Posted on by Claudia E. Haupt

If It Looks Like A Duck…?

Thanks so much, Mark, for the warm welcome! I want to use my time here to write about some comparative issues in law & religion.

A growing body of literature in comparative constitutional law discusses themes of constitutional convergence. Do constitutional provisions converge across legal regimes? Do international human rights norms cause them to do so? These and related questions are enormously rich and thought-provoking, and the literature is expanding and getting increasingly sophisticated. But another question is perhaps as interesting as the question of textual convergence: interpretive convergence. Imagine two courts charged with interpreting a functionally similar, yet textually different constitutional provision using the same term as their analytical basis. Does that indicate convergence?

Here is the context in which I have addressed this question. The German Federal Constitutional Court and the U.S. Supreme Court both use the language of “neutrality” in their respective interpretations of constitutional provisions concerning religion-state relations. It’s interesting that we have two constitutional regimes, with constitutional provisions that say “Congress shall make no law respecting an establishment of religion” and “there shall be no state church” respectively—neither of which, incidentally, mentions the word “neutrality”—and two courts interpreting these provisions and finding an underlying requirement of state neutrality.

Two examples: the U.S. Supreme Court in McCreary County (quoting Epperson) has this to say about neutrality: “The touchstone of Establishment Clause jurisprudence is the requirement of governmental neutrality between religion and religion, and between religion and nonreligion.” In the Classroom Crucifix Case, the German Federal Constitutional Court found that “[t]he state, in which adherents of different or even opposing religious and ideological convictions live together, can guarantee peaceful coexistence only if it itself maintains neutrality in matters of faith.”

From a comparative perspective, it might be tempting to assume that the courts say the same thing about the relationship between church and state, because they are both using the term neutrality.  But we have to look beneath the surface. The meaning of neutrality Read more

Posted on by Marc O. DeGirolami

Judge Henry Friendly on the Establishment Clause

Here’s an interesting selection from David Dorsen’s recent superb biography of renowned Second Circuit Judge Henry Friendly. The passage is about the Establishment Clause, with particular reference to the issue of “shared time” remedial education by public school teachers in religious schools and the Supreme Court’s decision Aguilar v. Felton. The passage is neat because it shows the fashion in which an intermediate appellate judge managed hierarchical constraint and substantive preference in crafting a decision. I’ll have some more on this general issue soon, but here’s Dorsen (at 162-63):

[I]n 1984, a time of doctrinal uncertainty and confusing precedents [ed.: when has this not been true?], Friendly wrote the Second Circuit’s opinion in Felton v. Secretary, Dept. of Education, where, when other programs had proven ineffectual, New York City sent public school teachers into nonpublic schools, including religious schools, to provide remedial instruction to educationally deprived children. State law prohibited public school teachers and their supervisors, who were entirely in charge of the program, from involving themselves in religious activities or content. In a suit by taxpayers Friendly said that while he accepted the good faith of the city and the value of the program, the program was unconstitutional: “[T]he Establishment Clause, as it has been interpreted by the Supreme Court, constitutes an insurmountable barrier to the use of federal funds to send public school teachers and other professionals into religious schools to carry on instruction, remedial or otherwise, or to provide clinical and guidance services of the sort at issue here.” His analysis of the Court’s cases

leads inescapably to the conclusion that public funds can be used to afford remedial instruction or related counseling services to students in religious elementary and secondary schools only if such instruction or services are afforded at a neutral site off the premises of the religious school….To be sufficiently certain that public employees, in a program like the present one, will maintain strict religious neutrality, they and the institutions in which they work must be subjected to ‘comprehensive, discriminating and continuing state surveillance.’ This itself is a constitutionally excessive entanglement of church and state.

Precedent did not require a search of the record to find entanglement; the mere possibility was sufficient to reject the program.

Dorsen goes on to note that Friendly’s separationist view of the Establishment Clause (“The Establishment Clause was the most notable constitutional-law area in which Friendly sided with the Supreme Court’s liberal wing”) coincided nicely with what was then the Supreme Court’s prevailing view, so that he could claim plausibly that he was “just following the Supreme Court.” “Nevertheless,” Dorsen writes,

Friendly structured the opinion in a manner that increased the likelihood that the Supreme Court would affirm him. He placed heavy reliance on Meek v. Pittenger, virtually the same as Felton, including on the problem of entanglement, which held unconstitutional a secular textbook program for private schools. He later explained that in writing the opinion as he did his object “was to make the [Supreme] Court face up to the fact that it could not sustain the New York program without overruling, in contrast to distinguishing, Meek v. Pittenger. I thought that this, as well as some of the other considerations developed in the opinion, might give a little pause to Blackmun and Powell about the erosion of the establishment clause.”

If you read through Justice Brennan’s opinion for the Court in Aguilar v. Felton,  you’ll see that he relies heavily on Meek too. And, as Friendly half-predicted, Justice Powell’s concurrence goes on at length not only about Meek, but it also specifically relies on and emphasizes Judge Friendly’s reading of Meek.

It’s also interesting that none of the dissenting opinions in Aguilar distinguished Meek–another very strong point in support of Judge Friendly’s craftsmanship. Justice O’Connor instead wrote that “experience has demonstrated that the analysis in Part V of the Meek opinion is flawed. At the time Meek was decided, thoughtful dissents pointed out the absence of any record support for the notion that public school teachers would attempt to inculcate religion simply because they temporarily occupied a parochial school classroom….[I]t is time to acknowledge that the risk identified in Meek was greatly exaggerated.” Justice Rehnquist’s dissent does not mention Meek at all, presumably because he continued to dissent from it. And Chief Justice Burger explicitly states that he dissents in Aguilar for the same reasons as he dissented in Meek.

Of course, Agostini v. Felton, decided in 1997, overruled Aguilar and Justice O’Connor’s opinion carried the day (5-4): “We have abandoned the presumption in Meek and [School Dist. of Grand Rapids v.] Ball that the placement of public employees on parochial school grounds inevitably results in the impermissible effect of state-sponsored indoctrination or constitutes a symbolic union between government and religion.” But that course reversal only highlights the importance of seeing how a master like Judge Friendly went about his work.

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Anastaplo, “Reflections on Religion, the Divine, and the Constitution”

This August, Lexington Books will publish Reflections on Religion, the Divine, and the Constitution by George Anastaplo (Loyola U. of Chicago).  The publisher’s description follows.

In Part One, the uses of divine revelation in the Western world are reviewed by recalling authors that include Euripides, Sophocles, Aristophanes, Plato, Maimonides, Cervantes, Hobbes, and Milton. The challenges posed by such monstrosities as Aztec human sacrifices and the Second World War Holocaust are recalled.

In Part Two, the challenges of religion for and by Americans are examined. Documents such as the Declaration of Independence, the Constitution of 1787, and Presidential Farewell Addresses are recalled. The lives and thought of eminent Americans are also recalled (including George Washington, Benjamin Franklin, Thomas Jefferson, and Abraham Lincoln). Recalled as well are such movements as that of the Mormons and that of the “I Am” sect. The implications both for religious developments and for religious orthodox of modern science are investigated.

The Appendices reinforce these inquiries by providing reminders of how distinguished commentators and others have tried to deal with critical questions noticed in the Essays of this book.

Posted on by Marc O. DeGirolami

NY Post on the Fight Over Equal Access for Religious Groups

The New York Post had a brief piece a couple of days ago on the story that we posted about here involving the fight over equal access for religious groups to New York City public school buildings. The Post article contains a few additional details about the City Council’s vote (it was 38-11) as well as some political speculation and other odds and ends about the controversy.  I am not sure what the piece means when it says that the Department of Education’s policy is “based on” New York State law.  At least a substantial part of the legal defense is grounded in the First Amendment.  It did come as news to me that the board’s policy “makes New York the exception among the nation’s 50 largest school districts.”  (h/t our former guest, Ashley Berner).

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Muñoz, “Religious Liberty and the American Constitution: The Essential Cases and Documents”

In July, Rowman & Littlefield  will publish Religious Liberty and the American Constitution: The Essential Cases and Documents by Vincent Phillip Muñoz (U. of Notre Dame). The publisher’s description follows.

Throughout American history, legal battles concerning the First Amendment’s protection of religious liberty have been among the most contentious issue of the rights guaranteed by the United States Constitution.  Religious Liberty and the American Constitution: The Essential Cases and Documents represents the most authoritative and up-to-date overview of the landmark cases that have defined religious freedom in America.  Noted religious liberty expert Vincent Philip Muñoz (Notre Dame) provides carefully edited excerpts from over fifty of the most important Supreme Court religious liberty cases.  In addition, Muñoz’s substantive introduction offers an overview on the constitutional history of religious liberty in America.  Introductory headnotes to each case provides the constitutional and historical context.  Religious Liberty and the American Constitution will be an indispensable resource for anyone interested matters of religious freedom from the Republics earliest days to current debates.

Posted on by Marc O. DeGirolami · 1 Comment

Certiorari Granted in Legislative Prayer Case

The Supreme Court has granted cert. in Town of Greece v. Galloway, a case out of New York in which the Second Circuit held in an opinion by Judge Guido Calabresi that the town’s practice of allowing volunteer private citizens to open town board meetings with a prayer violated the Establishment Clause. The last Supreme Court decision to address this precise issue was Marsh v. Chambers (1983), where the Court in a majority decision by Chief Justice Burger upheld the particular practice at issue in Nebraska. Courts of appeals have taken different approaches to the issue post-Marsh, even within the same circuit (see, e.g., the Fourth Circuit’s very different approaches in Joyner v. Forsyth County, Wynne v. Town of Great Falls, and Simpson v. Chesterfield County) so I suppose it was on the Court’s radar. But one never knows exactly why the Court decides to take up an issue.

For some discussion of the Second Circuit decision, see this post.

UPDATE: Interesting early posts on the case by Eugene Volokh and Paul Horwitz.

Posted on by Marc O. DeGirolami

Targeting, Unequal Application, and Free Exercise

This may be obvious to readers of this blog, but perhaps it’s worth noting anyway in light of the somewhat loose way in which news outlets sometimes speak of “constitutional violations.” Several places are reporting that non-profit organizations with religious affiliations are complaining that they were dealt with improperly by the Internal Revenue Service.

I want first to emphasize that I do not know whether the allegations are true. I strongly suspect that nobody who is likely to comment on my post will know that information. For purposes of this post, I will only assume that they are true, in order to inquire about whether groups with these complaints, under such circumstances (and again, if true), would have a cause of action under the Free Exercise Clause (I am leaving RFRA to the side).

Most readers are familiar with Employment Division v. Smith, which held that neutral laws of general application do not violate the Free Exercise Clause even if their impact especially burdens a religious person or group. A subsequent case, Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, involved a particular religious group’s plans to create a new house of worship where they would engage in ritualistic animal sacrifice. In response to these plans, the City enacted various ordinances prohibiting animal sacrifice, but exempting pest control measures, hunting, kosher slaughtering, and private slaughtering of hogs and cattle. The ordinance outlawing “sacrificing” an animal defined sacrifice as “to unnecessarily kill, torment, torture, or mutilate in a public or private ritual or ceremony not for the primary purpose of food consumption.” The Court struck down these ordinances as violations of the Free Exercise Clause.

How might these cases apply here? Suppose that the government’s explanation for delaying and/or denying a particular group’s application for tax-exempt status was that the group “is not educational” or “is political” or “does not present all views.” As to religion, this sounds like a facially neutral rule under Smith. The government could in theory apply a prima facie rule that says, “No groups will receive tax-exempt status unless they are educational, a-political, and representative of all views” without violating the Free Exercise Clause as interpreted by Smith (of course, it would be violating other provisions of the Constitution, but I am focusing specifically on free exercise).

Things don’t end there, though. One might think that the problem is not one of facial neutrality, but instead of discriminatory motivation. The complaint would be that the rule isn’t really neutral at all because the motivations of the government were to target particular religious beliefs. But though it is often thought that Lukumi rested on the ground of discriminatory motivation or “targeting,” it did not. Only two Justices–Kennedy (writing for the majority) and Stevens (who joined him on this point)–relied on the history of the adoption of the ordinances to reach the conclusion that they were motivated by the City’s desire to suppress or stamp out religious groups that it disliked. The real ground of decision did not have to do with discriminatory motivation, but with unequal application of the law. The question here would be–given the admittedly religion-neutral purposes of the law (education, a-political qualities, viewpoint inclusion), is the law being applied in a way which disvalues or is unfair to religious beliefs? A law which is applied selectively against religious groups cannot be “narrowly tailored” to the government’s aims, and the failure of that narrow tailoring in turn suggests that the government’s interest in the laws is not compelling. Subjective motivations are not relevant in this sort of inquiry; only the record of the law’s aims and application is.

One might wonder whether this difference is important. A law that is motivated by the desire to “target” religious groups will generally fail to be narrowly tailored to achieve a compelling state interest. But not always. A law might “target” religious conduct on the ground that the religious conduct presents special dangers. Suppose a religious group has a ritual in which it tests its members with a “leap of faith” off a fourth-floor balcony. After five people have died, the town enacts a law which forbids people from jumping off of buildings. That law might be motivated by the wish to “target” this religious conduct, and the law likely would be valid even if nobody but members of the religious group engaged in the conduct. But a different question arises if the law proscribes certain dangerous conduct that is religiously motivated but continues to allow equally dangerous activity that is not motivated by religious belief (tightrope walking across two skyscrapers, for example). Take away the “dangerous” (to humans, that is) and this is what was happening in Lukumi. The difference does not, at least according to Lukumi, have to do with the subjective motivations of the “targeting” legislators, but with the extent to which unequal application of the law evinces a devaluation of religion.

In like fashion, it seems to me that with respect to the IRS situation, the issue for purposes of a Free Exercise Clause claim would turn not on evidence of the government’s subjective intention to “target” particular religious groups, but on the ways in which a putatively neutral law or rule was applied to religious and non-religious applicants for tax-exempt status alike.

Posted on by Marc O. DeGirolami

Horwitz, “Freedom of the Church Without Romance”

For those interested in the exploding work on the freedom of the church (and you should all be!), do see Paul Horwitz’s new tour de force draft article, Freedom of the Church Without Romance, a typically graduated and thoughtful piece by a defender of ecclesial liberty.

I haven’t yet read the entire piece, but what I have read is rich and very interesting. I touch on ideas of liberty of the church in my chapter on free exercise applications of the tragic-historic method in The Tragedy of Religious Freedom–in Chapter 9 where I discuss the Hosanna-Tabor case. But because (I think!) my view of freedom of the church is perhaps not quite as potent in certain ways as is Paul’s (it is subject to perhaps greater particularistic assessment by courts and is less committed to the general superstructure of Horwitzian First Amendment institutionalism, even as qualified in this piece), I wonder whether, for me, the suggestion of embracing a “strong non-establishment regime” follows as powerfully as it does for Paul (if one understands a “strong” disestablishmentarian regime in the way that I suspect Paul does). Some of Paul’s questions toward the end of the piece about arguments involving church freedom alongside others concerning equal access of religious entities in the provision of services do not seem to me to give churches “a competitive advantage” that is troubling for Establishment Clause purposes (one can believe this, I think, and also agree with Paul about the importance of the economics of religion quite apart from the issue of its constitutional weight), though I understand the point that Paul is making. At any rate, the piece is well worth a good, long read. The abstract follows.

This Article is part of a symposium issue titled “Freedom of the Church in the Modern Era.” Freedom of the church, roughly, connotes the independent nature or sovereignty of the church. The most dramatic moment in its development was the eleventh century Investiture Controversy, with its confrontation between Pope Gregory VII and Emperor Henry IV at Canossa, but it has a long prior and subsequent history. Recently, with the renewed scholarly interest in the institutional rights of churches and religious organizations and the Supreme Court’s decision affirming the “ministerial exception” doctrine in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC,the idea of “freedom of the church” has taken on new champions–and critics.

This Article, from an author who has written supportively about freedom of the church and/or religious institutionalism in prior work, takes a deliberately unromantic look at freedom of the church. It evaluates it through two useful disciplinary lenses: history, and the economics of religion.

Both historical and economic analysis of the concept of”freedom of the church” suggest the following conclusions: (1) The concept should be treated carefully and with a full awareness of its mixed history, without undue romanticism on the part of its champions–or a confident conclusion on the part of its critics that it is no longer necessary. (2) Whatever the concept of “freedom of the church” means today, the present version is decidedly diminished and chastened, a shadow of the medieval version. Supporters of freedom of the church should welcome that fact. Freedom of the church persists, and may have continuing value, precisely because it has become so domesticated. (3) There are solid historical and economic grounds for some form of freedom of the church or religious institutional autonomy. In particular, religion’s status as a credence good, whose value and reliability is certified by religious agents such as ministers, strongly suggests that state interference with religious employment relations can be dangerous to a church’s well-being and long-term survival. (4) The history and economics of religion also teach us something about the optimal conditions for freedom of the church–the conditions under which it is likely to do the most good and the least harm. In particular, they suggest that champions of freedom of the church ought to welcome religious pluralism and a strong non-establishment regime.

The Article closes with some speculation about why there has been a recent revival of interest in freedom of the church, including the possibility that its resurgence, even if it is fully justified, also involves an element of rent-seeking by religious institutions.

There are two broader underlying suggestions as well. First, there are good reasons to support some version of freedom of the church, but it deserves a more critical and nuanced examination by friends and adversaries alike. Second, legal scholars writing on church-state issues have paid far too little attention to the literature on the economics of religion.

Posted on by Mark Movsesian · 1 Comment

National Day of Prayer

You might not have noticed it, but today is the National Day of Prayer. I should say, a National Day of Prayer, as that’s what the US Code calls it. Every year, by law, the President issues a proclamation “designating the first Thursday in May as a National Day of Prayer on which the people of the United States may turn to God in prayer and meditation at churches, in groups, or as individuals.” President Obama’s proclamation this year is rather moving. It stresses the comfort that Americans draw, in times of suffering, from the simple fact that other Americans are praying for them:

Prayer brings communities together and can be a wellspring of strength and support. In the aftermath of senseless acts of violence, the prayers of countless Americans signal to grieving families and a suffering community that they are not alone. Their pain is a shared pain, and their hope a shared hope. Regardless of religion or creed, Americans reflect on the sacredness of life and express their sympathy for the wounded, offering comfort and holding up a light in an hour of darkness.

The proclamation itself ends with a prayer: “I join the citizens of our Nation in giving thanks, in accordance with our own faiths and consciences, for our many freedoms and blessings, and in asking for God’s continued guidance, mercy, and protection.”

The day is not without its critics. The Freedom from Religion Foundation once filed a lawsuit, dismissed on standing grounds, arguing that a National Day of Prayer violates the Constitution, and the American Humanist Association hosts a competing National Day of Reason every year. (You might not have noticed that, either.) Orthodox theists of various sorts might find the day objectionable as well. To whom or what are Americans being invited to pray? Doesn’t officially-encouraged prayer to a nondescript deity lead to confusion and least-common-denominator religion? Not everyone finds generic prayers so harmless.

I’m not sure what the answer is, except to say that designating a National Day of Prayer seems entirely American. Public religious references of a nonsectarian character have long been a part of the American tradition, for better or worse, and there’s no stopping them now. The wisdom of our ancestors is in such things, as Dickens once observed in another context, and if we disturb them, the Country’s done for. Purists, of the secular and orthodox variety, have to adjust.

Posted on by Marc O. DeGirolami

An Exchange on Claudia Haupt’s “Religion-State Relations in the United States and Germany”

Here is a nice, short, and generally quite positive review by Markus Thiel (Cologne) of Claudia Haupt’s Religion-State US Germany(Columbia) recent book, Religion-State Relations in the United States and Germany: The Quest for Neutrality (CUP 2011).  Professor Haupt has an interesting reply as well just below the review.  The exchange is worthwhile among other reasons on the question of the value of comparative scholarship in this area.  From Professor Thiel’s review:

The reviewer is an avowed skeptic about the scientific benefit of comparative research in constitutional law in general. It oftentimes achieves the sole result that the legal world is colorful and diversified. Therefore, it is more reasonable to compare particular (legal) provisions and institutions and not the legal system on the whole. But even this approach has to keep in mind that a comparison is complicated by diverging legal and social frameworks and circumstances. It is all the more important for comparative constitutional and political research to provide a precise description of the applied scientific methods, the questions of interest, and the objects of research. The author commences her book with a substantial and instructive chapter on her understanding of a comparative approach. Here, the reader notices that the book restricts its view on questions regarding the interpretation and application of legal provisions. This may be due to the fact that it is based on a dissertation in Political Sciences, but especially the relevant articles of the German Grundgesetz should have been the starting point for any analysis of the neutrality principle in Germany. A German reader with a legal background misses the presentation of the relevant constitutional law “dogmatics” to a certain extent.

And from Professor Haupt’s reply:

Comparative constitutional law in particular benefits from a wide-angle view not merely focused on doctrinal questions. Doctrinal rules, the law on the books, may play out much differently in practice. Take, for example, the paradigmatic example in U.S. religion-state relations, the much maligned Lemon test. Technically, as a matter of blackletter law, Lemon still governs; but engagement with religion-state relations that goes beyond examining the current doctrine in the United States quickly uncovers that, first, the test itself is under siege; second, case law suggests that it does not apply in a number of circumstances; and finally, there is a trajectory of development that suggests the U.S. system of religion-state relations is on a different path altogether, one that is more concerned with the meaning of neutrality than the mechanical application of this three prong test. In short, we learn very little about religion-state relations in the United States from looking at the Lemon test. By contrast, studying the larger societal, historical, and political context allows scholars to identify trends that put the doctrine into perspective.