I’m delighted to note the Center for Law and Religion edition of the latest issue of the Harvard Journal of Law and Public Policy. (Actually, it was entirely happenstance that one of Mark’s articles and one of my articles were published in the same issue.)
Mark’s piece is Masterpiece Cakeshop and the Future of Religious Freedom.
Mine is The Sickness Unto Death of the First Amendment.
Here’s a new draft of an article I just posted to SSRN: The Traditions of American Constitutional Law (forthcoming in the Notre Dame Law Review). Of course, the piece has strong resonances with our Tradition Project here at the Center and is the product of thoughts that have been stimulated by the project over the last few years. But it’s a long time marinating. Comments most welcome on what is still very much a work in progress. Here is the abstract.
“This article identifies a new method of constitutional interpretation: the use of tradition to inform constitutional meaning. It studies what the Supreme Court means by invoking tradition and whether what it means remains constant across the document and over time. The task is worth pursuing inasmuch as traditional interpretation is pervasive, consistent, and recurrent across the Court’s constitutional doctrine. So, too, are criticisms of traditional interpretation. There are also more immediate reasons to study the role of tradition in constitutional interpretation. The Court’s two newest members, Justices Neil Gorsuch and Brett Kavanaugh, have indicated that tradition informs their understanding of constitutional meaning. The study of traditional interpretation seems all the more pressing to understand certain possible jurisprudential moves in the Court’s future.
The article concludes that when the Court interprets traditionally, it signals the presumptive influence of political, legal, or cultural practices of substantial duration for informing constitutional meaning. Traditional interpretation is thus constituted of three elements: (1) a focus on practices, rather than principles, as informing constitutional meaning; (2) a practice’s duration, understood as a composite of its age and continuity; and (3) a practice’s presumptive, but defeasible, interpretive influence. Traditional interpretation’s emphasis on practices that are given tangible form in a people’s lived experience suggests that it is preferable to speak about politically, legally, and culturally specific traditions rather than an abstracted concept of tradition. Hence, “the traditions of American constitutional law.”
The article identifies traditional interpretation as its own method; shows its prevalence and methodological consistency across the domains of constitutional interpretation; isolates and examines its constituent elements, comparing them against other prominent interpretive approaches; and infers and explains the justifications of traditional interpretation from the doctrinal deposit. While there may be some irony about a claim of novelty in an article about tradition, what this article identifies as new is not the invocation of tradition as such, but the isolation of a recurrent and consistent method—traditional interpretation—adopted by the Court across its interpretive work. It aims to bring to light an overlooked and yet frequently used interpretive practice, and to understand its structure, situation, and purpose within the Court’s constitutional doctrine.”
Pretty neat paper by Nathan Chapman on the history of federal funding of Christian education for Native Americans from the Revolution to Reconstruction, and its implications–if any–for the meaning of the Establishment Clause. Here’s the abstract:
In Everson v. Board of Education (1947), the Supreme Court stated two principles that continue to animate Establishment Clause doctrine. The first is that courts should look to founding-era history—especially the history of “religious assessments,” or taxes used to fund churches—to interpret the Establishment Clause. The second is that, based on this history, the government may provide limited secular goods to religious schools, but the Establishment Clause prohibits the government from directly funding religious education.
What Everson ignored, and what subsequent legal scholarship has likewise overlooked, is that the founding-era government did directly fund religious education: from the Revolution to Reconstruction, the federal government partnered with Christian missionaries to “civilize” American Indians. Initially ad hoc, this practice was formalized with the Civilization Funds Act of 1819, which authorized the government to distribute $10,000 per year to “persons of good moral character” to educate and “civilize” the tribes. For over fifty years, the government funded Christian missionaries who incorporated religious instruction and worship into their curricula. Curiously, no one ever raised a constitutional objection.
This Article is the first to provide a thorough analysis of the government-missionary partnerships and to explore why no one objected to their constitutionality. The evidence strongly suggests eighteenth and nineteenth-century Americans supported them because of a shared view of social progress that merged Christianization, education, and civilization. They simply could not have imagined separating Christianity and education. This evidence reshapes the conventional narrative of the historical development of non-establishment norms in the United States, especially the centrality of the Jeffersonian “taxpayer conscience” objection to religious assessments.
This history also has important implications for Establishment Clause doctrine. The challenge is ascertaining a constitutional principle from a practice that itself went unquestioned. The history does, however, suggest that the government may directly fund general education, even when that education entails incidental voluntary religious instruction. This principle complements the theoretical norm of “substantive neutrality” and supports the Supreme Court’s current doctrinal trajectory of easing restrictions on government funding of religious education.
I’ve posted a new article on SSRN, “Masterpiece Cakeshop and the Future of Religious Freedom.” The article, which will appear in the current volume of the Harvard Journal of Law and Public Policy, uses last term’s decision in Masterpiece Cakeshop as a vehicle for exploring deep trends in American culture, politics, and religion. Here’s the abstract:
Last term, the Supreme Court decided Masterpiece Cakeshop, one of several recent cases in which religious believers have sought to avoid the application of public accommodations laws that ban discrimination on the basis of sexual orientation. The Court’s decision was a narrow one that turned on unique facts and did relatively little to resolve the conflict between anti-discrimination laws and religious freedom. Yet Masterpiece Cakeshop is significant, because it reflects broad cultural and political trends that drive that conflict and shape its resolution: a deepening religious polarization between the Nones and the Traditionally Religious; an expanding conception of equality that treats social distinctions—especially religious distinctions—as illegitimate; and a growing administrative state that enforces that conception of equality in all aspects of our common life. This article explores those trends and offers three predictions for the future: conflicts like Masterpiece Cakeshop will grow more frequent and harder to resolve; the law of religious freedom will remain unsettled and deeply contested; and the judicial confirmation wars will grow even more bitter and partisan than they already have.
You can download the paper here.
I’ve posted a new draft, forthcoming in the Harvard Journal of Law and Public Policy: The Sickness Unto Death of the First Amendment. Here is the abstract.
The sickness unto death, in Søren Kierkegaard’s work of the same name, is the anxiety and despair an individual experiences in recognizing that the self is separated from what is collective, extrinsic, or transcendent. Something like this condition now afflicts the First Amendment. The sickness unto death of the First Amendment is that the spectacular success of free speech and religious freedom as American constitutional rights on premises of liberal, individual autonomy has been the very cause of mounting and powerful collective anxiety. The impressive growth of these rights has rendered them fragile, if not actually unsustainable, in their current form. Their unprecedented expansion has brought on an awareness of their emptiness in serving the larger, common political good. The yearning for political community and shared purpose transcending individual interest has in turn generated vigorous calls for First Amendment constriction to promote what are claimed to be higher ends — in some cases ends that were promoted by the hypertrophy of the First Amendment itself.
What binds these claims is the view that expansive First Amendment rights harm others or are more generally socially or politically harmful. In some cases, the same people who argued for the disconnection of free speech rights from common civic ends are now advocating free speech constriction to reconnect free speech to new ends said to be constitutive of the American polity. The same is true for religious freedom. But in a society that is deeply fractured about where the common good lies, imposing new limits on First Amendment rights in the name of dignity, democracy, equality, sexual freedom, third party harm, or any of the other purposes championed by the new constrictors is at least as likely to exacerbate social and civic fragmentation as to reconstitute it.
This paper describes the development of the First Amendment — and in particular of its ends and limits — through three historical periods. Part I concerns early American understandings, which conceived rights of free speech and religious freedom within an overarching framework of natural rights delimited by legislative judgments about the common political good. Part II traces the replacement of that framework with a very different one in the twentieth century, describing the judicial turn toward self-regarding justifications of speech that prioritize individual autonomy, self-actualization, and absolute anti-orthodoxy. The paper describes the crisis or despair of free speech and the coming of the First Amendment constrictors in Part III. It concludes briefly in Part IV by recapitulating the parallel paths of the rights of free speech and religious freedom. It is, in fact, remarkable that over the centuries, some of the most prominent justifications for and objections to the scope of these rights have proceeded pari passu and assumed nearly identical shape.
We are delighted to welcome Professor Micah Schwartzman to the Colloquium in Law and Religion today.
Micah will be discussing his co-authored piece with Professor Leslie Kendrick about the Masterpiece Cakeshop case, The Etiquette of Animus, forthcoming in the Harvard Law Review. Welcome, Micah!
For today’s Scholarship Roundup post, I’m going to exercise the host’s privilege and post a new essay of my own, “Markets and Morals: The Limits of Doux Commerce.” The essay, which I wrote for a symposium on Nate Oman’s book, The Dignity of Commerce, will appear in a forthcoming issue of the William and Mary Business Law Review. The doux commerce thesis holds that the market tends to promote the liberal virtues of pluralism and religious tolerance. Following Burke, I argue that the thesis gets things backwards. This was a fun essay to write, as it allowed me to go back and re-read the actual Enlightenment thinkers, as well as Alan Bloom’s great essay on The Merchant of Venice, which play figures prominently in Nate’s book.
Here’s the abstract:
In this essay for a symposium on Professor Nathan Oman’s new book, “The Dignity of Commerce,” I do three things. First, I describe what I take to be the central message of the book, namely, that markets promote liberal values of tolerance, pluralism, and cooperation among rival, even hostile groups. Second, I show how Oman’s argument draws from a line of political and economic thought that dates to the Enlightenment, the so-called “doux commerce” thesis of thinkers like Montesquieu and Adam Smith. Finally, I discuss what I consider the most penetrating criticism of that thesis, Edmund Burke’s critique from tradition, which suggests we should be careful attributing too much to markets’ ability to promote liberal pluralism. According to Burke, it is the Western tradition, including religion, and not commerce, which creates the tolerant, pluralist marketplace of the doux commerce thesis. That Burke was correct is suggested by several historical examples and by contemporary events in the United States and across the globe. That is not to say that Oman is entirely wrong about the potential political benefits of the market, only that we should be careful not to overstate them.
In the book, “Silence,” by Shusaku Endo, concerning the, shall we say, cool reception of Jesuit missionaries in Japan, there is a powerful line uttered by the despairing old Jesuit about Japanese resistance to Christianity: “This country is a swamp…a more terrible swamp than you can imagine. Whenever you plant a sapling in this swamp the roots begin to rot, the leaves grow yellow and wither. And we have planted the sapling of Christianity in this swamp.”
I thought about this in reading historian Michael Breidenbach’s careful and superb article (which I am late in noticing), Conciliarism and the American Founding (unfortunately behind a pay wall, but well worth it). Breidenbach argues that the extension of toleration to Roman Catholics in America was highly unusual: so what explains it?
Breidenbach points to one issue in particular: early American Catholics’ rejection of papal infallibility and their preference for “conciliarism”–the location of true ecclesiastical power in councils rather than in popes. Breidenbach writes, “Conciliarists provided important intellectual contributions to the transition from the hierocratic, church-over-state arrangements of the Middle Ages to early modern theories on the juridical separation of church and state.” Conciliarism smoothed the way for Catholics to “fit” their religion within the overarching political theory of the United States (including, I would add, its potent and still-thriving civil religion), and in consequence made toleration for their views more probable. Breidenbach includes a long and illuminating history of the Jansenist defense of conciliarism in 17th century France–again, well worth your time–that was important in the development of conciliarism.
Connected to the conciliarism of American Catholics was their rejection of any political aspirations for the Church–a kind of non-interventionism which rendered them possible subjects for toleration in the new American dispensation. The civil state was the unquestioned sovereign for these Catholics, not the Church.
Breidenbach writes as a historian, of course, and does not openly praise or condemn these developments. The plant of Christianity (and Catholicism specifically) obviously did not encounter the same type of soil that it did in Japan. The soil changed the plant–made the plant accommodate itself to the soil’s demands, or else die. Indeed, it is often said that in America, all religions become Americanized, and the talk of conciliarism reminds me a bit of Professor Sally Gordon’s discussion of the flattening out (hierarchically speaking) of Christianity in America once it adopted the corporate form. Breidenbach’s article made me wonder, in the long run and as the American state continues to grow, which soil actually will prove the less hospitable. Read Breidenbach!
Allow people to pose religious objections to generally-applicable laws, the argument goes, and you will end up with chaos, a world in which every person is a law unto himself. That argument carried the day twenty-seven years ago in Employment Division v. Smith, and resurfaced as recently as last week, during oral argument in Masterpiece Cakeshop. A new article by Stephanie Barclay (Becket) and Mark Rienzi (Catholic University-Columbus School of Law), “Constitutional Anomalies or As-Applied Challenges? A Defense of Religious Objections,” maintains that the argument is overstated. The authors argue that religious accommodations are analogous to customary “as-applied” challenges in constitutional law, which have not destroyed the rule of law. Here’s the abstract:
In the wake of Hobby Lobby and now in anticipation of Masterpiece Cakeshop, the notion that religious exemptions are dangerously out of step with norms of constitutional jurisprudence has taken on renewed popularity within the academy. Critics increasingly claim that religious exemptions, such as those available prior to Employment Division v. Smith and now available under the federal Religious Freedom Restoration Act (RFRA), are a threat to basic fairness, equality, and the rule of law. Under this view, exemptions create an anomalous private right to ignore laws that everyone else must obey. And such a scheme will result in a tidal wave of religious claimants striking down government action at every turn.
Our article presents a novel observation that undermines these central criticisms. Far from being “anomalous” or “out of step” with our constitutional traditions, religious exemptions are just a form of “as-applied” challenge offered as a default remedy elsewhere in constitutional adjudication. Furthermore, under this form of as-applied adjudication, courts regularly provide exemptions from generally applicable laws for other First Amendment protected activity like expressive conduct that mirror exemptions critics fear in the context of religious exercise. This is true even in the hotly debated context of anti-discrimination laws.
The article also presents original empirical analysis, including a national survey of all federal RFRA cases since Hobby Lobby, indicating that concerns of critics about religious exemptions have not been borne out as an empirical matter. Our findings suggest that even after Hobby Lobby, cases dealing with religious exemption requests remain much less common than cases dealing with other expressive claims, and are less likely to result in invalidation of government actions. In fact, religious cases as a percentage of the total reported case load appear to have decreased after Hobby Lobby. Thus, far from creating anomalous preferential treatment that threatens the rule of law, a religious exemption framework simply offers a similar level of protection courts have long provided for dissenting minority rights housed elsewhere in the First Amendment.
Here is an interesting-looking article by Luke Goodrich and Rachel Busick, both of the Becket Fund, on religious freedom cases since the Hobby Lobby case, Sex, Drugs, and Eagle Feathers: An Empirical Study of Religious Freedom Cases, forthcoming in the Seton Hall Law Review. Goodrich and Busick argue that, notwithstanding predictions that the Hobby Lobby case would open the proverbial floodgates, religious liberty cases actually remain rare. Here’s the abstract:
This Article presents one of the first empirical studies of federal religious freedom cases since the Supreme Court’s landmark decision in Hobby Lobby. Critics of Hobby Lobby predicted that it would open the floodgates to a host of novel claims, transforming “religious freedom” from a shield for protecting religious minorities into a sword for imposing Christian values in the areas of abortion, contraception, and gay rights.
Our study finds that this prediction is unsupported. Instead, we find that religious freedom cases remain scarce. Successful cases are even scarcer. Religious minorities remain significantly overrepresented in religious freedom cases; Christians remain significantly underrepresented. And while there was an uptick of litigation over the Affordable Care Act’s contraception mandate — culminating in Hobby Lobby and Little Sisters of the Poor — those cases have subsided, and no similar cases have materialized. Courts continue to weed out weak or insincere religious freedom claims; if anything, religious freedom protections are underenforced.
Our study also highlights three important doctrinal developments in religious freedom jurisprudence. The first is a new circuit split over the Religious Freedom Restoration Act. The second is confusion over the relationship between the Free Exercise and Establishment Clauses that is currently plaguing litigation over President Trump’s travel ban. The third is a new path forward for the Supreme Court’s muddled Establishment Clause jurisprudence.