On the Cross

I have an essay about the Bladensburg Cross case at Public Discourse, where I isolate the holding (and wonder about whether there is actually a broader holding in the case), discuss the case’s implications for future religious displays, and speculate about the dynamics on the Supreme Court and elsewhere respecting these issues. A bit:

“The holding of American Legion lays out what could be called a jurisprudence of old religious monuments, symbols, and practices. When a religious monument, symbol, or practice, is old—whether it is a cross or a Ten Commandments monument or some other government practice of long standing—it is especially likely to be imbued with many purposes and messages that have changed and developed with time. Communities are entitled to maintain these religious monuments, symbols, and practices as part of their historical and cultural heritage, and the Court will no longer “roam[] the land, tearing down monuments with religious symbolism and scrubbing away an reference to the divine.” “The passage of time,” the majority said, “gives rise to a strong presumption of constitutionality,” and the Cross in this case clearly enjoys that presumption. It is both a Christian symbol and a symbol of war and patriotism. It is these things together.

Already, this holding works a considerable change in Supreme Court doctrine. It surrounds “old” religious “monuments, symbols, and practices” with a protective shield against judicial mischief in the name of the Establishment Clause. New religious monuments, symbols, and practices whose purposes are manifestly discriminatory, it is true, are not covered by the holding (more on this below), and the terms “new” and “old” are not defined. But the Court’s existing approach to state-sponsored religious displays is quite different. The much-reviled test in Lemon v. Kurtzman (1971) focuses on “the” purpose—“religious” or “secular”—of a display, as well as its “primary effect,” which the Court has subsequently interpreted in this context to mean whether a “reasonable observer” would perceive that the government is “endorsing” religion by displaying a monument or symbol. While Justice Kagan believed that the cross also survived under this approach, none of the other justices in the majority accepted Lemon, and all justices in the majority held that “old” displays have neither single purposes nor single meanings. This is flatly incompatible with the assumptions of Lemon.

There is overwhelming support on the Court for what would have been a broader holding. In Part II(A) of Justice Alito’s opinion, a four-justice plurality rejected the Lemon test and its “endorsement” application for these types of religious displays. It was something of a surprise that Justice Breyer joined the plurality. But it was a real shock that this part of Alito’s opinion was not officially joined by Justice Thomas or Justice Gorsuch. Those two justices authored respective concurrences in the judgment, which technically means that while they agree with the outcome, they do not join the Alito opinion’s reasoning. But both of them would have gone further than the plurality and rejected the Lemon test in its entirety. That they did not join Part II(A) rejecting the Lemon test—at least with regard to “old” displays—is baffling. For those who were hoping that something clearer would emerge from this case, it’s also rather exasperating.

Justice Thomas, in fact, goes so far as to say this about the Lemon/endorsement test: “the plurality rightly rejects its relevance to claims, like this one, involving ‘religious references or imagery in public monuments, symbols, mottos, displays, and ceremonies.’ I agree with that aspect of the opinion” (emphasis added). With Thomas, the reasoning in Part II(A) therefore has the explicit support of five justices. But because Thomas did not formally join Part II(A), the statement seems to be dicta, material in an opinion unnecessary to the judgment. Admittedly, the line between dicta and holding is not crystal clear, and the statement could even be read as an alternative holding. Justice Gorsuch’s concurrence in the judgment also has highly critical comments about Lemon, but Justice Thomas’s statement is a clear and explicit affirmation of the plurality’s position.

At any rate, the lesson of American Legion seems to be that the Lemon/endorsement test is rejected—at least for “old” religious monuments, symbols, and practices.”

CLR in the HJLPP

I’m delighted to note the Center for Law and Religion edition of the latest issue of the Harvard Journal of Law and Public Policy. (Actually, it was entirely happenstance that one of Mark’s articles and one of my articles were published in the same issue.)

Mark’s piece is Masterpiece Cakeshop and the Future of Religious Freedom.

Mine is The Sickness Unto Death of the First Amendment.

Movsesian at GMU This Week

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For our readers in the DC area, I’ll be speaking on Friday at George Mason University’s Scalia Law School, at a conference on Religion and the Administrative State. The conference is hosted by the law school’s Center for the Study of the Administrative State, whose talented and indefatigable director, Adam White, has put together a great lineup of which I am proud to be a part. I’ll be speaking (via the Web) on the Court’s decision last term in Masterpiece Cakehop, specifically, what the decision suggests about cultural and political trends in the US. The conference details are available here.

“The Traditions of American Constitutional Law”

Here’s a new draft of an article I just posted to SSRN: The Traditions of American Constitutional Law (forthcoming in the Notre Dame Law Review). Of course, the piece has strong resonances with our Tradition Project here at the Center and is the product of thoughts that have been stimulated by the project over the last few years. But it’s a long time marinating. Comments most welcome on what is still very much a work in progress. Here is the abstract.

“This article identifies a new method of constitutional interpretation: the use of tradition to inform constitutional meaning. It studies what the Supreme Court means by invoking tradition and whether what it means remains constant across the document and over time. The task is worth pursuing inasmuch as traditional interpretation is pervasive, consistent, and recurrent across the Court’s constitutional doctrine. So, too, are criticisms of traditional interpretation. There are also more immediate reasons to study the role of tradition in constitutional interpretation. The Court’s two newest members, Justices Neil Gorsuch and Brett Kavanaugh, have indicated that tradition informs their understanding of constitutional meaning. The study of traditional interpretation seems all the more pressing to understand certain possible jurisprudential moves in the Court’s future.

The article concludes that when the Court interprets traditionally, it signals the presumptive influence of political, legal, or cultural practices of substantial duration for informing constitutional meaning. Traditional interpretation is thus constituted of three elements: (1) a focus on practices, rather than principles, as informing constitutional meaning; (2) a practice’s duration, understood as a composite of its age and continuity; and (3) a practice’s presumptive, but defeasible, interpretive influence. Traditional interpretation’s emphasis on practices that are given tangible form in a people’s lived experience suggests that it is preferable to speak about politically, legally, and culturally specific traditions rather than an abstracted concept of tradition. Hence, “the traditions of American constitutional law.” 

The article identifies traditional interpretation as its own method; shows its prevalence and methodological consistency across the domains of constitutional interpretation; isolates and examines its constituent elements, comparing them against other prominent interpretive approaches; and infers and explains the justifications of traditional interpretation from the doctrinal deposit. While there may be some irony about a claim of novelty in an article about tradition, what this article identifies as new is not the invocation of tradition as such, but the isolation of a recurrent and consistent method—traditional interpretation—adopted by the Court across its interpretive work. It aims to bring to light an overlooked and yet frequently used interpretive practice, and to understand its structure, situation, and purpose within the Court’s constitutional doctrine.”

CNBC Story on the Bladensburg Cross Case

I am quoted in this CNBC story on the Bladensburg Cross case up for oral argument next week. The author, Tucker Higgins, put together a nice piece (one tiny quibble: Town of Greece v. Galloway was not decided on the basis of the coercion approach…that part of the opinion did not command a majority) and was good enough to reference and link to this article of mine on religion and the Roberts Court from a few years ago.

My review of Richard Brookhiser’s Biography of John Marshall

I have a review of Richard Brookhiser’s recent John Marshall: The Man Who Made the Supreme Court, at the Liberty Fund site. A bit:

“[T]here is an ambiguity in the book’s subtitle. “The man who made the Supreme Court” might signal Marshall’s outsized role in fashioning the Supreme Court in his own self-image. There are some biographies, as Kevin Walsh has noted in his review in these pages of another recent Marshall book, that read Marshall as a kind of Romantic hero—the American Werther or Cagliostro of the judiciary. But there is another, and perhaps better, interpretation of the subtitle: that distinctive features of Marshall’s character as a man subtly but powerfully influenced the Court’s development under his stewardship.”

Justice Alito Keynotes Tradition Project Session in Rome

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Here’s a report on last month’s meeting of the Tradition Project in Rome, on “The Value of Tradition in the Global Context.” Associate Justice Samuel A. Alito of the Supreme Court of the United States delivered the keynote address:

As a highlight of this year’s Tradition Project session, Justice Alito spoke about the relationship between international and national law in the context of human rights. “The conflict between global human rights norms and local legal traditions has become acute over the past decade,” says Professor Mark L. Movsesian, who directs the Center for Law and Religion and co-directs the Project with Professor Marc O. DeGirolami. “Justice Alito’s keynote addressed a timely topic in a substantive way. We were so honored to have him with us.”

After Justice Alito’s remarks, the Project convened a panel of respondents that included Giuseppe Dalla Torre, president of the Vatican City Tribunal; Ugo De Siervo, president emeritus of the Italian Constitutional Court; Chantal Delsol of the Academie des Sciences Morales et Politiques; and Andrés Ollero of the Spanish Constitutional Tribunal.

The session also included four invitation-only workshops on “Understandings of Tradition in the Global Context”; “Local Traditions and Global Government”; “Liberalism, Populism, and Nationalism”; and “Tradition and Human Rights.” Participants prepared short reflection papers on the various topics. “There was a lot to discuss in the workshops, and there will be a lot to keep elaborating and deepening in the near future,” says LUMSA Professor Monica Lugato, one of the Tradition Project session organizers. “It was a challenging and rewarding academic meeting.”

Thanks to our partners at LUMSA and at Villanova for co-sponsoring the Rome meeting. Watch this space for news about future Tradition Project events!

AALS Law and Religion Panel on “Free Exercise of Religion and Free Speech”

This year’s annual AALS section on law and religion in New Orleans is hosting a panel discussion on Saturday, January 5, from 10:30-12:15, called “Free Exercise of Religion and Free Speech.” Bill Marshall (UNC), Perry Dane (Rutgers), Erica Goldberg (Dayton), Kellen Funk (Columbia), and I will be speaking, and Michael Moreland (Villanova) is chairing the panel. Much of my talk is drawn from this paper.

Here is the panel description (it’s probably fair to say that my own talk will focus on the last two items):

Free exercise of religion and freedom of speech are both protected by the First Amendment, but how are they related? Prominent recent cases such as Masterpiece Cakeshop v. Colorado Civil Rights Commission and NIFLA v. Becerra raised claims about religiously motivated speech, and this program will explore the historical, theoretical, and doctrinal relation between freedom of speech and free exercise of religion. Among the topics addressed will be the significant doctrinal differences between constitutional claims for free speech and free exercise, the argument that free speech and free exercise are in some sense reducible to each other, the historical development of freedom of speech and religious free exercise in political theory and American constitutional law, and the current view that some values (such as anti-discrimination norms or protection against hate speech) should outweigh rights of free speech or freedom of religion.

Center Papers & Activities in 2018

Here is a retrospective list of some of our papers and activities in 2018Pen and Ink, with links where available. A warm word of gratitude to our readers, and best wishes for the new year!

Papers

DeGirolami, On the Uses of Anti-Christian Identity Politics, in “Religious Freedom, LGBT Rights, and the Prospects for Common Ground” (Robin Fretwell Wilson & William Eskridge, eds., 2018).

Movsesian, Markets and Morals: The Limits of Doux Commerce, 9 Wm. & Mary Bus. L. Rev.  449 (2018).

DeGirolami, The Sickness Unto Death of the First Amendment (forthcoming Harvard Journal of Law and Public Policy).

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

DeGirolami (with Kevin Walsh), Conservatives, Don’t Put Too Much Hope in the Next Justice (New York Times, July).

DeGirolami (with Kevin Walsh), 2018 Supreme Court Roundup: Kennedy’s Last Term (First Things, October).

DeGirolami, The Long Tail of Legal Liberalism (reviewing Patrick Deneen, Why Liberalism Failed (2018)) (Liberty Fund Library of Law and Liberty, February)

Activities

The Tradition Project, Part III: “Tradition and the Global Clash of Values,” Rome, Italy, December.

Legal Spirits (podcast series concerning law and religion).

In spring 2018, Movsesian was a fellow in the James Madison Program in Princeton University’s Department of Politics.

Throughout the year, Movsesian blogged regularly at First Things and Law & Liberty.

Movsesian, Notre Dame Center for Ethics and Culture Annual Conference, Panelist, “A House Divided–Polarization in Our Common Life,” November.

Movsesian, Princeton University, Panelist, “Religious Freedom at Home and Abroad,” Madison Program Annual Conference, May.

Movsesian, Princeton University, Commentator, Conference on Law, Religion, and Complicity, University Center for Human Values, April.

Movsesian, Princeton University, Madison Program Workshop Series, The Future of Religious Freedom.

Movsesian, Colloquium on Religion and Liberalism, First Things Magazine (invited participant).

Movsesian, Columbia Law School, Guest Faculty, “Reading Group in the American Constitutional Tradition.

Movsesian, George Mason University Law School, Center for the Study of the Administrative State, The Future of Religious Freedom, March.

DeGirolami, “Higher Purposes of Free Speech,” Conference, “Higher Powers,” Notre Dame Center for Ethics and Culture, November.

DeGirolami, Constitution Day Discussion, The King’s College, New York (with David Tubbs), September.

DeGirolami, “First Amendment Developments in the Supreme Court’s Recent Cases,” Loyola University Maryland, September.

DeGirolami, “The Sickness Unto Death of the First Amendment,” Center for the Study of the Administrative State, George Mason University School of Law, March.

Legal Spirits Episode 003: Tradition in the Global Context

Tradition Project

In this episode, Center Director Mark Movsesian and Associate Director Marc DeGirolami discuss the upcoming meeting of the Center’s Tradition Project, set for Rome on December 12-13. This session, “The Value of Tradition in the Global Context,” features a keynote address by Justice Samuel Alito, a response panel of European jurists, and a series of workshops with scholars from both sides of the Atlantic. Mark and Marc discuss the relationship among tradition, liberalism, nationalism, and populism in today’s world and address recent works by Yascha Mounk, Mark Lilla, Patrick Deneen, and Yoram Hazony, as well as, on its 25 anniversary, Samuel Huntington’s famous essay on the clash of civilizations.

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