-restrictive means of accomplishing the government's important goals.
In a separate opinion, Justices Ginsburg and Sotomayor clarified (and perhaps qualified) their agreement with the lead opinion. Justice Ginsburg wrote:
Unlike the exemption this Court approved in Burwell v.
Hobby Lobby Stores, Inc., 573 U. S. ___ (2014), accommodating
petitioner’s religious belief in this case would not
detrimentally affect others who do not share petitioner’s
belief. See id., at ___, ___–___, and n. 8, ___ (slip op., at 2,
7–8, and n. 8, 27) (GINSBURG, J., dissenting). On that
understanding, I join the Court’s opinion.
While I understand why Justice Alito (and others who joined his opinion) would not think it necessary to respond to this statement, I also wish one of the Justices had. The claim that it violates the Establishment Clause to accommodate religion in ways that impose costs or burdens on third parties is one that, of course, is advanced by a number of very smart people, but I do not think it is correct -- at least, not as a broad, general matter. As I see it (see more here), the question whether a proposed accommodation is too costly is one that RFRA and RLUIPA call to be answered through the statutorily prescribed balancing inquiry, and not through an additional, accommodation-skeptical Establishment Clause inquiry.
Finally: today's opinion offers a very, very welcome counter to the unfair and inaccurate assertion one hears in some quarters that concerns about "religious liberty" are merely "dog whistles" or "fig leaves" for bigotry and prejudice, and so can be dismissed as such. Some invocations of "religious liberty," and some demands for accommodation, have been, are, and will be insincere, or morally offensive, or simply ungrantable. Many others will not. We should take the time to distinguish -- carefully, thoughtfully, reasonably sympathetically -- between the two.
Wednesday, January 14, 2015
The influence of the Justices' religious beliefs
There is posted at the Moment website a symposium on the topic "Do the Religious Beliefs of Supreme Court Justices Influence Their Decisions?" The participants are prominent journalists and writers about the Supreme Court, including (not naming all, but just the first three listed!) Tony Mauro, Lyle Denniston, and Robert Barnes.
I've addressed this issue several times over the years at this and other blogs -- as have many others! -- often in the course of replying to the suggestion or accusation that the Catholic justices are imposing Catholic teachings, rather than interpreting and applying the Constitution, in abortion cases. (In the symposium, Lyle Denniston writes that "[i]n his rulings on partial birth abortion, Justice Kennedy has especially been acting out his personal Catholic faith", but this in-my-view unfounded claim seems to reflect Lyle's view that Kennedy's stances in the abortion context are somehow inconsistent with his emphasis in other contexts on "liberty interests.")
Some of the participants observe, and I agree, that it is, if nothing else, interesting that the Court consists at present of six Roman Catholics, three Jews, and no Protestants. (Here's a WSJ thing I did on this subject a few years ago.) I also think that what Emily Bazelon (and several others in the group) said is basically right (at least with respect to some -- I would say a relatively small number of -- cases whether the relevant legal materials are underspecific):
[R]eligious beliefs are part of the sensibilities of some judges, and can inform how they approach cases, even if they don’t say so. It doesn’t make sense to think of the Court as Olympian and objective. The justices are just people, informed by personal background and history. Religion is a component of that.
That said, a few things that some of the participants said struck me as not quite right, or at least as incomplete. (I'm not counting here the symposium editor's report that "[j]ust a decade ago, the general consensus was that justices were like umpires, objectively presiding over the nation’s legal system.") For example, Lyle Denniston -- a widely and rightly respected Court observer -- states that "[i]n the past, Supreme Court justices were highly reluctant to allow their own values to come into play when ruling on religious matters." I am skeptical. For example, it seems clear to me that in the school-aid cases of the 1960s, 1970s, and 1980s -- cases that some of the participants characterize as "separationist" -- the "values", including the "religious" values, of the justices opposing the aid in question did plenty of work in shaping their views and driving their conclusions about the limits imposed by the First Amendment on allowing Catholic schools and students to participate in education-funding programs. It does not seem right to say that we moved away from the strict no-aid view simply because new justices, unlike their predecessors, were willing to allow their "religious" beliefs (or, more specifically, their Catholic beliefs) to color their decisions about aid. It seems more likely that this move owed a lot to a growing appreciation on the Court for the fact that the strict no-aid view owed more to Justice Black's and others' "own values" than it did to the requirements of the Fourteenth Amendment.
I also thought that Stephen Wermiel might overstate the matter when he says that "the separationist view", which he associates with Justice Brennan, has "all but disappeared" on the Court. Here, I think we need to be a bit more nuanced about what "separationist" means, and doesn't mean. For example, some of us think that the Court's 9-0 decision in Hosanna-Tabor is an (appropriately) "separationist" decision, one that vindicates what Wermiel calls "the essence of [Brennan's] separationist view—that having government involved in your religion demeans your religious beliefs." And, the strict separationist Justice Brennan supported strongly the idea -- the idea that is operationalized in the Religious Freedom Restoration Act, which was interpreted and applied in Hobby Lobby -- that it is appropriate to exempt religious believers and institutions, when it's possible, even from generally applicable laws that burden religious exercise, an idea that, unfortunately (as Paul discussed the other day), is increasingly regarded as a bigoted, right-wing "dog whistle."
Thursday, November 13, 2014
Religion's Private Law Turn II: No Sunday Arbitration
Yesterday I posted about what I've called religion's "private law turn," where questions at the intersection of law and religion increasingly hinge on applications of private law as opposed to public law. I also promised examples so here's my first--one that I take up more fully in a forthcoming piece, Arbitration's Counter Narrative: The Religious Arbitration Paradigm, 124 Yale L. J. (forthcoming 2015).
Section 5 of New York's Judiciary Law reads as follows: "A court shall not be opened, or transact any business on Sunday." Fair enough you say. But in the past year or so, two New York courts (here and here) have applied this law to rabbinical court arbitrations--arbitrations addressing commercial disputes--by employing the following logic: (1) A judicial proceeding cannot take place on Sunday; (2) “Arbitration is a judicial proceeding and arbitrators perform a judicial function"; and (3) therefore, “the arbitration proceedings and award herein are void upon the ground that at least one hearing was held on a Sunday." Based on this logic, both courts vacated arbitration awards where arbitration proceedings were conducted on Sunday. Indeed, there's precedent for these decisions in New York going back nearly 200 years.
Now some have argued these decisions run afoul of the First Amendment. Maybe it does (although I'm skeptical this claim wins given how the Supreme Court has treated Sunday closing laws generally). But more than a constitutional problem, what this case misses is the way in which some forms of arbitration--specifically religious arbitration--are not equivalent to "judicial proceedings." It may be true that much arbitration is functionally equivalent to litigation--albeit faster and cheaper--in that both are mechanisms to resolve disputes between parties (Daniel Markovits has referred to this view as the "displacement thesis" and it has been adopted by and large by courts and scholars).
But not all arbitrations are simply about resolving a dispute. In particular, when religion and commerce meet under the rubric of religious arbitration, the parties have not selected the forum with the sole objective of identifying a more expedient and inexpensive version of litigation. Religious arbitration entails submitting a dispute to religious authorities for resolution in accordance with religious law. And a decision to select such a forum to resolve a dispute has much less to do with expedient dispute resolution and more to do with the shared commitments and values of the parties. In this way, religious arbitration is often part commerce and part religion; and to simply conflate such arbitrations under the rubric of judicial proceedings fails to consider the unique objectives at stake in the context of religious arbitration.
Indeed, in this way, these Sunday arbitration cases represent a classic mistake courts make when encountering religion's private law turn. Instead of unpacking the unique dynamics at stake when religion and commerce overlap, courts reflectively invoke familiar categories--a mistake in this case not of constitutional law, but of a arbitration law.
Wednesday, November 12, 2014
Religion's Private Law Turn
With the continued discussion of Hobby Lobby (for the latest, check out Elizabeth Sepper's response to Paul's Hobby Lobby Momement), it is hard not to notice an increasing focus on the importance of commerce--and in turn commercial law--when it comes to conflicts between law and religion. Maybe one way to think about this is that for every Town of Greece v. Galloway, we have a Hosanna-Tabor v. EEOC, a Hobby Lobby v. Burwell, and now an EEOC v. Abercombie & Fitch. The religion clauses continue, of course, to play a fundamental and central role in debates over religious accommodation and the like; but clashes between the aspirations of religion and the demands of law seem to increasingly spill into the commercial sphere. And, as this trend continues, I see more and more of these clashes hinging on how various private law doctrines apply when religion and commerce collide.
As Paul has expressed, much of this seems to arise from a growing sense that the commercial sphere is not just about commerce. In our forthcoming article "The Challenge of Co-Religionist Commerce," 64 Duke L.J. (2015), Barak Richman and I try to outline some of this dynamic under the rubric we term "co-religionist commerce," which we characterize as "commercial dealings that take place between co-religionists who intend their transactions to achieve both commercial and religious objectives" (and for a recent response to our article, check out Nate Oman's piece here). The core, if unstated, intuition of our article is that some of the most significant challenges on the horizon--as religion and commerce continue to intersect--flow not from interpretation of constitutional doctrine, but from application of private law rules to conduct that is simultaneously religious and commercial. This intuition applies in a wide range of contexts, from corporate law to contract law to arbitration law (to name some of my favorites).
In my next couple of posts, I'll try to provide some concrete examples of this dynamic--and some of the complex questions they raise--as I explore what I see as religion's growing turn to private law.
Friday, November 07, 2014
Greetings from Sixth Circuit Country
Greetings from Memphis! I'm here today at the University of Memphis Cecil C. Humphreys School of Law to discuss Hobby Lobby alongside Steven Green, including what should be a fun Q&A session moderated by Steven Mulroy. Steven Green is one of the authors of the Church-State scholars amicus brief in Hobby Lobby. And I recently wrote up some of my--somewhat evolving--thoughts on Hobby Lobby in an article titled Religious Institutionalism, Implied Consent and the Value of Voluntarism, 88 S.Cal. L. Rev. (forthcoming 2015), where I elaborate on my theory of "implied consent" institutionalism.
But given yesterday's Sixth Circuit decision on same-sex marraige, I'm thinking more and more about Paul Horwitz's recent piece in the Harvard Law Review, "The Hobby Lobby Moment" (if you haven't read it yet, you should). I find myself very much in agreement with Paul's analysis, especially his articulation of how the firestorm around Hobby Lobby had so much to do with the intersection of same-sex marriage and our evolving views on the commercial marketplace. If Paul is right, then yesterday's decision--and the significant likelihood that the decision will lead to the Supreme Court finally have to grant cert in a same-sex marriage case--means that we may very well see more of the debates that propelled Hobby Lobby into the public consciousness.
Thursday, November 06, 2014
The "Anti-Foreign Law" Craze--Bills, Amendments and Decisions
In the weeks leading up to Election Day, Alabama's "Amendment One" drew a nice chunk of attention. Amendment One was yet another "anti-foreign law" initiative prohibiting state courts from applying foreign law or from enforcing any contractual provision that would require foreign law to govern its interpretation "if doing so would violate any state law or a right guaranteed by the Constitution of this state or of the United States." Critics of the Alabama amendment include Prawf's own Paul Horwitz as well as Faisal Kutty. At its very best, the law is unnecessary; at worst, the law represents a persistent anti-Muslim agenda that has animated the continued push in state legislatures around the United States to consider similar provisions (I've expressed my strong antipathy for these bills in an op-eds here and here).
Unfortunately, the bill passed on Tuesday. But while I'm amazed that these bills keep on passing, I've become increasingly worried that courts might be drinking the anti-Sharia Kool-Aid as well. As an example consider Sarooie v. Foster Wheeler--a recent decision from the California Superior Court that Eugene Volokh broght to my attention last week (Eugene has blogged about the case here). In a nutshell, the case raised the following question: what law should apply to an action brought in California court over injuries suffered primarily in Iran by a then-resident of Iran at the hands of an oil refinery owned by Iran? California typically uses the government interest analysis for deciding choice-of-law questions; however, instead of employing this standard methodlogy, the court instead concluded that it could not apply Iranian law to the dispute for the following reason:
"In Alkhas, this Court held: 'The Court has no confidence that Plaintiffs will receive a fair trial or an adequate opportunity to obtain a remedy under Iranian law. In the forum non conveniens context, the rule in California is that Iran is not a suitable alternative forum, the reason being that Iranian law effectively provides 'no remedy at all' since Iran is run by mullahs and lacks an independent judiciary and due process of law. The Court is persuaded that this rationale should be extended to the choice-of-law context. In the Court's view, application of Iranian law does not constitute a permissible option under the governmental interest test where, as here, mullahs administer the law, and, by Moving Defendants' own admission, Shi'ite Islamic law may be used to decide the case.' (Taylor Decl., Ex. K, p. 7 [footnotes and citations omitted].)"
The deep problem with the court's decision is it fails to explain why Iranian law in this context poses a public policy problem. There isn't any discussion of Iranian substantive law that would apply to the facts of this case--and how applying such law would raise public policy issues. Instead, the court seems to simply conclude that the fact that Iranian law incorporates Sharia Law is in and of itself sufficient to reject application Iranian law and short-circuit the typicaly government interest analysis (more from the decision: "Moreover, the declaration of Plaintiffs' expert, Boozari . . . opines--with extensive detail--that the entire Iranian legal system is based on and must comply with Islamic law, including Shari'ah, which the declaration defines as 'Divine Law.'"). It's possible, of course, that there are substantive provisions of Iranian law that might raise significant issues; and it is also possible that applying Iranian law poses church-state worries sufficient to raise public policy concerns (I'm deeply skeptical of such claims--in fact, I've argued here that courts have constitutional authority to address a wide range of religious questions). But one way or another, the court's analysis is, at its best, inadequate.
Now Eugene has authored--and I've signed (along with others)--a very polite letter (text of letter is at the bottom of this link) to the California Court of Appeal explaining why this decision is mistaken. But my broader worries are about whether courts have imbibed some element of this "anti-foreign law" craze where the mere possibility that a court will apply law that implicates Islamic law--even if required by standard legal doctrine--is per se beyond the legal pale. It would be a sad day where not only are states passing "anti-foreign law" bills, but courts are enforcing similar rules in states that have thankfully resisted this craze.
Monday, November 03, 2014
Returning to Prawfs and Remembering Dan
I'm excited to be guest-blogging again at Prawfs. Like many have expressed over the past few months, guest blogging this time around is far more personal after the Dan's tragic death over the summer. Since then, I find myself thinking about--and quoting--Dan often; I share his advice with students and colleagues alike. And participating in the community that Dan created is a reminder of the extraordinary world he created--of which many of us are the beneficiaries.
So with that, I look forward to another month here at Prawfs. I plan to spend much of my stint here talking about my favorite topic--the intersection of religion and private law. So here comes a month of religious contracts, religious torts and religious arbitration. Looking forward to comments!
Friday, October 17, 2014
Religious accommodations and legal pluralism
In this piece, ("Religious accommodation's roots in legal pluralism"), Columbia's Prof. Katherine Franke writes that "one way of understanding the accommodation of religion is to see them as making a claim to a kind of legal pluralism. From this vantage point, what they amount to is a demand that the state and other citizens acknowledge that the party asserting the exemption regards itself as governed by two competing legal systems—one secular the other religious, and when the demands of those two systems come into conflict the request for the exemption amounts to a claim that religious law should be treated as supreme." She also writes, later in the piece, "the claim to an exemption grounded in religion represents a claim to authority made from sources exogenous to the secular legal system itself, and in profound ways poses a determined threat to the idea of state power and to singular legal authority."
Now, for me -- unlike Katherine, it seems -- to identify something's roots in "legal pluralism" is, generally speaking, to pay that something a compliment! (I recommend, by the way, Prof. Victor Muniz-Fraticelli's new book, The Structure of Pluralism.) But, put that general matter aside: Although Madison's Memorial and Remonstrance certainly takes seriously the authority of "sources exogenous to the secular legal system itself," I don't think that our accommodation-through-exemption regime in the United States really reflects or constitutes a "threat to the idea of state power" or even to the idea of "singular legal authority." In practice, and in most of the arguments for religious accommodation, it seems to me, the conversations and litigation happen in terms of interest-balancing, toleration, benevolence, getting-along, etc.
It is true that -- for some of us, anyway -- the idea that the state's authority is both bounded and non-singular is important and worth operationalizing through constitutional doctrines like the ministerial exception and decisions like Kedroff (more on that here). But again, most requests for religious exemptions, in practice, look and sound to me much more like requests (or pleas) for toleration and for the state to stay its hand, moderate its approach, and endure a little inconvenience in order to reduce unnecessary pain to certain citizens with religious objections to complying with otherwise generally applicable laws.
We could hear, for example, Mr. Holt as making some kind of jurisdictional claim about the state's lack of authority to regulate the length of Muslim prisoners' beards and, to be sure, he is (at least implicitly) claiming that to the extent the relevant non-political authority's commands conflict with the political authority's, he believes the former authority's are the ones that, for him, control. But, within the confines of our religious-liberty legal regime, he is simply invoking one of the political authority's valid and binding laws (RLUIPA) in support of his claim that another of the political authority's binding and valid policies (the prison-grooming regulation) can, all things considered, be modified in application in this particular case, and therefore should. It seems to me that there is nothing -- to borrow Katherine's word -- particularly "radical" about that.
Tuesday, October 14, 2014
Think about proposing programming for the annual meeting, or participating in a junior scholars workshop. And if you are ever interested in serving on a committee, let Russ Weaver (the executive director) know. The appointments usually happen in the summer, but he keeps track of volunteers all year long.
Posted by Marcia L. McCormick on October 14, 2014 at 11:00 AM in Civil Procedure, Corporate, Criminal Law, Employment and Labor Law, First Amendment, Gender, Immigration, Information and Technology, Intellectual Property, International Law, Judicial Process, Law and Politics, Legal Theory, Life of Law Schools, Property, Religion, Tax, Teaching Law, Torts, Travel, Workplace Law | Permalink | Comments (0)
Monday, October 13, 2014
10 Lists I Read on the Internet That Made Me Feel Stupid
Maybe I'm just still pondering College Magazine's list of "22 Reasons Why Going to Law School is the Best Decision You'll Ever Make", which, unlike anything I've written, got picked up by Huff Post. All in good fun, sure, though perhaps over-selling the case and understating the seriousness of law school as a financial proposition.
But I must not be the only person to notice that the internet seems to have been taken over by lists. There they are at the bottom and sides of the screen on my tablet, just begging to be clicked on as I strain to get up that one last hill on the stationary bike. Yes, I know, it's all about ads, and getting to put a different ad up after each click on the list. Still...
It's as if the internets think people can only think in lists. I'm all for, say, numbered blog posts, to help make it easier for commenters to point out which aspect of my argument they found the most stupid. But among the problems with these lists is that their authors seem to gravitate towards the number 10, or 12 (unlike our industry's latest booster), but sometimes getting past eight requires adding a few entries that probably didn't belong.
I'll join the fun, though. Here's a list of recent lists I find silly:
I desire only to smell it, drink it, and dream of it.
I prefer to think of myself as a being of only thought and light.
Don't care what coast animates what character. Still cry every time Mufasa dies.
Seriously, Buffalo has an NFL team? Huh.
It's so obviously the best place to live in America we didn't even try for 10 reasons.
Holy Mother Goddess, pagans can go on and on and on...
Odd that "hurts" and "pain" aren't more prominent, or at least "Riggs, I'm getting too old for this ..."
No Tweets about conferences? That's like the most exciting thing we do, dude.
Back in my day, we used to call this a "mix tape".
Guessing Joe Slater knew most of them.
Monday, September 15, 2014
(Still) more on "The Freedom of the Church"
Over at the Law & Liberty blog, they ran a short essay of mine in which I set out the short-version of some claims I've been making in recent years about the freedom of religion and "the freedom of the church." They also solicited and posted some very thoughtful reactions to the piece by Paul Horwitz, Don Drakeman, and John Inazu. And now, here is my (grateful) reply. With respect to my friend and co-Prawf Paul, a bit:
Paul Horwitz – whose important book, First Amendment Institutions, has both shaped and challenged my thinking about the subject under discussion – is right to remind readers that “religious institutionalism” is “not necessarily a libertarian position”; it does not require or even invite “disdain for the state”; it is does not reflect or imply “complete skepticism about or outright hostility to government.” It does, I think, necessarily involve (as Horwitz says) the ungrudging acceptance – indeed, the welcoming – of non-state authorities and of occasional “incongruence” (to borrow Nancy Rosenblum’s term) between, on the one hand, the rules that govern and the goals that move the liberal state and, on the other, the practices and values of non-state groups, communities, associations, and institutions. As my colleague, Robert Rodes, has put it, there is a “nexus” between religious and political authorities that involves both cooperation and contestation, mutual support and resistance.
Horwitz underscores another point (one that I also tried to make in a short paper called, “Church, State, and the Practice of Love”: To endorse the “freedom of the church” or “church autonomy” “is hardly the same as insisting that these institutions can never err. Autonomy involves the right to make central choices, not the assurance that the right choices will always be made.” He continues: “[T]he committed institutionalist must be an active observer and critic of these institutions, urging them to do the right thing (as he or she understands it) whether or not they are legally obliged to do so.” Absolutely. The “freedom of the church” claim is that the state’s authority is limited, that other authorities exist and operate, and that – all things considered – pluralism is conducive to human flourishing. It is not the (easily falsifiable) claim that non-state authorities, or religious institutions specifically, never act badly.
Thursday, August 07, 2014
"Freedom of Religion and the Freedom of the Church"
Over at the "Liberty Law Forum," I have posted a short essay called "Freedom of Religion and the Freedom of the Church." (It's about what's probably my hobby-horse issue, and is adapted from this piece, which came out a little while ago in the Journal of Contemporary Legal Issues.) Critical responses will be added in the coming days from some leading law-and-religion scholars -- I'm looking forward to them (nervously). Here's a bit:
Michael McConnell observed a little while ago that although “‘freedom of the church’ was the first kind of religious freedom to appear in the western world, [it] got short shrift from the Court for decades.” However, he continued, “it has again taken center stage.” It seems that it has. Indeed, Chief Justice Roberts, in his opinion in the Hosanna-Tabor case (2012), gestured toward its place in Magna Carta on the way to concluding for a unanimous court that the Constitution “bar[s] the government from interfering with the decision of a religious group to fire one of its ministers.”
But, what is this “great idea”? Berman and others have discussed at length and in depth what it meant during, around, and after the Investiture Crisis of the 11th century. What, though, does and should it mean today?
Friday, June 13, 2014
The Two Newest Faces of the Problem with the Lack of the Rule of Law - a Newborn and a 20-month Old
As a tangential follow-up to my previous post concerning the use of a crime against humanity charge as a way to bolster the rule of law, another heart-wrenching story is gaining international attention.
Meet Maya, the first U.S. citizen to be born in a Sudanese prison while her mother was shackled to prison walls. Meet Martin, Maya's twenty-month old bother, who is probably the second youngest U.S. citizen to be sitting in a Sudanese prison. Their father is a U.S. citizen. Their mother is Meriam Ibrahim, a doctor and a Sudanese citizen, who has been sentenced by a Sudanese court to 100 lashes for adultery because she married a non-Muslim man and to death by hanging (once Maya is weaned) for apostasy for refusing to denounce her Christian faith. Ibrahim was found guilty of apostasy because it was determined that she was Muslim even though she testified she was Christian and raised by her Christian mother when her Muslim father abandoned the family. The trial raises due process issues since three of Ibrahim's witnesses were not allowed to testify.
There are clear human rights violations and violations of Sudanese law. Ibrahim's imprisonment violates the International Covenant on Civil and Political Rights, which, since Sudan has ratified the treaty, guarantees that all Sudanese citizens "have the right to freedom of thought, conscience and religion" and due process of law. Sudan has also ratified the African Charter on Human and People's Rights which also guarantees freedom of religion and due process. Indeed, Sudan's own 2005 interim constitution specifically guarantees the "right and freedoms enshrined in international human rights treaties" ratified by Sudan. Ibrahim's case (and the impact on her children) graphically illustrates the rule of law problem - the laws are in place but not enforced.The pressure from the international community caused some movement, albeit ineffectual as it currently stands. A few weeks ago the Sudanese government pledged Ibrahim's release, but recanted a few days later. This probably is not surprising given the government is headed by Omar al-Bashir who has an outstanding ICC warrant for CAH for his actions in Darfur. What can be done? What should be done? Perhaps with continued and more world-wide pressure (which should be headed by the U.S. given that some of the youngest U.S. citizens - Maya and Martin - are sitting in deplorable conditions), there might be another small step forward even if it simply means more discussion about and attention given to the lack of the rule of law and the consequential human rights violations of women and children. More legal attention and monetary support should be put in place to uphold the rule of law.
Thursday, May 08, 2014
"Religious pluralism, social unity, and the judicial role"
Following up on Paul's posts (here and here and here) and Howard's (here), here is my contribution to the SCOTUSblog symposium on the Town of Greece case. The main point of the post, I suppose, is to express regret (again) about the prominent role played in the dissenting opinions by the "political divisiveness along religious lines" argument. Here is a bit:
[T]he Court’s constitutional charge to “say what the law is” in Establishment Clause cases should not be understood to include addressing and answering what Justice Breyer said was “[t]he question in this case” – namely, whether the town “did too much . . . to promote the ‘political division along religious lines’ that ‘was one of the principal evils against which the First Amendment was intended to protect.’” Justice Kagan similarly called for sensitivity to religious beliefs’ “ever-present potential to both exclude and divide” and framed the Court’s task in terms of identifying and preventing “religiously based divisiveness.” In so doing, she echoed a recurring theme in Justice Breyer’s writings about the Religion Clauses’ “basic purposes”: “They seek,” he said in his Van Orden v. Perry concurrence, “to avoid that divisiveness based upon religion that promotes social conflict, sapping the strength of government and religion alike” and – in his Zelman v. Simmons-Harris dissent – to “protect[t] the Nation’s social fabric from religious conflict.” And, in his 2006 book Active Liberty, he argued that judges’ obligation to help “create a framework for democratic government” warranted this social-fabric-management approach to public-religion cases and acknowledged that their duty to police the arena of politics and policy for unsettling threats of faith-related discord could require them to “interpret the [Religion Clauses] more broadly than the Framers might have thought likely.” . . .
It is not clear, though, why our political, cultural, and other “divisions” – which are as inevitable as they are real – should be relevant to the legal question whether a particular policy is constitutionally permissible. . . .
To be clear, I think Paul is right to say that, in some cases, and contrary to the generalized assurances provided by Justice Kennedy, legislative-prayer and similar public-religion cases involve actions and statements that are probably intended to "divide, not to solemnize." Paul also says that "the most effective forces in counteracting this use of legislative prayer for deliberately divisive political purposes will be the supporters of legislative prayer, who have an obligation to condemn this kind of behavior, and not its general opponents" and I agree here, too (though I do not count myself as a "supporter of legislative prayer"). My claim is a limited one: Although a rule against religious establishments seems to me a good way to avoid "political divisiveness along religious lines," courts should not answer questions about what the Establishment Clause permits or prohibits by asking whehter or not a policy or program is associated with, or is predicted to cause, or is observed to be accompanied by such "divisiveness."
Friday, April 25, 2014
Movsesian on "Religion's Social Goods"
Over at First Things, Prof. Mark Movsesian has a post called "Religion's Social Goods," which is a response to the "growing number of legal scholars [who] question whether a justification exists for protecting religion as its own category." (You know who you are!) Mark offers, as an argument (that he thinks can and should appeal to nonbelievers) for treating religion-as-such as "special", the following:
Here’s one such argument. Religion, especially communal religion, provides important benefits for everyone in the liberal state—even the non-religious. Religion encourages people to associate with and feel responsible for others, to engage with them in common endeavors. Religion promotes altruism and neighborliness, and mitigates social isolation. Religion counteracts the tendencies to apathy and self-centeredness that liberalism seems inevitably to create.
In my view, what Mark says here about "religion" is, generally speaking, true and it provides, in many cases, a good reason for accommodating, supporting, and respecting the practice of "religion." At the same time (as Mark acknowledges), "religion" does not always do these things and other forms of commitment and association can provide these goods (sometimes, even if we think not as often) as "religious" ones. So, from the perspective of those who are asking "is religion special?", it might seem that Mark has provided a reason not so much for treating "religion" as special as for treating commitments and associations and activities as special if, when, and to the extent that they provide these "important benefits." And, increasingly (as Mark notes), many think the harms that "religion" is said (accurately or not) to cause weigh pretty heavily against the benefits that it (often, even generally) provides.
Again, I agree that religious (and other) associations often provide these benefits. I also think, though, that the justifiability (and, in our legal order, the requirement) of treating "religion" as "special" probably has as much to do with certain things that I take to be true (but that not everybody does) about human persons and human dignity and the limits on (legitimate) political authority.
By the way . . . if you are interested in law-and-religion, the Center for Law and Religion Forum which Mark and several of his St. John's colleagues run is an invaluable resource. "Follow [them] on Twitter!", etc., etc.
Sunday, February 16, 2014
Nope, Mormons aren't successful because of their legacy of nineteenth-century wealth
Unless you live in a remote cabin without an internet connection you’ve heard that Amy Chua and Jeb Rubenfeld have authored a book, The Triple Package, that purports to explain the economic success of certain ethnic and religious groups – Cubans, Nigerians, Mormons, Jews, some Asian groups, south Asian Indians, and Iranians – in terms of a particular constellation of culturally ingrained outlooks that lead to successful striving. By and large respectable liberal opinion is outraged. The consensus is that Chua and Rubenfeld’s argument is silly and probably racist in some way.
I have no particular sympathy for The Triple Package. I haven’t read the book, but from what I’ve seen it strikes me as a pop-psychology gimmick rather than a serious social explanation. I am sympathetic to the idea that culture matters when it comes to economic outcomes, but I find it’s often invoked as a kind of deus ex machina. I have much stronger sympathies with thinkers like Douglas North, who give explanatory pride of place to institutions. So, I’ve no brief for Chua and Rubenfeld, even though my knees don’t jerk in synch with respectable liberal opinion.
I am, however, both a practicing Latter-day Saint and a student (of sorts) of Mormon history. Hence, what has been most interesting to me about The Triple Package has been the way that Mormonism has played out in the argument over the book’s thesis. Enter Daria Roithmayr. In a hostile review on Slate, she argues that the true explanation for differing economic outcomes across groups lies largely in their initial endowment of wealth, although she is willing to admit room for other factors at the margins. On the Mormons, she writes:
It’s not just that Mormons have developed a “pioneer spirit” or that they believe that they can receive divine revelations, as Triple Package would have us believe. It’s more that the first Mormons started with enough money to buy a great deal of land in Missouri and Illinois. They then migrated to Utah, where Brigham Young and his followers essentially stole land from the Shoshone and Ute tribes, refusing to pay what the tribes demanded, and petitioning for the government to remove them. Beyond thousands of acres of free land, early political control over Utah was helpful.
Hence, Mormon success, such as it is, is due mainly, according to Roithmayr, to the Mormons’ initial endowment of wealth. The problem with this claim is that it is wrong. Roithmayr’s review is not primarily about Mormons, of course, and within a 1600-word article historical nuance goes out the window. The problem with Roithmayr’s claim, however, is not that it lacks nuance. It’s that it is flat wrong.
Roithmayer invokes nineteenth-century Mormon history, which can be divided into two periods. From 1830 to 1847, the Mormons were centered in the eastern United States, first in New York, then Ohio, Missouri, and Illinois. The second period spans 1847-1890, when the Mormons moved en mass to the Great Basin, settled Utah and the surrounding territories, and fought a long battle with the federal government over polygamy that they eventually lost. So during these periods did the Mormons benefit from huge windfalls of wealth that set future Latter-day Saints on the road to economic success?
The early coverts to Mormonism tended to be very poor. Joseph Smith, the religion’s founder, came from an impoverished family of New Englanders trying desperately and ultimately unsuccessfully to make it in upstate New York. Their creditors got the family farm, to which they never had clear title. Most converts came from similar backgrounds. In Missouri the Mormons tried to create their own settlements by squatting on federal land, improving it, and then hoping to purchase it from the federal government when Congress passed one of its periodic pre-emption statutes. (Prior to the Homestead Act of 1862 the federal government demanded payment from those who wished to get title to government land.) When it became apparent that Congress was going to pass a pre-emption statute, non-Mormon elites in Missouri organized mob violence against the Mormons, who were driven from the state. Their improved land ended up in the hands of the leaders of the mob who in due course bought the land from the federal government.
In Illinois, the foundation for Mormon settlement was laid by a large purchase of land from a land speculator. This purchase was financed on credit by non-Mormon investors on the east coast that were betting (unsuccessfully as it turned out) on the long-term success of Mormons in Illinois. The initial speculator, however, did not have good title to much of the land that he “sold,” the Mormons were unable to repay the accrued debt, and Joseph Smith and the church were driven into bankruptcy. To be sure, some Mormons in outlying settlements were able to acquire property independently, but Mormon settlment in Illinois ultimately floated on sea of debt rather than resting on a foundation of wealth. In 1844, a non-Mormon mob murdered Joseph Smith, and thereafter violence against the Mormons increased. Eventually the bulk of the Mormons abandoned Illinois, in most cases selling what property they had in fire sales to finance the purchase of a few wagons. The failure of the Illinois period to produce a pool of Mormon wealth was exacerbated by the fact that after Smith’s murder the Mormon church splintered. Many Mormons remained in Illinois, ultimately leaving Mormonism altogether or founding various splinter sects, the largest of which is now called the Community of Christ. The Mormons that followed Brigham Young west were disproportionately English converts from the slums of Birmingham and were likely to be among the poorest Latter-day Saints.
But what about Utah? Didn’t the Mormons get all this wealth out there?
It is true that the Mormons, like all white American settlers, benefited at the expense of Native Americans. However, the land that they acquired in the Great Basin was extremely marginal. It’s a very arid region that is difficult to farm. Indeed, the Mormons were only able to farm it because their intensely cooperative approach to settlement allowed them to create extensive irrigation networks and provided risk pooling in a marginal setting. Even so, the early settlement of Utah was marked by extreme poverty on the part of the Mormons (something frequently remarked upon by non-Mormon visitors) and periodic brushes with starvation. If the value of land acquired in 1850 by one’s ancestors was a primary determinant of economic performance today the descendants of Mormon pioneers should be impoverished relative to those descended from settlers in Iowa or Kansas.
What about Mormon political power in Utah? Didn’t that translate into wealth in the nineteenth century?
Mormons tried to use their dominance of Utah territory to create a utopian religious commonwealth that they called Deseret or Zion. In the early stages of settlement this intense cooperative ethos benefited Mormons greatly. It allowed them to settle very marginal land and fend off starvation. However, for much the period it probably operated as an impediment to economic growth. The central goal of Brigham Young and his successors was economic self-sufficiency. As is generally the case, however, the push for autarky probably exacerbated poverty rather than alleviating it. The Mormons poured tremendous effort into ultimately doomed projects like growing cotton in the red-rock country of Southern Utah, introducing silk culture along the Wasatch Front, and trying to compete with the furniture manufacturing centers in the East after the coming of the railroad. To support these efforts, the church tried to cartelize the Mormon economy and pushed for boycotts of “Gentile” businesses. These efforts, coupled with polygamy, created chronic political and legal conflict in Utah, which tended to suppress investment and development.
In fairness to Roithmayr, I have spent nearly as many words in this blog post responding to a paragraph or two about Mormonism as she spent in her entire review of Chua and Rubenfeld’s book. Still, Mormon history is one of my interests, and I think Roithmayr gets it wrong, not just in terms of the nuances but in terms of the central claims that need to be true to support her argument. I know nothing about the economic history of Nigerian or Cuban immigrants, but to the extent that one wishes to explain current economic outcomes in terms of economic endowments a century or more previous, Mormons are not a good example. On this point, I suspect that Roithmayr’s argument is driven mainly by the assumptions of luck egalitarianism and critical race theory rather than a clear reading of Mormon economic history.
Saturday, November 16, 2013
"It was 20 years ago today . . ." (Happy Birthday to RFRA)
My friend and colleage Tom Berg has a post -- the title of which I have ripped off here -- noting that today is the 20th anniversary of the signing into law of RFRA. Here is the post:
On November 16, 1993, President Clinton signed into law the Religious Freedom Restoration Act (RFRA), which requires that the federal government meet the demanding test of showing a compelling interest before it imposes a substantial burden on sincere religious exercise. A recent event at the Newseum in Washington DC commemorated the anniversary and assessed the future of religious freedom in America. A lot has happened in 20 years. A number of states passed their own versions of RFRA; Congress, responding to a Supreme Court decision, applied the same compelling-interest test to state and local zoning laws and prison regulations; and most recently the statute moved to center stage in providing corporations and individuals with legal arguments for exemption from the HHS contraception mandate. But in the throes of the HHS fight and other culture-wars issues, it is worth remembering what President Clinton said about religious freedom as he signed the legislation:
... We are a people of faith. We have been so secure in that faith that we have enshrined in our Constitution protection for people who profess no faith. And good for us for doing so. That is what the first amendment is all about. But let us never believe that the freedom of religion imposes on any of us some responsibility to run from our convictions. Let us instead respect one another’s faiths, fight to the death to preserve the rights of every American to practice whatever convictions he or she has, but bring our values back to the table of American discourse to heal our troubled land.
A few remarks about that quote. The President noted in his remarks the overwhelming consensus behind RFRA back in 1993: a 97-3 vote in the Senate, a simple voice vote in the House; the lead co-sponsors were Ted Kennedy and Orrin Hatch. That consensus has greatly shrunk in recent years, mostly because of the polarizing culture-wars issues that have led many people to treat "religion" as a largely conservative phenomenon, a threat to liberal and progressive values. (See here and here for criticisms of that framing of the issue, presenting reasons why in our polarized society, so-called progressives and so-called conservatives should protect each others' claims of conscience against government interference even though they disagree with each other so sharply.)
Notice the implications of President Clinton's remarks for these matters. First, RFRA protects people of all religious views, all of whom may at point be restricted in their faith by one of the many laws in our complex society. Let's recover the sense of "fight[ing] to the death for the rights of [all] American[s]," whatever their faith, to practice their convictions without disproportionate or unnecessary burdens. Second, President Clinton emphasized that religious freedom does not mean freedom in the catacombs. Religious groups and individuals should be able to follow their values without unnecessary legal restriction not just in houses of worship, but in civil society--in schools, charitable activities, and the workplace--and to bring those values "to the table of American discourse."
In 1993 virtually every member of Congress agreed with those remarks and with the legislation. In 2013, that consensus has shrunk. But we can hope, and make prudent and ecumenical arguments to try to ensure, that enough Americans still agree with it to preserve a solid future for religious freedom.
(HT: for the post title, to Paul McCartney; for the link to the Newseum event, to Kim Colby of the Christian Legal Society; for the booklet on RFRA that includes Clinton's signing statement, the Baptist Joint Committee on Religious Liberty)
I should confess, I suppose, that -- unlike Tom (and most other supporters of RFRA) -- I think (nervously) that Smith is probably right, i.e., that the First Amendment probably does not authorize judicially created exemptions from generally applicable, non-discriminatory laws that implicate religiously motivated conduct. (More here on that.) All the more reason, it seems to me, to welcome RFRA-type legislation at both the state and national levels.
Thursday, November 07, 2013
An exchange among law-and-religion scholars about exemptions and marriage
It is, obviously, a "hot topic" whether and to what extent religious institutions and believers should be accommodated through exemptions from antidiscrimination laws (and regulation more generally). This question runs through, for example, the conversation about the so-called "ministerial exception" and also and increasingly comes up (see, for example, this paper by Doug Laycock and Tom Berg) in the context of drafting legislation regarding the legal recognition of same-sex marriage.
A few days ago, over at the Volokh Conspiracy, a group of prominent scholars (Dale Carpenter, Andy Koppelman, Doug Ne'aime, Chip Lupu, and Bill Marshall) put up a post addressing the then-pending same-sex-marriage law in Illinois and arguing that "recognizing same-sex marriage creates no distinct legal conflict justifying resolution in a same-sex marriage bill" and that "even if one thought that same-sex marriage might newly erode religious freedom through anti-discrimination law, the amendment proposed by the religious-liberty scholars is far too broad."
Today, two other groups (Tom Berg, Doug Laycock, Michael Perry, Carl Esbeck, Ed Gaffney, Chris Lund, Robin Fretwell Wilson, Bruce Ledewitz, and me) put up this response at Mirror of Justice, explaining the need for accommodation and defending the proposal at issue. Both posts, in addition, contain links to longer letters that were submitted to legislatures. The response concludes with this:
Carpenter describes his group as scholars "who support both protecting religious liberty and recognizing the marriages of same-sex couples." To reiterate, our two groups of scholars also include supporters of same-sex marriage (as well as a variety of views on that issue). We too are seeking to give room to both equality and liberty, which should complement rather than be at war with each other. We are seeking a "live and let live" solution for same-sex couples and religious traditionalists—but "live and let live" requires more than highly uncertain protection for religious liberty under pre-existing laws. Just as same-sex couples seek to live out their identity not only in private but through the social institution of marriage, religious believers seek to live out their identity not only in churches but in their faith-based service activities and their daily lives. Minimizing the exemptions in a same-sex marriage bill marginalizes those believers and will result in continuing, unnecessary conflicts that may well harden resistance to marriage recognition among a significant number of people. But same-sex marriage with strong exemptions allows both sides to live out their deepest commitments.
I think it is fair to say that, while the disagreements are substantial and important, real and significant respect and friendship exist among all the signers of both letters.
Monday, September 30, 2013
Thoughts on the Court's new legislative-prayer case
I had this contribution, "Legislative Prayer and Judicial Review", to the symposium on the Town of Greece case that the folks at SCOTUSBlog are hosting. (Go here for a list of all the very-worth-reading contributions, including ones by Prawfs-alums Jessie Hill and Nelson Tebbe.) Here's a bit:
. . . In my view, the court of appeals got it wrong and the Town’s before-meeting prayers are permissible solemnizations rather than an unlawful establishment. What is happening in the Town of Greece is consistent with what has been happening at public meetings since our country’s – and our Constitution’s – beginnings. “Establishments” of religion do exist in the world, but this is not one. Town officials did not purport to draft, let alone to enforce, a religious creed and the government inviting voluntary “chaplains of the month” to pray at a meeting is not very much like the government imposing a prayer-book on churches. “Coercing” religious activity is unconstitutional and unjust, but to characterize the Town’s policy as “coercive” is to expand the both the idea of coercion and the power of judges dramatically and unmanageably.
The Town of Greece case, though, is interesting not only for what it could tell us, going forward, about the Court’s First Amendment doctrines and precedents, about the place of religious expression in the public square, and about the extent to which secular governments may acknowledge their citizens’ religious convictions. The case also provides, I think, a good opportunity for reflection about the role and power of the Supreme Court and about the nature and practice of judicial review in a constitutional democracy like ours. . . .
Sunday, September 08, 2013
Bartrum Reviews "The Tragedy of Religious Freedom"
Ian Bartrum (UNLV) has posted a very generous review of The Tragedy of Religious Freedom (forthcoming in the Journal of Church and State). I wish I could say that I disagreed with the sharp and smart criticisms of the book in Ian's review; but actually, I found myself quite in agreement with them. Still, I hope you will forgive me for quoting from a not-so-critical section:
DeGirolami's is a thoughtful and sophisticated meditation on the protean relationship between law and faith in a society committed to religious freedom. His intellectual and cultural influences are broad and rewarding; his style is rich and accessible; and his critique of both theoretical foundationalism and skepticism is profound and compelling. The Tragedy of Religious Freedom is an important book that will undoubtedly influence and enrich this discussion for years to come.
Monday, August 19, 2013
Announcing the Joint Colloquium in Law and Religion
This course invites leading law and religion scholars to make presentations to a small audience of students and faculty. The schools will be connected through video link so that students and faculty at both schools will be able to participate synchronously in a virtual classroom seminar experience. My colleague, Mark Movsesian, and I are absolutely delighted to be working on this project with Villanova Law School Vice Dean and Professor Michael Moreland.
The following speakers have confirmed:
January 27: Michael Walzer (Institute for Advanced Study) (at St. John's)
February 10: Sarah Barringer Gordon (University of Pennsylvania Law School) (at Villanova)
February 24: Kent Greenawalt (Columbia Law School) (at St. John's)
March 17: Donald L. Drakeman (Cambridge University) (at St. John's)
March 31: Kristine Kalanges (Notre Dame Law School) (at St. John's)
April 14: Steven D. Smith (University of San Diego Law School) (at Villanova)
Topics will be announced at a future date.
For more information, or if you would like to attend the sessions, please contact the Colloquium’s co-organizers, Marc DeGirolami (firstname.lastname@example.org), Mark Movsesian (email@example.com), and Michael Moreland (firstname.lastname@example.org).
Thursday, June 06, 2013
Immovable ladders, the Church of the Holy Sepulchre, and property rightsThis piece, from Slate, by "Atlas Obscura," is wonderful. Was "Andy" striking back at the heavy hand of status-quo bias, trespassing, stealing, occupying, or -- like that French archeologist in Raiders of the Lost Ark, messing with things best left alone?
Friday, May 31, 2013
The title of the post is a moniker Marc DeGirolami kindly gave some of my recent work on the church autonomy doctrine. While I've previously posted a bit on Prawfs about implied-consent institutionalism (although I didn't have the phrase yet), I couldn't help but mention that those thoughts have just been published in two separate articles: (1) Religion's Footnote Four: Church Autonomy as Arbitration, 97 Minn. L. Rev. 1891 (2013); (2) Litigating Religion, 93 B.U. L. Rev. 493 (2013).
On the plus side, I'm excited to see the articles in print. On the minus side, there's nothing I can do to change them when I inevitably receive some devastating criticism of my theory.
Thanks to the many in the Prawfs community that gave me some really great comments while I was working on these two articles!
Non-State Law Beyond Enforcement II
With grading finally behind me, I wanted to post again about non-state law "beyond enforcement." The question I've been exploring is in what ways do various forms of non-state law (such as international law and religious law) function as law even when these forms of law lack the ability to enforce their legal rules?
In my last post, I mentioned a forthcoming book by Chaim Saiman, which conceptualizes Jewish Law as "studied law" as opposed to enforced law. In making this point, Saiman highlights some Jewish legal doctrines that the Talmud explicitly notes are not meant to be applied in the public square, but simply dissected in the study hall. In this way, Saiman disaggregates the very concept of Jewish law from the enforcement of Jewish law.
Now there is a tendency to think that religious law - as opposed to other forms of non-state law - is particularly susceptible to manifesting law-like characteristics outside the context of enforcement. Religious law, at its core, is intended to connect individuals to something outside of this world and so it is not surprising that certain facets of religious law might be directed not to practical this-world enforcement, but to achieving some other-worldly religious value.
While I think this sentiment is true, over-emphasizing the point would lead us to miss the ways in which other forms of non-state law exhibit law-like features even in the absence of enforcement. At the symposium I ran a few weeks back on "The Rise of Non-State Law," Harlan Cohen (Georgia) presented a great paper titled ""Precedent, Audience and Authority." The paper wrangled with the following question: why is it that, even though international law denies international precedent any doctrinal force, precedent is cited constantly as authority in any number of international law fields?
To answer the question, Cohen emphasizes the way in which law - and in particular international law - is a practice with its own (often unspoken) interpretive rules and norms. On this account, Cohen focuses on how precedent speaks to the members of the international law community - the ways in which using precedent generates legitimacy for international law in the eyes of those within the international law community.
One of the striking features of Cohen's analysis - at least striking to me - is the persistence of precedent in the eyes of consumers of law even absent an actual doctrinal basis. It is almost as if, at least in certain legal communities, that law struggles to separate itself from an interpretive method that discounts precedent. All of this struck me as a bit Dworkinian, capturing another important way in which non-state law can function as law outside the context of enforcement. Put differently, certain legal systems can be identified as being systems of law not simply based upon the extent to which the law is enforced, but based upon certain methods of interpretation endemic to law.
In this way, Cohen's notion of international law as a practice parallels Saiman's formulation of Jewish law as studied law. In both instances, we find important ways in which non-state law functions internally as law based upon the way in which the law is interpreted and analyzed. On this account, non-state law can function as law irrespective of whether it is enforced.
Friday, May 24, 2013
Non-State Law Beyond Enforcement
So I've been a bit behind in posting as I slowly drag myself toward the grading finish line (aside: thanks to all my Prawfs' Facebook friends who have been regularly taunted me by noting how long ago they finished grading. I get it - I'm slow). But today I wanted to post again about non-state law, focusing on what it might mean to be law even when the law in question is not enforced.
As an example of this dynamic, I've been reading some advanced chapters of Chaim Saiman's forthcoming book Halakhah: The Rabbinic Idea of Law (Princeton U. Press). One of the key questions Saiman tussles with in the book - and also addressed in his public Gruss Lecture in Talmudic Law - is why there are multiple Jewish legal doctrines which the Talmud expressly states are not intended to be enforced in any circumstance. As examples, Saiman notes how regarding doctrines like the "rebellious son" and the "rebellious city," the Talmud states the "law never did, nor ever will apply." In response to questions as to why there exist laws that are not intended to be enforced, the Talmud simply responds "To study and receive reward."
Saiman's book interrogates this response, exploring what it means to have "studied law" as opposed to "enforced law" - and by extension what it means to be unenforced law. Much of his analysis revolves around contrasting philosophical inquiry and legal inquiry, with the latter funneling the reader into concrete application of core values (in ways that abstract philosophical inquiry often does not) and requiring the reader to inhabit a particular religious world that can more effectively convey principles and values.
In this way, his project is a quintessential example of how the discursive practice of law - and not merely the enforcement of law - serves a unique legal purpose. It is the concrete and detailed method of legal analysis the pulls the reader into the legal text - much like a novel pulls the reader into a narrative - that captures a key facet of how Jewish Law functions as law (one hears strong elements of Robert Cover in Saiman's analysis). Moreover, it also provides important guidance to thinking about the internal elements (as opposed to external manifestations) of law and legal practice - a topic which I hope to explore a bit further in my next post.
Friday, May 17, 2013
Non-State Law and Enforcement
As I mentioned in my last post, I've been doing some thinking about what it means to be non-state law and looking to different types of non-state law - such as international law or religious law - to consider some common dynamics that consistently arise.
One theme that regularly emerges - and is often discussed - in the context of non-state law is the problem of enforcement. Put simply, without the enforcement power of a nation-state, non-state law must typically find alternative mechanisms in order to ensure compliance with its rules and norms. This hurdle has long figured into debates over whether one can properly conceptualize international law as law.
But the focus on enforcement is problematic for a couple of reasons. First of all, the challenge of enforcement for non-state law is in many ways overstated. For example, in a 2011 article titled Outcasting: in Domestic and International Law, Oona Hathaway and Scott Shapiro explored this issue, emphasizing - especially in the context of international - how certain forms of nonviolent sanctions, such as denying the disobedient the benefits of social cooperation and membership, can be deployed as a form of non-state law enforcement. Indeed, the use of outcasting has long been prominent in other areas of non-state law, such as a method to enforce religious law within religious communities.
There's, of course, much more to be said on the relationship between non-state law and enforcement (something I may explore in a subsequent post). But too heavy an emphasis on this piece of the non-state law puzzle is problematic for a second reason - it too often obscures other important ways in which non-state law functions as law. In my next couple of posts what I'd like to do is consider other ways in which various forms of non-state law function as law by focusing more directly on the internal practice of law within the relevant communities.
Tuesday, May 07, 2013
Back in 2011, I attended a symposium on Legal Positivism in International Legal Theory: Hart’s Legacy. The conference was a bit outside the range of topics I usually write about (e.g. religion meets private law). But presenting at the symposium drove home the point to me that international law and religious law scholars are contending with similar inquiries, many of which flow from one core question: what does it means to be non-state law?
When I talk about non-state law, I'm thinking collectively of various forms of law - from religious law to transnational law to international law. Of course, thinking about these forms of law outside of the law of the nation-state has long been at the center of the legal pluralism project. But what is often missed is that lessons from international law are instructive for religious law - and vice versa.
This often overlooked opportunity was largely the motivation behind the "Rise of Non-State Law" symposium I organized last week. To my mind, the papers, presentations and discussion at the symposium were extremely productive and got me thinking even more about the overlap between various forms of non-state law. In my next couple of posts, I'm hope to say a little bit about non-state law, building on some of the insights from the symposium.
Thursday, May 02, 2013
Great to be back and greetings from Washington!
It's great to be back at Prawfs for another guest-blogging stint. I'm looking forward to spending the month talking a bit about some of my favorite topics such as co-religionist commerce, religious arbitration, and non-state law.
My growing interest in non-state law largely traces to my sense that conversations in both international law, transnational law, and religious law share much in common (e.g. discussions of what is law, can there be law without enforcement, how should the state treat competing legal norms etc.). To further this interest, I'm running a symposium in Washington, D.C. today sponsored by Pepperdine Law School and the American Society for International Law titled "The Rise of Non-State Law." The symposium is part of a series run by ASIL's International Legal Theory Interest Group and the papers from today's symposium will eventually become part of a volume published by Cambridge University Press.
I must say the papers submitted (and being presented) by the participants are truly fantastic and have led today to some great conversation and debate. For those who share the interest, here's the full schedule for the day:
8:30 a.m. Breakfast (Tillar House)
9:00 Panel 1—Global Legal Pluralism: Trends and Challenges
- Moderator: John Linarelli (Swansea)
11:00 Panel 2—Non-State Law and Non-State Institutions
- Moderator: Donald Earl Childress III (Pepperdine)
1:00 p.m. Lunch
2:00 Panel 3—The Role of Religion and Culture in Non-State Law
- Moderator: Mortimer Sellers (Baltimore)
4:00 Open Forum
5:00 Closing Comments
Tuesday, January 22, 2013
Why the Movie "Big Fan" Starring Patton Oswalt is Great for Teaching the Free Exercise Clause
If you haven't seen Robert Siegel's 2009 film "Big Fan," starring the hilarious Patton Oswalt as "Paul from Staten Island," a 36 year old bachelor who lives with his mother and whose life revolves around his fanatical devotion to the New York football Giants, then you should go see it as soon as possible. (Here is the trailer). I say this even if you're not a law professor who teaches church/state law. If you are a law professor who teaches church/state law, then consider your obligation to see the movie doubled.
In almost every law and religion class, at some point somebody raises the question of why religion and not other types of belief should be constitutionally protected. This sometimes transitions into a discussion of the various definitions that scholars and courts have given for "religion," including so-called "content based" definitions, which define belief systems as religious or not religious based on their content, e.g, only a belief in a god or an extra-human source of authority counts as religious. Many find these content-based definitions unsatisfactory because they exclude belief systems (maybe Taoism, for example) that we generally think of as religious.
So then we talk about so-called functional defintions of religion--those definitions that define what counts as religion w/r/t what role or function the system plays in the person's life. Maybe each person's "ultimate concern" (as Tillich says) is that person's religion--whether that's Christianity or environmentalism or atheism or their family or whatever. At this point, someone will generally point out, hey wait, does that mean that someone whose whole life revolves around baseball should be constitutionally protected?? Everyone in the class laughs heartily, although also somewhat uncomfortably, because, let's face it, it's not that easy to identify why precisely someone whose life revolves around environmentalism deserves protection but not someone whose life revolves around the Boston Red Sox.
Or the New York Giants, for that matter. Under any fuctionalist definition of religion, Paul's maniacal devotion to his favorite football team qualifies. His fandom is the one thing that gives his life meaning. He dresses in Giants clothes, thinks and talks incessantly about the Giants, adorns the room of his boyhood home where he still lives in Giants paraphernalia, has only one friend, with whom he talks almost exclusively about the Giants, and works as a parking lot attentdant so he has the time and opportunity to draft the passionate pro-Giant, anti-Eagle speeches he gives in the middle of the night on sports talk radio. The religious intensity of Paul's devotion becomes evident in all sorts of ways throughout the movie (I won't ruin it for you)--even the trailer explicitly states that for Paul and his buddy (and lots of other fans as well), football is their religion, and the stadium their church.
I show the trailer at the beginning of my law and religion class and use it to explore the "specialness" (or non-specialness) of religion as compared to other types of belief systems. The Supreme Court famously said that Adele Sherbert, a Seventh Day Adventist, could not be denied unemployment benefits when she refused to work on Saturday. What if Paul refused to work on Sunday? Should he get an exemption from generally applicable laws so that he can worship at his church of choice, even if that "church" is a parking lot outside the stadium where the Giants play (he and his buddy are too poor to buy tickets so they tailgate outside and watch the game on TV from there)? I find that having a real character to refer to when having this discussion of what, if anything, makes religion unique (and/or how we should define "religion") which tends to extend throughout the semester, makes the discussion richer, more grounded in specifics, and definitely more fun.
Do others use film in this way, or related ways, in their courses?
The Competing Claims of Law and Religion: Who Should Influence Whom?
We attract some extraordinary scholars for symposia here at Pepperdine. In case you hadn’t heard, Malibu is a fantastic place for law professors to spend a weekend in January or February. (The forecast for today, January 22, is mostly sunny, 77 degrees. How’re you feeling?)
But it’s also distinct aspects of the law school that attract great symposia. The school’s religious affiliation, for instance, helped prompt an extraordinary conference last winter, “The Competing Claims of Law and Religions: Who Should Influence Whom?” The Pepperdine Law Review has just published the fruit of that conference. (And, as faculty advisor to the Law Review, I’m fond of reading the products of the students’ diligence.)
If you’re interested, check out the work from Abdullahi A. An-Na'im (Emory), Patrick McKinley Brennan (Villanova), Zachary R. Calo (Valparaiso), Sherman J. Clark (Michigan), Robert F. Cochran Jr. & Michael A. Helfand (Pepperdine), Mohammad H. Fadel (Toronto), Chad Flanders (St. Louis), Richard W. Garnett (Notre Dame), John Lawrence Hill (Indiana McKinley), James Davison Hunter (Virginia), Andrew Koppelman (Northwestern), Michael Stokes Paulsen (St. Thomas), Barak D. Richman (Duke), Susan J. Stabile (St. Thomas), Mark Strasser (Capital), and Eugene Volokh (UCLA). (Whew!) You can browse the entire special issue here.
Wednesday, January 09, 2013
The Religious Freedom Rights of Corporations and Shareholders
A late and grateful hat tip to Charlotte Garden, who posted last week about the Seventh Circuit's decision in Korte v. Sebelius. The court granted a preliminary injunction against the enforcement of provisions of the Patient Protection and Affordable Care Act (“ACA”) and related regulations requiring that K & L Contractors purchase health care coverage for employees that included abortifacient, contraception, and sterilization coverage. Accourding to the majority, the plaintiffs had some likelihood of success on their Religious Freedom Restoration Act (RFRA) claim that the required health care coverage put a substantial burden on their free exercise of religion.
Although the case raises a number of interesting issues, I want to focus on the religious freedom rights of corporations and shareholders. It is the corporation that has the obligations to provide health care coverage with certain coverages. However, the court seems to find that the corporation's obligations infringe on the religious liberties of the shareholders. As the court states:
[T]he government’s primary argument is that because K & L Contractors is a secular, for‐profit enterprise, no rights under RFRA are implicated at all. This ignores that Cyril and Jane Korte are also plaintiffs. Together they own nearly 88% of K & L Contractors. It is a family‐run business, and they manage the company in accordance with their religious beliefs. This includes the health plan that the company sponsors and funds for the benefit of its nonunion workforce. That the Kortes operate their business in the corporate form is not dispositive of their claim. See generally Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876 (2010). The contraception mandate applies to K & L Contractors as an employer of more than 50 employees, and the Kortes would have to violate their religious beliefs to operate their company in compliance with it.In dissent, Judge Rovner took issue with this, but in a somewhat indirect fashion:
Although the Kortes contend that complying with the Patient Protection and Affordable Care Act’s insurance mandate violates their religious liberties, they are removed by multiple steps from the contraceptive services to which they object. First, it is the corporation rather than the Kortes individually which will pay for the insurance coverage. The corporate form may not be dispositive of the claims raised in this litigation, but neither is it meaningless: it does separate the Kortes, in some real measure, from the actions of their company.
Charlotte Garden takes on the issue of whose religious freedom rights are at issue in her post:
This analysis raises an interesting question about the interplay among the rights of majority shareholders, managers, and corporations after Citizens United. The Seventh Circuit seems to treat them as essentially overlapping, so that government regulation of corporations would be unlawful if it violates the rights of one, two, or all three of the above. But it seems to me that Citizens United could also support the contrary result. For example, if the funds of dissenting shareholders can be used for political speech without violating the First Amendment, then why can’t the Kortes’ funds be used for K&L’s contraception coverage without violating their RFRA rights? The Seventh Circuit doesn’t answer this question, though it seems its answer would have to turn on whether or not the shareholders in question were in the majority—a result that seems both counterintuitive and at odds with the Supreme Court’s approach to dissenters’ rights in other context, including the union dues context.
I agree with Charlotte's thinking here. It is the corporation that is being forced to provide a certain level of health insurance to employees. When does a corporation have rights of religious freedom? The court characterizes the company as "secular," and it is clearly not a religious organization. And if it is the Kortes, rather than the corporation, whose rights are being infringed, when do actions taken with respect to a business entity impinge upon the rights of stakeholders? The court mentions that the Kortes are 88% shareholders and that the business is run by the family according to their religious beliefs. Are these material facts? What if they owned 51% of the company, but it was run by someone else? What if they owned 33% but had de facto control? What if they owned a single share?
This case reminds me in part of Thinket Ink Information Systems v. Sun Microsoft, 368 F.3d 1053 (9th Cir. 2004). In that case, the court held that a corporation had a right to bring suit under 42 U.S.C. Sec. 1981 for discrimination based on race. Although noting that a corporation generally does not have a racial identity, the court found that in the particular case, Thinket had "acquired an imputed racial identity" sufficient to bring a claim. The court stated that: "[t]o receive certain governmental benefits, Thinket was required to be certified as a corporation with a racial identity; further, it alleges that it suffered discrimination because all of its shareholders were African–American." This was enough to give the corporation itself standing under Sec. 1981.
At the time, Stephen Bainbridge characterized the Thinket decision as "just nuts" because the corporation was just a legal fiction and instead represented a nexus of contracts. However, he did allow that "[i]t may be useful to invoke that fiction here, so as to promote administrative convenience by allowing the entity rather than its individual constituents to sue, but it doesn't change the basic theory." A similar problem may be presented here. But at the least, a court should establish whether it is the corporation or the shareholders who have standing to sue for actions required of the corporation. And if it's the shareholders who have standing to sue, it seems unclear when they would be sufficiently entwined with the corporation to get that standing.
Monday, January 07, 2013
Mandatory public education
At Mirror of Justice, frequent Prawfsblawgger Marc DiGirolami passes on a report from the AALS Annual Meeting. Apparently, at the presentation jointly sponsored by the Constitutional Law and Education sections, Dean Erwin Chemerinsky stated (quoting the report) that "the only way to deal with educational disparities and the problem of (de facto) resegregation of public schools is to require all children to attend public schools and to require that they do so within districts made up of metropolitan areas."
In my view, this highly illiberal proposal is, to put it gently, morally unattractive (putting aside questions about whether it would achieve or advance the stated objectives). Marc raises some important and interesting questions about it. I'm certainly open to (dramatic) changes in the ways we fund education (e.g., un-linking education funding from local property values), but -- as I tried to flesh out in more detail, a few years ago, here -- the burden the proposal would impose on religious freedom is far more weighty than Chemerinsky seems willing to acknowledge. (For example, the idea that after-school religious education, or even "release time"-type policies, are sufficient to allow all parents and children to exercise their religious-freedom rights is, in my view, mistaken.) A better way, it seems to me, to alleviate some (we can never eliminate all) of the inequalities that Chemerinsky (rightly!) regrets is to expand (and support financially) choices and options, and to include (appropriately qualified) religious schools fully in the enterprise of public education, i.e., educating the public, at public expense.
Wednesday, January 02, 2013
The Citizens United Link to the Affordable Care Act LitigationIt’s not too often that I try to draw a line between my own field of Election Law and the much less familiar field involving the Religion Clauses. That’s a universe I tend to leave to the very capable hands of folks like Rick Garnett, Michael Helfand, and Paul Horwitz. But recent litigation did part of the work, and it raised important issues that, I think, the Supreme Court is ultimately going to need to consider. And it has to do with who, or what, is a person.
In 2010, the Supreme Court handed down its opinion in Citizens United v. FEC, which, among other things, struck down limitations on corporate independent expenditures in the Bipartisan Campaign Reform Act of 2002. One important element of the opinion was the conclusion that the identity of the speaker—in that case, a for-profit corporation—could not be subjected to special restrictions on political expenditures.
This conclusion, according to one justice, prompted pithy bumper stickers regarding corporate personhood. But it’s important to note that even the dissent agreed on larger point: that corporations have First Amendment rights. It’s just that the dissent argued that Congress had a compelling reason to single out for-profit corporations (because of, among other things, their perpetual life, and their ability to aggregate wealth through special tax structures); the majority found no such compelling reason to single out one corporate form over others.
And the dispute was, uniquely, about for-profit corporations. The Supreme Court had previously accepted expenditure limitations placed upon for-profit corporations but routinely rejected similar limitations for media corporations and non-profit “ideological” corporations. In Citizens United, the Court, revisiting its precedent, rejected the argument that Congress had articulated any meaningful distinction that merited a set of rules restricting expenditures for for-profit corporations.
A similar debate is brewing in the context of the Patient Protection and Affordable Care Act. Employers offering health insurance plans must include coverage for FDA-approved contraceptives (including what the FDA calls “emergency contraceptives,” sometimes known as “abortifacients”), sterilization procedures, and other reproduction-related services.
A very small set of “religious employers” is exempt. But there are many more for-profit corporations owned and operated by religious adherents. These corporations may not fit the narrow exemption for “religious employers,” and religious adherents have argued vociferously that even ostensibly “secular” businesses fall under the scope of the Free Exercise Clause and the Religious Freedom Restoration Act (“RFRA”). (There are, of course, nuances between constitutional interpretation and statutory interpretation, which may yield different results.)
Do they? District courts in Colorado, the District of Columbia, and Missouri have punted on the issue. A district court in Oklahoma did the same, in part; but, it also found that, absent precedent that “secular, for-profit corporations” have free exercise rights, plaintiffs failed in their Free Exercise Claims. It also suggested that RFRA applied to “religious organizations, not general business corporations.” Justice Sotomayor, in denying an injunction, specifically noted that the Supreme Court has not addressed “similar RFRA or free exercise claims brought by closely held for-profit corporations and their controlling shareholders.”
Well, do they? Can the Supreme Court ascribe a telos to for-profit corporations? Does it matter that Hobby Lobby is closed on Sundays? That Mardel Christian bookstores are “dedicated to renewing minds and transforming lives”? If there’s a possible theological dimension to Division I FBS football, would we (or should we) care?
The same questions arose in Citizens United, and they arise here again. There, no one really disputed that media and non-profit ideological corporations had First Amendment protection. Here, no one really disputes that, say, a religious group called O Centro Espirita Beneficiente Uniao Do Vegetal has First Amendment protection.
When it comes to for-profit corporations, however, there are hints (and this is my modest prediction) that the Court’s refusal to inquire into the purpose or form of the corporation in the election law context may very well apply to the religious liberties context. The burdens placed upon corporations are likely to face the same scrutiny, regardless of the purpose or the form of the corporation. And that means, businesses like Hobby Lobby, under the Court’s precedent in Citizens United, would be treated as any other individual, church, or non-profit organization making a Free Exercise claim.
But, would anyone hazard to make a bolder claim?
Monday, November 19, 2012
The Varieties of Co-Religionist Commerce II
As I promised (or threatened?) in my last post, I want to think about "co-religionist commerce" by dividing it up into institutionalist and non-institutionalist domains. In the past, I''ve written and blogged a bit about non-institutional co-religionist commerce - and I'll probably say a bit more about it sometime later this month - but I've recently been working on the institutional side of things in a recent article, Religion's Footnote Four: Church Autonomy as Arbitration, 97 Minn. L. Rev. (forthcoming 2013).
As per the title, what I have in mind in the institutional context are some of the debates over "church autonomy" - that is, debates over the autonomy granted religious institutions over internal decision-making and disputes resolution. Popular advocates of what we might term "religious institutionalism" (i.e. strong protection of religious institutional autonomy) include Prawfs own Rick Garnett (e.g. here) and Paul Hortwitz (e.g. here) and also Steven Smith (e.g. here). Recent debates on this front include those over the contraception mandate and those over the ministerial exception, which (at a minimum) exempts the relationship between churches and their ministers from liability under various anti-discrimination statutes. Among other issues, both of these examples represent some of the inherent complexities of co-religionist commerce; it is frequently difficult to establish the appropriate boundaries for the interpretation, enforcement and regulation of conduct that is motivated by both religious and commercial interests mix.
As has been discussed here on Prawfs previously, there has been some recent push back against this type of religious institutionalism, most notably the recent article by Richard Schragger and Micah Schwartzman, "Against Religious Institutionalism." Much of this criticism has focused on whether religious institutions should have an rights that are not simply derivative of the individual rights of their members. Schragger and Schwartzman simply don't see the existence of a religious institution as adding any reason for increased constitutional protections.
In my next post, I'll give my own take, which tries to strike a balance in between religious institutionalists and their critics.