PrawfsBlawg

What if "You've Got Mail," but Jewish?

In considering whether When Harry Met Sally . . . is a Jewish movie, I argued no one would believe so if you replaced Billy Crystal with Tom Hanks--and get You've Got Mail. Behold Hanukkah on Rye, the 2022 Hallmark Chanukkah movie that earns such Hallmark-high praise as weirdly good and terribly sweet.

At some level, I have the same complaints I level at all of these movies--they place Chanukkah at the center of the adult (as opposed to kid) Jewish lifecycle and calendar and ascribe the holy day a force it does not have for most Jewish adults. Adults in these stories mark the year and their lives by Chanukkah. So from last year's Eight Gifts of Hanukkah:

    • A Jewish contractor tells his Jewish client that construction on her optometry office-a business with no discernible connection to Judaism or the holiday--will "be done by the Eighth Night of Chanukkah."

     • That client's ex wants to get back together because "maybe it's the holiday, but I have been taking stock of my life." Umm, we have a month plus ten days devoted to that, nowhere close to this time of year.

    • A family gathers for the first night to light candles, etc., then the child in the family asks whether she can "unwrap her Chanukkah presents"--as if anyone in a real conversation in that context would need the adjective. OK, that may just be bad writing, but it illustrates how these movies find it necessary to hit everyone over the head with the fact that these people are Jewish.

Although these recent movies have included Jewish actors and crew, they continue to present Chanukkah as "Jewish Christmas"--that most wonderful time of year when we gather we family, do not want to be alone, and make a lifetime of memories that guide us through life.

HoR does not suffer from those problems because it is not an original story. It is a Jewified You've Got Mail, with identifiably Jewish characters played by Jewish actors and set within the eight days of Chanukkah. The timing sort-of makes a little sense because the story revolves around latkes and a secret latke recipe, although it still centers Chanukkah as the time of year where Jews gather, take stock of life, long to find love, etc. Anyway, Jacob, the fourth-generation operator of LA-based deli Zimmers, relocates to New York to open a new location on the Lower East Side; Zimmers is known for combining old-time Jewish deli with modern takes and a wider menu. Molly is preparing to take over Gilbert's, her family's fourth-generation, very traditional, but secretly struggling, deli in that neighborhood--if she only can figure out how to make a good egg cream (hint: stir the chocolate into the milk before spritzing the seltzer). Meanwhile, their respective bubbes sign them up for a mysterious New York-based matchmaking service in which people write handwritten letters to a pseudonymous match ("David" and "Beth") that a courier collects and delivers. Multi-generational family dynamics appear to center the  final act.

Some non-Jewish-focused spoilers on HoR after the jump; if you do not want to know how the movie ends, stop reading.

I will leave with this point. I can give Hallmark credit for wanting to depict Jews at Christmas, the only people in the Hallmark Cinematic Universe who want to stay in The Big City. But then tell a somewhat realistic story of American Jews. If it wants a December-based Jewish-American rom-com, set it at one of the Matzah Balls in many cities on Christmas--events designed for young Jewish singles to meet. Or at a Christmas-day Chinese restaurant comedy show. Importantly, neither story has anything to do with Chanukkah--which may be over or not have begun on December 25; each is about how Jewish-Americans make a unique culture in the larger society. If Hallmark insists on  a Jewish-holy-day-themed story, set it at Passover or Yamim Noraim--the days that matter on the Jewish calendar. Otherwise there are better Jewish rom-coms that need not squeeze into a short holiday.

OK, now the spoilers. What I find interesting about HoR as a riff (generously) on YGM--the movie corrects the two things people find unrealistic and arguably problematic about the source material.

As in YGM, Jacob figures out that "Beth" is Molly and tries to use it to his advantage, although not as manipulatively. YGM ends with that reveal and she acts it happily without thinking more about. In HoR, Molly learns about this about 20 minutes before the end, and is (rightfully) pissed off--he was dishonest with her and used that information to his advantage. Yes, the advantage was love, but still. It takes awhile and several different conversations with different people to bring her down from the point.

Unlike YGM, Zimmers does not put Gilberts out of business as Fox Books (inevitably) crushed the independent bookstore. There is something hinkey in YGM's story of "you destroyed my multi-generational family business and put me out of work, but I am in love with you" story. HoR changes that because despite its obvious political conservatism, Hallmark hates capitalism. Zimmers is not a franchising behemoth; it remains family-owned, just with a less-traditional approach. Jacob helps Molly (something Tom Hanks never did for Meg Ryan); he tries to convince his family to find a new location and he works with Molly on a bunch of Chanukkah-themed promotions at Glberts. Finally, the families learn of an historical connection and end the story by combining businesses in New York (in a way that would undermine both in real life--again, I do not think Hallmark understands capitalism).

Jewish baseball update

Max Fried finished second in NL Cy Young voting, finishing far behind the Marlins' Sandy Alcantara, who won all first-place votes. Fried becomes the third Jewish pitcher not named Koufax to finish top-two in Cy Young voting (along with Steve Stone's 1980 win and Joe Horlen's 1967 second-place finish).

The Fried Curse?

A potential Jews-in-Baseball moment on the horizon this week.

The Braves lead the Mets by two games in the NL East with three games to play; the Braves' magic number is one. The Braves also own the tiebreaker--if the teams finish tied, the Braves win the division. But suppose the Mets win the next two games and the Braves lose the next two; the teams are tied entering the final game of the season, to be played at 4:10 p.m. on Wednesday--Yom Kippur.* Braves ace Max Fried would be scheduled to pitch and would be the guy the Braves want in a seeming must-win game. Will he pitch? And if he does, can he overcome the Koufax Curse?

[*] It could be a very Jewish game. The Marlins feature two Jewish relief pitchers--Jake Fishman and Richard Bleier.

Unsurprisingly, I am not a fan of MLB's bloated post-season. But I do like that it set the system to incentivize teams to win the division. The NL East winner gets a first-round bye and will not play until next Tuesday or Wednesday. The loser plays a best-of-3 series this weekend, then would face the 110-win (with three games left) Dodgers in the next round. A team may want to use its best pitcher in this game. If they win, he can be fully rested to start Game 1 after the bye. If they lose, he misses the short weekend series. Will Fried be the man, even on Yom Kippur day?

Playing on Tisha B'Av

While Jewish baseball fans focus on who plays or does not play on Yom Kippur and the Koufax Curse,Tisha B'Av (commemorating the destruction of both Temples and all other pre-Holocaust tragedies to befall the Jewish People*) presents the pardigm Jewish holy day for which most Jewish-American baseball fans do not care whether anyone sits out.

[*] The Holocaust is marked by Yom Ha'Shoah, which is set near Israel Independence Day and Israel Memorial Day. Many Orthodox Jews, particularly Chasidim, fold Holocaust commemoration into Tisha B'Av. Jewish scholars debate whether the Holocaust is an extraordinary event or one of many great historic tragedies.

Until now. Tisha 'Av ran from sundown Saturday to sundown Sunday. Here are the results.

Saturday Evening:

• Alex Bregman (3B, Astros). 1-for-4 with a double and run scored (albeit meaningless in the ninth inning of a 4-0) game. Astros lose 4-1.

• Max Fried (P, Braves). 6 innings, 6 hits, 4 runs (2 earned), 5 strikeouts. Part of the error that allowed two runs to score. Smacked his head on the field trying to make a play. Braves lose 6-2, swept in double-header, fall 5.5 games behind Mets in NL East.

• Rowdy Tellez (1B, Brewer): 1-for-2 after entering game in 6th inning. Brewers lose 7-5.

Sunday Afternoon:

• Bregman: 0-for-3. Astros lose 1-0

• Scott Effross (P, Yankees: 1 inning, 3 hits, 3 earned runs (that put game out of reach). Yankees lose 12-9.

• Joc Pederson (OF, Giants): 1-for-2. Giants win 6-4

• Garrett Stubbs (C, Phillis): (Rare start): 1-for-5 with a run scored. Phillies win 13-1.

• Tellez: 0-for-3 with a walk. Brewers lose 2-1

 

So Tisha B'Av looks a lot like Yom Kippur: Teams lose (2-6), Jewish players, especially pitchers, do anywhere from badly to not-so-great. I sense a pattern.

Tacky, if not offensive

The Dodgers will unveil a statue of Sandy Koufax at Dodger Stadium--in a game beginning at 4:15 Saturday.

Koufax was not religiously observant and he played on Shabbat. And this is not Jewish-American Heritage Day; the Dodgers are honoring a historically great Dodger who means something to all Dodger fans. That said, Koufax's Jewishness is part of his outsided legacy, much as Jackie Robinson's race is part of his legacy. The Dodgers must know he has unique meaning to a segment of their fans and to a segment who are not Dodger fans but who revere Koufax because of what he meant to American Jewry. To schedule this event in a way that excludes a small portion of those fans and ignores the symbolism of his Jewishness reflects, at the very least, a lack of thought.

For Shavuot, exploring the baseball records of post-retirement Jews-by-Choice

Shavuot begins at sundown Saturday. We commemorate receipt of Torah at Sinai--the point at which we all "became" Jewish--and we celebrate Jews-by-Choice by reading the Book of Ruth.

To mark the festival, I published an essay in The Forward considering the records and achievements of Joe Horlen and Steve Yeager, who converted to Judaism in retirement. The question is whether they should "count" as "Jewish" players and whether their records and achievements should count as "Jewish" in telling the history of Jews in baseball.

I had this idea in the fall. Some readers responded to my piece on the most-Jewish World Series by arguing that the '72 Series--in which Horlen, Ken Holtzman, and Mike Epstein played for the A's--was the first Series in which more than two Jews appeared. And if Horlen counts, so must Steve Yeager and his four World Series homers. I held the piece until now, timed to Shavuot and the celebration of conversion.

Working and playing on Shabbat

There Orthodox Jewish athletes have entered the Jews-in-sports conversation. Ryan Turrell was the star of some good Yeshiva basketball teams and has declared for the NBA draft; pitcher Jacob Steinmetz (coincidentally, the son of Yeshiva's basketball coach) plays in the Arizona Diamondbacks organizations; and pitcher-turned-catcher Elie Kligman plays at Wake Forest. Each hopes to make the top level of their sports as Shabbat-observant Jews.

What does having Orthodox Jews in The Show entail? According to reports, Steinmetz and Turrell plan to play on Shabbat, while avoiding driving to the game. One commentator sees this as a wise compromise and the evolution of full Jewish participation in American life, in which Jews need not choose between their identities as "Americans" and "Jews."

But how does this square the law of Shabbat, in which we can neither work nor play (barring the workaround they found for Hank Greenberg on Rosh Hashanah in 1934)? Do rabbis apply some sort of "necessity" principle--these players cannot pursue these activities, and thus use the gifts Hashem has bestowed upon them, without this workaround? An everyday baseball player who cannot play on Shabbat is guaranteed to miss about 35 games, almost 20 % of the season; no team could afford to miss a key player for that much of the season. And what might Steinmetz do on Yom Kippur, when (unlike Shabbat) most American Jews take at least a partial day off? It would be ironic if millions of less-observant Jews (and the occasional less-observant Jewish player) take the day off and attend synagogue on Yom Kippur, while a player who follows more of Jewish law and ritual in his daily life takes the mound. Not worried about being a role model for American Jews, he need only worry about the Koufax Curse.

Which Jews? (Updated)

This Wall Street Journal essay by Mark Oppenheimer on rising antisemitism has generated some heat. The basic argument is that modern antisemitism in America targets the "shrinking minority of Jews who regularly do Jewish things in Jewish spaces"--attend synagogue or Jewish schools, shop at kosher markets, wear Jewish clothing, etc. But "for people who are Jewish but don’t do Jewish things, the U.S. is less oppressive than ever," as "gentlemen's agreement" antisemitism excluding Jews from neighborhoods, schools, clubs, etc., are "artifacts pf the past."

1) Some accuse Oppenheimer of victim-blaming, of telling that minority to stop doing Jewish things in Jewish spaces so as to avoid being targeted. That is not a fair reading. He is not telling anyone to stop attending these spaces. Quite the opposite--he  ends the piece by praising those who regard Jewish education or praying with fellow Jews as worth the risk. He was not blaming the "Jews who Jew it" or telling them to stop. He was making the point that the new American antisemitism is complicated--rather than an across-the-board societal phenomenon affecting all Jews equally, it is isolated and individualized.

2) Oppenheimer's premise is questionable on its terms. Charlottesville targeted all Jews, not only those who wear kippot and shop in kosher markets. Reports of recent antisemitic incidents seem to target Jews because they are Jewish while operating in secular spaces (although many of these overlap with Israel). Over the weekend, fliers were thrown in front of houses in Miami Beach and Surfside linking Jews to COVID and evil vaccinations (listing the Jews in the CDC, HHS, etc.); similar fliers have been distributed other places. No word on how they picked the houses. Was it random homes in two heavily Jewish towns? Did they look for mezzuzot? And is a mezzuzah "Jewing it," akin to wearing a yarmulke or is it akin to walking through life as Josh Goldberg? He may be right that violence seems to target the obviously Jewish. But a lot of antisemitism is non-violent.

3) The argument conflates institutional (or systemic) and individual antisemitism, so I think the base of his argument is flawed. He compares individual antisemitism, a lot of which is directed at Jewish spaces, with institutional or systemic antisemitism in secular spaces, which he argues no longer exists. But those are unique situations in which regular" Jews and "Jews who Jew it" may not be so different. Gentlemen's-agreement antisemitism in schools, clubs, law firms, and businesses appears to be an artifact of the past for all Jews--universities do not have quotas on Jewish students, regardless of level of observance. Meanwhile, if we focus on individual antisemitism, many Jews of all stripes have been targets  in many spaces. His argument might work if we compare violent antisemitism. High-profile violence appears to have been limited to "obvious" Jews. But that is a narrower and distinct argument.

It's not just baseball

A New York Magazine story on Yeshiva men's basketball, which is ranked # 1 in the nation in D-III, has won 50 straight games dating back three seasons, and is blowing teams out. The undefeated Maccabees reached the D-III Sweet 16 when the tournament shut down in March 2020. They played only seven games last year before the season shut down. It is a great what-if for the school that COVID upended what could have been an historic run.

Ryan Turrell is the team's star, a mid-to-mid-major D-I talent who went to Yeshiva because he did not believe he could reconcile his Jewish practices with playing D-I basketball. Turrell hopes to be the first Orthodox Jewish player in the NBA and the counterpart to two young Orthodox baseball players (one in the minors, one playing at Wake). Lost in the story is perspective on whether Turrell's talents translate to the next level. There are no D-III grads in the NBA; the closest is Miami Heat guard Duncan Robinson, who began his career at D-III Williams, but transferred to Michigan after a freshman season in which he earned All-America honors. Turrell's lone D-I commitment was to Army, which is not a typical path to the NBA (David Robinson does not count--he grew six inches between 12th grade and 2d year at Navy). The likely make-or-break for Turrell is whether he is a good enough shooter.

Fun times.

Welcome to the Velt Serye

In The Forward, as we prepare for the most Jewish World Series in history, talking about Jews playing rather than sitting out. Max Fried's expected Game 2 start, in which Joc Pederson should be the Braves DH and Alex Bregman will bat third for the Astros, is the one to watch.

Update: Should we be concerned that this most-Jewish Series pits ethically compromised teams? Well, if our comparator is 1959 (the prior 3-Jew Series), it is worth noting that the Go-Go Sox stole signs. Their general manager, who knew? Hank Greenberg. Turns ourt some of Greenberg's championship teams in Detroit also stole signs.

Addendum: Garrett Stubbs, the Astros' third-string catcher, is not on the World Series roster. So that leaves us with three Jews on rosters, matching 1959, but all will play.

Why playing baseball on Yom Kippur matters

My new essay in The Forward explores why we care about playing baseball on Yom Kippur more than we care about playing on other, arguably more important, days on the Hebrew Calendar. This began life as part of my empirical study of Jews playing on Yom Kippur; it was removed for length and I decided to break it out as stand-alone piece for a non-academic audience.

First Amendment fieldwork in Pleasant Grove

Last week, I happened to pass through Pleasant Grove, Utah.  First Amendment types will recall that, back in 2009, the Supreme Court issued a (unanimous) ruling in a case called Pleasant Grove City v. Summum, which had to do with government-speech and public-forum doctrines, and with a dispute over the City's refusal to put up a monument containing the "Seven Aphorisms" of Summum in its "Pioneer Park".  The City had accepted, the challengers noted, a privately donated monument of the Ten Commandments.  Well, because this is a full-service law-prawf-blawg, here is a picture of the Commandments, in the Park:

There are, outside the photo, some other various monuments and plaques, and also some old-timey, Utah-frontier-era buildings/reproductions.

(For what it's worth, if you're in Utah, I recommend getting into the Wasatch over wandering through suburbs looking for SCOTUS relics.)

 

Best Jewish teammates?

Joc Pederson was traded from the Cubs (as part of an impending firesale by a cheap-and-mismanaged organization) to the Braves, where he teams with lefty starter Max Fried. In their first game together last night, Pederson went 2-for-5 with a two-run homer and Fried struck out seven in seven shutout innings (and had three hits, raising his season average to .333).

Are Fried and Pederson the best pair of Jewish players on one team? What other teams have had two (or more) top-tier Jewish players at once? Going backwards in history:

    • Third-baseman Alex Bregman and catcher Garrett Stubbs have been teammates on the Astros for most of the past three seasons. Bregman is a star and MVP runner-up in 2019, but has been hurt much of the past two seasons. Stubbs is a back-up and rarely plays.

    • Outfielder Danny Valencia and pitcher Richard Bleier were teammates on the 2018 Orioles. Bleier was an effective situational reliever, going 3-0, striking out 4 batters per nine innings. Valencia played in 78 games in his final season in the Majors. And the Orioles went 47-115.

    • Kevin Youkilis and Gabe Kapler were teammates on the Red Sox from 2004-06. Both were bench players for the first two seasons. Youkilis became a starter in 2006, but Kapler played in only 72 games.

    • Ken Holtzman and Elliott Maddox (African American, converted to Judaism) were teammates with the Yankees for part of 1976, a season in which the team reached the World Series.  Holtzman was part of the starting rotation and won 9 games, but was on the downside of his career; Maddox was a spot outfielder.

    • On the 1972 World Champion A's, Holtzman won 19 games and made the All Star team, while Mike Epstein was the starting first baseman who hit 26 home runs and garnered some MVP votes. In 1973, Holtzman won 21 games and made the All Star team, but Epstein was run out of town after playing in 118 games.

    • The Dodgers had pitcher Larry Sherry from 1958-63; his brother Norm, a catcher, from 1959-'62; and a lefty named Koufax. Norm was a career backup. Sherry was primarily a reliever, although an effective one; he won 14 games in 1960 and 7 games and World Series MVP in 1959. Koufax did not become KOUFAX until 1961, at which point both Sherry brothers were less key players.

So I think the Holtzman/Epstein duo, although it lasted only one year, is the one to beat, accounting for team and individual performance. Pederson has not hit well this season, but he still has power and will be the everyday right-fielder for a team trying to get back into the pennant race. Fried has been inconsistent this season, but has won his last two games and is the best pitcher on the staff. Can they (and the team) get hot in the second half and pass them?

Did I miss other good examples?

Playing baseball on Shabbat

In an early draft of my article on Jewish players and Yom Kippur, I included a discussion of "why Yom Kippur," among all other parts of the Hebrew calendar. In particular Shabbat, which, Armin Rosen argued in the essay that started me down this path, is more sacred than either of the High Holy Days. I considered what might happen if a player would not play on Shabbat--at a minimum, it raises practical difficulties for a non-pitcher to have to know he must miss 36 games (22 % of the games) before the season even begins. At the same time, I think a team could and would accommodate that player--especially a star--to its financial benefit. (I pulled this section for length, although I may try to do something with it as a stand-alone piece).

A number of publications and people are telling the story of Elie Kligman. Kligman is a high-school senior from Las Vegas, pitcher and power-hitting infielder who is transitioning to catching; he is ranked as the 14th-best high school player in the state. He also is Shomer and has never played on Friday nights or Saturdays; most leagues and tournaments have accommodated him, at the urging of his lawyer/agent father. Kligman is talking about playing big-time college baseball and hopes to make the Majors. And he is already talking about not playing on Shabbat if he gets there. Part of the reason he is switching positions is that catchers often get at least one day off each week because of the physical toll; his day off could be Shabbat.

Before getting too excited about the next "Mickey Mantle bred on blintzes and gefilte fish" (as was written about 1970s slugger Mike "Super Jew" Epstein), I want to know more about just how good he is. Who is recruiting him and how good a prospect is he? The story says there are a "handful" of college coaches interested in him, but will not say who or what level. A scout says he could make an "impact" for a Power-5 conference team in a year or two. And a statement such as this--"Based on talent and desire, Kligman is good enough to realistically entertain his dream of playing Major League Baseball, or at least top level college ball"--means nothing. Top-level college baseball is roughly equivalent to high-A minors, a long way from The Show.

Like every other Jewish baseball fan, I want this story to be true and I hope Kligman makes it and 5-10 years from now I can write about his team switching their Friday home games to 2:15 starts. But at the moment, the story about his MLB prospects is, at best, incomplete.

Story published just in time for Shabbat.

Joel Harrison on "Post-Liberal Religious Liberty"

Dr. Joel Harrison, of the University of Sydney, has a new book with Cambridge University Press, called Post-Liberal Religious Liberty: Forming Communities of Charity.  (Get yours here.)  I'm honored that he engages -- critically, but fairly and carefully -- my own church-state writing.  I asked him to supply Prawfs with an "extended blurb", to give readers a sense of the argument.  Here it is:

Post-Liberal Religious Liberty: Forming Communities of Charity (Cambridge University Press, 2020)

Why should we care about religious liberty? What is religious liberty meant to protect? In Post-Liberal Religious Liberty: Forming Communities of Charity (Cambridge University Press, 2020), Joel Harrison argues that religious liberty protects the quest for true religion. It facilitates the free creation of communities of solidarity, fraternity, and charity.

This argument challenges the increasingly popular liberal egalitarian account of religious liberty.  According to this account, found in the writing of scholars like Ronald Dworkin and Cécile Laborde, as well as case law, religious liberty is a subset of or signifier for a broader category of liberty, protecting personal autonomy or authenticity.  Harrison traces how this has two consequences: it treats as suspect any claim to consider religion, traditionally understood, as especially important; and it leads to the claim that religious groups and persons should increasingly be subject to state law, where the law reflects the claimed autonomy interests of individuals.

Harrison argues that challenging this account requires challenging how liberalism fundamentally understands religion, the ends of a political community, and the role of civil authority.  Religion on this understanding is cast as private, and increasingly associated with individual self-definition or even consumption. Political order is cast as secular, with civil authority defined by a logic claimed to be autonomous of religion: negotiating and furthering individual rights-claims. However, this differentiation between religion and the secular rests on a narrative of secularisation that, Harrison argues, is in reality a half-concealed theology.

In contrast, Post-Liberal Religious Liberty recovers a different theological and political vision. It draws especially from Augustine of Hippo, a subsequent tradition of associational thinking, and contemporary post-liberal thinkers like John Milbank.  Harrison argues that civil authority should be understood as an arm for pursuing human flourishing, right relationship, or the virtuous life, one complementary with and responsive to the Church. This requires a commitment to religion – the love of God and neighbour – as central to the ends of a political community.  Such claims are challenged, in whole or in part, even within Christian thought. Harrison contrasts this argument with the writing of three prominent modern Christian scholars: John Finnis, Richard Garnett, and Nicholas Wolterstorff. However, he argues that only such a commitment makes sense of the liberty of plural religious groups. It points to a good – our common good – that religious liberty serves.

(Available here, discount code: PLRL2020; or via Cambridge Core online)

Bad Legal Takes does Talmud

There are reports of protesters in D.C. trying to keep media from recording the demonstrations, including by assigning "minders" to keep reporters from getting too close and using open umbrellas to keep them from seeing.

In response to a reminder that they are in a public space, this legal scholar argues that "by using umbrellas to surround themselves they are creating a quasi-private space for themselves and if in that atmosphere say they do not wish to be filmed they could win a lawsuit."

(Almost certainly) unknowingly, this genius invoked the concept of the eiruv, which is the subject of the current tractate in Daf Yomi (the 7 1/2-year cycle of reading one page of Talmud a day). An eiruv establishes a broader private domain in which Jewish people can carry on Shabbat by connecting multiple private domains into a single private domain through a series of markers and partitions. The Talmud establishes specific and complex rules as to what is sufficient to establish an eiruv. I am quite sure a raised umbrella does not qualify.

Justice Kagan’s Warring Views on the Religion Clauses

Today (Wednesday) the Supreme Court decided two cases involving questions of law and religious rights: Our Lady of Guadalupe School v. Morrissey-Berru (No. 19-267, consolidated with 19-348), which addressed the scope of the First Amendment’s “ministerial exception,” and Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania (No. 19-431, consolidated with 19-454), which determined the legality of regulations exempting employers from ACA-mandated contraceptive coverage for religious reasons. Justice Kagan joined the majority in both—in full in Our Lady and in the judgment in Little Sisters. But in what appears as case of the right hand not knowing what the left hand is doing, a footnote in her concurring opinion in Little Sisters misreads the majority opinion she joined in full in Our Lady. (Of course, she could be putting forth a revisionist reading.)

Our Lady grounds the so-called “ministerial exception” clearly in the broader doctrine of church autonomy. That doctrine, supported by the Religion Clauses, “protect[s] the right of churches and other religious institutions to decide matters ‘of faith and doctrine’ without government intrusion.” (Slip op. at 10) (quoting Hosanna-Tabor, 565 U.S., at 186). Further, “[s]tate interference in that sphere would obviously violate the free exercise of religion, and any attempt by government to dictate or even to influence such matters would constitute one of the central attributes of an establishment of religion. The First Amendment outlaws such intrusion.” (10).

Our Lady observed that “[t]he independence of religious institutions in matters of ‘faith and doctrine’ is closely linked to independence in what we have termed ‘matters of church government.’” (10) (quoting 565 U. S., at 186). The First Amendment “protect[s] [religious institution’s] autonomy with respect to internal management decisions that are essential to the institution’s central mission.” (11). What is more, “a component of this autonomy is the selection of the individuals who play certain key roles.” (11). The Court notes that the “‘ministerial exception’ was based on this insight.” (11). And the “constitutional foundation” for the Court first recognizing this exception in Hosanna-Tabor “was the general principle of church autonomy”—“independence in matters of faith and doctrine and in closely linked matters of internal government.” (12). To support this, the Court notes three earlier church autonomy cases, all of which had to do with the control of church property (though in some, but not all, “the authority and appointment of a bishops” was also at issue).

In other words, the ministerial exception is a sub-part (“component”) of the First Amendment’s church autonomy doctrine. It is sufficient to violate the church autonomy doctrine by violating the ministerial exception, but it is not necessary. One can still violate the doctrine even if the exception does not apply. Put another way, within the larger circle of the church autonomy is a smaller circle of the ministerial exception. Justice Kagan joined all of this without comment.

Now turn to her concurrence in Little Sisters. There she claims that “there is no general constitutional immunity, over and above the ministerial exception, that can protect a religious institution from the law’s operation.” (Kagan Concurrence at 3 n.1). Yet how can this be squared with Our Lady? There the Court clearly stated that the ministerial exception is a “component” of the church autonomy doctrine. It is not the entire doctrine. But Justice Kagan wants the “component” to swallow the hole. To put it differently, in Little Sisters Justice Kagan sees the ministerial exception circle and the church autonomy circle as having perfect overlap.

Actually, that may be understating it. Justice Kagan appears to view the ministerial exception as being the only way that the Religion Clauses “can protect a religious institution from the law’s operation” via a “general constitutional immunity.” But as I have noted earlier on this blog, that runs smack dab into Trinity Lutheran’s footnote 4, which notes categorical protection from laws or government actions that, among other things, specifically target religion as such. Justice Kagan joined Trinity Lutheran’s footnote 4 in full as well.

These warring views do not appear reconcilable. I guess we will have to see in future cases which version of the First Amendment Justice Kagan will endorse.

Espinoza's Recasting of Trinity Lutheran Raises Religious Liberty Questions

On its surface, Espinoza v. Montana Dept. of Revenue (No. 18-1195) appears to be a complete victory for religious liberty. A 5-4 majority held that discriminating on the basis of religious status in the context of school funding violated the Free Exercise Clause. As the majority declared, “once the a State decides to [subsidize private education], it cannot disqualify some private schools solely because they are religious.” Slip op. 20. And the decision cast serious doubt on the discriminatory Blaine Amendments found in a majority of state constitutions. The outcome clearly belongs in the win column for Free Exercise Clause fans.

But perhaps more so than case outcomes, it is the doctrinal seeds down in the pages of the U.S. Reports that steer the course of the law. And the seeds sown in Espinoza raise unanswered questions for religious freedom. Specifically, Espinoza recasts a little discussed but significant point in Trinity Lutheran in such a way as to call into question the chances that some future religious discrimination claims will prevail.

First, a little conceptual background. The Court’s free exercise jurisprudence has three tiers of protection. In the lowest tier—laws deemed neutral and generally applicable under Employment Division v. Smith—the government must only satisfy rational basis (if even that), the least protective doctrinal test of the Court. Needlessly to say, free exercise challenges never win in this tier.

The middle tier of free exercise jurisprudence applies a strong version of strict scrutiny. The government must not only demonstrate that a law or action “advance[s] interests of the highest order,” but also that the law or action is “narrowly tailored in pursuit of those interests.” Slip op. 18 (cleaned up). Not surprisingly, government infringement of religious liberty “will survive strict scrutiny only in rare cases.” Lukumi, 508 U.S. at 546.

However, there is a third tier—the most protective—in the Court’s free exercise pantheon. Sometimes the Court is unwilling to engage in any balancing with government interests, so the state’s infringement of religious liberty is categorically barred. The ministerial exception is one example of this: once a religious organization demonstrates that someone is its minister, no government interest of any kind can authorize interference with the organization’s constitutional right to control its ministers. See Hosanna-Tabor Evangelical Lutheran Church and Sch. v. E.E.O.C., 565 U.S. 171, 181 (2012) (“Both Religion Clauses bar the government from interfering with the decision of a religious group to fire one of its ministers.”) See also id. at 196 (“When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.”). No judicial balancing of government interests and free exercise freedoms required.

It is not just the ministerial exception that applies this categorical prohibition. Religious tests, whether for public office or otherwise, also trigger this categorical bar, with the Court grounding this prohibition in the Free Exercise Clause (admittedly the Test Oath Clause would do the same work regarding federal office). See Torcaso v. Watkins, 367 U.S. 488, 495 (1961); Town of Greece v. Galloway, 572 U.S. 565, 621 (2014) (Kagan, J., dissenting) (“[G]overnment, in its various processes and proceedings, imposes no religious tests on its citizens.”). No judicial balancing here either.

Finally, there is a third instance that gets tier-3 categorical protection: “government mechanisms, overt or disguised, designed to persecute or oppress a religion or its practices.” Lukumi, 508 U.S. at 547. Thus, “a law targeting religious beliefs as such is never permissible.” Trinity Lutheran, 137 S. Ct. at 2024 n.4 (emphasis added) (quoting Lukumi, 508 U.S. at 533). Strict scrutiny does not apply to such a law. Id. Rather, “[t]he Free Exercise Clause categorically prohibits government from regulating, prohibiting, or rewarding religious beliefs as such.” McDaniel v. Paty, 435 U.S. 618, 626 (1978) (plurality opinion) (emphasis added). And the Court has referred to this as a “rule.” Trinity Lutheran, 137 S. Ct. at 2024 n.4.

Chief Justice Roberts’s majority opinion in Trinity Lutheran recognized the existence of tier-3 protection, wherein the government is categorically prohibited from infringing religious liberty. While much attention has been paid to Trinity Lutheran’s footnote 3, it is footnote 4 that contains a real nugget. There Roberts declared on behalf of a majority of the Court that “[w]e have held that ‘a law targeting religious beliefs as such is never permissible.’” 137 S. Ct. at 2024 n.4 (quoting Lukumi, 508 U.S. at 533) (emphasis added). He also cites McDaniel v. Paty, 435 U.S. 618 (1978). But, he observes, “[w]e do not need to decide whether the condition Missouri imposes in this case falls within the scope of that rule, because it cannot survive strict scrutiny in any event.” In other words, in Trinity Lutheran, a state’s discrimination in funding based on religious status may fall under the categorical bar (tier 3) or it may fall under strict scrutiny (tier 2), but because it fails the lesser test (tier 2), the Court saw no need to decide which tier applied.

Now, fast forward to the Espinoza decision. Repeatedly, Chief Justice Roberts relies on Trinity Lutheran for something that case did not actually decide: that discriminating in public funding based on religious character triggers strict scrutiny—

• Trinity Lutheran distilled these and other decisions to the same effect into the “unremarkable” conclu­sion that disqualifying otherwise eligible recipients from a public benefit “solely because of their religious character” imposes “a penalty on the free exercise of religion that trig­gers the most exacting scrutiny.” (quoting Trinity Lutheran, slip op., at 9-10). Slip op., at 8.

• The Free Ex­ercise Clause protects against even “indirect coercion,” and a State “punishe[s] the free exercise of religion” by disqual­ifying the religious from government aid as Montana did here. Trinity Lutheran (slip op., at 10–11). Such status­ based discrimination is subject to “the strictest scrutiny.” (slip op., at 11). Slip op., at 11-12.

• It is enough in this case to conclude that strict scrutiny applies under Trinity Lutheran because Montana’s no-aid provision discriminates based on religious status. Slip op., at 12.

• [T]he[] dissents follow from prior separate writings, not from the Court’s decision in Trinity Lutheran or the decades of precedent on which it relied. These precedents have “repeatedly confirmed” the straightforward rule that we apply today: When otherwise eligible recipients are disqualified from a public benefit “solely because of their religious character,” we must apply strict scrutiny. Trinity Lutheran (slip op., at 6-10). Slip op. at 17.

• Because the Montana Supreme Court applied the no-aid provision to discriminate against schools and parents based on the religious character of the school, the “strictest scru­tiny” is required. (quoting Trinity Lutheran, slip op., at 11). Slip op., at 18.

This is a re-characterization of Trinity Lutheran. That case saved for another day the question of whether that religious discrimination fell “within the scope of [the categorical] rule, because it c[ould not] survive strict scrutiny in any event.” 137 S. Ct. at 2024 n.4. But in Espinoza the Chief unequivocally cites Trinity Lutheran for the proposition that religious discrimination based on funding requires the application of strict scrutiny. Whether accidental or not, this is a revisionist reading. And this revisionist reading makes even less sense when Espinoza points out that “the infringement of religious liberty” there “is far more sweeping than the policy in Trinity Lutheran,” and “burdens not only religious schools but also the families whose children attend or hope to attend them.” Slip op., at 19.

This recasting of Trinity Lutheran has raises important questions for religious liberty down the road. For instance, is it no longer an open question as to whether specific targeting of religious status in the context of public funding fits under the rule of categorical prohibition (tier 3) or under strict scrutiny (tier 2)? After Espinoza, it certainly seems such discrimination fits under the latter. Though it is odd to answer that question by claiming it was decided by a previous case that refused to answer that question.

Likewise, what implications does Espinoza have for the scope of this categorical prohibition? Is it narrower? After Trinity Lutheran, the rule was that “a law targeting religious beliefs as such is never permissible.” Trinity Lutheran, 137 S. Ct. at 2024 n.4. And Trinity Lutheran relied on McDaniel, which declared that “[t]he Free Exercise Clause categorically prohibits government from regulating, prohibiting, or rewarding religious beliefs as such.” 435 U.S. at 626. After Espinoza, though, one has to wonder whether this “rule” now does not apply to the context of public funding? What about other contexts? Is Espinoza the start of a trend to narrow the scope of the categorical prohibition? Time will tell.

The devil is in the details, they say. It is especially so in doctrine. While Espinoza is at some level a gift for religious liberty, and one hates to look a gift horse in the mouth, some legal victories can contain a Trojan horse hidden in plain sight.

Testing the Koufax Curse

Last fall, I wrote about three Jewish players (Alex Bregman, Max Fried, and Joc Pederson) playing Division Series games on Yom Kippur, then offered tentative responses to the question posed by Armin Rosen of Tablet about why we focus so much on playing on Yom Kippur and no other days. Rosen also jokingly suggested that 2019 demonstrated the work of the Koufax Curse befalling players who fail to follow in Koufax's Yom Kippur footsteps.

In a draft paper on SSRN, I test the Koufax Curse by developing an explanation for our obsession with playing on Yom Kippur and by examining career statistics in Yom Kippur games by eighteen Jewish players, plus Rod Carew. This has been a fun piece to write. The abstract is after the jump. It emains a work in progress, and I welcome feedback.

October 8-9, 2019, the Jewish holy day of Yom Kippur, marked a unique moment in the history of baseball and American Judaism. Three Major League post-season games began between sundown Tuesday and sundown Wednesday. One team in each game featured a Jewish player as a star or significant contributor. Each Jewish player appeared in the game. Each team lost. One journalist labeled this result the "Koufax Curse" -- the curse of the Jewish player who plays on Yom Kippur, rather than following in the footsteps of Hall-of-Fame pitcher Sandy Koufax, who did not pitch Game One of the 1965 World Series when it fell on the holy day.

This paper empirically tests the Koufax Curse. Looking at 18 Jewish Major Leaguers since 1966 (the year after Koufax's career-defining game), the paper charts how the players and their teams performed in games played during any part of Yom Kippur. It also examines statistics for Rod Carew, the Hall-of-Famer who is not Jewish but enjoys a unique familial and cultural connection to Judaism. From this, we can measure whether players or teams are haunted by the Koufax Curse. And whether Yom Kippur 5780 was an anomaly or reflects a broader trend.

 

Think Yiddish, cast whoever

A controversy arose in the U.K. last year about casting non-Jewish actors in expressly Jewish roles in an expressly Jewish show called Falsettos (about a Jewish father who leaves his family for a man, just after the son's Bar Mitzvah).

The question has become relevant because of two television series about Jewish people dealing with Nazis in the U.S.: The Hunters, which I watched and hated, and The Plot Against America, David Simon's adaptation of Philip Roth's counter-factual novel about Charles Lindbergh being elected President in 1940 and unleashing a wave of anti-Semitism.

The Hunters cast Jewish actors (Josh Radnor, Saul Rubinek, Carol Kane, Jeannie Berlin, Rubinke's daughter) for most of the major Jewish roles. Al Pacino, playing the head Nazi hunter and Auschwitz survivor, was the exception (although, spoiler, it did not matter).

In the first episode of the companion podcast to Plot (beginning around the 14:00 mark), Simon discusses setting out to make the show with an entirely Jewish cast and crew . He changed direction when he recognized the need to work with the best people and the universality of the story of oppressed "others."

Thus, the father is played by Morgan Spector (half-Jewish) and his sister-in-law is played by Winona Ryder (half Jewish, strongly self-identifies). But the mother is played by Zoe Kazan (Greek from Turkey, granddaughter of someone compelled to name names before HUAC) and the older cousin is played by Anthony Boyle (Irish-Catholic from Belfast); Simon talks about how he convinced them to take on the roles because their (or their families') experiences are comparable to the Jewish experience. And John Turturro plays a rabbi, although Simon and co-host Peter Sagal agreed Tuturro had played so many Jewish characters in his career (Barton Fink, Herbert Stempel, Joey Knish) that he is basically Jewish.

Capping off a year in a yarmulke

Sunday marked one-year (on the Western calendar) since the shooting at Tree of Life Synagogue in Pittsburgh. Today marks one year since, in reaction, I began wearing a yarmulke.

So what have I learned after a year?

• While I said at the time I did not know how long it would last, I am happy to say I have no plans to change. My daughter's Bat Mitzvah was in January and we have leftovers to keep my head covered for another 25 years. The expression of Jewish community and the sense of humility before Hashem represented by the head covering (and awareness of it--I always feel it there) remain and I do not intend to give them up.

• Strangers become friendly. There is "The Nod" from other Jews, even more-observant Jews in tzitzit; several have struck up conversations in airport security lines. A person approached me on the street once to say "God bless you." And I cannot forget the Lyft driver in Boulder who wished me a "Happy Shabbat Shalom," earning high marks for effort.

• My students enjoy the many times it flies off during class.

• I continue to struggle with the idea that wearing a yarmulke means I must refrain from certain activities or at certain times--driving on Shabbat, eating non-kosher food, etc. My rabbi explained it by the concept of not leading others into sin--by eating at a certain restaurant or driving on Saturday afternoon, I send an erroneous signal to other Jewish people that it is ok to engage in those activities, which may cause them to do so. Others explain it as sending mixed signals to the world--how can this Jewish person do that?

The rabbi's solution is to wear a hat over the yarmulke when he eats in a non-kosher restaurant or drives on Saturday, which I do at times. Even if I do not refrain, I am conscious of engaging in certain conduct while wearing it. I did not order shrimp in a restaurant last week because I thought of how it would read to my (non-Jewish) companions. On the other hand, the principle seems under-inclusive: Why do these obligations attach to this expression of Jewish identity but not others; why does more-observant Jewry define the obligations that attach to different Jewish symbols. As I said, I have been thinking about this for a year and I do not believe I am closer to an answer. I mostly live my life as before, but with my head covered.

• I am conscious of walking into some truly non-Jewish spaces, such as my daughter's Episcopalian school. I am not conscious in "mixed" spaces. As I said, living my life as before, but with my head covered.

• I will be reading Torah at the weekly minyan in a few weeks. The rabbi chose the story of Joseph and his coat, which speaks to a piece of this--the idea of clothing and how we dress instilling humility. Or, in Joseph's case, not, prompting his brothers to throw him in a hole and sell him into slavery.

On "Big Mountain Jesus" (again) . . . and also liberalism, the First Amendment, Dignitatis Humanae, etc.

I've posted a few times about the "Big Mountain Jesus" statue at Whitefish Ski Resort (click here for a picture).  And, the Supreme Court's pending case involving a war-memorial Cross in Maryland has brought back to public attention -- it's been about 15 years since the Court's pair of Ten Commandments cases -- the question of the First Amendment's implications for religious symbols, etc., in "public."

In the latest issue of First Things, I return to the "Big Mountain Jesus" controversy, and also speculate a bit about liberalism (as I understand it!), religious establishments, and other things.  Here is the SSRN abstract:

This paper, which was prepared for discussion at the May 2018 Dulles Colloquium, convened by the Institute for Public Life, engages current discussions and debates regarding the nature of “liberalism” and the content of “religious freedom.” It considers, specifically, whether a “liberal" political community may and/or should recognize or establish a religion, drawing on the Second Vatican Council's “Declaration on Religious Freedom.” And, it addresses the controversy surrounding “Big Mountain Jesus.”

 

 

Chapman, "Money for Missionaries"

Nathan Chapman (Georgia) has posted a fascinating new paper at SSRN.  It's called "Money for Missionaries:  Rethinking Establishment Clause History."  (He workshopped this paper a while back, at Notre Dame, and I learned a lot.)  Here's the abstract:

In Everson v. Board of Education (1947), the Supreme Court stated two principles that continue to animate Establishment Clause doctrine. The first is that courts should look to founding-era history—especially the history of "religious assessments," or taxes used to fund churches—to interpret the Establishment Clause. The second is that, based on this history, the government may provide limited secular goods to religious schools, but the Establishment Clause prohibits the government from directly funding religious education.

What Everson ignored, and what subsequent legal scholarship has likewise overlooked, is that the founding-era government did directly fund religious education: from the Revolution to Reconstruction, the federal government partnered with Christian missionaries to "civilize" American Indians. Initially ad hoc, this practice was formalized with the Civilization Funds Act of 1819, which authorized the government to distribute $10,000 per year to "persons of good moral character" to educate and “civilize” the tribes. For over fifty years, the government funded Christian missionaries who incorporated religious instruction and worship into their curricula. Curiously, no one ever raised a constitutional objection.

This Article is the first to provide a thorough analysis of the government-missionary partnerships and to explore why no one objected to their constitutionality. The evidence strongly suggests eighteenth and nineteenth-century Americans supported them because of a shared view of social progress that merged Christianization, education, and civilization. They simply could not have imagined separating Christianity and education. This evidence reshapes the conventional narrative of the historical development of non-establishment norms in the United States, especially the centrality of the Jeffersonian “taxpayer conscience” objection to religious assessments.

This history also has important implications for Establishment Clause doctrine. The challenge is ascertaining a constitutional principle from a practice that itself went unquestioned. The history does, however, suggest that the government may directly fund general education, even when that education entails incidental voluntary religious instruction. This principle complements the theoretical norm of “substantive neutrality” and supports the Supreme Court’s current doctrinal trajectory of easing restrictions on government funding of religious education.

"The End of a Walking Dead Doctrine?"

Here is my contribution to a symposium sponsored by the good folks at SCOTUSblog on the upcoming memorial-cross case.  Here are the opening grafs:

About four and a half years ago, here at SCOTUSblog, commenting on the Supreme Court’s then-recent decision in Town of Greece v. Galloway, I noted that it had been a while since the justices “had shared with us their intuitions, impressions, aruspicies, and auguries – that is, what Justice Breyer calls their ‘legal judgment’ – in a clean-and-straightforward Establishment Clause case involving ‘religion in the public square.’” Well, they have been asked to do it again.

One of the questions presented in The American Legion v. American Humanist Association is “whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross.” That the question is posed this way says a lot, but not much that is complimentary or edifying, about the state of First Amendment doctrine. After all, and obviously, the monument at issue in Bladensburg, Maryland’s Veterans Memorial Park does not just happen to be “shaped like” a cross any more than the name of California’s largest city just happens to “sound like” one of the titles of the Blessed Virgin Mary. It is, in fact, a cross – a 40-feet-tall Latin cross that, for nearly a century, has recalled and honored 49 local soldiers who, as its original donors put it, “have not died in vain.” The memorial is constitutional not because its troubling resemblance may be excused but because – the lower court’s speculations about the semiotics of shrubbery-placement notwithstanding – it is not an “establishment of religion.” A judicial doctrine, precedent or “test” that says otherwise is, for that reason, unsound. . . . 

Stay tuned!

I am Spartawitz or Wearing a yarmulke after Pittsburgh

I began wearing a yarmulke the Tuesday after the October murder of eleven Jews at Pittsburgh’s Tree of Life Synagogue. I would have started sooner; the idea came to me almost immediately. But I wore a baseball hat on Sunday, so my head was covered. On Monday, I was late getting to work and forgot, as finding a head covering had not become my routine. I wore one to an inter-faith memorial service at my Reform temple near Miami on Monday evening, and it has remained.

This is new for me. I grew up in an unaffiliated Hebrew School that combined Conservative liturgy with a Reform commitment to justice; yarmulkes were reserved for services. I attended a public school district that was about 45% Jewish, but not one kid in my class wore one. I  attend a Shabbat morning minyan, a small, joyous, informal service at which I wear a tallis and a baseball cap, usually bearing the logo of my daughter’s private, Episcopal-affiliated middle school (we both appreciate irony).

The deaths in Pittsburgh triggered a desire to publicly pronounce and announce my Jewishness. Not that this was not already obvious to anyone paying attention—my last name is Wasserman, I grew up in the suburbs of New Jersey, I work in academia, and I am obsessed with Jewish baseball players. This was different. I was challenging anti-Semites or other people who are uncomfortable around “different” Jews. As if saying hineni—“Here I am.”

Update: Tablet's Unorthodox discusses (around 58:30) a letter from a listener who similarly began wearing a yarmulke following the shooting. He discusses greater initial apprehension of a negative reaction from other Jews than I had.

The practice of wearing a head covering outside of prayer is said to rest on two ideas. One is as a reminder that Hashem always is above us and that we must remain humble as we walk through life. The second is to stand apart as Jews, to dress differently from the Nation around us and thus to affirm and celebrate our separate identity as the People Israel.

I was motivated by the latter idea and its symbolism in a moment of distress for the Jewish People. I described it to one (non-Jewish) colleague as an “I am Spartacus” moment. (“I am Spartastein”? “I am Spartawitz”?) A student who has worn a yarmulke his entire life stopped by my office to thank me—having always stood out in this noticeable way, he appreciated other Jews joining him in such a public display. I have heard stories of rabbis in France warning congregants not to wear yarmulkes outside, given the increase in anti-Semitism there. I would not be so dissuaded, although I believe (hope?) the situation in the U.S. is less fraught and dangerous.

But I have experienced two things in the past week or so. First, it has become more than symbolic. Having something on my head reminds me of my identity and my place as part of the Jewish People at every moment. I appreciate the constant sense of belonging; I am not sure I am not walking with my head slightly higher. (This is easy to say at 50; I am sure I would have felt differently if I were obligated to do this at 15). Second, I am beginning to appreciate the first idea—the constant awareness of humility and the feeling of something greater as I walk my four cubits.

I do not know how long I will continue to do this, if I will return to my old fashion stylings when the immediate memory of Pittsburgh has faded, if I become annoyed by the feeling the thing is flying off my head when I pace around in class, or if this is a permanent change in my life and my identity. But early results suggest a substantive response in a symbolic act.

Update on the Yiddishe World Series

We are three games into the 2018 World Series, featuring one Jewish player on each team. The first two games, both Red Sox wins, were quiet on this front. Ian Kinsler started both games at second for the Red Sox and was a combined 1-for-7 with an RBI. Dodgers outfielder Joc Pederson did not start either game; he was one of the Dodgers' four top hitters, all left-handers, who did not start against lefty starters, although he entered both games late, going 0-for-3 combined.

Game Three, an 18-inning Dodger win and the longest game in World Series history, had the Great, the Good, and the Ugly for the Chosen People.

The great:

 

Sandy Koufax gave Dodger starter Walker Buehler a standing ovation as Buehler left the mound after pitching seven innings of two-hit shutout ball with nine strikeouts. Koufax is two months shy of 83 and looks as if he still could pitch.

 

 

The good:

Pederson gave the Dodgers a 1-0 lead with a home run in the third. But for a blown save, that would have been the game-winning hit.

The ugly:

Kinsler. Inserted as a pinch-runner in the 10th, Kinsler was almost picked-off first. He was called safe and the call upheld on replay review, although it was close. Kinsler then advanced to third on a single, but overslid third base and barely scrambled to get his foot back on the base before being tagged. He then was thrown out trying to score on a fly ball to center. The throw was off-line, up the third-base line. But Kinsler got such a slow break off third that he basically ran into the tag about fifteen feet before the plate.

Then, with the Sox up 2-1 with two out in the bottom of the 13th, Kinsler's wild throw on a grounder up the middle allowed the tying run to score and the game to continue for five more innings and a 14th-inning stretch. Game Four in about nine hours.

The Court’s Religious Jurisprudence and Vaccines

 

The Court’s Religious Jurisprudence and Vaccines

In my last post, I pointed out that for over a century, for good reasons, courts have upheld school immunization mandates, including in the face of challenges based on the First Amendment’s free exercise clause. Two federal Court of Appeals cases in 2011and 2015reaffirmed this. The courts’ approach is based in part on powerful dictum in Prince v. Massachusetts, and in part on Employment Division v. Smith. All the courts upholding California’s new school vaccine legislation, SB277, echoed that view.

An important qualification is that states that do provide an exemption face constitutional limits that seemed designed to make the exemption hard to police and easy to abuse (though each by itself can be justified). States cannot require a clergy lettersupporting an exemption claim, because that discriminates in favor of organized religion. States cannot refuse an exemptionto a member of a religion that supports vaccines – for example, a Catholic or Jew – on the basis of that alone, if she claims a personal religious objection to vaccines. And when state law, itself, does not require evidence of sincerity, several courts have ruled that officials cannot add that requirement. State officials must accept any claim of religious objection at face value.

This makes a religious exemption very hard to monitor. Most of the users of this exemption are likely refusing vaccines for non-religious reasons. Having a religious exemption – when courts have consistently found it is not required – is likely a poor policy choice.  

One question is whether the recent Supreme Court jurisprudence will change the current judicial consensus that a religious exemption is not required in vaccine mandates. This is a narrow application of these decisions (and far from inclusive, because I want this post reasonably short); but this exercise can highlight some potential risks of the court’s recent religious jurisprudence even the supporting justices seem not to desire.  The current Supreme Court majority has been fairly cautious in its handling of the religious cases. But we are facing a potentially different composition of the court – and who knows? (For more detailed discussions of the religious jurisprudence on this blog, seehere,here,hereand here, for example. For a recent discussion of a paper on appointments on this blog, see here).

In Burwell v. Hobby Lobby, HHS actually raised a concern about negative effect on vaccines coverage by employers, and Justice Ginsburg’s dissent raised that as well. However, since the case focused on a Religious Freedom Restoration Act (RFRA) question and not a first amendment question, it did not directly address school immunization mandates. The majority referred to Smith as the standard for applying the First Amendment, and took pains to distinguish its discussion of RFRA from that context. However, the majority’s extremely narrow reading of what is an acceptable least restrictive means to address a religious issue can affect the way federal district cases and state courts influenced by the Supreme Court approach immunization mandates if they apply strict scrutiny. The majority may have seen this as unlikely, but it’s a possible outcome. That said, two courts in California addressing this after Hobby Lobby – a federal district court in Whitlowand the Second Appellate District’s  opinion inBrown– found that immunization mandates meet the least restrictive means test to achieve the compelling interest of disease prevention, each on a different basis. Whitlowfound that since the goal of the law in question was “total immunization”, any non-medical exemption would not achieve it, and the law was the least restrictive means to it. The Court of Appeal in Brown v. Smith, on the other hand, found that immunization mandates are the “Gold Standard” for preventing diseases.

 

Masterpiece Cakeshop v. Colorado Civil Right Commissionwas also carefully and narrowly decided, based on a finding that the Colorado Commission in question was hostile to the baker’s religious objections. It did not overturn Smith, and did not touch on immunization mandates. However, it could be used by opponents in the right circumstances to try and claim hostility to their religious claims. For example, in a case attacking Michigan’s requirement that people seeking exemptions have a discussion with the Department of Health’s personnel – with a plaintiff with religious objections to vaccines -  the Sixth Circuit’s rejectionof her claim was in part based on the lack of a constitutional right to an exemption. If plaintiff claimed special hostility to her religious objections, and it wasn’t unlikely she would, Masterpiece Cakeshopcould be used in support.

In short, so far, the Supreme Court’s jurisprudence on religion does not undermine the existing jurisprudence upholding school immunization mandates without a religious exemption. However, it creates potential arguments that plaintiffs can use to challenge the mandates in court. More than that, the growing religious jurisprudence – which should include the recent Becerracase overturning California’s law requiring pregnancy centers to provide information about abortion services – suggests a possible change in the Supreme Court’s general approach to religious arguments. This, in turn, could increase the protection of religious claims in many contexts, including school vaccination mandates, potentially putting the public health of communities at substantial risk.

Law, Religion, and Health Care

In a number of health care settings, religious values come into conflict with the desires of patients or the medical judgment of physicians and other providers of health care. A doctor or hospital might invoke considerations of conscience to deny patients access to abortion. Or parents might invoke religious beliefs to refuse medical care for their children.

In a forthcoming article (available here), I argue that while the free exercise of religion is a fundamental right, the interest in protecting individual conscience can be secured without consideration of religious  belief when it comes to deciding about access to health care.

For treatment decisions in which a provider’s religious belief deserves respect, there always will be a legitimate nonreligious basis for refusing to provide care. For example, just as physicians can view abortion as immoral on religious grounds so can they view abortion as immoral on nonreligious grounds. Thus, for example, the Church Amendment protects individuals or facilities for whom abortion is “contrary to . . . religious beliefs or moral convictions.” The moral conviction language is broad enough to encompass both the sectarian and the secular.

On the other hand, if we cannot find sufficient nonreligious reasons for objecting to the care, then religious objections are insufficient as well. For example, if principles of child abuse and neglect generally would prohibit parents from rejecting a particular medical treatment for their children, then a parent’s religious beliefs would not justify an exemption from the obligation to agree to the treatment. Parental religious beliefs should not permit a parent to refuse a polio vaccine or an appendectomy for a child because there is no legitimate nonreligious reason for rejecting ordinary medical treatments that can prevent death or other serious harm to the child’s health.

Are there any exceptions to the connection between religious reasons and secular reasons? Are there times when one should be able to invoke religious beliefs even when there are no legitimate nonreligious bases for the exercise of conscience? If religious freedom is measured in secular terms, then we could easily undermine the whole idea of religious freedom.

While there are circumstances outside of the delivery of health care for recognizing religious beliefs that do not have a secular counterpart, it is difficult to identify a situation in which a person’s religious belief alone could justify the denial of beneficial care. We should not allow religious doctrine to trump a patient’s interests in health. In other words, even when someone has a valid free exercise interest, the state’s interest in protecting the health of its citizens outweighs the religious interest—the state has a compelling interest that overcomes the fundamental right.

There’s also an important advantage to looking to secular morality rather than religious belief. It can be difficult for courts to assess the sincerity or legitimacy of a religious belief, as with arguments about complicity. Analyzing matters such as complicity in secular terms allows a court to give due regard to religious beliefs without having to make religious judgments.

Call for Nominations: Harold Berman Award for Excellence in Scholarship (Law and Religion)

For the last several years, the AALS's Section on Law and Religion has conferred the Harold Berman Award for Excellence in Scholarship to junior-ish scholars who write top-shelf papers during the relevant year.  Here's the call for nominations, from Nelson Tebbe:

The AALS Section on Law and Religion seeks nominations for the Harold Berman Award for Excellence in Scholarship. This annual award recognizes a paper that “has made an outstanding scholarly contribution to the field of law and religion,” in the words of the prize rules. To be eligible, a paper must be published between July 15, 2017 and July 15, 2018. The author must be “a faculty member at an AALS Member School with no more than 10 years’ experience as a faculty member.” Fellows are eligible. Self-nominations are accepted. Nominations should include the name of the author, the title of the paper, a statement of eligibility, and a brief rationale for choosing the paper for the award. Nominations should be sent to Nelson Tebbe at [email protected] by August 15, 2018. The winner will receive an award plaque at the AALS annual meeting in January, 2019. The prize committee members are Stephanie Barclay, Thomas C. Berg, Haider Ala Hamoudi, Elizabeth Sepper, and Nelson Tebbe (chair). 

Book Review Roundtable on Kathleen Brady's "The Distinctiveness of Religion in American Law"

Last Spring, the Program on Church, State & Society at Notre Dame Law School (more here) hosted a small roundtable conference dedicated to Kathleen Brady's then-new book, The Distinctiveness of Religion in American Law:  Rethinking Religion Clause Jurisprudence.  Each participant wrote a short reflection on the book -- a kind of "admission ticket" -- and these reflections (along with Brady's response) formed the basis for the day's conversations.  I'm pleased to report that the "tickets" have been collected in the November 2017 issue of the Journal of Law and Religion.  They are, if I say so myself, really interesting.  Take a look!

 

Why has bris survived?

I have been taking an adult Jewish learning class this year, examining the key events (milestones, holy days, etc.) of Jewish life. This week was about birth and brit milah. One question was why brit milah is observed by substantial numbers of Jews when other mitvot--keeping kosher, observing Shabbat, observing the festival days, wearing tzitzit--are not practiced in nearly as great numbers by Jewish people assimilated into modern U.S. society. Of all the mitzvot to survive modernity and assimilation, why that one?

My theory: Circumcision become so prevalent among the general population (especially in the U.S.) after World War II that it ceased to be a practice that made Jews different or apart from the broader society into which they were trying to assimilate. Keeping Kosher made a person different from broader society, because most people do not keep Kosher. Not driving or participating in activities on Shabbat made a person different from broader society (and made it impossible for his kids to play sports and participate in other widespread secular activities). Wearing a yarmulke or tzitzit made a person look different from those in the broader society. Missing school or work for Sukkot made a person stand out from his co-workers or fellow students.

But most males (Jewish and non-Jewish) were circumcised, so a circumcised Jewish male did not look different from those around him. It was easier for Jews to continue circumcision because it did not interfere with assimilation the way other mitzvot, which non-Jews did not also adopt as secular practices, did.

Holocaust, Shoah, and unique group experiences

Lost amidst President Trump's offending Muslims the world over was his offending many Jews with his Holocaust Remembrance Day Statement. The statement spoke of the "depravity and horror inflicted on innocent people," without mentioning that more than half of those, the primary targets, and the raison d'être of the Nazi efforts, were Jews. Spokesperson Hope Hicks defended the statement by pointing to the 5 million victims of other groups, including "priests, gypsies, people with mental or physical disabilities, communists, trade unionists, Jehovah's Witnesses, anarchists, Poles and other Slavic peoples, and resistance fighters." Chief of Staff Reince Priebus tried to do the same on Meet the Press on Sunday, producing a fascinating three minutes of video (after the jump) in which he stares blankly ahead while concocting a word soup of adjectives to describe the Holocaust, including "horrible event," "miserable time in history," and "extraordinarily sad." All without ever saying, explicitly (as opposed to blandly agreeing with Chuck Todd's premises) that Jews were the central victims.

Jewish groups were outraged. Stripping away its uniquely Jewish nature is an element of denial--"many people died, not only Jews, and it entailed nothing programmatic or unique to history. And it divorces the event from 2000 years of unique anti-Semitism that made it possible. Fortunately, Preibus reminded us that Trump has Jewish family members, which will be his get-out-of-jail-free card for the next few years.

The question of universalizing affects what we even call this thing. I prefer the Hebrew word "Shoah" (literally, "destruction" or "total destruction"), although that word could isolate the event, and its victims, from the rest of the world and of world experience (not unaided by that historic anti-Semitism). On the other hand, a generic English word such as "Holocaust" allows for the Jewish element to be ignored, perhaps for those same reasons, just as Trump did here.

Updates: First is Deborah Lipstadt in the Atlantic, labeling this "de-Judaization of the Holocaust" as "softcore denialism."

Second is WH Press Secretary Sean Spicer, who was beyond annoyed by people nitpicking of the statement, insisting it had been "praised" (without mentioning by whom) and arguing that President Obama's "anti-Israel" policies of the last eight years are a bigger deal than a statement remembering the Holocaust. Three remarks. First, Spicer makes me long for Ari Fleischer. Second, every statement from the White House trying to defuse this keeps coming back, without acknowledging (or maybe even recognizing), the problem--that the statement is troubling because its memory of the Holocaust is historically wrong in significant ways that play on anti-Semitism. And third, the downshift of how much Trump loves Israel, because: 1) Israel is not the Holocaust and 2) what Trump loves is Benjamin Netanyahu and his government--which is not "Israel" in the same way that Donald Trump is not "America."

 

Jews, race, ethnicity, and religion

A good read in The Atlantic on whether Jews are "white" or whether we constitute a distinct racial or ethnic group, and what that means for our place in American society. It is a question that may be more relevant in the coming years, on both sides of the political spectrum.

Remarks on "The Future of Religious Liberty" at the Federalist Society's National Lawyers Convention

I participated yesterday in a panel discussion on "RFRA and the Future of Religious Liberty" at the Federalist Society's annual National Lawyers Convention.  After noting that recent events had dramatically undermined any confidence one might have in my ability to say anything useful about "the future", I briefly discussed "one big-picture idea, two reasons for cautious optimism, and three causes for concern."  

The big-picture idea (such as it is) was this:  In any society where there is (a) religious and moral diversity and (b) an active, regulatory welfare state, there will -- necessarily -- be conflicts and tensions between (i) duly enacted, majority-supported, generally applicable laws and (ii) some citizens' religious beliefs and exercise.  What Justice Jackson called "the uniformity of the graveyard" is not an attractive way to manage these conflicts and tensions; the toleration-and-accommodation strategy, however, is.  RFRA-type laws are, in my view, effective and workable mechanisms for carrying out the latter strategy and so, yes, I think such laws are and should be part of the "future of religious liberty."

The two "reasons for cautious optimism":  First, the (unanimous) Hosanna-Tabor case shows that the Court recognizes that religious freedom is not entirely about "balancing interests" but also imposes, in some contexts, real limits on the government's ability -- even when its pursuing important goals like reducing employment discrimination -- to interfere with individuals' and institutions religious decisions.  Second, as the (unanimous) Holt case (among many others) illustrated, outside of a few well-known cases (e.g., Storman's) and hot-button-issues (e.g., wedding ventors), religious-liberty claimants are very often winning.  The Becket Fund, etc., and the Department of Justice, do a lot of good work.

Next, three causes for concern -- that is, three demographic, cultural, and sociological facts and trends, or three things about the culture (and "law is downstream from culture") that were true before and are still true after the election:  (1) the "rise of the nones" presents the danger that fewer people will see themselves as having a "stake" in the religious-freedom issue (when, in fact, we all -- whether or not we are religious -- do); (2) the relative decline in the role and footprint of religious institutions and communities (whether because of scandals, or atomizing individualism, or something else) reduces a sense of solidarity and makes it more difficult for people to resist incursions on religious liberty when they threaten; and (3) the increasing willingness of the government to shrink the civil-society space and to expand the "public" sector, by leveraging its licensing, accrediting, spending, grant-making, taxing, contracting, and social-welfare functions -- that is, by using conditions in addition to regulations to affect non-state actors' practices.

Then followed a lively discussion!

Greenberg, Koufax, and Yom Kippur

I have an essay today in Tablet Magazine, When They Were Kings: Greenberg and Koufax Sit on Yom Kippur. The piece compares Sandy Koufax and Hank Greenberg in their respective decisions not to play on Yom Kippur 31 years apart. I argue that Greenberg's decision was especially significant given the different, and more precarious, position of Jews in America and the world in 1934 compared with 1965. The essay elaborates on what I wrote here last Yom Kippur, on the fiftieth anniversary of Koufax sitting out.

Thoughts on Reason-Based Regulation of Reproductive Decision-Making: Part II

In an earlier post, I blogged about the rise of reason-based bans on abortion (such as laws banning abortion for sex selection, or because of fetal anomaly), and I hypothesized that there is the constitutional privacy right includes a right to make a constitutionally protected decision for whatever reasons one chooses. In this post, I want to consider another type of law that arguably implicates this privacy right, and also places it in conflict with other individuals’ religious freedom–specifically, laws that require employers to provide insurance coverage for contraceptives when they are needed for particular reasons.

About half of the states currently require insurers in the state to provide coverage for contraceptives. These state-law contraceptive coverage mandates are separate from the regulation requiring contraceptive coverage under the Affordable Care Act and apply independently of it. Because these mandates are enforced by state governments rather than the federal government, the federal RFRA—construed in Hobby Lobby to require an accommodation for employers that object on religious grounds—does not apply directly to them. Nonetheless, in many of these states, religious employers may still be able to access insurance plans without contraceptive coverage, either because the state contraceptive coverage laws also have religious exemptions written into them, or because those exceptions are available via state RFRA analogs.

In a handful of states, employers may opt out of providing insurance coverage of contraceptives for contraceptive purposes but not for therapeutic purposes. For example, Arizona law, which requires insurers to provide contraceptive coverage if they cover other prescription drugs, also provides that “a religiously affiliated employer may require that the corporation provide a contract without coverage for” contraceptives. However, it goes on to specify that the insurance policy cannot exclude coverage for prescription contraceptive methods prescribed "for medical indications other than for contraceptive, abortifacient, abortion or sterilization purposes.” Similarly, North Carolina law allows religious employers to offer plans without contraceptive coverage but does not exempt them from covering prescription contraceptives "for reasons other than contraceptive purposes, or ... that is necessary to preserve the life or health of a person covered under the plan.” Presumably, these sorts of provisos would cover women who seek contraceptive drugs for purposes of avoiding or curing particular medical conditions (such as certain skin conditions or menstrual disorders) as well as women who need contraception because pregnancy would be life-threatening or harmful to their health. At least in the latter scenario, it seems clear that such provisos distinguish between valid and valid reasons for the same reproductive conduct.

These sorts of laws set up a potential conflict between a woman’s right to privacy with respect to the deliberative process and an employer’s right to act based on religious motivations. Because the right to autonomous decision-making has constitutional stature (as I argue in Part I) and the right to act based on religious motivations does not (as explained below), it seems clear that the woman’s right to access contraception for any reason whatsoever should prevail.

These state laws, while presumably intended to ensure that women’s physical health is protected while safeguarding the religious freedom of employers, nonetheless have the effect of regulating the reasons for which women may engage in constitutionally protected conduct. Women who work for religious employers taking advantage of these exceptions may access covered contraception if it is necessary to avoid harm to their health but not for family-planning purposes. According to the framework outlined in Part I, laws that distinguish between acceptable and unacceptable reasons for choosing contraception would be unconstitutional. Similarly to the selective abortion bans discussed in Part I, they allow the employer to dictate the terms of the woman’s reproductive decision, interfering with the woman’s deliberative process as clearly as if the law itself denied women contraceptive access for certain reasons and not others. By empowering employers to privilege certain grounds of decision over others, the government picks and chooses among the reasons a woman may or may not have access to contraception.

The privacy right related to contraceptives is constitutionally protected. However, there is no constitutional free exercise right to be exempt from a generally applicable health insurance mandate because of one’s religious beliefs. The right claimed by Hobby Lobby was based on RFRA, not the Constitution, and the Supreme Court made clear in Employment Division v. Smith that there was no general free exercise right to an exemption from a neutral and generally applicable law. Thus, the woman’s right to choose contraception without regard to the reason should trump.

Ironically, however, one consequence of this analysis is that laws providing blanket exemptions from contraceptive coverage are on firmer constitutional ground than more carefully tailored exemptions. A blanket exemption allowing religious employers to opt out from covering contraceptives would not unconstitutionally privilege certain reasons over others and therefore would not burden the constitutional right to deliberate autonomously, because it would not distinguish between valid and invalid reasons. Is this result a correct one, or a desirable one?

Although this result seems counter-intuitive, it may nonetheless be the correct one based on existing constitutional doctrine. Once the government begins carefully tailoring exemptions, problems can ensue. For example, a statute with a narrowly drafted religious exemption that excludes certain religious groups while protecting others would likely be more problematic than one with no exemption.

Moreover, it may be worth considering the political implications of a decision requiring states to exempt all religious employers from covering contraception in all circumstances, even when it is needed to protect the woman’s health, or none at all. It is possible that the result would be that the practice of covering oral contraceptives for non-family-planning purposes would continue but without the sanction of law; employers and insurers could continue to make the distinction between therapeutic and non-therapeutic contraception, but through private, internal policies. (For example, Catholic employers generally do not have a problem with covering contraception for “therapeutic,” as opposed to family planning purposes.) Since no law would be implicated, there would be no state action and no constitutional problem. On the other hand, there might be value in highlighting the conflict between religious beliefs and private reproductive decision-making in this context. It is worth considering, perhaps in a more public way, whether the distinction between therapeutic and non-therapeutic contraception is one that the government should make and whether the government should be deciding which uses of contraception are sufficient to outweigh an employer’s religious claims. Currently, this debate is submerged by Hobby Lobby and the post-Hobby Lobby discourse, which treats religious exemptions from contraceptives coverage as an all-or-nothing issue.

Religious Accommodations and Third-Party Harms at Pepperdine

I had an engaging and helpful conversation yesterday, in the context of two panels at an ongoing, fascinating conference at Pepperdine, "Doing Justice Without Doing Harm," sponsored by the Nootbaar Institute on Religion, Law & Ethics.  A group of us discussed various aspects of the problem of identifying, describing, and justifying the limits on accommodations of religion, with a primary focus on the recent and important article on the subject by Profs. Douglas NeJaime and Reva Siegel.

In my own remarks, I tried to engage (and push back on) the article's claim that we and the law should be hesitant and concerned about granting accommodation claims that touch on matters in "democratic contestation" or concerning with there is ongoing "political mobilization."  I suggested that, in a way, this claim is a reworking of the Lemon reasoning (with which I took issue here) that the Establishment Clause authorizes judges to identify and invalidate laws that risk "political divisiveness along religious lines."  

The IRS Needs to Pay Attention to Pulpit Freedom Sunday 2016

In just over eight months, we'll be voting for our new president. Irrespective of who's on the ballot--and, for that matter, irrespective of who ultimately wins--one thing is for certain: in seven months or so, a bunch of church-goers are going to hear their spiritual leader endorse a candidate.

Sometime during the month leading up to the presidential election,[fn1] the ADF will sponsor its annual Pulpit Freedom Sunday, an act of civil disobedience by churches[fn2] and an attempt to challenge the campaigning prohibition in court.

Basically, in 1954, Congress added a short phrase to section 501(c)(3) of the Internal Revenue Code. That phrase prevents an organization from qualifying for a tax exemption unless it

does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.

The ADF believes that this campaigning prohibition is unconstitutional, at least as applied to churches. So for the last eight years, it has encouraged pastors to flout the rule, to include an explicit endorsement of a candidate in their sermons leading up to Election Day, and then to send a copy of the sermon to the IRS.

During the last presidential election, more than 1,500 pastors apparently participated. And how many churches lost their tax exemptions? None.

The ADF has organized Pulpit Freedom Sunday deliberately to create a test case that it can take to the courts. It expects the courts to strike the campaigning prohibition down as unconstitutional. But it's not just the ADF that wants the test case: Americans United for Separation of Church and State also wants the IRS to enforce the campaigning prohibition. 

Clearly, the two groups think the case will turn out differently. Which is right? It's unclear. Scholars (including me!) have argued extensively about whether the prohibition is constitutional as applied to churches. But the question has only been adjudicated once, by the D.C. Circuit. The D.C. Circuit upheld the prohibition as constitutional, and, for whatever reason, the church didn't appeal to the Supreme Court.

Note that, for various procedural reasons, nobody has standing to challenge the prohibition unless and until the IRS revokes a church's exemption.

Why hasn't the IRS acted until now? Probably because there's really no upside to revoking a church's tax exemption; it's not going to significantly increase the government's revenue, and it would likely be unpopular at best in a world where politicians run against the IRS as a central part of their platform.

But at some point, the reticence becomes too much, as it has here: in 2012, the Freedom From Religion Foundation sued the IRS for not enforcing the prohibition, and eventually settled with the understanding that the IRS would eventually start enforcing it.[fn3] 

And, as I lay out in my recent University of Colorado Law Review article, now's the time. Pulpit Freedom Sunday has reduced the search costs to nearly nothing--pastors send their sermons in to the IRS. I mean, the IRS has to actually look at the sermons, because there's no guarantee that participating pastors fully understand how to violate the campaigning prohibition. (Check out this sermon, for instance: the pastor makes a strong case for religious involvement in politics, but churches aren't prohibited from being involved in politics. Just from endorsing or opposing candidates, which the pastor doesn't do here.)

So what should the IRS do? It should announce, today, that is will revoke the tax exemption of every church that endorses or opposes an candidate for political office as part of Pulpit Freedom Sunday. Then it can sit back and wait for the sermons to arrive, follow through, and get ready to litigate.

That way, both the ADF and Americans United will be happy, and we can have closure on the constitutional status of the campaigning prohibition, at least as applied to religious organizations.

---

[fn1] I'm pretty sure that I read that the ADF is expanding Pulpit Freedom Sunday this year to encompass the whole month of October, but I can't currently find anything that gives a date or dates.

[fn2] Also, presumably, synagogues and mosques and other religious organizations. But honestly, the ADF seems to be thinking Christian-centric, with its choice of Sunday as the relevant day.

[fn3] BTW, though this has nothing to do with this post, isn't the perma.cc thing awesome? The link is already broken, but the University of Colorado Law Review has given it a permanently-findable home.

How Being a Struggling Student of Talmud Made Me a Better Professor of Law

My mother passed away last March. With my dad’s passing six years earlier, my brother and I suddenly found ourselves parentless while still in our 30s. Dealing with the grief has been difficult enough. Equally difficult in many ways has been the challenge of administering my mom’s estate—working through the modern morass of medical forms, bills, taxes, mail and magazine subscriptions, bank accounts, and credit cards is essentially a second full-time job. It turns out that dying in the twenty-first century involves a tremendous amount of paperwork.

The silver lining to all this, I suppose, is that acting as personal representative of my mom’s estate has allowed (forced?) me to employ several long-dormant aspects of my legal education. I have reviewed more contracts, communicated with more federal and state agencies, and spent more time at the probate court clerk’s office in the last year than at any time since I left full-time practice (and maybe ever). Like working an underused muscle for the first time in a long time, doing this kind of legal work is simultaneously invigorating, exhausting, and humbling. I am despondent about the circumstances, but grateful for the experience.

The circumstances have created another unexpected educational benefit: I have been reintroduced to the awesome challenge of Talmud study. In a year when many things have been cloudy and overwhelming, a weekly dip into Talmudic debates has sharpened my mind and changed some of my perspective on teaching.

The Talmud is a compilation of commentaries surrounding Judaism’s Oral Law (that is, the law said to be provided directly to Moses and orally transmitted through the generations, before the teachings were compiled in written form around 200 CE). Serious Talmud scholars intensely focus on a single page of text each day (Daf Yomi). A statement of law or practice in the center of the page is accompanied (literally surrounded) by a variety of rabbinic debates on the meaning and application of the statement, or offering proof for the statement. Commentaries build upon commentaries, and pull in citations from a variety of other textual sources. For a very rough sense of what it feels like, imagine a treatise on the First Amendment written by a squabbling committee of brilliant academics over the course of several centuries, and referencing a dizzying array of cases, law review articles, statutes, regulations, and local practices.

My entry into the Talmudic waters has been far less intense than daily study, but still offers plenty to digest. I meet with a small group of adult learners once a week shortly before evening minyan (the service that permits me to say Kaddish, the obligatory mourning prayer said daily for eleven months after a parent’s death). We have an excellent instructor, who is both prepared and patient. I dutifully bring my book, puzzle over the debates with the others around the table, and try to understand each strand of argument line by line, paragraph by paragraph.

In some ways, my legal training has been immensely helpful for this kind of work. I can easily recognize and appreciate some of the tools of argumentation: reasoning by analogy, reasoning from history, reasoning by custom, etc. It’s Cardozo, 1500 years before Cardozo. In other ways, my American legal training is virtually useless: because the debates in the Talmud operate in a closed environment in which text, history, and practice are of divine origin, the policy arguments that animate difficult legal questions in our time are noticeably absent. You cannot just say, “Why does any of this matter? “ One must take it as a given that it matters—even when the debate is about something as arcane as when to celebrate the New Year for Vegetables. (Yes. Really.) Nor can one simply dismiss a purported proof text as wrong; since the point of the exercise is to explain the law rather than develop or discover it, rejection of one proof requires the submission of an alternative proof. Once you accept these parameters, it’s a wonderful stretching exercise for the logical mind.

More strikingly, my journey into Talmud study has been humbling. If you were to ask me at the end of each study session whether I understood what we covered, the answer would be an unequivocal yes—and an unequivocal no. I understand the scope of the debate as presented in the limited form we discussed, but at the same time I realize how little I understand of how it fits into the larger discussion. So I get it—and I don’t. And it occurs to me that only years of consistent and rigorous study will truly make some of it clear (or more accurately, clearer).

This realization has had effects on the way I teach civil procedure. My own experience suggests to me that student silence (especially among 1Ls) almost certainly does not have a uniform meaning. Some students may be quiet because they are unprepared and cannot follow the discussion in a meaningful way. Others may think they understand, but need time to process the discussion and rearticulate it in their own words. They are not ready to ask questions or jump in. Still others may understand the terms of the specific discussion we are engaged in at the moment, but (like me at Talmud study) don’t know enough (or don’t feel comfortable enough) trying to tie it together to other topics in the course. I have to try to reach all of these groups in different ways—through classroom discussion, formative assessment methods, and one-on-one meetings.

So I will stick with Talmud study, even when my other executor duties are complete. I think my mom would approve.

I would be curious to hear from others who had the simultaneous experience of being a teacher in one discipline and a student in another. How did your experience in one area influence your approach to the other?

50 Years Ago Today: The Declaration on Religious Freedom

On Dec. 7, 1965, Pope Paul VI promulgated Dignitatis Humanae, the Second Vatican Council's Declaration on Religious Freedom, "on the right of the person and of communities to social and civil freedom in matters religious."  Here're the opening lines:

A sense of the dignity of the human person has been impressing itself more and more deeply on the consciousness of contemporary man,and the demand is increasingly made that men should act on their own judgment, enjoying and making use of a responsible freedom, not driven by coercion but motivated by a sense of duty. The demand is likewise made that constitutional limits should be set to the powers of government, in order that there may be no encroachment on the rightful freedom of the person and of associations.

The Declaration and its anniversary were the subject of a really good conference, organized and hosted by the Notre Dame Law Review, a few weeks ago.  John Garvey, the President of the Catholic University of America (and the former dean of the Boston College Law School) gave the keynote.

My Trip to the Town of Greece

In the book I'm writing now (and by "writing" I mean I've signed a contract for something I should be writing but actually haven't written a word of) for Stanford University Press,  I'm looking at how non-Christians--Wiccans, Hindus, Atheists/Humanists, Satanists, the Summum, etc.--are increasingly trying to participate in public life by, for instance, giving legislative prayers and invocations, putting up displays on government property, and using public voucher funds for their schools, etc.  I'm calling the book, tentatively, "Our Non-Christian Nation: How Atheists, Wiccans, Satanists, and Other Non-Christians are Demanding Their Rightful Place in American Public Life." 

Like in two of my other books about religion, this too will be a book where I travel places to observe actual events and to talk to people involved in the controversies I'm writing about.  My first trip was to the Town of Greece back in October.  You may remember that a couple of years ago, plaintiffs successfully challenged in the Second Circuit the town's policy of beginning each of its town hall meetings with a prayer because almost all of the prayers were given by a Christian, and they were usually extremely sectarian in nature (meaning they expressly invoked Jesus and the like).  The Supreme Court, in a 5-4 decision, reversed the Second Circuit and held that sectarian prayers were okay so long as towns like Greece don't prohibit other groups from also giving invocations and/or prayers.

One of the plaintiffs in that case was Linda Stephens, a wonderful lady who has lived in Greece for many years and who happens to be an atheist.  Following the Supreme Court's decision, she asked the town council if she could give a secular invocation, and the council agreed. Somehow I came across the schedule for the town's prayers/invocations online, and when I saw that Linda was giving the invocation, I decided to take a plane to Rochester and check it out myself.

I met with Linda at her home and talked with her for a long time about the case, and then later in the day headed over to the town hall.  The town Councilor, whom I also met with, is apparently a huge pickle ball fan, which is a game I had never heard of before, sort of like tennis but not tennis, and there are a set of pickle ball courts next to the town hall.  This is not relevant.  I was interested in seeing if there would be any controversy at the meeting, given that Linda was one of the people who brought the suit that had brought so much attention to this small town.  Linda's was actually the second secular invocation given in Greece since the case came down, and at the first one, the only sign of dissent was a single man holding up a sign that said something like "Jesus Saves."  I thought, however, that this event might be different since it was Linda doing the invocation.

In fact, there was no controversy whatsoever.  Not even that one guy seemed to be there, and if he was there, he was not holding a sign.  Linda gave the invocation.  It was very nice (I thought).  Everyone was very respectful.  Nobody seemed to sigh.  Nobody left or groaned audibly.  The guy sitting next to me had removed his baseball hat when the Councilor announced that it was time for the "prayer," but when the baseball hat guy realized that Linda was not really giving a prayer, he put his hat back on.  It was a Red Sox hat, incidentally.

There's more, but for that you'll have to wait for the book.

Also, here is a picture of me and my hedgehog.

Yom Kippur, Sandy Koufax, and (the forgotten) Hank Greenberg

Something that had not clicked until my rabbi discussed it last night: This Yom Kippur marked the fiftieth anniversary of Sandy Koufax not pitching Game 1 of the World Series (it was October 6, 1965, on the English calendar). This story forms a big piece of Koufax's legend as one of the greatest pitchers of all time, the greatest Jewish player of all time, and a hero to American Jews who saw in his actions a place for their faith within American society (Three thousand years of beautiful tradition, from Moses to Sandy Koufax...).

My rabbi also told the oft-repeated addendum to the story. Don Drysdale (himself a future Hall of Fame pitcher, so it is not like there was such a drop-off in WAR by Koufax not pitching) started and lasted less than three innings. The story goes that when Dodgers manager Walter Alston came to the mound to remove Drysdale from the game, Drysdale said something to the effect of "Bet you wish I was Jewish, too." But a baseball historian told me there is some doubt about when this comment actually was made and by whom. One version is the common one. Another has Drysdale saying it in the clubhouse after the game. And in a third version, it was not Drysdale who said it, but a former Dodger player who was watching from the stands. The historian was unable to get underneath the most-common version of the story.

Koufax's decision has completely overshadowed a similar decision by the previous greatest Jewish player, Hank Greenberg, who played for Detroit and Pittsburgh in the '30s and '40s (his life, and this event, is covered in a wonderful 2000 documentary). In the heat of a close pennant race in 1934, Greenberg played on the first day of Rosh Hashanah (after obtaining permission from a local rabbi, who searched the texts to find that "play" was permitted on that day), but did not play on Yom Kippur. Although no one in 2014 marked the eightieth anniversary of Greenberg, in some ways, his stand was more courageous than Koufax's. For one, Greenberg was an everyday player who would have been expected to play every game; as a pitcher, Koufax only could pitch in one of the first two games, so holding him to Game 2 was not an enormous lineup change or loss. For another, the position of American Jews in 1934 was far more precarious than in 1965. While there was still anti-Semitism, both de facto and de jure, in 1965, it was far worse thirty years earlier. This was one year after Hitler came to power. And Greenberg played in Detroit, home of Henry Ford and Father Coughlin.

Greenberg was similarly lauded for his act of conscience and seen as similarly inspirational by American Jews. Yet his stand has been lost to history. Some of it is that the World Series is a bigger deal than a pennant race. Some of it is that Koufax is closer to being the greatest pitcher of all time than Greenberg is to being the greaterst first-baseman of all time, so all of his actions are magnified. Some may be recency bias.

In any event, with all the additional post-season rounds and games, no Jewish player will ever again have to skip a World Series game for Yom Kippur. It is more likely he would miss a World Series game for Thanksgivukkah 79811.

New Jersey’s Legislature Takes a “Grave” Misstep

Other than fellow “property law geeks,” not many people may wonder about property rights in cemeteries, but it is a surprisingly complex and varied topic about which I’ve pondered and about which Professor Tanya Marsh of Wake Forest has developed national expertise.  She has recently written the definitive casebook on cemetery law (co-authored by recent law school graduate Daniel Gibson), has launched a venture with the Urban Death Project to work for “ecologically beneficial meaningful death care” worldwide, and has recently been quoted in the national media with respect to death and internment issues.  Monday, in a short but completely compelling piece on Huffington Post, Professor Marsh took the New Jersey legislature to task for passing a law limiting churches’ ability to manufacture and sell tombstones, vaults, and private mausoleums.

As Professor Marsh clearly explains, creation and care for tombstones in church-owned and operated cemeteries is a religious practice. After all “rituals that mark the transition from life to death are a central part of most modern religions.” (I’d go even further and say that such rituals have always been a central part of all religions.)  But this new New Jersey law, Bill 3840, that was signed into law by Governor Chris Christie in March 2015, limits churches’ ability to fully participate in those rituals – even on their own land and on behalf of their own members. The law seems to be a blatant anti-competitive, special-interest-group spearheaded “win” by the Monument Builders of New Jersey, who agitated for government assistance to preserve their de facto monopoly on manufacturing graves, memorials and vaults.  Not only does this law serve no state interest at all – let alone a compelling one – it violates religious freedom in an essential and inexcusable way. Professor Marsh sums it up thus:

This law is an amazing act by the New Jersey legislature and governor. It was adopted at the behest of a group of private market participants for a reason no more noble than to protect themselves from competition. This blatantly anti-competitive effort is even more stunning because the product at issue–headstones and memorial tablets–are not regulated. No license is required to manufacture or sell them. Literally anyone in New Jersey can manufacture and sell tombstones, vaults, and private mausoleums–everyone, that is, except religious organizations and non-profit corporations that own or manage cemeteries.

Happily for those who care about justice and religious freedom and economic liberty, the Archdiosese of Newark, assisted by the Institute for Justice, have brought a lawsuit against the State of New Jersey, seeking to have the law struck down. There are several asserted grounds pursuant to which the court could invalidate the law, including violations of Due Process, Equal Protection, the Privileges and Immunities Clauses, and the Contracts Clause (Art. 1, Section 1) of the Constitution. 

Big Mountain Jesus update

Back in March of 2014, I blogged about the Establishment Clause challenge brought by the Freedom From Religion Foundation against "Big Mountain Jesus."  Here's a picture I took, during my own trip to enjoy the great Montana snow:   

 

Just as a reminder:  The statue was put up in 1953, by the Knights of Columbus as a memorial for members of the 10th Mountain Division.  As this news story reports:

The monument, which also included a plaque dedicated to the WWII soldiers, was built and maintained by private efforts. Every 10 years the permit for the monument was renewed with the Flathead National Forest.

The FFRF lost in the District Court.  Judge Dana Christensen wrote:

"To some, Big Mountain Jesus is offensive and to others it represents only a religious symbol," Chistensen wrote. "But the court suspects that most who happen to encounter Big Mountain Jesus, it neither offends nor inspires."

He said that to many the statue "serves as a historical reminder of those bygone days of sack lunches, ungroomed runs, rope tows, T-bars, leather ski boots, and 210 cm. skis."

Well, the Ninth Circuit's ruling is just in, and Big Mountain Jesus is safe again.  (The opinion is here:  Download SANFRAN-#160648-v1-Ninth_Circuit_Affirmance.)  Among the several factors that prompted the Court to conclude that the "endorsement test" did not require the statue's removal was this:  "the flippant interactions of locals and tourists with the statue suggest secular perceptions and uses: decorating it in mardi gras beads, adorning it in ski gear, taking pictures with it, high-fiving it as they ski by, and posing in Facebook pictures[.]"

Judge Pregerson dissented.

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.

Measels--An Update and Some Constitutional Issues

So things are moving fast on the Measles front.  Today I’m going to do a quick overview of mandatory vaccination for childhood disease and later this week what it tells us about our efforts to prepare for a bioterrorism event (spoiler, nothing good).

 The measles outbreak has spread now to 17 states and the District of Columbia.     And things are worse than they seem. The current “outbreak” (the number of cases that can be traced back to the original Disneyland exposure) signals how many people in the U.S. lack immunity not just to measles, but most likely to the other two deadly diseases which the MMR vaccine protects against—Mumps and Rubella (German Measles).  For an overview of the damage done by Andrew Wakefield’s now discredited article see here.  See how Megyn Kelly explains it here.  Last year I gathered some resources specific to young adults, and they are here.

 Rubella poses a serious risk to developing fetuses.   According to the CDC A  pregnant woman has “at least a 20% chance of damage to the fetus if….infected early in pregnancy.”  This damage is called CRS-congenital rubella syndrome.  Warning-you may want to take my word that this potential damage is serious rather than read this very descriptive CDC report .  Mumps is also quite serious.  Again a warning, it may be enough to know that the virus causes swelling in various body parts and can be a contributing factor to infertility or low fertility in a small but real percentage of men who become infected. 

Moreover, it seems unlikely that MMR is the only vaccine these children lack.  They are also at risk for polio, diphtheria, tetanus, whooping cough, chickenpox, hepatitis B(and no, it’s not just a sexually transmitted disease),meningococcal disease , and something really unpleasant for which there is now a vaccine—rotavirus.  Here’s the list.

The public focus has turned very quickly to law and ending  vaccination exemptions, see here and here, —so these are some resources if this comes up.   Top legal experts like Professor Lawrence O. Gostin are making clear, there is no Constitutional requirement to exempt anyone from mandatory vaccination in the face of a credible threat to the public’s health. The Supreme Court in held Jacobson v. Massachusetts that the individual states have full authority to pass mandatory vaccination laws and that they are not obligated to give exemptions for reasons of philosophy or preference.  For more background on the Constitutional issues see Prof. Parmet here, here, and here and  Professor Edward P. Richards. The situation is a closer call when it comes to religion, but not much.  As Justice Ginsberg points out in her dissenting opinion in Burwell v. Hobby Lobby, “Religious objections to immunization programs are not hypothetical.”  134 S.Ct. 2751, 2805, n. 31 (2014).  And in terms of an adult’s right to claim a religious exemption from medical care for a minor, the law is if anything clearer.  Even when making a “martyr” of oneself doesn’t pose a threat to others, a state still has the power to intervene when the religious belief is claimed on behalf of a minor.  Here’s a helpful overview by the Congressional Research Service about vaccination laws in the US and here's one that looks at laws overseas. 

You may be interested to know that the CDC is tracing several outbreaks at the moment including Listeria monocytogenes from caramel apples and sprouts

Read Professor Edward Richards’ article or this one by Profs Mariner, Parmet and Annas,  if you want to get ahead.  go here if you want to get ahead on the bioterrorism via infectious disease.

Measles!

First, I am delighted to be back on Prawfblawgs and want to thank Howard and the team very much for coordinating this.  It’s wonderful to see how what Dan started continues to grow and thrive.

Second, in thinking about how to make best use of my time I’ve decided to focus on public health law--to shed some light on the ever-present conflict between an individual's right to manage her own health and the government (state and federal) ability to interfere.

 As everyone knows, we in the United States are in the middle of an outbreak of measles that started when two un-vaccinated children who had been exposed to measles visited Disneyland.   My focus will be on legal issues, but lets start with an overview.  As of today, there are 102 cases reported in 14 states-anyone interested in tracking the outbreak can so here.  Measles is that “worst case scenario” virus that Ebola wasn’t—it is highly contagious, spreads through the air, can live a long time on surfaces, and is infectious well before people feel sick enough to stay at home.  This is a very helpful graphic.  In 2000 measles was “declared eliminated in the United States” because, for an entire calendar year, there had not been a case of one person catching measles from another in the United States.   But measles is nowhere near eliminated globally and we haven't had a year like 1999 in a long time.   Globally,  400 (mostly) children die of measles every day, 16 die every hour.   Unfortunately, “globally” does not, in measles’s case, mean remote areas of the planet, Europe, India the Philippines and Vietnam—are all seeing increases in measles cases.  

Also, over the past 5 years, an increasing number of people (mostly college students) have caught  measles and mumps (and both) without the infectot or the infectee leaving their U.S.  college campus.

 The good news about measles is that there is a highly effective, widely available vaccine that fully protects 97 out of every 100 people vaccinated.  It’s a “threefer” in that the vaccine provides immunity from not just Measles but two other very serious viruses, Rubella (German measles) and Mumps.

 Like most vaccines, however, it can’t be given to infants younger than six months old and in the absence of an immediate threat, usually isn’t given until a child is twelve months old.  There are also counter-indications (more about them later) about who shouldn’t get the vaccine.  Finally, people on chemotherapy or who have had bone marrow transplants lose whatever immunity they had before.   Without doing the math that means at any one time, even if every person in the United States eligible to vaccinated had one, many people would still be susceptible to infection.  And of course the point of this post on a law site, is that far from everyone eligible to be vaccinated has taken advantage of the opportunity.

 

The current controversy is a great teachable moment for any law school class considering the balance between the rights of an individual and that of the state.    Over the next month, I will be diving deeper into this area of the law to examine the parameters of state authority under the Tenth Amendment and then the different aspects of federal power that create the parameters of governmental authority to prevent, and control outbreaks through public health measures like mandatory vaccination, treatment, quarantine and isolation.  Spoiler alert—neither sincerely held religious belief nor autonomy to raise one’s children have prevailed against a state’s interest in requiring vaccination for attending public school.

To be continued.

Hello, and a Question About Hobby Lobby

Many thanks to the fine folks at Prawfsblawg for the invitation to guest-blog this month. I’ll start my stint by flagging a passage from the Hobby Lobby opinion that I’ve lately been scratching my head about. One of the questions at issue in Hobby Lobby was whether the government had “substantially burdened” the religious beliefs of the plaintiffs by requiring them to offer employer-provided health insurance plans that covered various methods of contraception. (The plaintiffs said “yes,” the government said “no”.) And on this question, several amici for the government advanced an argument that the government itself had not raised: The amici claimed that the plaintiffs could tolerably evade the contraceptive mandate by dropping their employees’ coverage and incurring a financial penalty instead. The argument, in other words, was that the penalty was small enough to make effectively available to the plaintiffs the option of not offering an employer-provided health care plan at all. And therefore, the amici continued, no “substantial burden” could result from rules applicable to plans that the plaintiffs were not in fact required to provide.

Anyway, my question concerns not so much the substance of this claim as it does the Court’s chosen means of addressing it. First and foremost, Justice Alito’s majority opinion observed that the government itself had never raised the claim, which in turn militated against any resolution of the issue by the Court. See id. at 2776 (“We do not generally entertain arguments that were not raised below and are not advanced in this Court by any party, and there are strong reasons to adhere to that practice in these cases.” (citations omitted)). Almost immediately thereafter, however, the Court went on to highlight various shortcomings in the argument itself. But how, you may wonder, did the Court manage to reconcile its stated refusal to reach the issue with its subsequent reaching of the issue? It did so by explaining that: “[E]ven if we were to reach this argument, we would find it unpersuasive.”

So, my question is this: What is the difference between saying (a) “We find this argument unpersuasive,” and (b) “Even if we were to reach this argument, we would find it unpersuasive”? The best I can come up with is something involving precedential effect; the latter statement, unlike the former, might more easily be dismissed as dicta in a later case, thus affording the Court a bit more flexibility in confronting a similar issue down the road. But even so, the statement still strikes me as unusual. I’m not aware of many cases in which the Court has consciously flagged a part of its opinion as non-binding dicta (normally, the “dicta” label gets applied after the fact, as a means of doing away with some difficult language from a prior opinion that a subsequent majority of Justices would rather not follow). And in any event, if the Justices really did find the argument unpersuasive, why were they reluctant to say so directly?

Anyway, I’m curious whether anyone has any thoughts on what the Court was up to here. I probably didn’t follow the Hobby Lobby litigation closely enough to offer an opinion on this language, but if I were to opine on it, I’d say it was confusing.

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.

The influence of the Justices' religious beliefs

There is posted at the Moment website a symposium on the topic "Do the Religious Beliefs of Supreme Court Justices Influence Their Decisions?"   The participants are prominent journalists and writers about the Supreme Court, including (not naming all, but just the first three listed!) Tony Mauro, Lyle Denniston, and Robert Barnes.  

I've addressed this issue several times over the years at this and other blogs -- as have many others! -- often in the course of replying to the suggestion or accusation that the Catholic justices are imposing Catholic teachings, rather than interpreting and applying the Constitution, in abortion cases.  (In the symposium, Lyle Denniston writes that "[i]n his rulings on partial birth abortion, Justice Kennedy has especially been acting out his personal Catholic faith", but this in-my-view unfounded claim seems to reflect Lyle's view that Kennedy's stances in the abortion context are somehow inconsistent with his emphasis in other contexts on "liberty interests.")

Some of the participants observe, and I agree, that it is, if nothing else, interesting that the Court consists at present of six Roman Catholics, three Jews, and no Protestants.  (Here's a WSJ thing I did on this subject a few years ago.)  I also think that what Emily Bazelon (and several others in the group) said is basically right (at least with respect to some -- I would say a relatively small number of -- cases whether the relevant legal materials are underspecific): 

[R]eligious beliefs are part of the sensibilities of some judges, and can inform how they approach cases, even if they don’t say so. It doesn’t make sense to think of the Court as Olympian and objective. The justices are just people, informed by personal background and history. Religion is a component of that.

That said, a few things that some of the participants said struck me as not quite right, or at least as incomplete.  (I'm not counting here the symposium editor's report that "[j]ust a decade ago, the general consensus was that justices were like umpires, objectively presiding over the nation’s legal system.")  For example, Lyle Denniston -- a widely and rightly respected Court observer -- states that "[i]n the past, Supreme Court justices were highly reluctant to allow their own values to come into play when ruling on religious matters."  I am skeptical.  For example, it seems clear to me that in the school-aid cases of the 1960s, 1970s, and 1980s -- cases that some of the participants characterize as "separationist" -- the "values", including the "religious" values, of the justices opposing the aid in question did plenty of work in shaping their views and driving their conclusions about the limits imposed by the First Amendment on allowing Catholic schools and students to participate in education-funding programs.  It does not seem right to say that we moved away from the strict no-aid view simply because new justices, unlike their predecessors, were willing to allow their "religious" beliefs (or, more specifically, their Catholic beliefs) to color their decisions about aid.  It seems more likely that this move owed a lot to a growing appreciation on the Court for the fact that the strict no-aid view owed more to Justice Black's and others' "own values" than it did to the requirements of the Fourteenth Amendment. 

I also thought that Stephen Wermiel might overstate the matter when he says that "the separationist view", which he associates with Justice Brennan, has "all but disappeared" on the Court.  Here, I think we need to be a bit more nuanced about what "separationist" means, and doesn't mean.  For example, some of us think that the Court's 9-0 decision in Hosanna-Tabor is an (appropriately) "separationist" decision, one that vindicates  what Wermiel calls "the essence of [Brennan's] separationist view—that having government involved in your religion demeans your religious beliefs."   And, the strict separationist Justice Brennan supported strongly the idea -- the idea that is operationalized in the Religious Freedom Restoration Act, which was interpreted and applied in Hobby Lobby -- that it is appropriate to exempt religious believers and institutions, when it's possible, even from generally applicable laws that burden religious exercise, an idea that, unfortunately (as Paul discussed the other day), is increasingly regarded as a bigoted, right-wing "dog whistle."