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Tuesday, July 24, 2012

The Malleability of the Formalist Accusation

The formalist accusation -- the one which generations of law professors have affixed on large swaths of American thought in the late nineteenth and early twentieth century -- continues to work its rhetorical trompe l'oeil.  The latest example appears in the Seventh Circuit's Establishment Clause decision yesterday, Doe v. Elmbrook School District.  The case involved the constitutionality of a Wisconsin school district's decision to hold a public school graduation inside a church.  The en banc court held that under the specific facts of the case, the ceremony violated the Establishment Clause.

For purposes of this post, though, I want to focus on an exchange between Judge Flaum's majority opinion and Judge Posner's dissent.  Each accuses the other side of excessive (is there ever any other kind?) formalism -- the majority opinion explicitly, the dissent implicitly but no less directly.  The majority says:

In sum, if constitutional doctrine teaches that a school cannot create a pervasively religious environment in the classroom . . . or at events it hosts . . .  it appears overly formalistic to allow a school to engage in identical practices when it acts through a short-term lessee.  See Lee [v. Weisman], 505, U.S. at 595 ("Law reaches past formalism").  The same risk that children in particular will perceive the state as endorsing a set of religious beliefs is present both when exposure to a pervasively religious environment occurs in the classroom and when government summons students to an offsite location for important events. 

I guess that does sound pretty formalistic.  And yet Judge Posner -- who is not especially well known for formalistic opinion writing (and even less commonly for "overly formalistic" decisions) -- is on the other side of this disagreement.  Here's what he says:

The difference between a public school's using a church two or three hours a year and its using it a thousand-odd hours a year is one of degree rather than of kind, but differences of degree are inescapable grounds of legal distinctions.  "I am the last man in the world to quarrel with a distinction simply because it is one of degree.  Most distinctions, in my opinion, are of that sort, and are none the worse for it."  Haddock v. Haddock, 201 U.S. 562, 631 (1906) (Holmes, J., dissenting).  "Here, indeed, as so often in other branches of the law, the decisive distinctions are those of degree and not of kind."  Welch v. Helvering, 290 U.S. 111, 114 (1933) (Cardozo, J.).

It will not do to equate school activity at a church to church activities at a public school.  The religion-in-school cases . . . held that the establishment clause had been violated because the government was trying to induce kids to engage in religious activity, and that isn't alleged in our case.

That doesn't sound too formalist either (and certainly not "overly formalistic").  Judge Posner doesn't seem to be relying on self-avowed or otherwise accused formalists in reaching his view of the case.  I don't think Holmes or Cardozo are in the canon of formalist arch-villains, are they?  How about it, readers: ferret out the formalist! (and when you do, remember to heap scorn accordingly)

Posted by Marc DeGirolami on July 24, 2012 at 01:55 PM | Permalink


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