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Wednesday, November 27, 2013

Two Cases

It's an oversimplication, to be sure. But the title of this post seems to me to be the answer to the question, "How many cases does it take to turn a fan of non-formalist balancing into an advocate of formalist categoricalism?" Those two cases are the contraceptive mandate cases, on which the Court has just granted cert.

The balancing-versus-categoricalism debate in constitutional rights adjudication, which often tracks the non-formalist-versus-formalist divide, is a longstanding debate. (See here for some background.) American constitutional doctrine has gone back and forth between the two. In more modern constitutional legal systems, however, the emphasis tends to be on balancing. It is aided in part by the different textual structure of those constitutions and their rights provisions, which contain both stand-alone rights guarantees (ie., "Everyone has the following fundamental freedoms: . . . freedom of conscience and religion. . .") and explicit balancing clauses (ie., "[The Constitution] guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."). It is also probably undergirded by faith in judges, by the relative homogeneity of those judges and their political views, and by the force of some charismatic judges along the way, notably Aharon Barak (who did not even have the benefit of that kind of textual clarity, or any actual constitutional text at all, to work with). Under this approach, the general legal tendency has been to define the right broadly, and do most of the work at the balancing stage. (Advocates of this approach also frequently favor a similarly broad approach to potential preliminary categorical barriers such as standing.) 

Generalizations are just that and should be taken with a grain of salt. But I think it's still broadly true to observe that many legal liberals favor the modern style of constitutional adjudication, believe in judicial balancing, and are less inclined to support categoricalism or formalism as a means of constraining rights  claims. 

Until the contraceptive mandate cases (and Citizens United), that is. It would be possible to decide such cases by taking a broad approach to the categorical questions and finding that such a right exists, even for corporations, while holding against the corporate plaintiff on balancing grounds. But many of the initial responses to these cases seem to be more formalist and categorical in nature, rejecting a Barakian or Breyereseque balancing in favor of a more formalist up-front exclusion on who (or what) can claim a constitutional right to freedom of religion (or expression, in something like the Elane Photography case) at all. A lot of people suddenly seem fonder of formal categorical exclusions, and more leery of judicial balancing, than they used to!

I admit to some ambivalence here. Skepticism of the judicial capacity to balance rights against state interests is a good thing. Skepticism of Barak's passion for proportionality is a very good thing. And I am apparently not opposed to categorical approaches! But I think balancing emphatically has a role to play in rights adjudication, and I think these cases could be sensibly decided at the balancing level rather than engaging in categorical exclusions at the preliminary stage of the rights claim. For what it's worth, I tend to think that many entity plaintiffs challenging the mandate should lose at the burden or state interest stage of the analysis. I would rather have the decision occur at that stage than by denying the possibility of an entity claim altogether. But I'm still thinking about those issues. In the meantime, I'm interested in what the mandate cases and the reaction to them say at a higher level about fair-weather allegiance to balancing versus categoricalism or non-formalism versus formalism.

Two additional points. First, in response to a comment on FB on this issue, I'm thinking mostly about the Free Exercise (or, under RFRA, Free Exercisish) aspects of these cases, not the Establishment Clause aspects. The Establishment Clause presents its own questions, and it is not always as easy to situate thinking about the Establishment Clause on one side or the other of the categoricalism/balancing divide, in part because of underlying uncertainty about whether the Establishment Clause itself is a rights provision or a structural provision.

Second, there is also a similar reversal or tension on the formalist/judicial conservative side, although again this is a very rough cut. For reasons probably having to do with general priors than with a particular unified legal theory, many people who might be characterized as judicial or political conservatives, who are fonder of formalism and less fond of balancing, are also supporters of a robust regime of religious liberty. Given their fondness for formalism and skepticism about judicial balancing and judicially ordered exemptions, many of them have reconciled themselves over the last 20 years to the Supreme Court's formalist decision in Employment Division v. Smith. Yet they object to the broad application of civil and human rights statutes and provisions like the contraceptive mandate to religious entities. There may be some ways to address this without sacrificing formalism. One is to exploit the requirement that a law be genuinely neutral and generally applicable. Another, of recent vintage, has been to emphasize the quasi-jurisdictional idea that churches themselves are entitled to a broad scope of internal freedom. That worked in Hosanna-Tabor. But how broad should that categorical approach be? Should it really work when applied to for-profit corporations, for instance? (And why, incidentally, once we've gone down that road, shouldn't the formalists re-examine their general rejection of categorical Press Clause rights?) Doesn't it require courts to undertake the kinds of inquiries about "who is a church" that they think courts aren't generally qualified to engage in? Finally, I suppose a third possibility for people in this camp is to take a broad view that everyone, including all sorts of claimants, is ostensibly entitled to bring freedom of religion claims, while dealing with the mess at the balancing stage. Which perhaps puts them closer to the Barak/balancing camp than they would normally want to be; hence the tension on the other side of the debate.

Comments welcome, of course; as I said, this is a pretty rough cut and I don't think it's the whole story, although I do think looking at things this way reveals some pretty interesting methodological tensions. And see also this related article by Perry Dane.   

Posted by Paul Horwitz on November 27, 2013 at 12:02 PM in Paul Horwitz | Permalink


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There may be some people who categorically rejected First Amendment or Free Exercise rights for firms, as Paul suggests. But most of the arguments I've seen along those lines look to me more like balancing. The claim is that individuals can adequately express themselves on their own time and on their own dime; any added liberty of expression to be gained from employing state-contructed rules (e.g., rules of corporate governance) is typically outweighed by state interests in limiting those rules to certain uses.

Or, less abstractly, people say that the members of Citizens United were perfectly free to lobby with their own money. Or that Hobby Lobby's owners are using a regulated system to make money, and they have play by the same rules everyone else in that system does. And then they balance these arguments against the incremental burdens on expressive or religious freedom.

Posted by: BDG | Nov 27, 2013 3:46:03 PM

A rough cut, indeed! Perhaps it was once the case that the more rule-based versus more balancing-based methodological preferences tracked, respectively, conservative and liberal political disposition. I can think of a couple of cases in which this was true. I don't think it's the case any longer. Methodology and political/judicial outlook combine today in all kinds of interesting combinations.

Posted by: Marc DeGirolami | Nov 27, 2013 1:01:45 PM

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