Posted on by Marc O. DeGirolami

The Immanent Frame on the HHS Mandate

I enjoy reading The Immanent Frame blog because it offers insight to a non-specialist like me in the fields of the sociology of religion, religious studies, the political science of religion, the anthropology of religion, and many other areas of importance to law.  It is in general a terrific blog.

That is why I was disappointed overall by the opinions about the legal implications of the HHS mandate offered by a panel of experts assembled by the editors there.  Of course, there are many things to discuss with respect to the mandate, and law is only one of those things.  It would have been interesting to see the opinions generated by a panel which wanted to discuss those other things.  But the panelists, only one of whom is a lawyer, seem actually to want to discuss law in their opinions: many of them talk about the Constitution, religious accommodation, religious liberty, and legal rights.  The problem is that when they talk about religious liberty or the Constitution, they are often dismissive or derogatory, but they say close to nothing about what the law actually is.  There are some references to the Hosanna-Tabor case (which has almost nothing to do with the issues here) and to a corporate speech case (which has exactly nothing to do with the mandate).   

One commentator — Professor Kathleen Sands — does talk about law, but what she says unfortunately is incorrect.  Here is a portion of Professor Sands’s comments:

Consider that “religion,” here, excludes even most Catholics. It discounts Catholic women (most of whom use contraception) and the Catholic Health Association, which accepted the Obama compromise. It discounts the vast majority of all American women, for whom the decision to use contraception is a matter of conscience. “Religious liberty” won’t help them if they work for a Catholic employer and, in fact, will deny them a benefit to which they’re legally entitled. Indeed, this “religious liberty” contradicts current jurisprudence, which clearly states that the Constitution does not provide “religious exemptions” to generally applicable laws.

I’ll confine my comments to the statements about the law, which are wrong in several respects.  Current jurisprudence, assuming that is taken to include federal and state statutes and cases interpreting those statutes, unequivocally does provide exemptions from generally applicable laws, provided the claimant can show that the law substantially burdens its religious exercise and the state cannot show both that it has a compelling interest in enforcing the law and that it has selected the least restrictive means of enforcing the law.  These statutes apply against the government, not against individual private employers.  So for a claim of “religious liberty” to apply, the claim must be made against the government; if anybody has such a claim (including, of course, the specific people that Professor Sands mentions), current jurisprudence, in the form of certain statutory provisions, may well recognize it.

Professor Sands’s statement is also potentially misleading with respect to constitutional law proper.  It is potentially misleading because if Professor Sands means that the Constitution does not permit such accommodations, she is wrong.  If instead Professor Sands means that the Constitution does not require such accommodations, she is correct, but only on the condition that the law is truly neutral and of general application.  That proposition is currently being litigated, and we will see what courts hold.  If they hold that the law is not truly neutral and of general application, then, again, current jurisprudence says that accommodations for religious free exercise are required, provided that the claimant can satisfy the burden-shifting framework described above.

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Denk on the Eighth Amendment, Catholic Teaching and Death Penalty Discourse

Kurt M. Denk, S.J. (Boston College Law School) has posted Jurisprudence that Necessarily Embodies Moral Judgment: The Eighth Amendment, Catholic Teaching, and Death Penalty Discourse. The abstract follows.

Despite obvious differences, certain historical and conceptual underpinnings of Catholic death penalty teaching parallel core elements of U.S. death penalty jurisprudence, particularly given the Supreme Court’s expansive yet contested moral reasoning in Kennedy v. Louisiana, which stressed that Eighth Amendment analysis “necessarily embodies a moral judgment.” This Article compares that jurisprudence with the Catholic Church’s present, near-absolute opposition to capital punishment, assessing how the death penalty, as a quintessential law and morality question, implicates overlapping sources of moral reasoning. It then identifies substantive concepts that permit Eighth Amendment jurisprudence and the Catholic perspective to be mutually translated, presenting this approach as a means to advance death penalty discourse.

Posted on by Marc O. DeGirolami

Wasserman on the Jurisdictional/Merits-Based Distinction Within the Ministerial Exception

If you read the Supreme Court’s Hosanna-Tabor decision, you may have noticed footnote 4, which said this:

A conflict has arisen in the Courts of Appeals over whether the min­isterial exception is a jurisdictional bar or a defense on the merits . . . . We conclude that the exception operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar. That is because the issue presented by the exception is “whether the allegations the plaintiff makes entitle him to relief,” not whether the court has “power to hear[the] case.” Morrison v. National Australia Bank Ltd., 561 U. S. ___, ___ (2010) (slip op., at 4–5). District courts have power to consider ADA claims in cases of this sort, and to decide whether the claim can proceed or is instead barred by the ministerial exception

Howard Wasserman (FIU) has a very nice piece in the University of Pennsylvania on-line journal about this distinction, where he defends the merits-based reading of the ministerial exception and criticizes the jurisdictional reading.  The distinction makes a difference because on the jurisdictional reading, the ministerial exception acts as a categorical bar on the power of courts to hear these sorts of cases, while on the merits-based reading, it allows courts to hear these cases and instead “bars” legislatures from dispensing with constitutional protections for religious organizations who employ “ministers,” as legally defined.

It may not surprise readers to know that I agree with Howard’s (and, now, the Court’s) view of the ministerial-exception as a merits-based limitation, in part because of my own view that the ME instantiates — or should be read to instantiate, per Hosanna-Tabor — a kind of common-law, particularistic constitutionalism which invites courts to make fine distinctions in arriving at conclusions about whether the ME should apply.  That approach would not work if the ME were treated as a categorical bar.  Indeed, I take some of the historical reasons for finding the ME to be a worthwhile doctrine not to be categorical, but to be one of a series of reasons which courts ought to countenance when examining ME defenses.  But whatever one’s position, anyone interested in the federal courts component of this issue will enjoy Howard’s careful piece.

ADDENDUM: I had one little afterthought about Howard’s claim, which I wanted to share and am curious how he would respond.  It seems to me that the difference between a jurisdictional bar and a merits-based defense appears very distinct at the edges.  One is governed by a Rule 12(b)(1) disposition, while the other is governed by Rule 12(b)(6) after some inquiry into the merits.  But in practice, might it not often be the case that the more powerful one makes the merits-based defense, the more it will begin to resemble a jurisdictional bar?  Indeed, as Howard notes, dismissal on 12(b)(6) grounds is generally with prejudice, while a 12(b)(1) dismissal is without prejudice.  But if one constructs an extremely powerful affirmative defense (one which, in practice, often means victory for the defendant religious organization), doesn’t that give the religious organization the best of both worlds — something which for all intents and purposes looks like an outright bar, and where the case is then also dismissed with prejudice?

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Duncan on Christian Libertarianism

Richard F. Duncan (U. of Neb. College of Law) has posted By the Waters of Babylon: Christian Libertarianism in the Age of Obama. The abstract follows.

In this short essay, I compare Secular America to ancient Babylon in order to convey my understanding of what it is like to live as a faithful Christian in a postmodern secular state. Just as the Jewish people wandered in exile in ancient Babylon, Christians wander today in an America that has rejected our God.

My pragmatic proposal for Christians living in the Age of Obama is to recognize that Babylonian law will typically reflect the morality and values of Babylon, not those of the America of our forefathers. The path to religious freedom in our society lies in an explosion of privatization, in a radical shrinking of the role of government in the lives of its citizens. As government retreats, religion will be free to advance. As government programs are cut and resources are returned to private citizens, we will be free to educate our children as we believe is best, to support causes we believe are right and good, to live our lives in accordance with our understanding of the good life and based upon our own theories of justice. In other words, a small Babylonian government should be the goal of Christians who find themselves living by the waters of Babylon here in Secular America.

Posted on by Marc O. DeGirolami

District Court Finds New York City Department of Education’s “Worship”-Exclusion Regulation Facially Unconstitutional

The United States District Court for the Southern District of New York has issued a preliminary injunction finding the regulation issued by the Board of Education of the City of New York facially unconstitutional under the Free Exercise Clause.  The case is in part interesting because the Second Circuit had narrowed the scope of the District Court’s TRO to the plaintiff, Bronx Household of Faith.  As I explained in this post, however, the plaintiff is challenging the regulation as being facially unconstitutional.  That would invalidate it as to everyone, not just Bronx Household of Faith.

And that is exactly what the district court held in issuing its preliminary injunction.  In the final footnote of the opinion, the court said:

The Court is, of course, aware of the Court of Appeals’ order applying the temporary restraining order only to named Plaintiff Bronx Household of Faith. With respect, however, if a rule is unconstitutional, it is unconstitutional as to all similarly situated parties. Defendants obviously recognized this in permitting many non-party congregations to meet during nonschool hours during the pendency of the prior injunctions. Also, the Court of Appeals made no suggestion in any of the three full opinions it issued heretofore that the prior injunctions extended only to the named Plaintiffs. Thus, with respect, this order extends to the Bronx Household of Faith and, in addition, to any similarly-situated party.

With respect from these quarters, too, it seems to me that Judge Preska is surely right about this.  If a regulation is found facially unconstitutional (as Judge Preska found this one to be), the state is prohibited from enforcing it not only against the plaintiff, but against everybody.  The finding is that there are no situations in which enforcement of the regulation would be constitutional.

The other interesting note is that Judge Preska reaffirmed her TRO findings that the regulation is not neutral on its face because it singles out worship for specially negative treatment, and because it discriminates against structured forms of religious expression in favor of unstructured forms of religious expression.  The district court also found that the Department of Education did not have a compelling interest here in conveying the appearance of not violating the Establishment Clause by issuing the regulation (this formed part of the basis for Judge Leval’s earlier Second Circuit majority opinion).  Neither the Second Circuit nor the Supreme Court has held that any interest in avoiding the appearance of an Establishment Clause violation is sufficiently powerful to justify viewpoint discrimination — a clear violation (rather than merely the appearance of a violation) of the Free Speech Clause.

Posted on by Mark Movsesian

Liveblogging the Religious Legal Theory Conference: Congratulations and Thanks

Congratulations and thanks to Bob Cochran and Michael Helfand for hosting this weekend’s Religious Legal Theory Conference at Pepperdine. It was all an academic meeting should be: substantive and collegial, with a diversity of voices and perspectives.  For live blog posts of some of the many excellent conference panels, see below.

Posted on by Mark Movsesian

Liveblogging the Religious Legal Theory Conference: International & Comparative Perspectives, Part 2

This afternoon I participated in the second International and Comparative Perspectives panel, moderated by Colleen Graffy (Pepperdine). The panelists (left)  addressed a variety of national and regional perspectives on law and religion.

Dia Dabby (McGill) began the panel with a presentation on a Canadian child custody case that involved a conflict between the parents’ religious beliefs and their children’s best interests. In the case, a stepfather claimed that his religious tradition – “Odinism” — justified his covering his 7-year old stepdaughter’s skin with racist drawings, including swastikas. The Canadian court dismissed the stepfather’s claim, in part because there was no evidence he knew what “Odinism” was, but also because the child’s best interests had precedence over the parent’s right to religious expression. Dabby used the case to discuss the metaphor of human skin as a way of describing conflicts about law and religion.

Kuyper Lee (Handong Global University) then discussed the situation of Christian lawyers in South Korea, a situation he described as one of “struggling and loneliness.” Christian lawyers traditionally keep silent about their faith in public, he explained, largely in deference to pastors, who have a commanding role in Korean Christianity. Christian lawyers in Korea, he said, are trying to work out how best to express their faith in a society in which Christian churches are increasingly subject to public criticism.

Santiago Legarre (Universidad Catolica Argentina) then gave an talk on a religious display case from Argentina. In the case, an American-funded NGO challenged the courthouse display of an image of the Virgin Mary, using the American creche case, Lynch v. Donnelly, as persuasive authority. Read more

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Education & Belief: Maclure and Taylor

Educational pluralism requires, in part, a political theory that legitimates the presence of belief (both religious and secular) in the public square while insisting upon state neutrality with respect to the content of that belief. Charles Taylor and Jocelyn Maclure’s Secularism and Freedom of Conscience offers one such argument. The book was originally written in French and intended for Canadians struggling with the growing cultural, religious and linguistic tensions in their pluralistic democracy. Secularism and Freedom of Conscience is a sketch – unlike the 800-page manuscripts we are accustomed to from Charles Taylor. However, like anything this eminent social theorist and political activist writes, it’s worth reading.

Maclure and Taylor start by distinguishing between two types of secularism, which they call the “republican” and the “liberal-pluralist.” The republican version favors a common civic identity shorn of sectarian particularity, which “requires marginalizing religious affiliations and forcing them back into the private sphere.” The republican version of secularism assigns the highest priority to moral equality before the law and is therefore wary of favoring or even accommodating differences based upon core beliefs. A private citizen may wear a Star of David, but a district judge may not. A Muslim girl may wear a headscarf at home but not at a public school. Religion becomes an essentially private affair.

Read more

Posted on by Marc O. DeGirolami

Liveblogging the Religious Theory Conference — Panel: “Is Religion Special?”

The first speaker is Nathan Chapman (Stanford Constitutional Law Center), who is presenting a talk about the possibility of finding a religion-specific ground of protecting religious liberty, as opposed to a ground which applies to religious reasons and non-religious reasons alike.  That is, Chapman is trying to discern a ground to protect religious conscience which would not apply to non-religious conscience.  Setting aside the scope of the Religion Clauses of the American Constitution, the duty of those who believe in a “Higher Kingdom” — and around beliefs and practices ordered around a “Kingdom of God” — accounts historically at least for the idea of religious liberty, says Chapman.  This has historically been the justification for the protection of religious liberty — for promoting the “Kingdom of God.”  Chapman offers various explanations for the particular qualities of this justification, but makes clear that he is not advocating importing this justification directly into American law.

The second speaker is Bruce Ledewitz (Duquesne).  Ledewitz proposes that religious legal theory ought to influence law and society.  He approaches the issue from the perspective of a secularist himself.  He argues that a humanistic but also religious sensibility, but one which is not necessarily theistic, offers a fruitful way forward.  The thinness of secular discourse is incapable of dealing with the problems of concrete social practices.  If religion is unique, if ought to offer unique insights to secular society.  Religious traditions are “resources for society” and this might be what makes them special.

The third speaker is Micah Schwartzman.  Schwartzman’s asks, “What if religion isn’t special?”  One sub-question is whether religion ought to be excluded for purposes of legal decision-making.  A second sub-question deals with religious accommodation.  The aim of the paper is to show that along a number of lines, religion is actually not special, at least as a moral matter.  He attacks the views of several prominent scholars who support the view that religion is special.

The fourth speaker is Nelson Tebbe.  Tebbe’s argument deals with government endorsement of ideas.  The claim is that there are certain secular positions that the government cannot endorse.  An example is racialized speech.  Suppose a government were to say that America is a white nation.  That, says Tebbe, would be unconstitutional under the Equal Protection Clause.  He also says it would be unconstitutional based on the Free Speech Clause, at least on a certain reading which is “democratic” in nature (see Owen Fiss).  Another example he offers deals with government electioneering — suppose the government said, “Vote Democratic.”  This, too, would be unconstitutional, even if government is able to advocate for particular policy views.  The intuition is that the government cannot directly interfere in these ways with democratic processes.  The textual hook is the Free Speech Clause, again read in a certain democracy-enhancing way.  These are examples of “secular non-endorsement,” and Tebbe argues that they suggest that religion is not special per se insofar as it relates to disabilities on what the government can say.  But even under Tebbe’s approach, the rule against religious endorsement is more powerful than non-religious endorsement.

Posted on by Marc O. DeGirolami

Liveblogging the Religious Theory Conference — Panel: “Government Institutions, Religious Affairs, and the First Amendment”

This afternoon I was delighted to participate in a panel at the Religious Theory Conference dealing with various subjects involving the First Amendment.  My own talk dealt with the Free Exercise Clause, and it focused on the question whether the doctrine which has grown up around Employment Division v. Smith is as predictable (as a guide to both judges and litigants) as its rhetoric has suggested to its supporters and opponents alike.

The second speaker was Mike Helfand (Pepperdine), one of the conference’s co-organizers, who gave a very interesting talk drawn from an excellent paper titled, “Litigating Religion.”  Mike’s provocative thesis is that the current approach to the issue of whether civil courts are capable of adjudicating religious disputes — one which posits total jurisdictional incompetence — is misguided.  Instead, civil courts should be required to “defer” to religious institutions’ authoritative interpretation of their religious tenets, but where there is no such interpretation, courts should step in.  

The third speaker on our panel was Dean Raymond Pierce of North Carolina Central Law School.  Dean Pierce spoke about the coercion test sometimes mentioned as the operative test for certain Establishment Clause issues.  He focused particularly on the issue of school prayer, and offered an impassioned criticism of the ways in which current Supreme Court doctrine prohibits certain kinds of religious expressions in public fora.

The final speaker was Mark Strasser (Capital University), who discussed the endorsement test and its evolution since Justice O’Connor first formulated it.  He considered Justice Alito’s interesting twist on the test in Salazar v. Buono, where Justice Alito argued that removal of a religious symbol might convey disrespect or disparagement of religion according to the reasonable observer standard.