Some subversive thoughts on free exercise doctrine…

Occasioned by the Court’s decision last weekend in the South Bay United Pentecostal Church case, over at the Volokh Conspiracy. I note that neither the Chief Justice nor Justice Kavanaugh bothers to cite Employment Division v. Smith, the central case in the area, and wonder how much doctrine drives decisions:

For both the Chief and Justice Kanavaugh, then, the case came down to judgments about which activities are “comparable” and about how much deference to give elected officials during a public-health emergency. For what it’s worth, I think the Chief had the better of the argument. But the point I’d like to focus on is this: both the Chief and Justice Kavanaugh made these judgments quickly on the basis of broad principles and common-sense assumptions. I have already noted how neither of them even referred to Smith, the controlling case in this area. No doubt, the need to decide this interlocutory application speedily precluded a more thorough legal analysis. But these opinions make one wonder whether the doctrinal superstructure of free exercise clause jurisprudence, which students, professors, and lawyers pore over with great care, has all that much importance, in the end. Perhaps free exercise cases always come down to quick, intuitive judgments—however judges explain their decisions after the fact.

You can read the whole post here.

Movsesian Teaches Class at Moscow State University

I had a wonderful time this morning, teaching a (virtual!) class at Lomonosov Moscow State University on the COVID epidemic and religious exemptions under the US Constitution. Thanks to Professor Gayane Davidyan for inviting me and to her students for their wonderful, thoughtful questions. Lomonsov will post the class on YouTube soon, and I’ll link it when it appears.

Church Closings during COVID: The State of Play

At the Law and Liberty site this morning, I have an essay on current litigation regarding church closings during the coronavirus epidemic. I explain why courts have reached different results, and ask why some churches, rather than others, are bringing the lawsuits. Here’s an excerpt:

So far, the lawsuits have achieved mixed results. Federal district courts in California and New Mexico, for example, have rejected challenges and ruled that the bans in those states are constitutional. Federal district courts in Kansas and Kentucky, by contrast, have ruled that the bans in those states do violate the First Amendment. This past weekend, the Sixth Circuit agreed, holding that Kentucky’s ban on church services violates the Free Exercise Clause.

These cases are very fact-specific and turn on the specific language of the bans in question. But there is another, more important reason for the courts’ division. The law with respect to religious exemptions is quite indeterminate. Under the Supreme Court’s landmark ruling in Employment Division v. Smith (1990), no right to an exemption exists where a law is neutral and generally applicable, that is, where the law does not target religion for disfavored treatment. If a ban on public gatherings qualifies as a neutral and generally applicable law, a church cannot prevail.

If a law targets religion for disfavored treatment, by contrast, a church may have a right to a religious exemption—but not where the state can show that it has a compelling reason for enforcing the law against the church and has chosen the least restrictive means of doing so. As many have noted, this form of “strict scrutiny” essentially operates as a balancing test that requires judges to weigh the seriousness of the burden on religious exercise against the significance of the goal the state is trying to reach. If the goal is sufficiently important, the law will stand, regardless of the burden on religious exercise.

Both these questions—whether a law is generally applicable and whether the burdens of a ban outweigh its benefits—leave much to the discretion of individual judges….

You can read the whole essay here.

Announcing the Fifth Biennial Colloquium in Law & Religion (Fall 2020)

The Center for Law and Religion is delighted to announce the lineup for the fifth biennial Colloquium in Law and Religion, scheduled for Fall 2020. The Colloquium brings outside scholars and jurists to St. John’s to teach a seminar for selected students. Speakers present drafts on law and religion; students are graded on the basis of response papers and class participation. The Fall 2020 Colloquium will coincide with the Center’s tenth anniversary. A celebration is planned for October.

This year’s Colloquium speakers are Judges Steven Menashi and Michael Park of the U.S. Court of Appeals for the Second Circuit and Professors Jed Atkins (Duke University); Stephanie Barclay (Brigham Young University); Paul Horwitz (University of Alabama); Amy Sepinwall (University of Pennsylvania); and Carter Snead (University of Notre Dame).

For more information about the Colloquium, please contact Center Co-Directors Mark Movsesian and Marc DeGirolami.

The Jarndyce v. Jarndyce of Church-State Cases

At The Volokh Conspiracy today, I have a post on the latest Contraception Mandate case to reach the Court: the Little Sisters case, which was the subject of our most recent Legal Spirits podcast with Kevin Walsh. I write that litigation about the Mandate, which has been going on for about a decade, is like that famous lawsuit in Bleak House, which dragged on year after year.

Why has the Mandate litigation lasted so long? I argue it’s a matter of principle, for both sides:

Why does the Mandate litigation go on and on? As I said, it’s not a question of money. Lawyers are not getting rich on these cases. The litigation continues because people care deeply, as a matter of principle, about the result, and because each side views the other as an existential threat. For proponents of the Mandate, it’s about women’s health and equality, and about beating back the obscurantist forces that threaten both. For opponents, it’s about affirming their deepest faith commitments, notwithstanding pressure from the state and progressive opinion that seeks to crush them. Even when a practical solution seems available—as the Court noted in Zubik—the parties find it difficult to compromise. The symbolic stakes are too high.

In short, the Contraception Mandate litigation, like so many other disputes over law and religion, reflects the deep polarization in our society. As long as that polarization continues, cases like Hobby LobbyZubik, and Little Sisters will continue to arise—as well as cases like Masterpiece CakeshopFulton v. City of Philadelphia, and many others.

Readers can find the whole post here.

Movsesian on Espinoza

Over at Public Discourse today, I have an essay that attempts to predict the outcome in Espinoza v. Montana Dep’t of Revenue, the Blaine Amendment case currently under review at SCOTUS. (Marc and I will have a new podcast about the case up shortly). Here’s a summary of the essay:

The US Supreme Court seems likely to rule in a way school-choice advocates will welcome. The Court will likely overrule the Montana court and hold a ban on scholarships for students at religiously affiliated schools unconstitutional—an important ruling, to be sure. But a sweeping opinion seems unlikely. Rather, Espinoza is shaping up to be one of those closely divided, narrow decisions that have become familiar in the Court’s Religion Clause jurisprudence.

Predicting the outcome of a case on the basis of oral argument is tricky, but I’m foolhardy enough to try. Let’s see how I do.

Some Thoughts on the Espinoza Argument

Here’s a brief comment about Espinoza v. Montana Dep’t of Revenue, the Blaine Amendment case that the Court has under consideration. The Court heard oral argument in the case last week. It’s always tricky predicting the outcome of a case based on oral argument. But it seems pretty clear, at least to me, the the Court will ultimately rule in favor of the petitioners.

Followers of this blog know the facts of the case. (You do subscribe to Legal Spirits, right?) Briefly, the case concerns the constitutionality of a Montana school-choice program that allows parents to direct state-funded scholarships to religiously affiliated schools. The Montana Supreme Court ruled that the program violated the state constitution’s “Blaine Amendment,” which prohibits the appropriation of public money for “sectarian” institutions, including private, religiously affiliated schools, and canceled the scholarship program in its entirety. Petitioners argue that excluding them from otherwise available scholarship funds, simply because they planned to use the funds at a religiously affiliated school, violates the federal Free Exercise Clause.

Based on the Justices’ interventions, the Court seems likely to rule that, in these circumstances, barring parents from using public funds to pay tuition at religiously affiliated schools is unconstitutional. The Court’s cases point to that outcome. Zelman holds that the Establishment Clause isn’t violated when public money reaches religiously affiliated schools “wholly as a result” of parents’ “genuine and independent choice.” Trinity Lutheran Church holds that a state cannot deny a school access to public financial assistance simply because the school has a religious character. When you put these two cases together, it seems to me, the petitioners prevail.

That’s not to say their victory will be sweeping. For one thing, the Court seems likely to limit its holding to the facts of this case and avoid a ruling on the constitutionality of Blaine Amendments more generally. Moreover, the four progressive Justices signaled their strong disagreement with the petitioners’ Free Exercise argument.

Interestingly, two of the progressive Justices, Kagan and Breyer, who joined the Court in Trinity Lutheran Church, indicated that they see this case as quite different. Trinity Lutheran Church involved state funds specifically for playground refurbishment–a use unrelated to the religious character of the school in question. Espinoza, by contrast, involves unrestricted funds, which a school presumably could direct towards religious education. There is a case that suggests a state may refuse to allow its tax money to be spent for those purposes. But that case, Locke v. Davey, involved tax money for clergy training, not for general education at an accredited, religiously affiliated school–a distinction that will probably persuade the Court’s conservatives that Locke doesn’t apply here.

In short, oral argument suggests another of those familiar, narrow, 5 to 4, Religion Clause decisions. If that’s the case, Espinoza will be an important victory for school choice advocates–though not as sweeping as they might have hoped. Stay tuned.

Conference on Catholic Legal Education: “A Light Unseen”

On February 14, the Center will co-host, along with the Journal of Catholic Legal Studies, a conference on a forthcoming book by Professors John Breen (Loyala University Chicago) and Lee Strang (University of Toledo), “A Light Unseen: A History of Catholic Legal Education.” Panelists include Deans Kathleen Boozang (Seton Hall), Marcus Cole (Notre Dame), Vincent Rougeau (Boston College), Michael Simons (St. John’s), William Treanor (Georgetown), and Robert Vischer (St. Thomas), and Professors Angela Carmella (Seton Hall), Teresa Collett (St. Thomas), Richard Garnett (Notre Dame), Jeff Pojanowski (Notre Dame), and Amy Uelmen (Georgetown). Details and registration are at this link. Hope you can join us!

On the Armenian Question and Mideast Christians Today

At the Liberty Law blog this morning, I have an essay on historian Charles Laderman’s fine new book, Sharing the Burden: The Armenian Question, Humanitarian Intervention, and Anglo-American Visions of Global Order. At the turn of the 20th Century, American officials repeatedly voiced support for an independent Armenian state in Anatolia. The state was meant to compensate Armenians for the effects of genocide and offer them protection from hostile forces that surrounded them. Laderman explores why, notwithstanding the best intentions, the US Government ultimately abandoned Armenians and other persecuted Mideast Christians at the end of World War I. In my review, I explain what this history suggests for Mideast Christians today:

Congressional resolutions are very welcome, but history suggests that these Christians should not expect much more from America. Just as in the last century, despite the best intentions, America’s commitment to Christians in the Middle East today is limited: well wishes, exhortations for equality and tolerance, some humanitarian assistance—though nothing like the massive humanitarian campaign that took place in the last century and saved so many lives. Ultimately, nations act in their political and economic interests, and America does not perceive long-term interests that would justify putting at risk the large number of troops necessary to defend Mideast Christians on an ongoing basis. Many private citizens and charities continue to help Mideast Christians, thank God. But the sad lesson of Laderman’s book is this: if Christians in Syria expect the American government to do more to help them, they will find themselves on their own.

The full essay is available here.

Center Fellows Earn Prestigious Judicial Clerkships

Vitagliano (left) and Nania (right) take a brief break from Center duties to pose for a photo

Marc and I are delighted to announce that our two graduating student fellows, Anthony Nania ’20 and Dan Vitagliano ’20, have earned wonderful judicial clerkships for after graduation. Anthony will clerk for Chief Judge Fiore of the New York Court of Appeals from 2020-2022 and Dan will clerk for Judge Vyskocil on the Southern District of New York from 2020-2021 and then for Judge Duncan on the Fifth Circuit from 2021-2022. Congrats, guys! Full story here.

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