Monday, November 23, 2015

"Of Foxes, Hedgehogs, and . . . Law School"

My former colleague, Dan Myers -- who is now the Provost of Marquette University -- has an essay in the Fall 2015 issue of the Marquette Lawyer called "Of Foxes, Hedgehogs, and Marquette Law School."  He writes, among other things, that "[l]aw schools, like most academic divisions, have a natural tendency to operate more like hedgehogs than foxes, and this tendency is reinforced by an administrative structure that sets the law school in a somewhat peripheral functional location at a university. . . .  It is incumbent on law schools to resist and to find ways of becoming more vulpine in their activities and reach."  

Dan makes a good point about the potential of administrative (or even simply geographical) matters to "reinforce[]" "more like hedgehogs" practices.  At the same time, I think there's a fair bit about legal education, legal scholarship, and the legal enterprise itself that has a "natural tendency" in the opposite direction.  My impression is that, sometimes, this latter "natural tendency" is stunted not by anything inherent in or interior to the enterprise of law schools but instead by expectations in Universities' central administrations or other units that law schools should become less "vulpine" -- that is, more siloed, specialized, and heavily invested in specific methodologies.  

Dan's piece points to some good things going on at Marquette and he expresses his support for them and their fox-like potential.  I wonder, though, if part of the project of "find[ing] ways of [helping law schools] becom[e] more vulpine in their activities and reach" is to let them be themselves?  

Posted by Rick Garnett on November 23, 2015 at 02:13 PM in Rick Garnett | Permalink | Comments (2)

Tuesday, October 27, 2015

Prof. Paulsen's reprint "letter"

Prof. Michael Paulsen (St. Thomas) gave me permission to post his (I thought) awesome "reprint cover letter (with apologies to Jackson Browne and Glen Frey):


Paulsen song

Posted by Rick Garnett on October 27, 2015 at 01:03 PM in Rick Garnett | Permalink | Comments (1)

Thursday, October 22, 2015

Fr. Robert Araujo, S.J., R.I.P.

I had the pleasure of learning from, blogging with, and being inspired by Fr. Robert Araujo, S.J. -- a gentle interlocutor, a caring teaching, a careful teacher, a good priest -- for more than ten years.  Those Prawfs readers who also had the chance to read Fr. Araujo's posts at Mirror of Justice know that -- whether or not one agreed with him -- he was a model of civil and thoughtful engagement with questions that matter.

If you didn't know him, I'd encourage you to re-read the inspiring "goodbye" he posted, at MOJ (here ), last August, when he went into hospice care.  And for those unfamiliar with his story, and with the range of his scholarship, here is the link to his faculty web page at Loyola.  Eternal rest grant unto him, O Lord, and let perpetual light shine upon him.  May he rest in peace.

Posted by Rick Garnett on October 22, 2015 at 09:19 AM in Rick Garnett | Permalink | Comments (0)

Friday, October 09, 2015

"The Rise of Corporate Religious Liberty": Pre-order yours today!

This book, "The Rise of Corporate Religious Liberty" -- to which I contributed this chapter on "The Freedom of the Church" -- can be preordered (in paperback, even!) now.  Just in time for Alascattalo Day!  

The book was edited with skill and heroic patience (toward me) by Micah Schwartzman, Zoe Robinson, and Chad Flanders.  More than a few Prawfs guests and bloggers are among the contributors, who include Sarah Barringer GordonPaul HorwitzNelson Tebbe,Douglas LaycockChristopher C LundLiz SepperFrederick GedicksIra LupuRobert TuttleRobin WestJessie Hill, and Mark Tushnet.

Here is the abstract for my chapter:

This chapter is part of a collection that reflects the increased interest in, and attention to, the corporate, communal, and institutional dimensions of religious freedom. In addition to summarizing and re-stating claims made by the author in earlier work – claims having to do with, among other things, church-state separation, the no-establishment rule, legal and social pluralism, and the structural role played by religious and other institutions – the Article responds to several leading lines of criticism and attempts to strengthen the argument that the idea of “the freedom of the church” (or something like it) is not a relic or anachronism but instead remains a crucial component of any plausible and attractive account of religious freedom under and through constitutionally limited government. It also includes suggestions for some workable and – it is hoped – faithful translations of it for use in present-day cases, doctrine, and conversations.

The Article’s proposal is that “the freedom of the church” is still-important, even if very old, idea. It is not entirely out of place – even if it does not seem to fit neatly – in today’s constitutional-law and law-and-religion conversations. If it can be retrieved and translated, then it should, not out of nostalgia or reaction, but so that the law will better identify and protect the things that matter.

Posted by Rick Garnett on October 9, 2015 at 02:30 PM in Rick Garnett | Permalink | Comments (0)

Thursday, September 03, 2015

Chief Justice William H. Rehnquist

Ten years ago today, I got a phone call from my friend Janet, the old Chief's assistant, telling me that Chief Justice Rehnquist had died.  Here's the short thing I wrote for Slate that day, remembering him and the experience of working for him.  A bit:

. . . During my clerkship year, the chief, my co-clerks, and I played tennis together weekly at a public, outdoor court near Capitol Hill. (We played on the same day that the week's "cert memos," analyzing petitions filed by those seeking review of their cases, were due, so—more than a few times—clerks played without having slept.) We took turns driving and buying a new can of balls. I was the chief's doubles partner that year, and I several times beaned him with my hopelessly chaotic serves. One day, I am ashamed to admit, after yet another double-fault, I slammed my racket to the ground and yelled an extremely unattractive expletive. My co-clerks looked across the net at me in horror. The chief, though, didn't turn around. He just slowly bent over, put his hands on his knees, and started laughing. . .

The chief was a lawyer's lawyer. He taught and inspired me, and all of his clerks, to read carefully, to write clearly, and to think hard. He will, quite appropriately, be remembered as one of the few great chief justices. For me, though, William Rehnquist is more than a historic figure and a former boss. Today, thanks in no small part to him, I have a great job: I get paid to think, research, and write about things that matter and to teach friendly and engaged students about the law. I will always be grateful. And I hope that the deluge of political spin to come will not drown out what Americans should remember about the chief: He was a dedicated public servant, committed to the rule of law and to the court. He regarded himself as the bearer of a great trust and of a heavy obligation of stewardship. In my judgment, he was faithful to that trust, and he fulfilled that obligation.

Posted by Rick Garnett on September 3, 2015 at 09:35 AM in Rick Garnett | Permalink | Comments (0)

Sunday, August 16, 2015

Submission angsting: Fall 2015

Here is the Fall 2015 "Submission angsting" post (and comments).

Posted by Rick Garnett on August 16, 2015 at 10:57 AM in Rick Garnett | Permalink | Comments (0)

Thursday, August 06, 2015

Prof. Robert A. Burt

I was very sorry to learn that Yale Law School Prof. Robert A. Burt ("Bo") passed away on August 3.  Here is a bit from Yale's announcement (quoting Prof. Anthony Kronman):

"The range of Bo's interests and accomplishments is startling enough. But what is more amazing still is that all of his writings express Bo's unfaltering belief in the value of conversation, dialogue and the continuing struggle to find common ground, and an abiding suspicion of authoritarianism in all its forms, whether it be a doctor's imperious prescription, or the Supreme Court's deaf assertion of power, or even God's declaration that he need not explain himself to anyone at all."

Kronman continued, "Bo's humane resistance to the reliance on mere power and his insistence that every type of authority, human or divine, is an interactive achievement, is the theme of all his writings. It represents the enduring achievement of this noble human being. It is there in his work for all to see. Still, I miss the man himself, and count his friendship among the best things that have ever happened to me."

Bo was a gentle, thoughtful, caring, generous, and deeply good man.  He was also my teacher, mentor, and friend.  I first "met" Bo in the pages of Prof. Joseph Goldstein's strange, but fascinating and provocative, Criminal Law casebook  , in which his brief in the Michigan case of Kaimowitz v. Michigan Department of Mental Health -- which involved experimental psychosurgery on a prisoner -- was excerpted.  He became for me, over the course of many conversations, a few classes, and my reading of several of his books, including The Constitution in Conflict, a model and an always-welcome challenge.  Like many others, I learned so much from him.  He shaped profoundly (but don't blame him!) what I think of as my academic vocation.  He set, and lived, a standard for teacher-scholars that I wish I could meet. 

The Yale Law School was fortunate, and many hundreds of YLS graduates are blessed, to have known, worked with, and learned from Robert Burt.  May the memory of this righteous one be a blessing.

Posted by Rick Garnett on August 6, 2015 at 01:13 PM in Rick Garnett | Permalink | Comments (0)

Wednesday, August 05, 2015

Submission angsting: Fall 2015

Well, given that the Christmas and Chanukah decorations and the Winter Starbucks flavors now kick in just after Halloween, I suppose it's no surprise that early August is already a bit late for the traditional Prawfs Fall submissions angsting thread.  

Keep your eyes open for the Great Bird and . . . let the wild rumpus start!  Or, in the more helpful words of our own Howard Wasserman and Danny Markel:

So let the angsting commence.

If you are an author or law review editor and want to share information about your submission experience to the law reviews, this is the place to do it. If you have questions about the process, this is the place to do it. Feel free to use the comments to share your information (and gripes or praise) about which journals you have heard from, which you have not, etc. Have at it. And do it reasonably nicely, pretty please.

Posted by Rick Garnett on August 5, 2015 at 09:19 AM in Rick Garnett | Permalink | Comments (465)

Monday, July 27, 2015

Call for Papers: "Doing Justice Without Doing Harm"

Call for Proposals

“Doing Justice without Doing Harm”

Pepperdine University School of Law, Malibu, California

March 11-12, 2016


We hope you will join us for the conference discussed below.  Mark your calendar, submit a proposal, and forward this message to blogs, list serves, and people who might be interested. Speakers already confirmed include the following: 


Barbara E. Armacost, Professor of Law, University of Virginia School of Law.

Rabbi Elliot Dorff, Rector and Sol & Anne Dorff Distinguished Service Professor in Philosophy, American Jewish University

Brian Fikkert, Professor of Economics and Community Development and the founder and President of the Chalmers Center for Economic Development at Covenant College.

Richard W. Garnett, Paul J. Schierl / Fort Howard Corporation Professor of Law and Director, Program on Church, State & Society, Notre Dame Law School

Gary Haugen, founder and president of International Justice Mission.

Richard H. Sander, economist and Professor of Law, UCLA School of Law

Nicholas Wolterstorff, Noah Porter Professor Emeritus of Philosophical Theology at Yale University and Senior Research Fellow in the Institute for Advanced Studies in Culture at the University of Virginia


Their topics and bios are at the end of this message.   


Justice is a central theme in most secular and religious moral traditions, though there are significant disagreements about its content.  As Alasdair McIntyre has asked, “Whose Justice?”  During some periods of history there has been great optimism that the world was moving in a more just direction, generally followed by periods of great injustice and great disillusionment.  (We seem now to be experiencing the latter.) 


Our conference themes have ancient roots—“do justice” (Micah 6:8) and “do no harm” (Hippocrates).  The first theme is a call to do justice and to serve a hurting world.  What do our traditions say about justice to the 21st century?  What are the great injustices and causes of suffering in our world?  How might they be addressed by individuals, religious congregations, NGOs, and governments? 


A second theme (raised powerfully in Steve Corbett and Brian Fikkert’s book “When Helping Hurts”} will be how individuals, groups, and laws might avoid doing harm as we attempt to do good.  Attempts to help can generate dependence or harm bystanders.  The work of governments and NGOs can undercut local institutions like religious congregations and businesses that might address local problems.  Laws can have unintended consequences that do greater harm than good.  We need to make a difference, but to do so wisely.


Please join us for the conversation.  Panels of academics and people from a wide variety of organizations will address theory and practice--what works and what does not work. 


Questions to be addressed might include: 

-           What do our secular and religious traditions teach about justice and its place in the 21st century? 

-           What is the relationship between justice and love?

-           How can the law best be used to promote the ideals of justice.

-           What is social justice and what is its relationship with other forms of justice? 

-           What are the greatest injustices in our world and what can we do about them? 

-           What are the greatest injustices in our neighborhoods and what can we do about them?

-           What are examples of attempts to help the poor which have harmed them?

-           How can attempts to do justice lead to injustice?

-           How might we help those in the greatest need without harming them? 


If you would like to present a paper or organize a panel that fits within this broad range of themes, please submit your proposal by September 15, 2015 via email Proposals should be two pages maximum and should include a short abstract and a bio.  

If you have questions about the substance of the conference, contact Bob or Michael  For questions about the details of the conference, contact Jenna Anderson or (310) 506-6978

For information on the conference as it becomes available and to view details of past conferences, see:

The conference will be co-sponsored by Pepperdine’s Nootbaar Institute on Law, Religion, and Ethics and its Glazer Institute for Jewish Studies. 


All our best,

Bob Cochran & Michael Helfand

Robert F. Cochran, Jr.

Louis D. Brandeis Professor of Law and

Director, Herbert and Elinor Nootbaar

      Institute on Law, Religion, and Ethics


Michael A. Helfand

Associate Professor of Law and

Associate Director, Glazer Institute for Jewish Studies


Pepperdine University School of Law

24255 Pacific Coast Highway

Malibu, California 90263-4611

Posted by Rick Garnett on July 27, 2015 at 04:08 PM in Rick Garnett | Permalink | Comments (1)

Sunday, July 19, 2015

Complicating the "Trolly Problem"

I had thought the Trolly Problem and its many, many variation was becoming yesterday's news but . . . not so fast.  This piece in Wired and this one in Popular Science (HT:  Gizmodo, here) suggest that the coming of robot-cars and the matter of their programming might add new life to the question.   Maybe a film, "Droids on the Mignonette"?  If only Brian Simpson were still among us . . .     

Posted by Rick Garnett on July 19, 2015 at 05:03 PM in Criminal Law, Rick Garnett | Permalink | Comments (0)

Monday, July 13, 2015

The "Limits of Religious Liberty": Complicity and Dignity

A few days ago, in the NYT Magazine, Emily Bazelon had this pieceWhat Are the Limits of "Religious Liberty"?  Among other things, Emily gave a nice shout-out to Profs. Reva Siegel and Douglas NeJaime, who have this new article in the Yale Law Journal, "Conscience Wars:  Complicity-Based Conscience Claims in Religion in Politics."  I was a participant in a conference at which this paper was presented, a little over a year ago -- here's what I said -- and think it's definitely an important read.  I also think, though, that some of its primary claims are unconvincing.  I recommend that those who read it consider also reading, among other things, Marc DeGirolami's essay, "Free Exercise by Moonlight," which engages helpfully the claims I have in mind.  

The Siegel & NeJaime article covers a lot of ground.  Among other things, they contend that "complicity-based" conscience claims are distinctive, and raise special concerns, "because accommodating claims of this kind has the potential to inflict material and dignitary harms on other citizens. . . .  Complicity claims focus on the conduct of others outside the faith community.  Their accommodation therefore has potential to harm those whom the claimants view as sinning."  (The quoted language is from the SSRN abstract.)  

It does not seem to me, though, that B is necessarily wronged or demeaned by A's determinations that (a) B's conduct or proposed conduct is or would be immoral and (b) actions and intentions of A that would create culpable complicity with B's conduct should be avoided.  Certainly, it's possible for these determinations to be communicated in an insulting or demeaning way.  And, a determination by A that "B is not the kind of person with whom I want to interact" or "B is unworthy of my interacting with her" could raise, I think, the concerns NeJaime and Siegel raise.  The paper argues, though, that even implicitly calling an act or omission immoral, or a "sin," insults, demeans, and wounds the dignity of the actor.  This sweeping claim seems hard to square with our practices and policies.  (Marc DeGirolami has more on this point, here.)

Relatedly, it strikes me as misguided to insist that the law necessarily demeans or insults B by accommodating (to the extent it is reasonably possible) A's religiously-based desire not to be complicit in what A believes to be B's wrong.  Even if A's moral judgment is, we think, itself wrong or unattractive, the government's accommodation of A's religiously based conclusion is not an endorsement of that conclusion, but only of the general desirability of accommodating, to the extent possible, religious commitments and exercise.  What's more, if a law demeans when it allows an exemption for religious complicity-claimants, then why does it not demean when it mandates, without exemption, the cooperation to which the claimants object?  That is, why shouldn't the law from which the exemption is, for complicity-avoiding reasons, being sought (say, a law requiring pharmacists to provide an abortion-causing drug) be regarded by the exemption-seeker as imposing on her a "dignitary harm", i.e., the harm of having one's moral commitments and reasoning not only rejected-on-balance, but also disapproved and found wanting?   

I question the premise that inquiring into one's moral responsibility for -- or, one's complicity in -- another's act and, as part of that inquiry, evaluating the morality of that act, involves any "demeaning" of the other.  Again, if it amounts to "demeaning" -- and, more specifically, if it amounts to causing a "dignitary harm" that triggers, as some have argued, Establishment Clause limits -- another person to conclude that that other person has engaged in an act that is wrong and so to decide to avoid complicity with that act then we'll have to reexamine a whole lot more than particular applications of RFRA-type laws.  

In addition, I don't think it's entirely right to say that "complicity claims focus on the conduct of others outside the faith community."  As I see it, when we talk about "complicity" (see, for example, the Model Penal Code's treatment) we are asking about the extent to which one person is morally responsible, or morally blameworthy, by virtue of her own conduct and state-of-mind,  for the conduct of another.  The accomplice's responsibility -- her state of mind and her assistance, encouragement, or facilitation -- is, I think, at least as much the "focus" of the inquiry as the action done or the harm caused by the other.  (And, again, it seems to me that the character, worth, dignity, or identity of the other need not be part of the inquiry at all.)  True, the reason we care about the accomplice's responsibility is usually because we have identified someone else's wrong -- or, more precisely, a harm caused or wrong done or wrong attempted by someone else -- but the focus remains, I think, is on the accomplice.   (Sometimes, we even conclude that an actor is morally responsible for another's wrongful act or harm caused although the other is, for one reason or another, not blameworthy for that act or harm.

In any event, read Siegel and NeJaime, and also read DeGirolami.  I remain, for what it's worth, concerned that the emerging focus on the "third-party harms" and "dignitary harms" said to be caused by legislative accommodations of religion threatens to excessively constrain our ability to vindicate the fundamental right to religious liberty in our context of increasing regulatory activity, dissensus, and diversity.

Posted by Rick Garnett on July 13, 2015 at 02:53 PM in Rick Garnett | Permalink | Comments (0)

Thursday, July 09, 2015

What to read the summer before law school?

Michael Krauss (George Mason) has some suggestions in the WaPo, here.  (I was happy to see the shout-out for my former colleague Pat Schiltz's article on "being a happy member of an unhappy profession.)  A while back, when I was an associate dean, I put together a similar list for our incoming first years at Notre Dame.  (My list, like Krauss's, included The Bramble Bush, but I couldn't resist adding John Noonan's Persons and the Masks of the Law.).  

What would be on your list?   

Posted by Rick Garnett on July 9, 2015 at 03:08 PM in Rick Garnett | Permalink | Comments (22)

Sunday, July 05, 2015

"The Constitutional Legacy of William Rehnquist"

Here is a new, short book from West (edited by Brad Wilson) that includes my chapter on Rehnquist's religious-freedom and church-state work:

It might not have been foreseen that William Rehnquist would have a marked influence on the Supreme Court’s interpretation, construction, and application of the First Amendment’s Religion Clauses. And yet, he certainly did. Kent Greenawalt wrote that Rehnquist – or, more precisely, the “Rehnquist Court” – “turned the constitutional law of religion upside down.” “[W]e have moved,” he reported, “from expansive readings of both of the religion clauses to narrow readings of the Free Exercise Clause and of very important aspects of the Establishment Clause.” It is suggested in this paper that in facilitating and guiding the “move[s]” identified by Greenawalt, Rehnquist for the most part “turned the constitutional law of religion” right-side up, rather than “upside down.” He left the Court’s Religion Clauses doctrine better than it was before, that is, better rooted in the Constitution’s text, history, structure, and values than it was when he joined the Court. In any event, that the “move[s]” happened, and that they happened in no small part because of him, seems beyond dispute.

Rehnquist was able, for the most part, to exercise both judicial humility in the face of politically accountable actors’ attempts to deal with debatable questions of policy and morality – including most of the questions that arise in free-exercise and non-establishment cases – and careful review of measures and actions that might compromise the structural integrity of our Constitution. This paper’s appreciative review of his contributions to the Court’s Religion Clauses doctrine will, it is hoped, serve as a reminder that cases involving tension or collision between political and religious authority implicate the “first principles” of our constitutional experiment no less than those involving federal interference with the states’ appropriate functions or regulatory overreach by Congress.

A great summer gift -- or, a not-very-effective paperweight -- for the lawyers and law students in your life!

Posted by Rick Garnett on July 5, 2015 at 12:35 PM in Rick Garnett | Permalink | Comments (0)

Tuesday, June 23, 2015

Thomas More's advice for bloggers

Yesterday, for some, was the feast day of St. Thomas More (patron saint of lawyers and statespersons).  It turns out, he was also pretty prescient w/r/t social media.  Here is some advice from him for bloggers!

An excerpt from a letter of St. Thomas More to Erasmus, written on the 14th of June, 1532:

 Congratulations, then, my dear Erasmus, on your outstanding virtuous qualities; however, if on occasion some good person is unsettled and disturbed by some point, even without making a sufficiently serious reason, still do not be chagrined at making accommodations for the pious dispositions of such men. But as for those snapping, growling, malicious fellows, ignore them, and, without faltering, quietly continue to devote yourself to the promotion of intellectual things and the advancement of virtue.

(HT:  Ryan Patrico).

Posted by Rick Garnett on June 23, 2015 at 01:06 PM in Rick Garnett | Permalink | Comments (0)

Monday, June 15, 2015

Joseph Vining on the thought of John Noonan

Joseph Vining has posted (here) a short paper called "Reading John Noonan," which is forthcoming in the Villanova Law Review.  The abstract is short-and-sweet:

John Noonan is a giant in American law and legal practice -- a distinguished legal historian and a true judge. His reflections on the nature of law have a special importance. This essay is a comment on basic elements in his thought.

And, check out the keywords:

jurisprudence, slavery, universality of value, development and change, morality, history, person, legal person, individual, equity practice, human rights, utilitarianism, positivism, humanism


Posted by Rick Garnett on June 15, 2015 at 08:22 AM in Rick Garnett | Permalink | Comments (0)

Wednesday, May 27, 2015

"Should Washington Try to Change Religious Beliefs?"

Here is a short piece I did for USA Today, which returns to the questions raised in this earlier post.  A bit:

. . .  The idea that public authorities and officials should take editorial aim at certain religious beliefs and revise them to better serve the government's needs should make Americans uneasy. It seems to conflict with foundational and constitutional commitments, with James Madison's famous assertion that religion is "wholly exempt" from the "cognizance" of "civil society," and with Thomas Jefferson's insistence that the "legitimate powers of government" don't extend to religious views because "it does me no injury for my neighbor to say there are 20 gods, or no god. It neither picks my pocket," he quipped, "nor breaks my leg."

In fact, though, governments do care — even if they do not always admit it — about what religious people believe and what religious leaders teach. . . .

Religious freedom under law is an accomplishment, one that is both relatively new and always vulnerable. It is vulnerable precisely because it is often inconvenient to political authorities and officials. The constitutional rules that governments are supposed to keep out of religious disputes and stay away from religious questions are good ones, but it is important to remember that they cut strongly against what they have always done and probably always will try to do. And so, if we value religious liberty and freedom of conscience, we will be on guard not only against overt change-campaigns like China's but also against nudges, temptations, and bribes from our own leaders.

Posted by Rick Garnett on May 27, 2015 at 08:47 AM in Constitutional thoughts, Rick Garnett | Permalink | Comments (0)

Monday, May 11, 2015

Managing religion

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.

Posted by Rick Garnett on May 11, 2015 at 11:28 AM in Religion, Rick Garnett | Permalink | Comments (0)

Monday, May 04, 2015

The Conference Manifesto

At the New York Times "The Stone" page is Christy Wampole's "The Conference Manifesto."   The "manifesto" opens with this:

We are weary of academic conferences.

We are humanists who recognize very little humanity in the conference format and content.

We have sat patiently and politely through talks read line by line in a monotone voice by a speaker who doesn’t look up once, wondering why we couldn’t have read the paper ourselves in advance with a much greater level of absorption.

We have tried to ignore the lack of a thesis or even one interesting sentence in a 20-minute talk.

Our jaws have hung in disbelief as a speaker tries to squeeze a 30-minute talk into a 20-minute slot by reading too fast to be understood. . . .

Ouch.  Read the whole thing.

Posted by Rick Garnett on May 4, 2015 at 12:45 PM in Rick Garnett | Permalink | Comments (2)

Friday, May 01, 2015

Anniversary symposium: What's next?

During the time I was dithering and wool-gathering in response to the call from Howard for the third round of anniversary posts -- topic:  what has changed in law teaching and for law schools -- the subject for the next round was announced:  What about the future?  

Will a lot of law schools close?  (Will a bunch of new online or other alternative legal-education institutions open?)  Will tuition and debt loads continue to increase?  Will the yearly number of law graduates come (roughly) into line with the yearly number of legal and "J.D.-advantage" jobs?  Will law schools' programs of legal education change dramatically (e.g., move to two years, or incorporate significant new experiential-learning requirements, or . . .)?  Will the expectations and practices of legal academics regarding teaching loads and scholarship evolve significantly?  Will law schools -- as a result of the answer to the last question -- be nudged out from the heart of research universities' academic missions?  Will we see more law-school deans and high-level administrators coming from law practice or the business sector (instead of from law faculties)?  Each of these seems like an important question and, with respect to each, I have to confess that I just don't know.

My hopes are that "the law" will (continue to?) be regarded as, respected as, and in fact a "learned profession" that is meaningfully connected to public service and social goods; that engaged and committed students will pursue legal education because they are attracted to a vocation in such a profession; that access to this profession will be available (which means, among other things, "realistically affordable") to a wide range of students from diverse backgrounds and with diverse interests; that law schools' programs and law professors' activities (teaching, scholarship, and service) will be consistent with and supportive of this way of thinking about what "the law" is; and that at least some excellent law schools will remain fully integrated with excellent research universities.  I have a strong sense that, in order for these hopes to be realized in the coming years, more than a few non-trivial changes are needed, and needed pretty soon.  (And, of course, whether these hopes can be realized is not entirely within the control of law schools.)  But, again, I wish I had more confidence that I knew exactly what those changes are.

Posted by Rick Garnett on May 1, 2015 at 10:51 AM in 10th Anniversary, Rick Garnett | Permalink | Comments (0)

Wednesday, April 29, 2015

Robin West on "The Freedom of the Church" and the social contract

Prof. Robin West has posted a forthcoming and characteristically powerful paper, here, called "Freedom of the Church and Our Endangered Civil Rights:  Exiting the Social Contract."  She is responding to, inter alia, this paper of mine and this paper by Steve Smith and dealing with issues that Paul Horwitz and many others have addressed in recent years.   Here is the abstract of Prof. West's paper:

In this comment I suggest that the “Freedom of the Church” to ignore the dictates of our various Civil Rights Acts, whether in the ministerial context or more broadly, created or at least newly discovered by the Court in Hosanna-Tabor, is a vivid example of a newly emerging and deeply troubling family of rights, which I have called elsewhere “exit rights” and which collectively constitute a new paradigm of both institutional and individual rights in constitutional law quite generally. The Church’s right to the ministerial exception might be understood as one of this new generation of rights, including some newly recognized by the Court over the last two decades, some with a slightly older lineage, and some sought after but not yet won by litigants — the point of which is to exempt their holders from legal obligations which are themselves constitutive of some significant part of civil society and to thereby create, in effect, separate spheres of individual or group sovereignty into which otherwise binding legal norms and obligations do not reach. They are “rights to exit” civil society and the social compact at its core, or at least, rights to exit some substantial part of it.

All three papers are set to be published in a forthcoming volume, edited by Chad Flanders, Zoe Robinson, and Chad Flanders.  In my own contribution, responding specifically to West, I write:

In Robin West’s bracing and eloquent chapter, she expresses serious concern by the asserted “right of churches and church-affiliated institutions . . . to be exempt, on grounds of institutional religious liberty, from some otherwise binding legal obligations, including the obligations to comply with the antidiscrimination mandate of our various Civil Rights Acts when hiring, promoting, or firing those of their employees who quality as ‘ministers.’”   These obligations, she emphasizes, “are no small thing. . . . [They] collectively constitute, rhetorically, our shared societal commitment to rid our workforce and our schools, and therefore our larger social world as well, of discriminatory animus and the effects of that animus; they are a public declaration of our collective promise to become a less insulting, less hurtful, more inclusive, more fully participatory, more generous, and fairer society.”   To violate these obligations is not only to harm an individual; “[i]t is also to break faith with and to undermine the shared national project of creating a world of equal opportunity and full participation[.]”   In her view, “it is not at all clear why our nations ministers, rabbis, and imams . . . should not be drawn from the full and diverse American public . . . , no less than are our nation’s public and private school teachers, police forces, firefighters, professors, health-care professionals, service providers, and retail, factory and construction forces.”   The ministerial exception, in her view – and, more generally, the proposed “freedom of the church” – is an example of a “newly emerging and deeply troubling family” of “exit rights . . . , the point of which is to exempt their holders from legal obligations which are themselves constitutive of some significant part of civil society, and to thereby create, in effect, separate spheres of individual or group sovereignty, into which otherwise binding legal norms and obligations do not hold.”

West’s indictment of my (and others’) position regarding the religious-freedom rights of religious institutions and the implications for government regulations of some of those institutions’ internal, doctrinal, educational, liturgical, ministerial, and expressive affairs is clearly and forcefully set out.  Her negative evaluation of the position rests, though, on assumptions that I reject and that I also regard as not well supported in our history and traditions.

Notwithstanding her repeated invocation of “our” commitments, declarations, obligations, projects, and aspirations, West’s social contract—insofar as it is asserted to include terms that commit religious communities to submit internal decisions regarding doctrine and polity for approval by political majorities—is a contract of adhesion.  The issue in, say, Hosanna-Tabor is framed in terms of efforts by would-be “miniature sub-cultural worlds” to “exit civil society, and the complex of laws, tradeoffs, and reciprocal rights and obligations that in turn constitute some aspect of our society’s legally constructed social contract.”   As I see it, though, the question under consideration is precisely whether or not this “complex” and this “contract” can justifiably, and consistently with our Constitution, history, and traditions, be said to extent to the relationship between a minister and a church.  When West says that “it is not at all clear why our nation’s ministers, rabbis, and imams . . . should not be drawn from the full and diverse American public,” part of the answer is that the “ministers, rabbis, and imams” are not “our nation’s”; they are their respective communities’ and it is up to those communities to decide how and from where they should be drawn.  The “freedom of the church” claim is not that these institutions should escape from an obligation that expresses “our” commitment to equal opportunity or “communitarian ideals of inclusiveness, participation and integration” but that they cannot justifiably be said to be under an obligation to select their ministers, teachers, doctrines, and beliefs in accord with commitments other than their own. 

In West’s chapter, she acknowledges that some exit rights, sometimes, “empower individuals to buck the dictates of an oppressive majority or an intrusive state.”  “At least some of these rights,” she states – the right of the pregnant woman over body, for example – “may seem wise, at least to some of us, and at least some of the time:  the parts of the social contract from which exit is sought and sometimes granted often appear to be, and may in fact be, foolish, draconian, or just witlessly intrusive.”   Still, she insists, exit rights have costs—they can undermine equality and “splinter civil society”—and these costs should be but, she charges, are not acknowledged by those who explore and defend the “freedom of the church.”

As I tried to establish earlier in this chapter, though, it seems to me that the “freedom of the church,” reasonably understood and operationalized, does (or at least can) serve to “empower individuals to buck the dictates of an oppressive majority or an intrusive state.”  It does (or at least can) serve, contrary to West’s claim, to “enhance individual liberty within civil society by expanding or deepening the rights of individuals to participate in that society.”  It is true that seeing and respecting the just limits on the political authority’s ability to define, and enforce compliance with, “our” commitments and obligations does have, sometimes, costs, in that some projects that a majority, or maybe just a vanguard, would like to pursue cannot be accomplished efficiently or completely.  West sees this fact as, sometimes, “tragic” and I agree that sometimes it is.  Still, these just limits are morally necessary and attractive, and they include, in my view, limits on the regulatory power of governments over the “freedom of the church,” rightly understood.   

Posted by Rick Garnett on April 29, 2015 at 11:23 AM in Rick Garnett | Permalink | Comments (0)

Saturday, April 18, 2015

"Get off my lawn!" -- or, how (my) law-blogging has changed

I like the title of Paul's 10th anniversary, "How has blogging changed?" post better than the one I chose. (Maybe I should have gone with this, from Grandpa Simpson.)  And, I think Paul captured well a lot of what I wanted to say, at least with respect to the question "how has my blogging changed."  

I started blogging, at Mirror of Justice, in 2004 (and came a bit late to the Prawfsblawg crew).  I used to post more often, and about more things.  I'm not sure why, but tenure, promotion, and a stint in administration seem to have coincided with (even if not caused) a kind of narrowing.  As Paul discussed, I think I'm more reluctant than I was before 2008 to blog about our law-teaching vocation, at least in part out of nervousness about being flamed in comments or elsewhere for being self-indulgent or omphaloskeptical.  And, I think I'm more hesitant than I was when I started about addressing politically charged, "hot button," or "culture war" issues of the day, including the law-and-religion area in which I write.  This trend puts me in a bit of a bind:  I'm getting uneasy and hesitant about blogging about (a) what I do and (b) what I write about.  I'm not sure what's left . . . Duke basketball (or Notre Dame football)?  Adverbs (and here)?  Skyscrapers?

But that's just me.  How has blogging, or law-blogging more specifically, changed?  Dave's right, I think:   It's become, in various ways, more "serious."  There's maybe a chicken-and-the-egg dynamic here:  Once the Supreme Court cited law blogs, helping to validate them as more than just vehicles for doodles and musings, it became possible -- and then, perhaps, expected -- that blog-content would shift toward being the kind of stuff that could be cited by the Supreme Court.  Thankfully, over the last ten years, other outlets have proliferated for the doodles, musings, clever quips, and ironic bon mots -- Twitter, Instagram, and (for the oldsters among us) Facebook.  I suppose, before long, these will be transformed by respectability, too, and we'll have to work harder on crafting Robert Jackson-esque (or KimKierkegaardashianian) tweets.       

Posted by Rick Garnett on April 18, 2015 at 09:34 AM in Rick Garnett | Permalink | Comments (0)

Monday, April 13, 2015

Vischer on Big Law and the Marriage Cases

My friend and colleague (and legal-ethics scholar) Rob Vischer has a thoughtful post, "Law Firms, Marriage, and Moral Accountability," over at Mirror of Justice, in which he addresses Adam Liptak's piece in Sunday's New York Times ("The Case Against Gay Marriage:  Top Lawyers Won't Touch It").  Like Rob, I think it's unlikely that Evan Wolfson's explanations for the phenomenon Liptak describes -- i.e., that there are no arguments to be made in support of Judge Sutton's decision and/or that Big Law attorneys and firms shy away from paying cases if they think they are probably going to lose -- are the correct ones.  I imagine that, instead, the economics-and-public-relations considerations that Liptak describes are doing most of the work.  That said, Vischer also notes an interesting connection between the ongoing debates about religion-and-morality-in-business (see, e.g., Hobby Lobby) and the questions about the extent to which lawyers and law firms should exercise moral judgment, or act in accord with an animating vision, mission, or ethos, when accepting or declining representation.  Check it out.   

Posted by Rick Garnett on April 13, 2015 at 11:17 AM in Rick Garnett | Permalink | Comments (1)

Thursday, April 09, 2015

Prawfsblawg and friendship

I remember pretty clearly -- at least, as clearly as I'm able to remember anything these days -- talking with Danny Markel on the phone in 2005 about his invitation to join the crew at Prawfsblawg.  I was a little bit nervous -- and I told him so -- about joining an up-and-running group that already seemed to have an interesting "voice" of its own and about whether the views, intuitions, and "takes" I was sharing (or imposing) at my other blog-home, Mirror of Justice, might mess up the harmony of voices at Prawfs.  Danny said -- again, I feel pretty sure I won't forget this and it meant and means a lot to me -- "we're friends, and disagreement among friends doesn't mean anything's wrong."

I think this statement says a lot about Danny and about what it was that made and makes him so special to so many.  We corresponded fairly often about this or that draft article or blog-post and it felt like we were often disagreeing.  But, it was fun.  He had a habit of calling me, just to check in, when he was on the road.  (I imagine he used a lot of his in-car-time to check in with friends.  Why let that time go to waste, he probably thought, on sports-talk radio?)  "Hey, pal -- it's Danny" was always the beginning of a welcome and warm conversation . . . or argument.

I've blogged less in recent years than I used to, both at MOJ and here at Prawfs.  I'm not sure why; I'm inclined to blame it on my side-job, i.e., driving kids around.  Whatever the reason, though, my participation in and at Prawfs -- in the past and now -- is not separable in my mind from the spirit and practice of friendship that I will always associate with Danny.    

Posted by Rick Garnett on April 9, 2015 at 01:19 PM in 10th Anniversary, Rick Garnett | Permalink | Comments (0)

Tuesday, March 24, 2015

"The Theocracy Brief"?

At the Crime and Consequences blog, which is a project of the Criminal Justice Legal Foundation, there is a post by Kent Scheidegger called "The Theocracy Brief," which takes issue with the amicus brief filed by the National Catholic Reporter in Glossip v. Gross (the SCOTUS case involving Oklahoma's lethal-injection procedures).  Here's the primary part of the post:

Some briefs are just downright weird.  In Glossip v. Gross, the midazolam lethal injection case, the National Catholic Reporter has submitted an amicus briefpurporting to explain the teachings of the Catholic Church on the subject.  I have no opinion on whether what they say is correct.  I know nothing about it.  I do have an opinion on whether what they say has any relevance.  It does not.

Last time I checked, the United States of America was not a theocracy.  Quite the contrary, one of the cornerstones of the foundation of our government was a rejection of the mingling of church and state that had caused such enormous trouble in the Mother Country.

If Islamic teachings say it's okay to behead people,* would that make beheading constitutional under the Eighth Amendment?  Of course not.  So why would the teachings of the Catholic Church have any greater relevance?  Because five of the current Justices of the Supreme Court happen to be Catholic?  I am quite sure all five have the integrity not to let such an argument influence them.

* I don't know if they do, and truth of the "if" is not necessary to the point being made.

As it happens, the amicus brief has an entire section dedicated to explaining why the teachings of the Catholic Church with respect to capital punishment are, or at least could be, relevant to the particular question presented in this case.  It seems to me that Mr. Scheidegger's "theocracy" charge is misplaced.  

Obviously, the Church's teachings as such are not binding or authoritative on the Court when it answers legal questions and, generally speaking, whether or not the Church approves of this or that has nothing to do with questions about what the Constitution says (or doesn't) about this or that.  But, in this particular context, the Court's own precedents and doctrines seem to make relevant "the evolving standards of decency that mark the progress of a maturing society" and so there seems to be nothing particularly strange -- and certainly nothing "theocratic" -- about an amicus brief that says, in effect, "given that you have told us you are interested in what people think about the matter, here's what a whole lot of us think about the matter, and here's why.  Just FYI."  


Posted by Rick Garnett on March 24, 2015 at 01:52 PM in Constitutional thoughts, Criminal Law, Rick Garnett | Permalink | Comments (6)

Friday, February 27, 2015

Fr. Theodore M. Hesburgh, R.I.P.

Not just my own University of Notre Dame, but also American higher education and, in many ways, the country has lost a truly great and really good man, "Fr. Ted" Hesburgh.  You can learn a lot more about his work and life here.   And, the Washington Post's obituary is here.

Fr. Hesburgh was retired by the time I arrived at Notre Dame, but I did have the chance to meet and talk with him several times, including in connection with the University's education-reform efforts.  I remember him expressing surprise, and a bit of irritation, when I told him back in 2000 that vouchers and school-choice were still controversial and politically challenging.  "I thought L.B.J. and I took care of that back in 1965!", he said.  "There are a few details still being worked out," I assured him.  God bless Fr. Ted.

Posted by Rick Garnett on February 27, 2015 at 02:09 PM in Rick Garnett | Permalink | Comments (0)

Tuesday, February 24, 2015

Yale's proposed faculty-conduct code

Inside Higher Ed has the story, here, about what at least some faculty at Yale University are calling "a 'curious' and 'confusing' proposed faculty conduct code threatening undefined sanctions for a mishmash of transgressions."  (It strikes me that "mishmash of transgressions" could be the title of a David Lodge book, or maybe a sequel to Lucky Jim.)  Here's just a bit from the piece:

The draft, which is not publicly available but which was obtained by Inside Higher Ed, says it seeks to summarize those principles and “provide examples of conduct that falls short of the professional behavior they require.” It continues: “The examples of conduct listed here are not exhaustive, and if a faculty member’s behavior violates the faculty’s shared principles, he or she may be subject to sanction whether or not the behavior is specifically described below.”

Examples of sanctionable behaviors include “arbitrary and capricious denial” of access to instruction or academic resources, failure to contribute to the “teaching mission” of the university “reasonably required” by a faculty member’s program and the failure to meet “reasonable deadlines” in evaluating a trainee’s work or providing career support, such as letters of recommendation. The document does not specify what kinds of sanctions might be meted out. . . .


Posted by Rick Garnett on February 24, 2015 at 02:59 PM in Rick Garnett | Permalink | Comments (2)

Saturday, February 21, 2015

A tribute to Judge Morris S. Arnold

After law school, Nicole Stelle Garnett and I had the pleasure and privilege of clerking for Judges Morris ("Buzz") and Richard Arnold, in Little Rock.  Judge Richard passed away a few years ago.  Last week, though, the Arkansas bar hosted a really nice tribute-event for Judge Buzz, and Nicole was able to attend, along with a bunch of former clerks.  With her permission, I'm sharing -- and highly recommending -- the short presentation she gave (Download Judge arnold).  In a nutshell:  "The law matters, even the mundane can be magical, and the government doesn’t always get to win."

Posted by Rick Garnett on February 21, 2015 at 03:24 PM in Rick Garnett | Permalink | Comments (1)

Tuesday, February 03, 2015

Help wanted for a seminar on "Prohibition"

A few years ago, I posted some quick thoughts about "teaching Prohibition in Constitutional Law" and about Daniel Okrent's (very enjoyable) book, "Last Call":

Last Spring, as I was teaching my first-year Constitutional Law course, I was listening to Daniel Okrent's very engaging book, "Last Call:  The Rise and Fall of Prohibition."  In many ways -- some of which I'd appreciated before, and others I hadn't -- the book's subject connected interestingly with the big questions and themes of the first-year course (which, at Notre Dame, focuses on "structure").  I had so many occasions to refer to the book in class, I started to worry that my students were getting the idea that I am obsessed with alcohol and its regulation.

A few years ago, Eugene Volokh and others helped me to appreciate the ways in which the Second Amendment can serve as a "teaching tool" in Constitutional Law.  It strikes me that the experience with Prohibition - how it came about, what it tells us about constitutional amendments and grassroots political movements, how it connects with questions about the census, redistricting, federalism, and the Fourth Amendment, etc. - could serve, similarly, as a teaching tool or vehicle.  Have any Prawfsblawg readers or bloggers taught Prohibition, or used it as a lens through which to look at the Constitution and constitutional law?  Any suggestions about how it could be done?

Well, because I am slow and prone to procrastination, I am just now (finally) getting around to thinking about putting together a seminar course on the topic.  I continue to think there's a lot of really interesting ways that our experiment with Prohibition could serve as a vehicle for examining, and pulling together, a bunch of interesting questions, including questions about the subjects mentioned in my earlier post.  

So, here's a bleg:  Does anyone know of any similar courses that are being offered or that have been offered elsewhere?  And, does anyone have any ideas for topics that might be covered in such a seminar?  Much appreciated!  (We will, of course, be home-brewing as part of our coursework.)

Posted by Rick Garnett on February 3, 2015 at 09:32 AM in Constitutional thoughts, Rick Garnett | Permalink | Comments (4)

Tuesday, January 20, 2015

Some thoughts on Holt v. Hobbs

Like Paul, I say "congrats" to Doug Laycock for the win in Hobbs.  And, while waiting for Paul's as-per-usual detailed and thoughtful take on the case, I gathered a few quick thoughts of my own:  

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.

Posted by Rick Garnett on January 20, 2015 at 01:14 PM in Constitutional thoughts, Religion, Rick Garnett | Permalink | Comments (0)

Sunday, January 18, 2015

Justice Rehnquist, Religious Freedom, and the Constitution

I've posted on SSRN a paper of mine called "Chief Justice Rehnquist, Religious Freedom, and the Constitution."  I wrote it a few years ago, but it's now going to be published in a forthcoming West Academic Press volume called The Constitutional Legacy of William H. Rehnquist.  And, I'll be presenting a version of it in a few weeks at a conference ("The Rehnquist Court:  Ten Years Later") at the University of Arizona dedicated to the work and memory of the late Chief.  Here's the abstract:

It might not have been foreseen that William Rehnquist would have a marked influence on the Supreme Court’s interpretation, construction, and application of the First Amendment’s Religion Clauses. And yet, he certainly did. Kent Greenawalt wrote that Rehnquist – or, more precisely, the “Rehnquist Court” – “turned the constitutional law of religion upside down.” “[W]e have moved,” he reported, “from expansive readings of both of the religion clauses to narrow readings of the Free Exercise Clause and of very important aspects of the Establishment Clause.” It is suggested in this paper that in facilitating and guiding the “move[s]” identified by Greenawalt, Rehnquist for the most part “turned the constitutional law of religion” right-side up, rather than “upside down.” He left the Court’s Religion Clauses doctrine better than it was before, that is, better rooted in the Constitution’s text, history, structure, and values than it was when he joined the Court. In any event, that the “move[s]” happened, and that they happened in no small part because of him, seems beyond dispute.

Rehnquist was able, for the most part, to exercise both judicial humility in the face of politically accountable actors’ attempts to deal with debatable questions of policy and morality – including most of the questions that arise in free-exercise and non-establishment cases – and careful review of measures and actions that might compromise the structural integrity of our Constitution. This paper’s appreciative review of his contributions to the Court’s Religion Clauses doctrine will, it is hoped, serve as a reminder that cases involving tension or collision between political and religious authority implicate the “first principles” of our constitutional experiment no less than those involving federal interference with the states’ appropriate functions or regulatory overreach by Congress.

Posted by Rick Garnett on January 18, 2015 at 05:12 PM in Constitutional thoughts, Rick Garnett | Permalink | Comments (0)

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 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."


Posted by Rick Garnett on January 14, 2015 at 01:03 PM in Constitutional thoughts, Religion, Rick Garnett | Permalink | Comments (1)

Wednesday, January 07, 2015

The "25 most influential people in legal education" is missing someone . . .

With all due respect to Bill Henderson (at No. 1), and the many other thoughtful people on the National Jurist's list, the cynic (or maybe the realist?) in me finds it hard to know what to do with a list of the "25 most influential people in legal education" that does not include Robert Morse.  I know, I know:  he's not "in" legal education, I guess.  But still . . . unfortunately . . .

Posted by Rick Garnett on January 7, 2015 at 01:57 PM in Rick Garnett | Permalink | Comments (2)

Tuesday, January 06, 2015

"How to Grow a Law Professor"

Harvard Law Today has this piece, "How to Grow a Law Professor," available online.  It's about the Harvard Law School's Climenko Fellowship Program (and, I suppose, by extension, about the increasing number of similar programs).  Here's a bit:

In the 1990s, law schools began hiring in greater numbers those who had proved their methodological chops by earning a Ph.D. in another field. But that approach disadvantaged smart lawyers who were working at private firms, nonprofits, or the government and had not had time to write. A decade ago, then HLS Dean (and now Supreme Court Justice) Elena Kagan ’86 proposed a middle path, one on which practicing lawyers could return to the academy for two years and begin creating their own body of scholarship. In 2004, she established the Climenko Fellowship Program with funding from a bequest from attorney Jesse Climenko ’27. . . .

As much as anything, . . . the program offers its participants an opportunity to steep themselves in a legal academic environment, giving them the confidence and instincts that can come only from participating in a scholarly community and developing their own work in conversation with colleagues and mentors. “When you hit on a thesis that illuminates the connections among seemingly unrelated questions, you begin to understand who you are as a scholar,” says [Jacob] Gersen. “Our job is to try to teach the craft of research and to allow the fellows’ intellectual identities to emerge. Then when it is time for them to go on the job market, hiring committees know who they are and why they do what they do—and more importantly, the fellows know it themselves.”

Posted by Rick Garnett on January 6, 2015 at 03:22 PM in Rick Garnett | Permalink | Comments (1)

Sunday, January 04, 2015

Young Legal Scholars program, in honor of Dan Markel

Yesterday, at the Federalist Society's Faculty Conference, down the hill and across the street from the AALS Annual Meeting, I had the pleasure of moderating (i.e., being a potted plant while smart scholars presented interesting work) a Young Legal Scholars program, which the Conference organizers were thoughtful enough to dedicate to the life, memory, work, and friendship of our dear friend Dan Markel, (in my words) "caring friend, generous colleague, prolific scholar, and deeply good person."  Dan presented one of his Retributive Justice papers at the same program, a few years earlier, and I like to think he would have been -- I like to think that, somehow, he is -- pleased with the discussions.   

Posted by Rick Garnett on January 4, 2015 at 11:55 AM in Rick Garnett | Permalink | Comments (0)

Friday, November 28, 2014

Prof. Robert E. Rodes, Jr., R.I.P.

My friend and colleague, Bob Rodes -- who taught at Notre Dame Law School for nearly 60 years and who published in seven different decades -- died on Tuesday morning.  During his career, he wrote about the history of the Church of England, courtly love, workman's compensation, maritime insurance, liberation theology, symbolic logic, legal ethics, jurisprudence, and more.  Even at the end, he was working on (yet) another book, a collection of his articles on church-state relations.  Here is a very nice announcement and collection of reflections.   And, for an insightful and warm introduction and overview to Bob's work, check out this piece, written by his colleague and friend, Tom Shaffer.  In the announcement, our colleague Judge Kenneth Ripple puts it well:

His junior and senior colleagues relate remarkably similar stories about his deep and lasting impact on their lives. U.S. Seventh Circuit Judge and Professor Kenneth F. Ripple provided an apt metaphor in describing Bob’s impact on the Law School: “Every great institution has, as Scripture describes them, ‘living stones’ —individuals who, sometimes at great personal sacrifice, become the foundation of all the accomplishments that come afterward. At Notre Dame Law School, Professor Bob Rodes will always be a supporting part of the foundation of this very special law school. He loved his students; he loved his colleagues; and he loved what he called the ‘legal enterprise’ in which we all work together. He was the voice of the Spirit, always reminding us of our better selves.” . . .

Posted by Rick Garnett on November 28, 2014 at 08:41 AM in Rick Garnett | Permalink | Comments (2)

Friday, November 07, 2014

Colombo, "The First Amendment and the Business Corporation"

Following up on Paul's post about his (excellent) new paper on Hobby Lobby, I thought many Prawfs readers would be interested in this new book, "The First Amendment and the Business Corporation," by Ron Colombo (Hofstra).  From the OUP:

The role of the business corporation in modern society is a controversial one. Some fear and object to corporate power and influence over governments and culture. Others embrace the corporation as a counterweight to the State and as a vehicle to advance important private objectives. A flashpoint in this controversy has been the First Amendment to the U.S. Constitution, which enshrines the fundamental rights of freedom to speech, religion, and association. The extent to which a corporation can avail itself of these rights goes a long way in defining the corporation's role. Those who fear the corporation wish to see these rights restricted, while those who embrace it wish to see these rights recognized. 

The First Amendment and the Business Corporation explores the means by which the debate over the First Amendment rights of business corporations can be resolved. By recognizing that corporations possess constitutionally relevant differences, we discover a principled basis by which to afford some corporations the rights and protections of the First Amendment but not others. This is critically important, because a "one-size-fits-all" approach to corporate constitutional rights seriously threatens either democratic government or individual liberty. Recognizing rights where they should not be recognized unnecessarily augments the already considerable power and influence that corporations have in our society. However, denying rights where they are due undermines the liberty of human beings to create, patronize, work for, and invest in companies that share their most cherished values and beliefs.


Posted by Rick Garnett on November 7, 2014 at 04:25 PM in Rick Garnett | Permalink | Comments (0)

Wednesday, November 05, 2014

Remember, Remember . . .

I have a hard time remembering what I had for lunch, but I do remember that, when I was in first grade (in Anchorage), my public school celebrated Guy Fawkes Day.  I don't remember why, or if any explanation was provided.  (This was way, way before "V for Vendetta".)  It did not strike me as strange at the time, though it certainly does now.  (Probably because of this guy, Henry Garnet, S.J., who was executed for not revealing the Gunpowder Plot, about which he is sometimes said to have learned in confession.)  Should it?  Would a public school's celebration of Guy Fawkes Day (in the mid-1970s or now) communicate to Justice O'Connor's famous "reasonable observer" that she was an outsider in the political community?  Certainly, that was long the celebration's purpose.  Which is why, I suppose, General Washington raised some eyebrows when he told his soldiers to refrain from burning the Pope in effigy as part of their celebration:

As the Commander in Chief has been apprized of a design form’d for the observance of that ridiculous and childish custom of burning the Effigy of the pope–He cannot help expressing his surprise that there should be Officers and Soldiers in this army so void of common sense, as not to see the impropriety of such a step at this Juncture; at a Time when we are solliciting, and have really obtain’d, the friendship and alliance of the people of Canada, whom we ought to consider as Brethren embarked in the same Cause. The defence of the general Liberty of America: At such a juncture, and in such Circumstances, to be insulting their Religion, is so monstrous, as not to be suffered or excused; indeed instead of offering the most remote insult, it is our duty to address public thanks to these our Brethren, as to them we are so much indebted for every late happy Success over the common Enemy in Canada.

In any event, I hope our friends across the pond safely enjoy their fireworks . . . without burning Pope Francis in effigy.

Posted by Rick Garnett on November 5, 2014 at 11:29 PM in Rick Garnett | Permalink | Comments (0)

Friday, October 31, 2014

A "Call for Annotations" from The Green Bag

Call for Annotations: “The Adventure of the Norwood Builder”

Our annual Almanac & Reader always has three main features: (1) exemplary legal writing, (2) chronologies of interesting moments in law and language, and (3) entertaining tidbits relating to some theme that we hope you will enjoy. The theme for the 2015 Almanac is “The Adventure of the Norwood Builder” – a Sherlock Holmes mystery set in 1894 and published in 1903. One of the tidbits will be a freshly annotated edition of the story, based on the 1905 U.S. edition in The Return of Sherlock Holmes. (It is available on our website.)

How to submit an annotation: Email us a Word document with the passage from “Norwood Builder” that you want to annotate, and the annotation included as either (a) a footnote to your document if the annotation is just text or (b) a separate attachment if the annotation is an image (photograph, chart, or whatever). If your annotation involves assertions of fact or law, include citations to – and quotations from – appropriate authorities. Thus, for example, it is not enough to say, “The will drafted by McFarlane was invalid because English law in 1894 required two disinterested witnesses and he had only one.” What law? What did it say? Where are the cases supporting your interpretion? Do any go the other way? Similarly, if “the Anerley Arms was a going concern in 1894,” we will need to see some record or contemporaneous report of its operations in 1894. You get the idea: We are giving “Norwood Builder” the law review treatment.

Each point of annotation should add to the reader’s understanding or enjoyment of the story, including but not limited to its legal aspects.

We will give credit where it is due: Annotations to our edition of “Norwood Builder” will appear as footnotes and illustrations. Each footnote will identify by name the author of that note. Each illustration’s caption will identify by name the contributor of that image.

Length limit: There is no length limit, but please be reasonable.

Deadline: Finished works must be received at by December 24, 2014.

Criteria: We will select works for publication based on how useful, interesting, well-researched, well-written, and good-spirited they are.


Posted by Rick Garnett on October 31, 2014 at 09:14 AM in Rick Garnett | Permalink | Comments (0)

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 bookThe 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.

Posted by Rick Garnett on October 17, 2014 at 03:31 PM in Religion, Rick Garnett | Permalink | Comments (0)

Monday, October 13, 2014

Adverbs and the Law

One of the many fun things about teaching Criminal Law to first-years is playing around with the different uses and meanings of all the mens rea terms -- adverbs (nearly) all.  (I admit, I try to get them to at least appreciate the colorful, pre-MPC terms like "wantonly", "abandoned and malignant", "depraved indifference", etc.).  The other day -- prompted at least in part by the debate in Hobby Lobby about "substantially" -- the Wall Street Journal noticed that, whatever our composition teachers might tell us is good writing, "maligned" adverbs live on in the law and in court cases interpreting criminal statutes ("Why Adverbs, Maligned By Many, Flourish in the American Legal System").   (By the way, count me among those who think that Justice Kennedy carries adverb-adversion too far.)  Here's a bit:

No part of speech has had to put up with so much adversity as the adverb. The grammatical equivalent of cheap cologne or trans fat, the adverb is supposed to be used sparingly, if at all, to modify verbs, adjectives or other adverbs. As Stephen King succinctly put it: “The adverb is not your friend.”

Not everybody, however, looks askance at the part of speech. Indeed, there is at least one place where the adverb not only flourishes but wields power—the American legal system.

Adverbs in recent years have taken on an increasingly important—and often contentious—role in courthouses. Their influence has spread with the help of lawmakers churning out new laws packed with them. . . .


Posted by Rick Garnett on October 13, 2014 at 03:02 PM in Criminal Law, Rick Garnett | Permalink | Comments (2)

Sunday, October 12, 2014

With apologies to Property and Land Use prawfs . . .

. . . for introducing them to what I imagine will be a huge time-suck:   A quick way to get comparative info about any and every ZIP code.  (On the off chance that you ever get tired of the SSA's "Popular Baby Names" site . . ..)  (My ZIP code is lower-income, younger, and denser than the median.  There are a lot of other things one could say about it, on Notre Dame home-game weekends . . ..)

Posted by Rick Garnett on October 12, 2014 at 07:06 PM in Rick Garnett | Permalink | Comments (0)

Thursday, September 25, 2014

"Conscience and Community: Understanding the Freedom of Religion"

Here's a short piece I did for the Cornerstone blog, which is a project of the Berkley Center's Religious Freedom Project.  A taste:

 “Religion,” said Justice William Douglas in his Wisconsin v. Yoder (1972) opinion, is “an individual experience.” The opinion was a partial dissent, and this statement is partially correct. But, it does not tell the entire story. Many “religious experiences” are those of monks, mystics, and prophets—and of salesmen, coaches, teachers, and cops. But, many are also of peoples and tribes and congregations. As Justice Douglas’s colleague, Justice William Brennan, insisted in Corporation of the Presiding Bishop v. Amos (1987), “[f]or many individuals, religious activity derives meaning in large measure from participation in a larger religious community. Such a community represents an ongoing tradition of shared beliefs, an organic entity not reducible to a mere aggregation of individuals.” “Religion” is famously difficult (some would say “impossible”) to define and the distinction between “religion,” on the one hand, and “culture,” “tradition,” “identity,” and “politics” is much more contested than clear. The idea that it is only, or even primarily, an “individual experience” is relatively new on the scene. In any event, it seems clear that “religion” involves more than—even if it certainly does involve—the commitments, values, beliefs, professions, and practices of particular persons. It also involves—and it is exercised both by and through—communities, families, associations, societies, authorities, and institutions. . . .

The piece is consonant, in places, with Paul's book, which -- as was noted here -- John Inazu has recently and very thoughtfully reviewed.

Posted by Rick Garnett on September 25, 2014 at 04:20 PM in Rick Garnett | Permalink | Comments (0)

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.

Posted by Rick Garnett on September 15, 2014 at 12:01 PM in First Amendment, Religion, Rick Garnett | Permalink | Comments (0)

Monday, August 18, 2014

Dean Frank Wu on Rethinking Law School

Dean Frank Wu (Hastings) has a piece in the San Francisco Daily Journal called "It's Time to Rethink Law School" (HT:  Paul Caron).  The conclusion and central claim is this:

There has not been, in the recollection of anyone now living, a similar set of challenges for law schools. As with all such situations, however, leaders must spot the issues. We are in danger. We should not deny that.

I welcome the opportunity. We must cooperate -- bench, bar, teachers, students -- to take apart the system and put it back together again better.

Among other things, Dean Wu suggests that legal education should be re-worked to look and function more like medical education (a point that others, including my former colleague, Vincent Rougeau, now dean at Boston College, have also made).

I think that Dean Wu is right to underscore and emphasize what he calls the "maldistribution of lawyers" and also the "cost structure of legal education" and the crisis of "student loan debt."  I do regret, though, what seemed to me to be his endorsement of a criticism that, in my view, is (for the most part) a straw man.  After noting that the "century-old case method is transitioning towards skills training," he says "[t]he analysis of appellate decisions remains integral to the first year courses, but it would amount to an incomplete education at best" and contends critically that "some law school graduates" -- unlike medical-school graduates -- have engaged in "book learning alone."

The "transition[]" Dean Wu describes is clearly underway, but it seems to me that it has been for decades (and it has involved adding lots of enriching things -- not only skills training and clinical work -- to the "century old case method").  It's been a long time, I think, since anyone thought "the analysis of appellate decisions" alone could make for a "[]complete" legal education or since more than a handful of law-school graduates were trained through "book learning alone."  The "law schools teach nothing of practical relevance or worth" charge is out there, I realize, but I continue to think it is significantly overstated.  (And, to be clear, to say this is not to say anything about the extent to which "skills training" should be emphasized or incorporated more than it is at present.)

Posted by Rick Garnett on August 18, 2014 at 04:19 PM in Life of Law Schools, Rick Garnett, Teaching Law | Permalink | Comments (6)

Wednesday, July 02, 2014

Inazu on Justice Ginsburg's dissent . . . and CLS v. Martinez

Justice Ginsburg’s Hobby Lobby dissent criticizes the majority for failing to distinguish between a community of believers of the same religion and other forms of communities:  “The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention.  One can only wonder why the Court shuts this key difference from sight.”

But, as my friend and fellow prawf John Inazu, observes, one could level a similar critique of the majority opinion in Christian Legal Society v. Martinez.  In that opinion, Justice Ginsburg rejected the distinctive claims of the Christian group -- that is, the group's claim that leadership in the group should be limited to those who embrace the group's views and commitments -- in favor of an “all-comers” policy that required all student groups -- including communities made up of believers in the same religion -- to accept any student who wanted to join, regardless of that student’s beliefs or practices.  Isn't it fair to say that groups that want to maintain their distinctive faith-commitments (or philosophical or ideological commitments) and practices are different than those that do not?  In Martinez, it seemed to some of us that the "Court shut this key difference from sight."

For more on Justice Ginsburg's CLS opinion (including a response to the argument that it was a "subsidy" case), check out this article by Inazu.

Posted by Rick Garnett on July 2, 2014 at 02:42 PM in Rick Garnett | Permalink | Comments (3)

Tuesday, June 24, 2014

Purdy on our "anti-democratic court"

Prof. Jed Purdy (Duke) (Go Devils) has a piece at The Daily Beast called "God Save the United States from this Anti-Democratic Court."  (Ann Althouse writes about it, here.)  He asks, among other things, "[s]hould a self-respecting democracy have a Supreme Court like ours, with the power to overturn democratic legislation?"  In response to this question, Purdy observes, "[m]ore and more progressive observers are not so sure."  (But see, e.g., Geoffrey Stone, "Do We Need the Supreme Court," here.)   

It's an important question, for sure, and while I'm at best a faint-hearted and selective Thayerian, I'm sympathic to -- or at least think that I should be -- the answer Jeremy Waldron gave, a few years ago in The Core of the Case Against Judicial Review (That is, "pretty much no.")  The problem with Purdy's piece -- or, perhaps, the problem with me -- is that it is really hard for me to avoid the reaction, "Well, it appears to me that progressive observers, like most of the rest of us, like judicial review when they think courts get the right answer and dislike it when they think courts get the wrong answer.  Justice Breyer, for example, thinks it's really important to defer to legislative judgments, except when state legislatures enact school-choice programs."    Purdy quotes Rob Hunter’s recent conclusion that “judicial interference with democracy” should become “unthinkable," but I guess I'm skeptical that progressives, or Purdy, really want to unthink all "judicial interferences with democracy."  Few Court decisions have been as "anti-democratic" as, say, Roe v. Wade or Engel v. Vitale, but I suspect Erwin Chemerinsky's new book, The Case Against the Supreme Court (which Purdy mentions) will not criticize these rulings.

Don't get me wrong, my hands are not clean here:   I've suggested that the Court should be very deferential and hands off when it comes to the Establishment Clause but also that Hosanna-Tabor was about as right as a Court decision can be.  And, it could be that my snark is unfairly directed at Purdy's piece, since he does say:

For this reason, it’s the rare radical democrat who will denounce the Supreme Court right down the line. Whatever they think of the Court’s other decisions, progressives will generally celebrate without reservation on the all-but-certain day when the Court established marriage equality nationwide. Most Americans think of the Constitution as being ultimately on their side, and identify the Constitution with the Supreme Court. When they agree with the Court’s decision, they tend to think the country has been called back to its best self. When they disagree, they tend to think there has been a regrettable, maybe terrible, mistake.

So . . . what?  Maybe this latest uptick of expressed frustration with the strangeness of a state of things in which the Answers to Big Questions are provided by Justice Kennedy is just a reprise of the popular-constitutionalism conversation, or the inquiry into whether there really is such a thing as "judicial activism" (See, e.g., Kermit Roosevelt's book), or the call for "neutral principles", or the celebration of the "passive virtues", or . . . .  I'm not sure.  I feel confident, though, that few if any of us -- despite what we might wish we could honestly say we want -- really want the Court to be entirely inert or unflinchingly "democratic."

Posted by Rick Garnett on June 24, 2014 at 05:25 PM in Constitutional thoughts, Rick Garnett | Permalink | Comments (9)

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."

Posted by Rick Garnett on May 8, 2014 at 09:03 PM in Religion, Rick Garnett | Permalink | Comments (0)

Saturday, May 03, 2014

On "turning 40"

I just finished (well, almost -- my students are taking their exams) teaching my 40th law-school class:  Criminal Law - 9, Constitutional Criminal Procedure -5, Constitutional Law - 7, Freedom of Speech - 5, The First Amendment - 4, Freedom of Religion - 5 (once as a mini-course in Israel), Catholic Social Thought and the Law - 3, The Death Penalty - 1, The American Jury - 1.  (Thankfully, this "40" milestone looks to be much less complicated, and a much happier occasion, for me than it was for Paul Rudd's and  Leslie Mann's characters in "This is 40.")

It's easy to report that I still love law-teaching and continue to regard the chance to participate in the development and launching of my students' vocations as a huge blessing.  My students have been great (and they've been patient as I get slower and slower on the basketball court).  The trickier task, "at 40," is to figure out, and honestly assess, whether or not I have improved as a teacher -- or, even if I have, if I have as much as I could and should have.  

Sure, I know the material better than I did the first few times around.  I'm more comfortable than I was at first with not knowing the answer to a good question, and with being challenged, and with having to correct myself, and with needing to apologize for a mistake.  I've changed books and classes often enough that, I think, I've pretty well avoided the danger of the "same old notes, same old script, same old class" problem.  I think I've managed to lose the nervousness while retaining the enthusiasm.  So far so good.

That said, if I'm honest about it, I wonder if I could or should have done more.  My courses proceed pretty much as they always have in the non-seminar classes -- a mix of review, lecture, discussion, "soft-Socratic" questioning, and looking ahead.  I draw some things on the board, but have only used PowerPoint (or other digital tools and resources) on a handful of occasions and not, I think, very effectively.  I've assigned and used a lot of secondary materials and scholarship to supplement casebooks, but have probably not done enough to bring in current events, relevant material from other disciplines (say, sociological or psychological material in Criminal Law).  I evaluate students -- that is, I write and grade exams -- in pretty much the same way I did in 1999.  For the most part, I have not incorporated experiential-learning or clinical assignments and exercises into my courses.  

I'm not inclined to think that "change" is an imperative, or that it's always good, but . . . maybe I should have changed more?  Maybe that happens at 50 . . . .     

Posted by Rick Garnett on May 3, 2014 at 11:18 AM in Rick Garnett, Teaching Law | Permalink | Comments (5)

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.

Posted by Rick Garnett on April 25, 2014 at 02:12 PM in Religion, Rick Garnett | Permalink | Comments (0)

Wednesday, March 26, 2014

"Lost Classroom, Lost Community"

I am delighted to report that the latest book by Prof. Nicole Stelle Garnett (and her co-author, my friend and colleague Prof. Margaret Brinig) is out (and available for purchase!)  The book is "Lost Classroom, Lost Community:  Catholic Schools' Importance in Urban America, and it's published by the University of Chicago Press.  Here's a blurb from the Press:

In the past two decades in the United States, more than 1,600 Catholic elementary and secondary schools have closed, and more than 4,500 charter schools—public schools that are often privately operated and freed from certain regulations—have opened, many in urban areas. With a particular emphasis on Catholic school closures, Lost Classroom, Lost Communityexamines the implications of these dramatic shifts in the urban educational landscape. 

More than just educational institutions, Catholic schools promote the development of social capital—the social networks and mutual trust that form the foundation of safe and cohesive communities. Drawing on data from the Project on Human Development in Chicago Neighborhoods and crime reports collected at the police beat or census tract level in Chicago, Philadelphia, and Los Angeles, Margaret F. Brinig and Nicole Stelle Garnett demonstrate that the loss of Catholic schools triggers disorder, crime, and an overall decline in community cohesiveness, and suggest that new charter schools fail to fill the gaps left behind.

This book shows that the closing of Catholic schools harms the very communities they were created to bring together and serve, and it will have vital implications for both education and policing policy debates.

Congrats to Nicole!

Posted by Rick Garnett on March 26, 2014 at 02:44 PM in Rick Garnett | Permalink | Comments (0) | TrackBack