The Cambridge Companion to the First Amendment and Religious Liberty (2020)

This volume is now available for purchase, with many worthwhile and interesting contributions. I have an essay in here as well, The Two Separations.

Check it out!

Conference at Washington University on the Religion Clauses

I’m at Washington University in St. Louis today for a conference put together by Professor John Inazu on “The Religion Clauses.” I’ll be talking about my recent piece, First Amendment Traditionalism, which extends the arguments about traditionalism in constitutional interpretation that I first made in The Traditions of American Constitutional Law. If you happen to be in the area, please do come by and say hello, as the conference is free and open to the public.

Review of Weiner’s “The Political Constitution”

I have a review of Professor Greg Weiner book, The Political Constitution: The Case Against Judicial Supremacy, over at the Liberty Fund blog. A bit:

The book’s basic argument is that contemporary Americans have lost the sense in which the Constitution is fundamentally a “political” document, by which Weiner means a vehicle for “pursuing human goods through interdependent lives” with “openness to shared ideas of noble ends pursued with common purpose.” The Constitution, he says, embodies a certain kind of politics—republicanism—in which authority is vested in the people, working through their representatives, to take primary responsibility for the “res” of the “res publica” in the pursuit of the “ends we share.” Weiner contrasts this vision with one of individualist constitutionalism, in which all valid political ends are derived from the private choices of individuals, and which is not really a form of politics at all—an “anti-political” (as Weiner puts it) politics of rights maximization without concomitant social responsibilities.

These two models of constitutional politics (or politics and “anti-politics”) correspond, Weiner claims, to two views of the nature and scope of federal judicial power in America: judicial restraint and judicial engagement. Judicial restraint, in Weiner’s view, empowers the people to reclaim what is rightfully theirs as republican citizens from a judiciary that has usurped their sovereignty and enervated their capacity for self-governance in declaring itself the supreme expositor of the Constitution. Judicial engagement—which Weiner associates especially with the work of Professor Randy Barnett and the Cato Institute’s Clark Neily and Roger Pilon, but there are several distinguished scholars in this camp—empowers the judiciary to guard individual liberty against the perpetual encroachments of the government’s other branches while itself perpetually encroaching on the claims of the people qua political entity.

One view favors the claims of the political community as against the individual, asking judges to acquiesce in them; the other, the claims of the individual as against the political community, asking judges to vindicate them. Yet while the cost in abandoning the former may only be the loss of some implausible claims of individual freedom, the cost in forsaking the latter, Weiner says, is nothing less than the American republican soul…. 

The problem that the book sets out to solve is therefore dwarfed by the problem that it actually uncovers. If that problem—the problem of the endurance of “We the People” in America—is to be engaged (I say nothing of solved) from the judicial end of the table in a satisfactory way, it will not be through judicial disengagement and leaving the people to their own devices, as ill-considered and noxious as they may be. It will instead be at least in part by asking courts—carefully and always honoring the limits assigned to them by the Constitution—to engage with American constitutional law in ways that differ substantively from the partisans of “judicial engagement” whom Weiner criticizes.

A Thought About Motive in the Law

Espinoza v. Montana Department of Revenue is a new and important Supreme Court case scheduled to be argued later this month that concerns whether prohibiting parents from using tax credits for private religious schooling, where the state made the credit available for private religious and non-religious schooling alike, violates the Constitution. After finding that using the credit for religious schools would violate the Montana State Constitution’s Blaine Amendment, the Montana Supreme Court struck down the entire statutory scheme. We’ve got a podcast on the case over here as an introduction to it.

Over at the Volokh Conspiracy, Professor Eugene Volokh asks the question whether the Montana Supreme Court’s decision religiously discriminatory if the program is now completely dead–that is, if all private schools, religious and secular, are prohibited from using the credits. He posts an interesting answer from an attorney at the Institute for Justice that it is, because the motive for striking down the program in its entirety was discriminatory as to religion: “Simply put, if there were no religious options, the program would stand, but since there were religious options, the program had to go.” There are race discrimination precedents for this sort of reasoning, but also the problematic Palmer v. Thompson that needs to be explained as distinctive with respect to the state of the record.

All of this worthwhile exchange led me to think generally about motive in American law. It strikes me that much of the utilitarian-inflected skepticism about motive’s relevance in criminal law and tort law has barely touched constitutional law at all. Jeremy Bentham’s view in his Introduction to the Principles of Morals Legislation was that the emotions motivating human behavior were unregulable. All that could be done was to punish behavior that actors expected to cause harm. Motivations were basically irrelevant to the law–vestiges of a time when law was unhealthfully saturated with morality. John Austin likewise distinguished between cognitive states and desiderative states in attempting to hive off intention from motive (Lectures on Jurisprudence). And these theorists were major influences on the thought of James Fitzjames Stephen and Oliver Wendell Holmes, Jr., and, later and by extension, people like Herbert Wechsler and William Prosser in their respective disciplines, turning criminal law and tort law decidedly away from an emphasis on motive.

Not at all so for constitutional law, however. Since at least the early twentieth century, motive has played a major (indeed, perhaps *the leading*) role in evaluating the permissibility of various government policies and projects. I suppose the difference can be explained away on the basis that constitutional law concerns the government’s motive, while criminal law and tort law would concern the individual’s motive. But why should we be more or less skeptical about the role of motive in the law depending on whether we are considering government or individual motives? The government is made up of individuals with motives, after all. Perhaps there is a historically specific reason for the focus on motive in constitutional law connected to the gravity of the plight of African Americans and the situation of slavery in American law and history. But there are very grave sorts of crimes and torts as well, and yet many theorists today continue to follow the view that motive ought not to matter in these other areas.

In fact, motive often does matter greatly in criminal law and tort law, as I’ll have occasion to discuss in more depth soon, drawing from a new paper I’ll post. Still, it’s interesting that the “irrelevance of motive” position still has strong adherents in criminal and tort law, but very few in constitutional law.

Center Papers & Activities in 2019

Here is a retrospective list of some of our papers and activities in 2019, with links where available. A warm thanks to our readers, and best wishes for the new year!

Papers

DeGirolami, The Traditions of American Constitutional Law (forthcoming, Notre Dame Law Review 2020).

Movsesian, Masterpiece Cakeshop and the Future of Religious Freedom, 42 Harv. J.L. & Pub. Pol’y 711 (2019).

DeGirolami, First Amendment Traditionalism (forthcoming, Wash. U. L. Rev. 2020).

Movsesian, The Armenian Genocide Today, First Things, November.

DeGirolami, The Sickness Unto Death of the First Amendment, 31 Harv. J.L. & Pub. Pol’y 751 (2019).

Movsesian, Tertullian and the Rise of Religious Freedom, University Bookman, August.

DeGirolami, Notes on a New Fusion, Liberty Fund, July.

Movsesian, Interpreting the Bladensburg Cross Case, First Things, June.

DeGirolami, Cross Purposes, Public Discourse, June.

Movsesian, The Devout and the Nones, First Things, April.

DeGirolami, Jurisprudence as an Expression of Character, Liberty Fund, January.

Activities

Conversation with Hon. Kyle Duncan (5th Circuit) and Hon. Richard Sullivan (2d Circuit) on church-state issues at the Supreme Court.

Legal Spirits (podcast series concerning law and religion).

In spring 2019, DeGirolami was a fellow in the James Madison Program in Princeton University’s Department of Politics.

DeGirolami, Panel on Keith Whittington’s “Repugnant Laws,” James Madison Program, Princeton University, November.

Movsesian, “Church-State Relations in a Time of Scandal,” Morningside Institute, September.

Movsesian, Constitution Day Lecture, The King’s College, September.

DeGirolami, “The Supreme Court’s New Traditionalism,” Skidmore College, September.

DeGirolami, “The Constitution, the Courts, and Conservatism,” Hertog Foundation, July.

The Center for Law and Religion colonizes the Harvard Journal of Law and Public Policy! June.

Movsesian, “Religion and the Administrative State,” Center for the Study of the Administrative State, George Mason University, March.

DeGirolami, “Free Exercise of Religion and Free Speech,” AALS Law and Religion Conference, January.

Legal Spirits Episode 017: Tanzin v. Tanvir and Individual Liability Under RFRA

In this podcast, we discuss the Second Circuit opinion in Tanzin v. Tanvir, the Supreme Court’s second law-and-religion case this term, about whether the Religious Freedom Restoration Act contemplates liability for individual federal officers. Along the way, we consider some of the divided cultural backdrop against which this somewhat technical question will be decided. Listen in on our final podcast of 2019!

Wilson & Drakeman’s Church-State Reader

I’m delighted to notice this new church-state reader put together by John F. Wilson (Princeton, emeritus) and our longtime friend and center board member, Donald L. Drakeman, Church and State in American History: Key Documents, Decisions, and Commentary from Five Centuries (4th edition, Routledge). Don kindly informs me that what is new about this edition of the reader is a greatly expanded historical section before the American founding, beginning with the Biblical texts and proceeding through the early Christian and medieval era. It also has the American context, the big Supreme Court cases, and so on.

Every time I teach a church-state course of any kind, I cobble together material from a number of different sources as a kind of rapid introduction for students to this area of the law. This book looks like a handy solution. And I’m sure it’s written with Don’s typical flair and panache.

Here is the description from Routledge:

Church and State in American History illuminates the complex relationships among the political and religious authority structures of American society, and illustrates why church-state issues have remained controversial since our nation’s founding. It has been in classroom use for over 50 years.

John Wilson and Donald Drakeman explore the notion of America as “One Nation Under God” by examining the ongoing debate over the relationship of church and state in the United States. Prayers and religious symbols in schools and other public spaces, school vouchers and tax support for faith-based social initiatives continue to be controversial, as are arguments among advocates of pro-choice and pro-life positions. The updated 4th edition includes selections from colonial charters, Supreme Court decisions, and federal legislation, along with contemporary commentary and incisive interpretations by modern scholars. Figures as divergent as John Winthrop, Anne Hutchinson, James Madison, John F. Kennedy, and Sandra Day O’Connor speak from these pages, as do Robert Bellah, Clarence Thomas, and Ruth Bader Ginsberg.

The continuing public and scholarly interest in this field, as well as a significant evolution in the Supreme Court’s church-state jurisprudence, renders this timely re-edition as essential reading for students of law, American History, Religion, and Politics.

On Blue Laws

Here is something interesting from a book I’m reviewing now by Professor Greg Weiner, The Political Constitution: The Case Against Judicial Supremacy, which takes Justice Felix Frankfurter’s later views of constitutional jurisprudence as in some respects a model for today. Here, Weiner discusses Frankfurter’s view of the Blue Laws, which forbade a wide range of commercial activities on Sunday in order to recognize the sabbath day for Christians, in a famous case called McGowan v. Maryland (1961). The Court upheld these laws for a rather peculiar reason: that “the record is barren” of reasons to *disprove* that forbidding the sales of certain products on Sunday does not contribute to the rationalized well-being of the citizenry.

Justice Frankfurter concurred. Here is a bit from the book with some material from the Frankfurter opinion quoted:

The effect of the law was to set Sundays apart as ‘a day of rest not merely in a physical, hygienic sense, but in the sense of a recurrent time in the cycle of human activity when the rhythms of existence changed, a day of particular associations which came to have their own autonomous values for life.’ Perhaps most important, rather than seeing the case as one pitting lone objectors against the state, Frankfurter recognized the individual’s situation in the context of a political community whose ‘spirit…expresses in goodly measure the heritage which links it to its past’ and which could reasonably decide to create an ‘atmosphere of general repose’ that would be disrupted by exempting individuals from the law.

In other words, the majority of the community was entitled to impose regulations that created what it regarded as conditions for living a good life, which included leisure, community interaction, and, yes, a particular convenience for members of the dominant religion….The religious heritage of blue laws was part of the traditions of a community, which could not regard itself as existing simply in the here and now. (97-98)

I’ll have more to say about the book, and claims like the one above, soon.

On “Social Crusading”

On Thursday, I’m delighted to be participating with Professor Bob Nagel, on a panel, moderated by Prof. Matt Franck, on Professor Keith Whittington’s new book, Repugnant Laws: Judicial Review of Acts of Congress From the Founding to the Present (2019). The event gives me a chance to return to see my old friends at the James Madison Program at Princeton University, where I spent a delightful and productive spring as a visiting fellow.

The book provides detailed empirical support for the proposition that the Supreme Court, far more often than not (at a rate of about 3:1), upholds congressional statutes than it strikes them down. Whittington extends, but also modifies and enriches, the thesis proposed by Robert Dahl, Mark Graber, and Barry Friedman, among others, that the Court is fundamentally a political institution that very often operates in accord with the other political branches. The counter-majoritarian difficulty famously discussed by Alexander Bickel, in Whittington’s hands (and as one of my exceptional students, Joe Brandt, put it in our Constitutional Theory seminar this fall), becomes a majoritarian difficulty.

I’ll have more to say about the book later, but for the moment I want to call a little attention to a small, but interesting, line in the book discussing Reynolds v. United States (1878), where the Supreme Court upheld the federal Morrill Anti-Bigamy Act against a constitutional challenge by the LDS community on the ground that the Act violated its religious freedom. Polygamy was church practice at the time. Whittington counts this as an example right in line with his general thesis, and I think he is right about that.

But he describes the case in these terms:

“As Congress embarked on new social crusades, the Court stood aside. The Republican Party denounced the polygamy practiced by the Mormons in the West as equally barbaric as the slavery practiced by the slavocracy in the South. When the postbellum Congress turned its attention to bringing the Church of Jesus Christ of Latter-day Saints to heel, the Court gave it a free hand.” (170)

It may be a small point, but to describe the Congress as “embark[ing] on new social crusades” by enacting this legislation seems to me not quite right. If anyone was embarking on new social crusades, it was the religious organization, not Congress. I mean that entirely descriptively. Laws against bigamy and polygamy were nothing new in the late 19th century. Indeed, I should think that they would have been regarded as perfectly ordinary and unremarkable, and that is exactly how the Supreme Court regarded them in Reynolds: “At common law, the second marriage was always void (2 Kent, Com. 79), and from the earliest history of England, polygamy has been treated as an offence against society.” Enforcing long-standing social understandings by law against novel social arrangements is not social crusading. Quite the opposite.

But perhaps this difference of perspective illustrates a broader point about these sorts of descriptions. What we characterize as “social” or “moral” “crusading” (somehow, crusading has taken on unequivocally negative connotations…tant pis) will depend upon a baseline of what we value in existing social conditions and what we deem ordinary legislation to protect those conditions. “Moral” or “social crusading,” then, doesn’t seem to have much meaning beyond something like, “pursuing moral or social objectives I think illegitimate.” If that’s what it means, maybe we should just argue about those first-order disagreements directly (“which morality is best?”), rather than present those disagreements in second-order dismissals (“stop imposing your morality on me!”).

The Standing Argument in the New Abortion Case

In our latest Legal Spirits podcast, Mark and I discuss June Medical Services v. Gee, the latest case about abortion picked up by the Supreme Court. This is a 5th Circuit case reviewing a Louisiana law requiring doctors to obtain admitting privileges at area hospitals in order to continue performing abortions at clinics. The 5th Circuit upheld the law, distinguishing a facially similar law in Texas that the Supreme Court struck down three years ago by a vote of 5-3 in Whole Woman’s Health v. Hellerstedt. In the podcast, Mark and chat about the lower court opinion, the petition, and the cross-petition.

I want to say just a little more in this post about the cross-petition, which advances an argument about standing–the constitutional requirement that a claimant allege a concrete and particularized injury that was caused by the defendant and can be redressed by the Court. One widely recognized rule of standing–a “prudential” rule rather than a constitutionally compelled rule (meaning that Congress could, if it wished, legislate around the prudential doctrine)–is that one cannot assert claims on behalf of other parties; that is, so-called “third party standing” or jus tertii is generally impermissible. There are exceptions to the rule. For example, a parent may assert a claim on behalf of a child. But in the main, third party standing has been rejected by the Court as adequate.

One of the exceptions to the third party standing prohibition was carved out by the Court in 1976, after Roe v. Wade, in a case called Singleton v. Wulff. In Wulff, the Court held that two Missouri physicians had standing to challenge a law excluding abortions that were not “medically indicated” for purposes of Medicaid coverage. A majority of the Court found adequate standing for the doctors themselves because of the financial consequences they might face in the absence of Medicaid coverage. But a plurality of the Court went further: in an opinion by Justice Blackmun, it held that physicians have the right to assert third party standing on behalf of women whose rights may be affected by a particular law because it thought that the interests of physicians and their patients in the abortion context are “inextricably bound up” and thus there exists a “close relationship” between them, that doctors are “effective advocates” for their patients, and that women may not be effective advocates of their own rights in this area.

The Gee cross-petition takes aim at this plurality holding in Wulff. Citing Justice Thomas’s dissenting opinion in Whole Woman’s Health (which only he signed), it argues that the Court should revisit the third party standing rule of Wulff and that the interests of women and physicians are actually adverse in this case (it claims that many of the doctors simply do not want to obtain admitting privileges, which would enhance patient safety). It also argues that because the issue of prudential third party standing was not explicitly raised below, the physicians have waived that standing, while the physicians say that it is the state that has waived its right to object to third party standing.

As we discuss in the podcast, there is also an amicus brief in the case submitted by Senator Josh Hawley of Missouri, a former clerk of Chief Justice John Roberts. It argues that the effect of this third party standing rule is to give physicians a heightened standard of review that they would not ordinarily get if they were asserting their own injuries. On their own, the law would be reviewed for a rational basis, but through third party standing, it is now reviewed under the higher undue burden standard of Planned Parenthood v. Casey. And it also argues that even if the physicians are granted third party standing, they cannot satisfy the undue burden standard as fleshed out by Casey and WWH because they cannot show that the statute affects a “large fraction of women,” which is the language used in the cases.

The Court could certainly use this case as a chance either to rethink or to rein in the Wulff rule. Option A: it could revisit the rule altogether and reject the plurality portion of the Wulff rule. Option B: it could narrow the Wulff rule to situations in which there is evidence that a “large fraction of women” might be affected by the legislation in question, and that there is insufficient evidence in Gee. Note that rejecting the third party standing rule altogether would abrogate that part of Whole Woman’s Health concerning standing (doctors brought the challenge there too), while the remainder of the “law” of WWH would remain in effect. Probably there are other possibilities. But resolving the case on the basis of third party standing doctrine might give the Court a way to chip away at existing abortion law without going directly after the likes of Casey. “They’ve narrowed Singleton v. Wulff!!” just doesn’t have the same sky-is-falling quality for abortion rights supporters that a more direct attack might. Going in this direction would also track some of the skepticism with which some members of the Court view its broader standing doctrines (see, for example, Justice Gorsuch’s views on standing in the Bladensburg Cross opinion).

It will be interesting to see just what the Court does with the standing claim. Stay tuned. And for more on the case generally (including some speculation about the standing claim), have a listen to our podcast!

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