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.

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.

More Thoughts About Equal Treatment and the Coming Disagreements

I have a follow-up post at Mirror of Justice to the post immediately below. A bit:

But as the crisis reaches a second stage–an emergency of a different kind, now a more chronic or enduring condition–and as discretionary government decisions are made both as respects relaxing the closures and prosecuting violations of rules, the powerful psychological draw of equality as equal treatment starts to assert itself. Discretionary decisions require discrimination, and it’s at this point that considerations of unfairness become stronger in people’s psyche.

The trouble is that resentments about unequal treatment depend upon other, deeper judgments about the nature and value of various kinds of human activities. These judgments are signaled by the use of terms like “essential” but they aren’t really resolved by them. Partisans of one or another sort of human activity or way of life then develop arguments for distinguishing the truly essential from the less essential, but these are invariably thought to be spurious or worse by partisans of another sort of human activity or way of life. The arguments about equality really are only cover for other sorts of arguments that it would not be possible to resolve without the rhetorical appeal to equality. The real disagreements go not only to different ways of life, but to different conceptions of the good or goods of any particular human activity. Consider religious observance. If one’s view is that all of the true goods of religious observance can be obtained individually, at home, in solitary prayer in front of a screen, then one will think that distinguishing between churches and liquor stores–treating the goods of the human activities that these places foster unequally–is perfectly justified. But if one’s view of the true goods of religious observance is very different, then one will not accept these arguments.

Temperatures Rising Quickly

Around the world, clashes between religious groups and civil authorities are rapidly escalating in response to the Coronavirus-related shutdowns and policies. As Mark and I noted in our most recent podcast, one of the problematic features of these conflicts is that they become more acute just as the earliest and most extensive shutdown policies begin to ease. Once we enter the period of discretionary decision-making, the unity in the face of danger that we saw in the earliest period of the crisis begins to fragment, and the old fault lines reappear.

See, for example, this stunning video taken a few days ago of a priest officiating a Mass in Gallignano, Italy, who was confronted several times by a policeman at the behest of the local mayor and ordered to cease the Mass, disperse the congregants, and put on a mask.

By the priest’s telling, there were 14 people in the church at the time, well spread out. The priest tells the policeman, “All right, I’ll pay the fine, or whatever there is to pay.” The priest goes on several times to decry the abuse of power of the local government. Italy, I am informed by my friends and colleagues, has decided on a date certain to reopen several parts of the country, including museums. Not so for churches. But the public-health related reasons for the political decision to distinguish between churches and museums have not been made plain.

See also the new decision by New York City Mayor Bill de Blasio to arrest those who violate the social distancing rules. Yet the way the Mayor put it in the following tweet yesterday seems to single out “the Jewish community” as somehow specially subject to the order. Or perhaps it’s religious groups generally.

I have seen images on the news of Orthodox Jewish groups congregating in Brooklyn. But I have also seen images of people gathering to watch airplanes flying around, congregating in parks, and not keeping to the social distancing rules in other public places like stores and subways. Yet the mayor didn’t see fit to single out these communities as specially problematic and perhaps specially subject to the new arrest policy. There are other controversies, too, that–whether they ultimately turn out to be justified criticisms of the mayor or not–contribute to the heightening anger and sense of unfairness.

UPDATE: When I posted, I had not seen this New York Times story, which contains the following response to de Blasio’s tweet:

Chaim Deutsch, a City Council member who represents a section of Brooklyn with a large Orthodox Jewish population, expressed anger and disbelief on Twitter, writing, “This has to be a joke.”

“Did the Mayor of NYC really just single out one specific ethnic community (a community that has been the target of increasing hate crimes in HIS city) as being noncompliant??” Mr. Deutsch wrote. “Has he been to a park lately? (What am I saying – of course he has!)”

I do not say that these policies and political judgments are not justified. They may well be necessary. But political decisions about who gets to “reopen” and who does not, or who gets targeted for arrest and who does not (decisions that are said by politicians to depend on that all-powerful modern criterion, “health”) will come under increasing scrutiny in the coming weeks and months and are likely to be the subject of increasing anger. It’s a dangerous moment, in my view.

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.

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.

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.

More on Motive in Law

A followup to Marc’s post on motive in law. Marc notes that motive remains salient in constitutional law, but not in tort or criminal law. I’d like to add just a couple of points.

First, when it comes to constitutional law, motive is especially important in contemporary Religion Clause jurisprudence. The Lemon test (much-derided, but still extant, in my opinion, even after last term’s Bladensburg Cross case) makes government motive central to Establishment Clause cases. In the Free Exercise context, government motive figures prominently as well. The Masterpiece Cakeshop decision turned almost entirely on the Court’s inferences about the anti-religious motives of Colorado state officials.

Marc wonders why motive should be relevant in constitutional law, when it has lost its relevance in tort law. It’s a good question. Because motive is even more elusive in public law than in private law. Take contract law, for example. Classical contract law disregards a party’s motives for making a contract. It doesn’t matter why someone makes a contract. The only thing that matters is that the person intends to make a contract–or, rather, that an objective observer would understand that the person intends to make a contract. This is so because a party may have several motivations for making a contract: profit, affection, indifference, etc. To try to figure which motive was the most important is a hopeless task.

The problem is even more compounded when it comes to government motive. In contract law, we’re talking about the intentions of two actors. But government actions turn on the decisions of potentially hundreds of actors, all of whom may have multiple motives. The problem of ascertaining motive is even more difficult in this context.

I’m not sure where all this leads. But Marc is right in pointing out the continued relevance of motive in constitutional law, and its continued irrelevance in private law. It’s a puzzle that demands an answer.

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