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!”).

Laicite in Quebec

Je Me Souviens?

When profoundly Catholic societies go off religion, they really go off religion. Religion doesn’t become simply a matter of indifference; people seem to feel they must uproot religion entirely from public life, in order to compensate for and distance themselves from the benighted ways of the past.

Societies need some common identity to bind them, though, and when shared religion is no longer an option, they substitute other things. In a First Things essay this week (“Canada Divided Against Itself”), David Koyzis observes this dynamic at work in Quebec. Once a famously Catholic place, he says, since the Quiet Revolution of the 1960s, Quebec has become an overwhelmingly secular society. (Strangely, they have kept a very Catholic-looking flag (above)). The province’s motto may be “Je me souviens,” but the Quebecois are trying to forget all about their religious tradition. What unites the province today, he says, is not Catholicism, but Quebecois national identity:

Ironically, despite the secularizing impact of the Quiet Revolution, Québec has not abandoned religious faith; it has simply redirected that faith toward a state-centered nationalism, around which the province’s main parties are largely united. What was once a French Canadian nationalism bent on defending a Catholic society whose traditions harked back to pre-revolutionary France has become Québec nationalism, which looks to the state to protect the province’s linguistic majority in a sea of English-speaking jurisdictions. If protecting this majority comes at the expense of minority interests within the province, then so be it.

As evidence, Koyzis adduces a new law that prohibits public employees from wearing religious symbols–crucifixes, kippas, hijabs–while on the job. The idea, he says, is to encourage the Quebecois to think of themselves, not as members of distinct religious communities, but simply as Quebecois. This is the same reasoning behind the ban on burkas in public places, and the ban on “conspicuous” religious symbols in public schools, in France.

Koyzis says that the forceful laicite of Quebec is in tension with the multiculturalism that animates Canadian public life outside the province. I don’t know enough about Canada to evaluate that argument. But his point about nationalism as a substitute for religion seems sound. You can read the whole piece here.

Is American Christianity in Decline?

In his column in last week’s Times, the always interesting Ross Douthat sifts through recent data on the decline of Christianity in the United States. It’s true, he writes, that the percentage of people declaring themselves Christian is declining, and that the percentage of Americans who tell pollsters they have “no religion” is increasing. But that doesn’t indicate an across-the board decline in Christian belief and practice. Seriously committed Christians remain so. It’s the nominal, weakly committed Christians who are leaving the churches:

The relative stability of the Gallup data fits with analysis offered by the sociologists Landon Schnabel and Sean Bock in a 2017 paper, “The Persistent and Exceptional Intensity of American Religion.” Drawing on the General Social Survey, they argued that the recent decline of institutional religion is entirely a function of the formerly weakly affiliated ceasing to identify with religious bodies entirely; for the strongly affiliated (just over a third of the American population), the trend between 1990 and the present is a flat line, their numbers neither growing nor collapsing but holding steady across an era of supposedly dramatic religious change.

That resilience should not be entirely comforting for Christian churches, since both their everyday work and their cultural influence depends on reaching beyond their core adherents, and inspiring a mix of sympathy and interest among people who aren’t at worship every week. Indeed, combining an enduring core of belief with a general falling-away could make the Christian position permanently embattled, tempting the pious to paranoia and misguided alliances while the wider culture becomes more anticlerical, more like 19th-century secular liberalism in its desire to batter down the redoubts of traditional belief.

But for now that resilience also puts some limits on how successfully anti-Christian policies can be pursued, how easily religious conservatism can be marginalized within the conservative coalition (not easily) and how completely the liberal coalition can be secularized — not completely at all, so long as its base remains heavily African-American and Hispanic. (The tragic racial polarization of American Christianity, in this sense, may have one positive effect: preventing a complete polarization of our politics between Christian and post-Christian coalitions.)

Douthat is right about this. As I’ve written elsewhere, the real story in American religion is its increasing polarization. The middle is dropping out in favor of extremes on either end: the Nones and the Traditionally Religious. Whether the departure of the Laodecians from America’s churches will be on the whole a good thing, for the churches and the society at large, remains to be seen.

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!

Legal Spirits Episode 012: Is Satanism a Religion?

Satan, Paradise Lost (illustrated by Gustave Dore)

In this podcast, we discuss several recent law and religion controversies concerning the “Satanic Temple.” We discuss what the Satanic Temple is and what its adherents say they believe, whether the Temple should count as a religion or a religious institution for legal purposes, and how the Temple has cleverly put pressure–legally and otherwise–on the principles of sincerity, neutrality, and equality that are said to animate the constitutional doctrine of religious freedom. Listen in!

Notes on a New Fusion

I have a piece at the Liberty Fund blog responding to Professor Jesse Merriam, a political theorist of legal conservatism, concerning the prospects and obstacles for a new legal conservative fusionism (historically, “fusion” was the term used to describe the coming together of libertarian and traditionalist streams of thought in post-War American politics, as described by Frank Meyer, Brent Bozell, and others). Some of the piece is diagnostic, but there is an extended section offering a few sketches on various constructive possibilities.

Tocqueville on Independence Day in Albany, 1831

It was a ceremony that made [Tocqueville and Beaumont] want to smile. The trade associations and the militia marched past with an entirely spontaneous gravity and order, then the procession surged into a church where everyone sang verses to the tune of the Marseillaise accompanied by a single flute. The speech made by a lawyer foundered in rhetorical commonplaces. But the reading of the Declaration of Independence gave rise to a unanimous feeling that Tocqueville describes in the following way: “It was as though an electric current moved through the hearts of everyone there. It was in no way a theatrical performance. In this reading of the promises of independence that have been kept so well, in this turning of an entire nation toward the memories of its birth, in this union of the present generation with one that is no longer and with which, for a moment, it shared all those generous feelings, there was something profoundly felt and truly great.”

From Andre Jardin, Tocqueville: A Biography (Lydia Davis trans. 1988)

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.”

Peace Cross Puzzlement

The Maryland Bladensburg Cross was allowed to stand. That’s the easy part. The hard part is what precisely prevented the Court–for the second time in as many Establishment Clause cases involving these kinds of issues (see also Town of Greece)–from cobbling together a majority opinion repudiating Lemon/endorsement and offering a new approach, even one limited to religious displays. Instead, we got:

  • a plurality opinion (joined by Justice Breyer) with lots of extremely critical commentary about Lemon/endorsement, but that does not overrule Lemon/endorsement even in this narrow area;
  • one concurrence that would have overruled Lemon/endorsement;
  • one concurrence that preserves Lemon/endorsement;
  • 4-6 votes for a history and tradition approach whose contours vary significantly depending on the justice;
  • two opinions concurring in the judgment that would have overruled Lemon/endorsement;
  • a dissent by Justice Ginsburg joined by Justice Sotomayor.

The puzzle: what prevented a majority from overruling Lemon/endorsement even in this specific area? Does Lemon/endorsement continue to apply in this area where the display is new and/or there is (lots of?) evidence of discriminatory motive? I find it difficult to understand how the extremely critical comments about Lemon/endorsement that four justices put their name to in the plurality, plus the views of another two justices that were ready to overrule Lemon/endorsement altogether, do not add up to some kind of actual overruling. Justice Kagan could certainly have written a concurrence in the judgment. Not to be, I’m afraid. Still, I’ll have more to say about the 4-6 votes for some variety or other of a history/tradition approach soon.

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.

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