This summer, Harvard University Press published The Tragedy of Religious Freedom, by our very own Marc DeGirolami (left), CLR’s Associate Director. In the book, Marc argues for a “tragic” understanding of religious freedom, one “that avoids the twin dangers of reliance on reductive and systematic justifications, on the one hand, and thoroughgoing skepticism about the possibility of theorizing, on the other.” This week, Marc answers some questions about his book. Among other things, he discusses the differences between “tragic” and “comic” legal theories; the value of history and tradition in judicial decision-making; and the inevitability of judicial discretion. He also explains why the Court got religious freedom wrong in Employment Division v. Smith and right in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. 

CLR Forum: Marc, explain what you mean by “comic” and “tragic” approaches to law generally. Why do you think religious freedom, in particular, should be addressed from a tragic perspective?

DeGirolami: The terms comic and tragic are ancient and have been used in classical, literary, and philosophical settings. I draw on some of these meanings in the book, but I use comic in the legal context to mean two things: (1) a preference for systematic ordering of the law by reducing legal values either to one or to a small set, in the belief that human society is progressively improved by that reduction; and (2) the marginalization of the loss of other values in the process of accomplishing (1). Tragic approaches to the law resist both of these points. A tragic approach to law says that the reasons we value a practice like religious freedom are plural and cannot be reduced. Each value struggles to avoid absorption and subordination by the others. The clash of values results both from the limits of human reasoning and from the conflict of human interests and aspirations. So in the face of conflict in law, a tragic approach affirms that the comic impulse to reduce legal values, and systematically to marginalize those that are subordinated, will exacerbate conflict and end up deforming, and perhaps eventually destroying, important social practices and institutions.

CLR Forum: You single out Employment Division v. Smith, Justice Scalia’s famous opinion in the peyote case, as an example of the misguided “comic” approach and argue that it should be gradually dismantled. What’s so wrong with Smith? And why not just overrule it? 

DeGirolami: Yes, I am critical of Smith and believe it to be an example of a comic approach. Smith reduced all possible values of free exercise under the Constitution to a single value: formal neutrality. A neutral rule that is applied generally no longer can violate the Free Exercise Clause of the Constitution after Smith, no matter how severely the rule burdens the religious free exercise of an individual or a group and no matter how insubstantial the government’s interest in enforcing the rule on a religious claimant. The Smith decision attempted to accomplish both of the comic points I listed above. It wanted to bring system to the law and to eliminate the interest-balancing approach that preceded it. It did so by reducing the values of the social practice of free exercise to one. It also ended up distinguishing prior case law in unconvincing ways, marginalizing (or ignoring) the values of religious freedom reflected in the conflicts in those cases in the service of its reduced vision of free exercise. Finally, Justice Scalia’s underlying reasons for the decision in Smith, it also seems to me, rest on an overly optimistic assessment of the reliability of elected officials and democratic majorities to protect religious freedom.

The reasons not to overrule Smith outright relate to the second large feature of the book alongside tragedy—an emphasis on social and doctrinal history. In place of approaches which focus on abstracted values (like neutrality or equality), I argue that a focus on historical and doctrinal development is useful. There is no doubt that Smith spotlighted an important value of religious liberty, and a value with deep roots in the traditions of American constitutional religious freedom. Also, Smith is now more than a generation old. It has prompted a framework of federal and state statutory protections for religious liberty (which has in turn generated an increasingly well-developed body of cases interpreting those statutes). The historical and doctrinal focus of my approach counsels against outright overruling in this context. Instead, it counsels a more gradual containment of Smith, which is a nice segue into the next question.

CLR Forum: In contrast, you say that the Court’s recent decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the ministerial exception case, comes as close as any of its opinions to the correct, tragic approach. Could you explain this?

DeGirolami: That’s correct, but I think Hosanna-Tabor is also useful because it is a strong (though imperfect) example of a case that focuses on historical and particular legal and social realities, refusing to elevate a single value to all-important status. In the book, I describe Hosanna-Tabor as a historical and particularist decision. The Court expressly stated that in its first opinion about the nature and scope of the ministerial exception, it “would not adopt a rigid formula for deciding when an employee qualifies as a minister.” That’s the part of the opinion that is consistent with a tragic approach. Instead, after a fairly thorough (for a Supreme Court decision) discussion of the foundations of the ministerial exception in the historical traditions of American religious freedom, the Court undertakes what I call in the book a “suite of inquiries”—a highly particularized set of questions about the nature and function of the plaintiff’s duties. I disagree with some of the Supreme Court’s answers to these questions, and there are some questions about the ministerial exception that I wish the Court had asked but that it didn’t. Still, the overarching method of the decision is as close to my approach as any of the Court’s opinions.

Circling back for a moment to the previous question, Hosanna-Tabor is also a positive case because, although it is facially consistent with Smith, it destabilizes the Smith approach considerably without of course overruling it. Hosanna-Tabor introduces new questions about the limits of Smith’s holding—healthy questions as far as I am concerned.

CLR Forum: You also praise the European Court of Human Rights’s decision in Lautsi v. Italy, the classroom crucifix case, particularly its treatment of history. Why do you admire this case?

DeGirolami: With the caveat that it is a complex matter to draw parallels between entirely different legal systems, my reasons for supporting the Lautsi decision in some ways track my support of Hosanna-Tabor. Like Hosanna-Tabor, the Lautsi Court refused to recur to abstracted values as the exclusive basis of judgment. Though it discussed the value of neutrality, it was appropriately sensitive to the historical dimensions of the dispute about the crucifix. One could say even more: the Lautsi Court rightly recognized that a value like neutrality can only be cogently interpreted as a legal aspiration from within the particular social history and unique cultural perspective of an individual nation. Neutrality looks entirely different when it is superimposed on a historical tradition of long standing than when such a historical tradition is absent. The court’s focus on that unique cultural perspective (in this case, Italy’s)—and its deference (not abdication, but deference) to that perspective—usefully models an approach in which social history figures prominently.

CLR Forum: I thought your parable about William and Daphne, the married couple who must negotiate several life choices without the benefit of a categorical, all-encompassing rule (other than their desire to stay together!), was most helpful in illustrating your approach. Could you please relate the parable for our readers?

DeGirolami: Sure. The story is, as you say, about a couple who must each make choices about their lives—choices that will impact their careers, their children, the other spouse, their parents, their personal lives, and so on, and that will, as they make them, sacrifice important values along the way. They make these choices in ways that cohere overall but are unguided by a categorical rule. I’ll quote a selection from the book:

William and Daphne have now made a number of choices about their lives but there was no decisive principle or value that controlled these choices. The same considerations recurred, but at each point of decision the couple emphasized a different set of them, and past choices informed present ones. Their choices assumed, as it were, a narrative form or shape. Reasons that contributed to their decision making at one point were deemed less important at another point. If the couple had been asked to list all of the motivating considerations in the abstract, they might have identified career advancement, the unity of the family, disruption to the children, the value of completing projects under way, parental pride, the pursuit of hobbies and other interests, proximity to extended family, job security, financial considerations, cultural familiarity, the excitement of lifestyle changes, and the choices that had been made in the past. But the specific judgments reached were governed neither by any one of these considerations nor by another master value. Factors that were powerful in one context…lost some or all of their power in another. The choices were made case by case, but this does not mean that they were incoherent or unpredictable.

CLR Forum: How would you answer a critic who says, it’s all well and good for a married couple like William and Daphne to negotiate life choices in the ad hoc way you describe, but we’re talking about a legal system. Is the fluidity that characterizes a good marriage a proper analogue for a legal system, which must provide guidance for third parties? 

DeGirolami: It is a good criticism and the analogy is imperfect. It is surely true that legal decisions are different from personal choices. One way that they are different is that legal decisions must offer guidance to future litigants. But two responses.

First, the example shows that past decisions can serve as predictors of future decisionmaking. William and Daphne’s choices were not moment to moment or random. They were deeply shaped and informed by their past decisions. It is true that one could not predict with certainty what they would do based on their past choices. But one could certainly guess at a limited number of plausible outcomes based on those previous choices—a relatively narrow range of possibilities.

Second, even though it is true that predictability may be a more important value in law than it is in one’s personal life, even in law it is not all important and should not be allowed to overpower all competing values or interests as one decides on the best legal approach.

CLR Forum: As I read Tragedy, I kept thinking of the second Justice Harlan. Like you, he greatly valued the contributions of history and tradition in constitutional law and relied on the wisdom and good faith of judges. Do you see the similarities between your approach and his?

DeGirolami: Yes, that’s probably correct, though I don’t discuss the second Justice Harlan too much in the book. Justice Harlan, in the words of one of his biographers, deplored “absolutist tendencies” in constitutional interpretation–including as to the First Amendment. And in several of his opinions, Justice Harlan recognized that one of the crucial functions of a judge in expounding the law is to inquire after (and, in some senses, preserve) the deeply rooted traditions of the country and reaffirm them in law. It is an approach that assumes that there is such a tradition to discern, contested and checkered as the tradition may be in parts. And it also assumes that the tragic conflicts of values in law can best be reconciled by adopting an historical and traditional cast of mind. That general approach has gotten some traction in selected areas of constitutional law, including in some areas of the law of religious freedom (the issue of legislative prayer now before the Court, for example), but it has many critics, too, from both the right and the left.

CLR Forum: What would you say to the criticism that your approach puts too much faith in judges–that relying on judicial discretion in the way you advocate is going to lead to unpredictable results, even lawlessness?

I would say that these are good criticisms. The view of judging that I have ascribed above to the second Justice Harlan vests substantial responsibility and discretion in judges to undertake sensitive and difficult inquiries. We may well be disappointed in the results, in part because they appear to look lawless.

One answer to the criticism is that I just don’t see any way around this. One of the claims in the book is that irrespective of the legal rule, it is in the nature of the judicial office that discretionary inquiries of this kind will occur. In fact, one prominent criticism of the Smith decision in the book is that the sharp-edged nature of the rule has more rhetorical than actual force. It has consequently misled people about the sorts of decisions that courts have actually been making. In practice, courts applying Smith have reached very different outcomes because of explicit and implicit exceptions to the rule itself. Courts have been using something like my approach in the book under cover of applying a sharp-edged rule. This is not to say that predictability is not an important legal value; surely it is. But it is not and cannot be the only value of a legal system, and efforts to make it so end up offering conceptual cover for what is always in some measure a plural-valued assessment by courts. It would be better to come more forthrightly to grips with the ways in which judges negotiate tragic conflict.

But a second answer is more positive. The method I offer in the book is constrained in its own way. It depends on well-tested methods of judicial constraint—historical and traditional ways of thinking in combination with doctrinal common law methods—which will supply their own, perhaps more realistic kind of predictability. It is not lawless any more than a system which depends upon a common law sensibility is lawless. And it is more candid about the nature of the judicial office.

CLR Forum: What’s your next project?

My next project is a historical study of the perennial separation between theoretical and practical approaches to adjudication. It is tentatively titled, “The Tradition of Judgment.”