Some Reflections on Animus and “Adjudicatory Bodies”

Another slightly longer thought on the Masterpiece Cakeshop decision. Many were interested to see how the role of “animus” might affect the outcome in the case, and specifically the free exercise leg of the case. Animus played a starring role. Animus mattered in two ways: (1) the favorable treatment given by the Commission to claims against other bakers who “objected to a requested cake on the basis of conscience” (this was said by the Court to be an “indication of hostility” to Phillips); and (2) the comments of certain commissioners felt by the Court to evince hostility to Phillips’ religious views, comments which were never subsequently disavowed (more evidence of animus).

I confess that as to the second category, the Court makes some comments that are genuinely puzzling to me. For example, the Court says that the following statement by one Commissioner was susceptible either of a neutral reading or of a reading suggesting “animus”: “[I]f a businessman wants to do business in the state and he’s got an issue with the— the law’s impacting his personal belief system, he needs to look at being able to compromise.” In light of the later comments of a different Commissioner, the Court decided that the animus reading “seems more likely.” I really don’t understand this. The Commissioner here was offering the view that when somebody goes into business, the ambit of their religious exercise rights may be different than when one does not go into business, such that the person may have to “compromise.” Like it or not, the antidiscrimination law seems to suggest as much. And why should the comments of a second Commissioner, offered later, suggest that the first Commissioner’s comments were hateful? I wonder if the Court’s approach has the effect of inducing the members of adjudicatory bodies not to say a word, and perhaps even to keep their written dispositions as short and inscrutable as possible. If even predictive evaluations of the strength of the claims suggest animus, that seems to be quite an expansion of an already sweeping concept.

And speaking of “adjudicatory bodies.” In describing the state of jurisprudential play with respect to “animus” evidence, the Court said this:

Members of the Court have disagreed on the question whether statements made by lawmakers may properly be taken into account in determining whether a law intentionally discriminates on the basis of religion. See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 540– 542 (1993); id., at 558 (Scalia, J., concurring in part and concurring in judgment). In this case, however, the remarks were made in a very different context—by an adjudicatory body deciding a particular case.

The Court seems to be acknowledging that not everybody that agreed on the disposition in Lukumi signed on to the “animus” discussion. Indeed, the “animus” discussion in Lukumi did not get a majority of the Court. But here it does: it gets 7 votes. Why the difference?

The explanation offered here seems to be that Lukumi dealt with “lawmakers” while this case deals with the “very different context” of “adjudicatory bod[ies] deciding a particular case.” It is true that in the following section of the opinion, the language about “adjudicatory bodies” does not reappear as a limitation. When the Court again cites to Lukumi for the proposition that “the government’s” “neutrality” may be evaluated by looking to “the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body,” we do not see more language about adjudicatory bodies.

But the application of these factors in this case to an adjudicatory body which ruled on this particular case–the Commission–does appear just after the enumeration of these factors, and there is no suggestion that the scope of animus analysis goes further than that. Indeed, taken together, the statements may suggest that there is a new majority for the sort of “animus” analysis that did not get a majority in Lukumi, but only when one is dealing with “adjudicatory bodies deciding a particular case.”

If that reading is right (and it of course may not be), what could explain a new, special animus rule for “adjudicatory bodies”? Admittedly this is speculation, and I don’t have a firm answer in the least. But perhaps it is the particularism of adjudication. When a court expresses hostility to the litigants in front of it, and those comments directly influence the outcome of the litigation, there is a closer nexus between the animus and the specific result than is the case when a legislative body makes a general law affecting persons that are neither before it nor even specifically identified (incidentally, how this works out in the Executive context is entirely unclear to me). So that to the extent that one has qualms about the vagueness of animus analysis–its susceptibility to manipulation, for example–those qualms may be relieved to some extent by the particularized focus on a specific litigant, in a specific litigation, whose outcome is determined by the adjudicator right in front of that litigant.

Again, just a speculation. We’ll see how, if at all, the “adjudicatory bodies” language is picked up by future cases, and whether we now have a special animus rule for a particular set of government actors.

7-2 is the new 5-4*

Lots will be written about the decision today in Masterpiece Cakeshop. Here is something small. I was struck by another 7-2 decision in a religious freedom case. The individual justices’ voting patterns in those cases are fairly uniform too. Hobby Lobby was 7-2 on the question of corporate personhood under RFRA (JJ. Sotomayor/Ginsburg in dissent). Trinity Lutheran was 7-2 (JJ. Sotomayor/Ginsburg in dissent). And now Masterpiece Cakeshop is 7-2 (JJ. Sotomayor/Ginsburg in dissent). Many, but not all, of these decisions feature concurrences by JJ. Kagan and/or Breyer. In addition, both Holt v. Hobbs and Zubik v. Burwell, though unanimous as to outcome, featured pointed concurrences in a 7-2 pattern (JJ. Sotomayor/Ginsburg in concurrence).

The asterisk above is for Establishment Clause cases, the last of which was Town of Greece v. Galloway in 2014. Those always tend to return us to the more familiar 5-4 configuration.

The End of “Religion as a Good”: Thoughts on Movsesian and Garnett

Mark has a thoughtful piece over at First Things, in which he argues that the association of religion in America with particular political parties is becoming more pronounced. Mark makes the point that, increasingly, “a new sort of divide appears to be opening up in American politics: Republicans are the religious party, and Democrats are the non-religious party.” He cites Tocqueville for the view that while in Europe, everyone understood that religion and republicanism were enemies, that was not the case in America where, notwithstanding religious differences, Americans have never had religious and non-religious parties in the same way. But that is now changing, Mark claims, citing a Pew Center survey indicating that there is increasingly a correlation between belief in God and party affiliation (Rs believe much more than Ds).

The piece may be read profitably alongside this article about the introduction of the new “Do No Harm Act” by various Senate Democrats, whose object is to narrow the protections of the Religious Freedom Restoration Act, especially as a defense against the operation of “others’ civil rights.” It appears that the civil right of religious liberty would take second place to any other civil right under the proposed statute. Rick Garnett offers the view in the piece that the Act “reflects a mistaken view that religious freedom should only be granted when it is costless.” The story goes on to say that “since the bill is highly unlikely to pass, without Republican support, its purpose is in large part simply to announce Democrats’ priorities to voters before the midterm elections in the fall.” (this opinion is attributed to Charles Haynes of the Newseum)

The story seems to support Mark’s view that religion is becoming politicized along party lines. RFRA, after all, passed with very strong bipartisan support in 1993. Its aim was to protect religious freedom for all. But, so the argument might go, today the breakdown of support for RFRA, and the efforts to shrink it (and, eventually, perhaps to repeal it), demonstrate the fragmentation of support for religious freedom along party lines. Rs support religious civil liberties. Ds support other civil liberties.

I’m not sure this account is accurate. At the very least, it does not account for the way in which many progressives have thrown their support against, for example, the Trump Immigration order and in favor of Muslim immigrants. It does not account for at least some progressive support for the expansion of religious freedom to include non-traditional “religious” groups such as the Nones and other conscientious believers. It does not account for progressive support for at least some of the Court’s recent religious liberty cases, such as Holt v. Hobbs.

My own view is that we are witnessing the end of the period in which “religion” is seen to be a general good, and therefore in which “religious” freedom ought to be protected for that reason. I have written before about the vacuity and ultimate unsustainability of the category of “religion” in contemporary American law, and so I do not think it is particularly surprising to see this development. But that does not mean that one party is the party of “religion” while the other is the party against “religion.” It means that “religion” as a conceptual category thought, in general, to be worthwhile, and “religious freedom” as a right generally worth supporting, is moribund (there are reasons it is dying off, which I discuss in the piece).

Instead, what is emerging in the partisan fragmentation is that the Rs and Ds are becoming the parties of particular religions and religious traditions. Rs are in general more sympathetic to traditional Christian religious beliefs (in general, of course…there are prominent exceptions at the highest levels of government), while Ds are in general hostile to them–believing that Christians in particular “impose” their views (particularly their views about sexuality) on others in the name of Christianity. Ds are in general more sympathetic to religious views that are not traditionally Christian (indeed, one might even say that the Nones represent a distinctively modern Christian heresy, but that’s a subject for a different post) or that they associate with minority groups that they believe warrant special protection, while Rs are in general hostile to them. The reason that Senate Ds sponsor the No Harm Act is that they oppose the right of traditional Christians to use their views about sexuality to discriminate against LGBT people (I am putting it polemically, of course). The reason that Senate Rs oppose the Act is that they disagree. None of this has much at all to do with “religion” as an abstract category.

Perhaps if we had more parties in this country than the usual dreary duo (something to be fervently wished for, but that is also for another post), we would see even more fragmentation. But the growing divisions between our existing political parties along these lines reflect preferences for certain kinds of religion over others, not religion as such. They are both religious parties. The place of the specific religious tradition (or, in the case of the Nones, view) in American public life, its substantive positions (particularly as respects sexuality), its market strength, its “other-ness”–all of these and more are true markers of partisan support or opposition. What has changed politically is the notion that religion qua religion is worth protecting as an American good. And, in light of the incoherence of the category in American law and politics, small wonder that it has.

Some Thoughts on Our New Religious Politics

At the First Things site, I have an essay on the religious divide opening up in American politics, between Democrats and Republicans. Based on the increasing number of Nones among party members, Democrats are becoming the non-religious party, and Republicans the religious party. This divide would have been unknown at earlier periods of our history; Tocqueville, for example, famously commented on the absence of religious division in American politics. I predict what our new religious politics may mean for religious liberty. Here’s a snippet:

In short, a new sort of divide appears to be opening up in American politics: Republicans are the religious party, and Democrats are the non-religious party. This new divide may not be stable, of course. The racial and ethnic divisions among Democrats, which closely track the divide between the religious and the non-religious, may cause fissures within the party. African-Americans and Hispanics may press white progressives to make more room for traditional believers. And over time, Nones may make headway in the Republican Party. If current trends continue, though, religion will become a marker of political difference in a way it never has been before.

The new religious divide seems likely to make American politics even more bitter than it already is, particularly with respect to religious liberty. People’s commitment to religious liberty depends on whether they think religion is, on balance, a good thing for individuals and society. If people come to see religion as an obstacle rather than an aid to human flourishing, they are unlikely to sympathize with calls for the free exercise of religion. By definition, Nones reject traditional, organized religion as harmful or, at least, unnecessary. Their growing dominance in the party suggests that arguments in favor of religious freedom will have less and less appeal for Democrats. The divide is likely to be self-reinforcing, as Democrats come to see religious freedom as something only the other party cares about—and therefore something to be resisted. If Tocqueville came back to visit America today, he might not be so surprised.

You can read the whole essay here.

 

 

On the Future of Religious Freedom

For those who are interested, yesterday the Liberty Law site posted an essay I wrote on the possible future of religious freedom in the United States (“The Powerful Headwinds Confronting Religious Freedom“). In the essay, I describe the powerful cultural and political trends, especially religious polarization and an ever-expanding notion of equality, that make religious freedom increasingly problematic, especially for members of traditional religious groups. Here’s an excerpt:

The increasing religious polarization suggests that, unlike in the past, traditional believers cannot count on a widespread, if thin, cultural sympathy for their commitments. A large and growing percentage of Americans has no experience of traditional religion—and, to the extent it has had such experience, rejects it. Disagreements and misunderstandings are likely to be amplified by the fact that Nones overwhelmingly reject traditional teachings about sexuality, which they see as psychologically damaging and essentially unjust, an affront to the dignity of persons. It’s not coincidental that so many of our current disputes about religious liberty, like Masterpiece Cakeshop and Hobby Lobby, involve sexuality in some way.

Another cultural trend that should worry traditional believers is Americans’ expanding concept of equality. For many Americans, equality no longer means simply equality before the law. Rather, it means a rejection generally of distinctions among groups and individuals, including religious distinctions—a rejection of “difference per se.” Beliefs and practices that exclude outsiders from a religious community are presumptively suspect, because of the implicit judgments they suggest: some groups, apparently, think their beliefs and ways of life superior to others’. Such judgments seem impolite, ungenerous, and inconsistent with the spirit of true equality, which requires that each religion acknowledge the basic correctness of all the others.

The expansive notion of equality—equality as sameness—poses challenges for traditional religious groups, most of which continue to insist, as a matter of religious conviction, on maintaining boundaries with the followers of other religions. This doesn’t mean hostile relations, necessarily, only boundaries. For example, some evangelical student groups, while encouraging charity toward everyone, limit their membership to persons who share their faith commitments. Such limitations are apt to seem arbitrary and illegitimate to many Americans. In fact, a number of religious-liberty cases involve universities’ decisions to deny religiously “exclusive” student organizations access to campus.

You can read the whole essay here.

Review of Deneen, “Why Liberalism Failed”

I have a review of Patrick Deneen’s book, Why Liberalism Failed, at the Liberty Fund blog. A bit:

[L]aw is liberalism’s most potent instrument. Law plays a legitimating role in many political regimes, but it performs unique work in Deneen’s account of the liberal state.

Legal liberalism is the device that replaces non-liberal social structures and institutions—the very structures and institutions that once sustained it—and establishes itself as the exclusive fount of authority. Legal liberalism substitutes informal relationships derived from non-liberal institutions with administrative directives and centralized controls, whether of the surveillance state, the Title IX bureaucrat, or the carceral network. Legal liberalism elevates the Constitution to the status of sacral cultural object, in the process consecrating the legal state: new citizens and officeholders swear an oath not to the nation, but to the Constitution and the law. Legal liberalism trumpets the ceaseless progression of individual freedoms and rights, even as its laws generate and consolidate greater power, wealth, and control in the state. Legal liberalism’s contemporary master right, as announced by its oracles—to “define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”—requires a correspondingly enormous and engulfing positive law and regulatory armamentarium. Legal liberalism is predisposed toward cosmopolitanism, globalism, and internationalism, and against local custom, culture, and tradition. And it seems to me that Deneen would take legal liberalism’s educational hubs—the elite American law schools—as archetypes of the sorts of pathologies afflicting institutions of higher learning.

Indeed, one might well suppose that the partisans of legal liberalism would be the least receptive to what Deneen has to say, devoted as they are to maintaining and enlarging the power structures and ideological commitments of the liberal status quo. Lawyers and legal academics will be particularly prone to dismiss Deneen. The legal elite is adept at inventing stratagems of self-validation. It is quick to enforce internal codes of civility, conformity, right thinking, and right speaking that mark membership in the club. It drives itself to distraction in the latest Supreme Court intrigues, investing its preferred justices with a superhuman heroism and a cult of personality (while demonizing the others). It jealously guards its own birthright. It will not like this book.

Yet even those within the legal liberal establishment who are inclined to hear him out might doubt that Deneen has shown that legal liberalism has “failed,” or that its weaknesses are so pervasive as to suggest imminent regime collapse. In the first place, legal liberalism, and the society that it has supported and been supported by, have generated vast economic wealth. To be sure, the allocation of that wealth has been, to put it gently, uneven. But its resources are nevertheless formidable. Second, legal liberalism has made several great social and political advances possible. It has helped to ameliorate, if not correct, certain profound injustices affecting various marginalized groups and it has expanded social and economic opportunity. These are genuine contributions. Deneen rapidly acknowledges this point early on, but the balance of the book does not demonstrate that the political and legal framework of liberalism either is an abject failure or has reached the point of breakdown.

What Deneen has shown, and to great effect, are a series of dynamics internal to the claims, logic, and aspirations of liberalism that produce extremely serious problems. Yet of all the variations of liberalism discussed in the book, legal liberalism is perhaps least likely to adapt to overcome these difficulties because of its deep investments in maintaining its own position. Deneen might welcome this resistance as the beginning of the end, since it would confirm a piece of the book’s thesis. But if the end is coming, legal liberalism’s tail is likely to be a long one.

Podcast on Masterpiece Cakeshop Oral Argument

Mark and I have this podcast on the oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission, which occurred last week at the Supreme Court. The podcast covers the central issues that the justices asked about and discussed.

Tradition and Going Topless

Earlier this week, I had a post at the Liberty Law site on a recent Seventh Circuit decision in the GoTopless case, a challenge to Chicago’s public nudity ordinance, which forbids women, but not men, to remove their tops in public. The majority maintained that the city’s interest in promoting traditional norms justified the ban, but the dissent disagreed, arguing, among other things, that the city was simply promoting outdated cultural stereotypes.

Here’s an excerpt from my post on the case:

Judge Sykes’s opinion suggests that, even after cases like Obergefell, Lawrence, and Casey, tradition continues to have an important place in constitutional law. It’s true those decisions held that traditional moral norms cannot serve as a legitimate basis for law, at least not where they infringe on personal identity or the individual’s search for meaning. But it’s also true, as the late Justice Scalia and others repeatedly pointed out in response, that the Court cannot possibly have meant what it said. Too much law relies on traditional morality as a justification; to deny that tradition can legitimate law would throw our legal system into chaos. Judges will need to find some way to distinguish between those cases where traditional norms can serve to justify state action and those where they cannot. Judge Sykes’s opinion, which suggests that traditional norms can still govern questions of “public order,” is perhaps a start.

Second, Judge Rovner’s dissent suggesting that the law should follow biology rather than culture is misleading. Of course rules regarding public nudity are a cultural phenomenon. Culture is, among other things, a reflection on human biology; different cultures have different perceptions. In some cultures women appear topless in public; in others they do not. Allowing women to appear topless in public is not to substitute biology for culture, but rather to replace one culture with another—a culture that sees public nudity as appropriate for one that does not. Perhaps that is a good idea, but it has little to do with the objective facts of biology.

You can read the whole post here.

Masterpiece Cakeshop Explained

For those who are interested, I’ve done a short video for the Federalist Society explaining the arguments in Masterpiece Cakeshop, the gay wedding cake case, which will be argued tomorrow at the Supreme Court. The link to the video is below:

Happy Thanksgiving!

Happy Thanksgiving to all of our readers. Here is President George Washington’s mightyWashington.jpeg Thanksgiving Day Proclamation of 1789 to inspire your own tables today.

Whereas it is the duty of all Nations to acknowledge the providence of Almighty God, to obey his will, to be grateful for his benefits, and humbly to implore his protection and favor—and whereas both Houses of Congress have by their joint Committee requested me “to recommend to the People of the United States a day of public thanksgiving and prayer to be observed by acknowledging with grateful hearts the many signal favors of Almighty God especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness.”

Now therefore I do recommend and assign Thursday the 26th day of November next to be devoted by the People of these States to the service of that great and glorious Being, who is the beneficent Author of all the good that was, that is, or that will be—That we may then all unite in rendering unto him our sincere and humble thanks—for his kind care and protection of the People of this Country previous to their becoming a Nation—for the signal and manifold mercies, and the favorable interpositions of his Providence which we experienced in the course and conclusion of the late war—for the great degree of tranquillity, union, and plenty, which we have since enjoyed—for the peaceable and rational manner, in which we have been enabled to establish constitutions of government for our safety and happiness, and particularly the national One now lately instituted—for the civil and religious liberty with which we are blessed; and the means we have of acquiring and diffusing useful knowledge; and in general for all the great and various favors which he hath been pleased to confer upon us.

and also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations and beseech him to pardon our national and other transgressions—to enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually—to render our national government a blessing to all the people, by constantly being a Government of wise, just, and constitutional laws, discreetly and faithfully executed and obeyed—to protect and guide all Sovereigns and Nations (especially such as have shewn kindness unto us) and to bless them with good government, peace, and concord—To promote the knowledge and practice of true religion and virtue, and the encrease of science among them and us—and generally to grant unto all Mankind such a degree of temporal prosperity as he alone knows to be best.

Given under my hand at the City of New-York the third day of October in the year of our Lord 1789.

Go: Washington

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