Posted on by Mark Movsesian

A Pretty Narrow Decision

That’s my first read on today’s opinion in the Hobby Lobby case: narrow and pretty much as expected. Indeed, Justice Alito’s opinion for the Court says as much (“our holding is very specific”). It’s a 5-4 decision; a 5-2 decision on one important point. Still, a win’s a win, and Hobby Lobby, its lawyers, and those who filed amicus briefs in its behalf have a right to be pleased–as do all those who value religious freedom.

Some first impressions:

  • The Court does not address Hobby Lobby’s First Amendment claims; Hobby Lobby wins on RFRA grounds. No surprise there.
  • In holding that a for-profit corporation can exercise a religion for RFRA purposes, the Court takes the route that Chief Justice Roberts suggested at oral argument. It expressly limits its holding to closely-held corporations like Hobby Lobby and declines to discuss whether large, publicly traded corporations also can exercise a religion for RFRA purposes. That, as lawyers say, is a question for another day. (Self-promotion alert: this is what I predicted). The vote was 5-2 here; two dissenters, Justices Breyer and Kagan, would not have reached the issue.
  • The Court makes clear its ruling does not mean it will necessarily rule the same way in other cases where employers seek relief under RFRA, for example, where employers object to covering immunizations. Different governmental interests could be involved in those cases, the Court says.
  • The Court goes out of its way to say that its holding would not allow employers to justify racial discrimination on religious grounds. It says nothing about other sorts of discrimination, however. Surely this is intentional. As everyone knows, a major lurking issue is whether RFRA allows employers to discriminate on the basis of sexuality, especially homosexuality. The Court obviously wishes to avoid any allusions to that issue–perhaps to keep Justice Kennedy on board. The dissent does raise the issue, though.
  • The qualifications in the Court’s opinion are obviously meant to answer the dissent’s “parade of horribles.” Seems a pretty good answer to me–but the dissenters are not impressed. The Court’s logic extends to publicly traded corporations, Justice Ginsburg writes, and there is little doubt, notwithstanding the Court’s reassurances,  that RFRA claims will “proliferate” in future. In particular, the dissent raises the issue of religiously-based objections to sexuality. As I say, the Court studiously avoids that issue.
  • In its least-restrictive means analysis, the Court notes that an accommodation of the sort the government has offered to certain religious non-profits would have achieved the government’s end in this case as well, and would have imposed less on Hobby Lobby’s religious exercise. That is, an alternative to the mandate is available. Is the Court hinting at what it thinks about the Little Sisters of the Poor case? I don’t think so; the Court went out of its way to reserve that issue. But the language here is a bit opaque and may cause trouble in future.
  • Not clear what the point of Justice Kennedy’s concurrence is, except to highlight that he sees this as a close case, to say nice things about the dissent, and to expound a little more about his view that religious liberty is about protecting people’s “dignity and … striving for a self-definition shaped by their religious precepts.”

We’ll have further analysis here at CLR Forum as we digest the opinion a little more. But, bottom line: a narrow decision and a win for religious liberty.

Posted on by Marc O. DeGirolami

Nelson, “The Royalist Revolution: Monarchy and the American Founding”

Here’s one I will be sure to pick up–Eric Nelson’s (Harvard University) The The Royalist RevolutionRoyalist Revolution: Monarchy and the American Founding published by Harvard University Press later this year. Perhaps not straight down the law and religion fairway, but this fascinating looking book may shed a little ambient light on such issues as the framers’  intent as to the meaning of the religion clauses. The publisher’s description follows.

Generations of students have been taught that the American Revolution was a revolt against royal tyranny. In this revisionist account, Eric Nelson argues that a great many of our “founding fathers” saw themselves as rebels against the British Parliament, not the Crown. The Royalist Revolution interprets the patriot campaign of the 1770s as an insurrection in favor of royal power—driven by the conviction that the Lords and Commons had usurped the just prerogatives of the monarch.

Leading patriots believed that the colonies were the king’s own to govern, and they urged George III to defy Parliament and rule directly. These theorists were proposing to turn back the clock on the English constitution, rejecting the Whig settlement that had secured the supremacy of Parliament after the Glorious Revolution. Instead, they embraced the political theory of those who had waged the last great campaign against Parliament’s “usurpations”: the reviled Stuart monarchs of the seventeenth century.

When it came time to design the state and federal constitutions, the very same figures who had defended this expansive conception of royal authority—John Adams, Alexander Hamilton, James Wilson, and their allies—returned to the fray as champions of a single executive vested with sweeping prerogatives. As a result of their labors, the Constitution of 1787 would assign its new president far more power than any British monarch had wielded for almost a hundred years. On one side of the Atlantic, Nelson concludes, there would be kings without monarchy; on the other, monarchy without kings.

Posted on by Marc O. DeGirolami

Schull, “Prisons in the Late Ottoman Empire”

In May, Oxford University Press published a very interesting looking book at the Prisons in the Late Ottoman Empireintersection of religion and criminal law, Prisons in the Late Ottoman Empire: Microcosms of Modernity, by Kent F. Schull (Binghamton University). The publisher’s description follows.

Contrary to the stereotypical images of torture, narcotics and brutal sexual behaviour traditionally associated with Ottoman (or ‘Turkish’) prisons, Kent F. Schull argues that these places were sites of immense reform and contestation during the 19th century. He shows that they were key components for Ottoman nation-state construction and acted as ‘microcosms of modernity’ for broader imperial transformation. It was within the walls of these prisons that many of the pressing questions of Ottoman modernity were worked out, such as administrative centralisation, the rationalisation of Islamic criminal law and punishment, issues of gender and childhood, prisoner rehabilitation, bureaucratic professionalisation, identity and social engineering.

Juxtaposing state-mandated reform with the reality of prison life, the author investigates how these reforms affected the lives of local prison officials and inmates, and shows how these individuals actively conformed, contested and manipulated new penal policies and practices for their own benefit.