When Death is Better than the Alternative?

My friend, Tom Berg, has this response to my post about Free Exercise Clause atrophy. He and I don’t see things too differently, though he is as usual more optimistic than I am. I think he undersells what can be read from the Stormans cert. denial. And the denial of cert. in Ben-Levi v. Brown (again with a J. Alito dissent). And the denial of cert. in Big Sky Colony, where I was also pleased to join another excellent amicus brief spearheaded by Tom himself urging review of the Free Exercise Clause issues. The Court just doesn’t want any part of these issues right now.

But Tom’s post makes me think that perhaps atrophy may actually be the best option on offer. Tom writes that “moderate-ish” liberals might be able to combine with the likes of Justice Alito to hear a case involving “state/local government action against Muslims, or against some other group that everyone agrees is a religious minority.” That is because “liberal opinion” has accepted the various third-party-harms theories being floated about, and because of the expansion of the idea of harm “that modern welfare-state liberalism regards as ‘public.'”

I think I agree with most of Tom’s description here. Tom is probably right that, e.g., Christians with certain specific beliefs about sexuality are not and will never be, in the “liberal opinion” he refers to, the sort of viable “minorities” thought to deserve FEC protection. That “liberal opinion” is powerful now, growing, and likely to influence the ideological profile of the Supreme Court directly and indirectly for years to come. If that is true, then perhaps we should root for atrophy, if not death. Better the Smith rule, which at least has the advantage of being clear and reasonably predictable, than the rule of “liberal opinion” masquerading as constitutional law. Indeed, perhaps religious accommodation has always been infected by something of this quality. We accommodate when we don’t really care–for prison beards, oddballs, and tiny, exotic sects to which nobody really pays attention. When we do care, we find ways not to accommodate (harm! third parties! dignity!). And as the ambit of the “public” increases, it becomes easier and easier to make claims about third party harms, particularly when those harms cut to the quick of “liberal opinion.”

A participant in our colloquium in law at St. John’s this spring, and a noted critic of religious accommodation (someone, as it happens, whose views in general don’t often match up with my own), suggested that if given a choice between non-discriminatory religious persecution and religious discrimination, he’d opt for religious persecution. I can’t say I agree. But this exchange makes me understand that view much more clearly.

The Atrophic Free Exercise Clause

The Supreme Court has had essentially nothing of substance to say about it over the last 23 years. The contraction of whatever rights are protected by it proceeds apace. In this article a couple of years ago, I noted that religious accommodation–

one of the most vital issues of religious free exercise that at one time implicated the Free Exercise Clause directly—has by now largely become entirely statutory. The Roberts Court has decided or issued substantive orders in 4 cases involving either RFRA or RLUIPA [excluding the nonprofit contraception mandate litigation]. In the same period it has decided only one case (perhaps) partially about the Free Exercise Clause, a case in any event that is arguably not about religious accommodation at all and that represents a carve-out from general free exercise principles. The single case that brought both statutory and free exercise claims was resolved solely on the basis of the statutory claim without any decision as to free exercise.

It is tempting to attribute the reason for this transition from the Free Exercise Clause to statute law entirely to the holding of Employment Division v. Smith, which ostensibly precluded judicial review as to laws that are neutral and of general application. To be sure, the rule announced in Smith has contracted the number of Free Exercise Clause challenges. And yet there are features of Smith—most notably the issue of the meaning of “general applicability” and the scope of what I have elsewhere described as the “individual-assessment exception” to Smith—that have suggested to several lower courts that accommodations are constitutionally required far more often than may appear under Smith. To date, however, the Supreme Court has declined to hear any cases raising a direct challenge to Smith.

The enfeeblement of the Free Exercise Clause continues. Last week, the Court denied cert. in Stormans v. Wiesman (with Justice Alito dissenting from the denial, in an opinion joined by the Chief Justice and Justice Thomas), a case about Washington State’s regulations requiring the stocking of drugs in pharmacies that provided exemptions for various secular reasons (business reasons, for example) but not for religious reasons. The case presented a golden opportunity for the Court to clarify what exactly “generally applicable” means under the test given to us a full generation ago by Employment Division v. Smith. Both Mark and I joined an excellent amicus brief urging the Court to do so.

No dice. Disappointing, but not surprising. Justice Kennedy, after all, was in the Smith majority, and while he authored the majority opinion in Lukumi-Babalu, his opinion offered a rather confused and confusing reading of general applicability (Justice Scalia’s concurrence was much better on this point). He joined four other Justices in denying cert.

But the larger point is that the Free Exercise Clause, at least as a possible source of accommodation, is increasingly a dead letter. Unless one has evidence of explicit discriminatory motivation in the making of exceptions (and it’s got to be really explicit), one should expect the Clause to offer nothing. The Court has little interest in saying anything else about the Free Exercise Clause, other than raising it as a kind of weak, pseudo-justification for carve-outs like the ministerial exception.

There are all sorts of political and cultural reasons for the atrophying of the Free Exercise Clause, of course. Some of those reasons are, I plan to argue in a new paper tentatively titled Religious Accommodation, Religious Tradition, and Political Polarization, pretty good reasons. But whatever the reasons–good or bad–they are not going away. In a generation or less, the Free Exercise Clause may well find itself in the company of the Privileges or Immunities Clause and the Third Amendment.

Illinois Law Review Symposium on Substantial Burdens…and a Few Thoughts on the New Accommodation Skepticism

The University of Illinois Law Review has posted a set of essays on the issue of substantial burdens. These essays were meant to coincide with the Supreme Court’s Zubik decision, and they did, though the Court did not really oblige in entirely avoiding the substantial burden issue. So much the better. Kudos to Michael Helfand in particular for assembling such a varied little troop. I was pleased to be among them.

My essay, Substantial Burdens Imply Central Beliefs, takes the Brennan-esque view that any society that is amenable to religious accommodation is going to have to involve itself to some extent in evaluating religious claims, brought by religious claimants, that the law imposes upon religious exercise. “Religious” is the key term here. In the end, and once we have taken on the business of “religious” accommodation, there is no avoiding a good bit of church-state entanglement. To render the substantial burden inquiry coherent, we need some concrete, but generous, idea of what religion is. Here the essay briefly considers the systematic nature of religion, and the sense in which courts can only evaluate whether a law imposes a “substantial burden” on religious exercise by recourse to a background of interlocking beliefs and exercise of which the exercise at issue forms one part. Efforts to avoid this type of entanglement, and to segregate civil or secular burdens from religious burdens, are infeasible and, more importantly, miss the very point of religious accommodation–an official acknowledgment of specifically religious reasons (not personal reasons, or financial reasons, or emotional reasons, or some other kind of reasons) for non-compliance with the law. The effort to isolate civil/secular reasons from religious reasons is itself the latest iteration of an old debate in liberal political theory. Here, and with a few examples from the Hobby Lobby case, I argue that it is unsuccessful. It fundamentally misunderstands the religious dimension of the objection. It mistakes a claimant’s money for its principles.

This is the first of two projects I’ve been working on concerning what I am calling the new accommodation skepticism. Over the last few years, religious accommodation has come under fire from those who are largely indifferent, unsympathetic, or hostile to religion–particularly organized religion, and most particularly Christianity. But there is a new, emerging skepticism from other quarters–from those who are sympathetic to religion and may themselves even be religious believers. Such skepticism is not opposition to accommodation full stop. But it does observe some of the ways in which the regime of religious accommodation prevalent since the 1960s has had profound, and profoundly non-neutral, and indeed often profoundly regrettable, effects on the American legal conception of religion, a conception that is achieving ever-greater salience in the so-called “Rise of the Nones” and other contemporary religious phenomena.

Mellema, “Complicity and Moral Accountability”

In light of the current interest in, and common misunderstanding of, arguments fromp03239 complicity in many law and religion controversies (see, for example, the discussion here, and my criticisms and disagreements here), this new book by Gregory Mellema (Calvin College), Complicity and Moral Accountability (Notre Dame Press), is a particularly welcome contribution. The publisher’s description follows.

In Complicity and Moral Accountability, Gregory Mellema presents a philosophical approach to the moral issues involved in complicity. Starting with a taxonomy of Thomas Aquinas, according to whom there are nine ways for one to become complicit in the wrongdoing of another, Mellema analyzes each kind of complicity and examines the moral status of someone complicit in each of these ways.

Mellema’s central argument is that one must perform a contributing action to qualify as an accomplice, and that it is always morally blameworthy to perform such an action. Additionally, he argues that an accomplice frequently bears moral responsibility for the outcome of the other’s wrongdoing, but he distinguishes this case from cases in which the accomplice is tainted by the wrongdoing of the principal actor. He further distinguishes between enabling, facilitating, and condoning harm, and introduces the concept of indirect complicity.

Mellema tackles issues that are clearly important to any case of collective and shared responsibility, yet rarely discussed in depth, always presenting his arguments clearly, concisely, and engagingly. His account of the nonmoral as well as moral qualities of complicity in wrongdoing—especially of the many and varied ways in which principles and accomplices can interact—is highly illuminating. Liberally sprinkled with helpful and nuanced examples,Complicity and Moral Accountability vividly illustrates the many ways in which one may be complicit in wrongdoing.

Greenawalt, “From the Bottom Up: Selected Essays”

I’m delighted to post this notice for a new book of essays by my old master, Kent From the Bottom UpGreenawalt: From the Bottom Up: Selected Essays. These previously published and newly collected essays span Kent’s writing life and do an excellent job of conveying his immense and broad erudition. They cover topics including the bases of law (public reasons, natural law, religious reasons, and so on); law and objectivity; and several subject specific inquiries (in criminal law, law and religion, and speech law).

As a compendious but complete introduction to Kent’s thought, you cannot do better. I was honored to provide this book blurb:

A crucial book for understanding the mind of one of the great legal scholars of our time. Kent Greenawalt’s core insight, developed over a scholarly life and across several disciplines, is that the law is best understood inductively–not by drawing hard dividing lines between legal concepts and categories but instead by asking careful questions about how the law works itself out in the real world.

Zubik v. Burwell Remanded

Today the Supreme Court issued a short per curiam opinion vacating the circuit courts’ respective opinions in the nonprofit contraception mandate cases and remanding them to those circuits, in light of the “substantial clarification and refinement” in the claimants’ and the government’s respective positions that the Court claims was generated by the supplemental briefing. To wit:

Petitioners have clarified that their religious exercise is not infringed where they “need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,” even if their employees receive cost-free contraceptive coverage from the same insurance company….The Government has confirmed that the challenged procedures “for employers with insured plans could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.”

Disagreements as to implementation to be worked out below.No taxes or penalties on the claimants during the pendency of the new implementation for failure to provide adequate notice to the government. No opinion expressed on the merits (substantial burden, compelling interest, least restrictive means), other than by Justice Sotomayor, who concurred (joined by Justice Ginsburg) in the Court’s order essentially to make crystal clear to the government that she was sympathetic to its views.

#NeverLiberal

A new meme that came to me when reading this story at Volokh about the American Bar Association’s new proposed rule concerning, inter alia, professional misconduct sanctions for lawyers who engage in “verbal conduct” (which sounds rather like speech) that “manifests bias or prejudice” or is “derogatory or demeaning” on matters related to “race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.” The proposed rule applies to the “practice of law,” which includes “participating in bar association, business or social activities in connection with the practice of law.”

Eugene Volokh offers some interesting questions of the proposed rule’s application. I’m more interested in the ABA’s changing view of speech–from a traditional liberal view to an anti-liberal view. Haven’t we been lectured time and again by the titans of the bar (not to mention the Supreme Court’s sanctimonious diatribes on the matter) about the value of offensive ideas? About the civic importance of tolerating the expression of those ideas which we reject. Here’s one little refresher: something from Justice Douglas’s opinion in Terminiello v. City of Chicago, though many others would have sufficed:

The vitality of civil and political institutions in our society depends on free discussion….[I]t is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected. The right to speak freely and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes. Accordingly, a function of free speech under our system of government is to invite dispute….Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.

This sort of view could, of course, be challenged. Is it really true that because Terminiello’s advocacy of fascist ideas and race and class hatred might actually persuade people–might convince them to abandon all of those nasty “prejudices and preconceptions”–that the government is therefore powerless to regulate it? Is it better to be governed by fascist ideas than to regulate the consumer’s taste for them?

Right or wrong, it was ostensibly the liberal view. How different the ABA’s approach today seems to be. But I wonder, in this paper, whether the 20th century approach to freedom, and to free speech in particular, was really ever an end in itself, or instead was a gateway (and was even perceived by some of its proponents as a gateway) from one sort of legal culture to another. The classical liberal position is an attractive one in many ways. It’s a pity that so few people have been, and are, really committed to it. Were they at some point? If so, when did that commitment change, and why? There were those in the legal academy and elsewhere who never purported to be liberal and are now feeling pretty darned good. But classical liberalism, as those who know more than I have observed, seems to be on the ropes. Or was this all part of a larger movement away from one culture and toward another? Were most people plying the liberal view actually (even if unwittingly) #NeverLiberal at all?

Chinese President Warns of “Overseas Infiltration Via Religious Means”

This AP story reports that proponents of religious freedom are fearful of an increase in religious persecution in China following Chinese President Xi Jinping’s comments at a Beijing conference where he warned against “overseas infiltrations via religious means.” Followers of various religions have already suffered numerous forms of persecution, including Muslims being banned from wearing veils and beards, imprisonment of Catholic clergy members, and the removal and destruction of Christian symbols.

Despite China’s history of religious persecution since the Communist takeover in 1949, the number of Christians in the country has continued to increase. The story reports that according to the Center for the Study of Global Christianity, China’s 111 million Christians make it the world’s third largest Christian country behind only the United States and Brazil.

A Few Thoughts on the Nature of Substantial Burdens on Religious Exercise

I’ve put them down over at the Liberty Law blog. A bit:

Making any sense of the inquiry would require adopting some definitions. A burden on religious exercise is a weight on it—or, less, metaphorically, it is simply an interference with religious exercise. “Interfere” is the term used by the Religious Freedom Restoration Act in its “Congressional Findings and Declaration of Purpose”: “laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise.” Interference may be intentional or unintentional, but it is interference in either case. Interference might be compulsion to do or not do certain things, but it also includes any governmental act that would frustrate the claimant’s capacity to exercise his or her religion. A governmental act that interferes with the ability of a claimant to believe or practice his or her faith burdens it.

What about “substantiality”? Here, the text of another religious accommodation statute, the Religious Land Use and Institutionalized Persons Act of 2000, suggests an answer: The substantiality of the burden is to be measured against the “system of religious belief” of which the religious exercise at issue forms a part. A system is a group of interdependent items—in this case religious beliefs and practices—that together constitute a unified whole.

This is a small fragment of what will be two longer reflections on the subject: one in an on-line symposium of the Illinois Law Review and another in a player to be named later. More soon.

Supplemental Briefing in Nonprofit Contraception Mandate Litigation Filed

The claimants and the federal government have now both filed their supplemental briefs, as requested by the Supreme Court in the order I discussed here. Reply briefs are due April 20.

After denying that any change to what it presently offers to nonprofits is needed, the basic thrust of the government’s brief is that (1) the Court’s proposal would not work for self-insured claimants; and (2) the Court’s proposal would only work for others “but only at a real cost to its effective implementation.” At page 15, the government says this about those claimants with insured plans: “In theory, however, the government could provide that the same  legal obligations arise following any request by an eligible employer with an insured plan for an insurance policy that excluded contraceptives to which the employer objects on religious grounds.” The exact mechanism through which this would work for self-insured plans remains unclear. The brief concludes by asking for a definitive resolution from the Court.

The claimants’ brief argues that (1) yes, as to insured claimants, there are many ways in which the employees of objecting claimants can receive the free coverage the government wants them to receive: it could impose a regulatory requirement on insurers to provide a separate plan for such employees, not backed by the threat of what are described as “draconian penalties” on the employers. Employees would have 2 insurance cards instead of 1; and (2) as to self-insured claimants, there is a related less restrictive means as well: “If commercial  insurance companies begin making truly separate contraceptive coverage available to the employees of petitioners with insured plans as contemplated by this Court’s order, then there should be no legal obstacle to allowing additional individuals to enroll in those plans, whether directly through the insurer or through the Exchanges. Indeed, making such contraceptive-only plans available to employees of petitioners with self-insured plans would underscore that such coverage is truly separate from the coverage provided by petitioners that use commercial insurers, as employees of other employers would be receiving essentially the same contraceptive-only policies.” (20)

Stay tuned.

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