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Thursday, April 09, 2015

Lost faith in the courts

A quick sidenote on Paul's excellent Commonweal essay. Of the people panicking about state RFRAs, Paul writes:

But RFRA laws do not grant an unrestrained license to exclude or discriminate. With the exception of some state bills, which were opposed even by champions of religious accommodation and which failed, most RFRAs (including Indiana’s) do not compel any result. What they do require is balancing.

The problem is where left/liberal/progressive advocates are on judicial enforcement of individual rights right now and their attitudes towards the current Supreme Court. The assumption is that any balancing done by this Court--the Court that gave us Hobby Lobby*--will always, unavoidably, and automatically favor the religious believer against the woman or LGBTQ person being disadvantaged in the marketplace. Any balancing will be informed by the pro-religion preferences of that five-Justice majority and the claim for accommodation will always prevail over anti-discrimination statutes and principles. So saying that RFRA does not compel a result but only balancing is no comfort, because one side believes it knows how that balancing is going to come out.

* When does Hobby Lobby replace Citizens United as the single-case synonym for everything wrong with the Roberts Court?

Posted by Howard Wasserman on April 9, 2015 at 04:19 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


Parents Involved is the single case synonym I'm afraid.

Posted by: Paul Gowder | Apr 13, 2015 8:04:43 AM

Howard -- I think CU is correct, too, so not different in that respect. But, it seems to me that (as with all First Amendment doctrine) you can at least put the credit or blame for it on the Court. I don't see Hobby Lobby in the same way -- it really is, it seems to me, a statutory-interpretation-and-application case, one whose outcome is (if we want) revisable or undoable.

Posted by: Rick Garnett | Apr 12, 2015 4:07:09 PM

Rick: Is HL different than CU in any of the respects you describe? It seems to me, no.

Posted by: Howard Wasserman | Apr 12, 2015 12:45:11 PM

Howard - it would be strange, I think, if that symbolic shift happened, since the Hobby Lobby decision - the interpretation and application of the particular statute - was (again, it seems to me) so unremarkably correct (or at least plausible). I could understand it becoming a symbol, or stand-in, for what's disappointing or even toxic about political discourse (see Horwitz, "The Hobby Lobby moment"?) or about what's wrong with our religious-exemptions regime, but the Court? (I realize that it's going to be regarded as a stretch to say that a 5-4 ruling was unremarkably correct!)

Posted by: Rick Garnett | Apr 12, 2015 7:54:02 AM

Even if you say that state supreme courts are interpreting the mini-RFRAs and they don't need to interpret strict scrutiny the same way the US Supreme Court has, you come back to the same place via statutory interpretation. It's pretty clear that state legislatures didn't come up with the strict scrutiny formula on their own. It was taken from the US Supreme Court -- either directly or indirectly via federal RFRA. So a principled state Supreme Court ends back up at the same place.

Now maybe you can say that the state legislators are all legal realists and familiar with the personalities on their supreme courts and so intended that it would be interpreted in a more narrow fashion. But that starts to look like cynical turtles all the way down.

As for Muslims wearing beards in prison, in response to Asher, given that short beards apparently have no impact on prison safety or efficiency, I don't see why everyone can't wear short beards if they want to.

Posted by: brad | Apr 10, 2015 3:34:40 PM

That's a fair point that these cases will be in state court. I made the mistake of automatically putting everything in federal. I think the point still stands that LGBTQ advocates do not trust any courts to do the balancing. I also think folks are thinking about the future possibility of federal RFRA being put to the same uses if/when LGBTQ is finally added to Title II and Title VII.

Posted by: Howard Wasserman | Apr 10, 2015 9:17:50 AM

So first, I think Sam's right, and I guess I'm missing how the Court is going to get an opportunity to decide whether the federal RFRA mandates exemptions from sexual orientation discrimination law, such law not existing at the federal level yet. I'm also missing what such a hypothetical decision has to do with supporting/opposing state RFRAs, unless you assume that state supreme courts will interpret their RFRAs (the opponents of which keep telling us are very different from the federal RFRA) like the Court does. Assuming opponents of the Indiana RFRA were arguing in anything like good faith, opponents of the Indiana RFRA seem to hold the opposite view, as they universally faulted the Indiana RFRA for deviating from the federal RFRA in that it made explicit things the Court had interpreted the federal RFRA to say in Hobby Lobby. One couldn't fault the Indiana RFRA for that unless one thought there was some chance of the Indiana Supreme Court construing a RFRA that mirrored the federal RFRA more moderately than how the Court's construed RFRA. Ultimately, however similarly worded the federal RFRA and state RFRAs may be, there are all sorts of good legal reasons (and legal realist reasons) to expect state supreme courts to deviate from the Court's construction of the federal RFRA. So if you want to worry about how Indiana's RFRA might be interpreted, I suggest you look at who's on the Indiana Supreme Court.

Second, I don't see that Hobby Lobby tells us anything about how SCOTUS would decide RFRA's application to some as-yet unenacted orientation discrimination law, because Hobby Lobby came down to the availability of less restrictive means, already being provided to other similarly situated religious objectors, that just aren't going to be there in the discrimination context. All the RFRA plaintiff will be able to do there is argue that the existence of other exceptions to, e.g., an employment discrimination law negates narrow tailoring. That's a pretty weak argument, more or less peremptorily rejected in dicta in Hobby Lobby at least with respect to racial discrimination law, and I think as long as Justice Kennedy is the median voter on the Court (and even if he's not) it's very unlikely to get a majority. It certainly isn't as if this Court is unfriendly to LGBTQ rights. I think RFRAs do a lot of good - who can oppose beards for Muslim prisoners? - and ought not be opposed over these pretty fanciful concerns. And frankly, LGBTQ advocates ought to eat the risk that some court somewhere will read a RFRA in an overbroad way as the cost of all the good RFRAs do for religious minorities.

Posted by: Asher | Apr 10, 2015 1:25:56 AM

(for instance, I predict that state courts will not apply state RFRAs to allow Rastafarians to smoke dope. Even if El Centro would seem to require such a result under federal law, state courts will resist it under state law. State courts will follow the persuasive non-binding force of analogous US S Ct caselaw only when they want.)

Posted by: Sam | Apr 9, 2015 8:41:46 PM

1) Aren't people more concerned (and shouldn't they be more concerned) about how *state supreme courts* will interpret and apply state RFRAs, than about the US S Ct? I mean, sure - state courts will happily follow pro-religion decisions of US S Ct when applying state RFRAs that are similar to fed - but still, state courts are the decisionmakers on interpretation and application of state RFRA's.

2) Don't miss the point that many people (including me, so there must be more!) oppose RFRAs politically, because we do not believe that religious belief is more deserving of legal respect than other sorts of belief. This is a part of the current moment of backlash against RFRAs that those on the "religion is good" side seem to miss - there are more comfortable non-believers now than there have been at some other times in US history, and it really does strike some of us (me) as obnoxious to privilege religious beliefs over other sorts of belief.

Posted by: Sam | Apr 9, 2015 8:39:25 PM

Based on discussing this a few places online, it seems like one of RFRA's supporters main argument is "don't worry the courts haven't been and won't apply *real* strict scrutiny." We've all read the cases -- the strict scrutiny test, applied in a principled fashion, is incredibly tough to meet. Maybe finding a compelling interest isn't too too difficult, but narrow tailoring is a different story. Is the law at hand really the least restrictive possible alternative? Rarely or never. So now we have add to our vocabulary some mirror image to rational basis with bite. Toothless strict scrutiny, maybe?

I don't think this is an outcome that should be celebrated. Our judges are being put in a position where they either exempt people from huge swathes of law on little more than people's say-so (because figuring out what beliefs are real or not is too fraught) or cynically narrow a duly enacted statute sub silentio.

RFRAs are bad laws. Even if you want to put into place a balancing test, that's not the way to do it.

Posted by: brad | Apr 9, 2015 4:44:41 PM

"When does Hobby Lobby replace Citizens United as the single-case synonym for everything wrong with the Roberts Court?"

When Colbert runs a recurring segment on it.

Posted by: Bryan G. | Apr 9, 2015 4:23:10 PM

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