Posted on by Mark Movsesian

The Becket Fund’s Cert Petition in the Wisconsin High School Graduation Case

Last summer, the Seventh Circuit ruled, en banc, that a Wisconsin public high school could not hold its graduation ceremonies in a rented Evangelical church sanctuary. To do so, the court ruled, posed too great a risk of government coercion, proselytism, and endorsement of religion. Three judges–Easterbrook, Posner, and Ripple–filed blistering dissents, the sort that often result in Supreme Court review.

The Becket Fund has filed a cert petition on behalf of the high school; Stanford Law Professor Michael McConnell appears on the petition as counsel of record. You can read the petition here. The Supreme Court is expected to announce whether it will hear the case, Doe v. Elmbrook School District, later this month. The case would give the Court an opportunity to clarify (or discard) its much maligned endorsement test. For my reflections on the issues the case raises, please click here.

Posted on by Mark Movsesian · 1 Comment

State Court Says Orthodox Jewish Prenup Is Constitutional: Husband Must Give Get

We’re a little late getting to this, but the Jewish Daily Forward reports on a recent Connecticut trial court’s decision to enforce a prenuptial agreement that requires a husband to grant his wife a religious divorce under Jewish law. The prenup between two Orthodox Jews, Rachel and Eben Light, provides that, in the event the couple divorce, Eben must give Rachel a get, or ritual document recognizing the divorce in Jewish law. In fact, the prenup has a liquidated damages clause: for each day Eben refuses to give the get, he must pay Rachel $100 in damages. As of today, the damages may exceed $100,000.

The Connecticut court held that the prenup does not violate the Religion Clauses. Although there have been other cases enforcing Jewish prenups, this is apparently the first recorded case in which this particular prenup, drawn up by the Beth Din of America, a major Jewish-law arbitration tribunal,  has been enforced in the civil courts. The decision will be appealed. 

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Rogers, “Aquinas and the Supreme Court”

This May, Wiley will publish Aquinas and the Supreme Court: Biblical Narratives of Jews, Gentiles and Gender by Eugene F. Rogers, Jr. (University of North Carolina).  The publisher’s description follows.ebook_k

This new work clarifies Aquinas’ concept of natural law through his biblical commentaries, and explores its applications to U.S. constitutional law.

  • The first time the use of Aquinas on the U.S. Supreme Court has been explored in depth, and its applications tested through a rigorous reading of the biblical commentaries
  • Shows how key judgments in the Supreme Court have rested on medieval natural law, and applies critical gender theory to discuss problems with these applications
  • Offers new research data to give a different picture of Aquinas and natural law, and a fresh take on Aquinas’ biblical commentaries
  • New research based on passages in the biblical commentaries never before available in English
Posted on by Marc O. DeGirolami

Helfand’s Testimony: Implied Consent Institutionalism

Our friend and former guest Michael Helfand (Pepperdine) will be appearing with me at the US Commission on Civil Rights briefing next week, and he passes along his testimony.  Michael’s approach to the religious institution question, as developed not only here but also in some of his other excellent work, depends to an extent on a very interesting (and, I think, provocative) concept of implied consent derived from the individual and granted to the institution.  He locates some of the constitutional root of this idea in Watson v. Jones (1872).

Posted on by Mark Movsesian · 2 Comments

Jews on the Jury

A federal judge in New York this week denied a defense attorney’s request to exclude Jews from a jury that will hear the case of alleged terrorist Abdel Hameed Shehadeh, on trial for lying to the FBI about plans to kill Americans. Shehadeh’s lawyer, Frederick Cohn, told the judge that the jury was going to hear incendiary testimony about Jews and Zionism and that Jewish jurors could not be trusted to remain objective.

Many reports of this week’s ruling state that the law forbids excluding jurors on account of religion. Those statements are a bit misleading. The Supreme Court has held that the constitution forbids attorneys from striking jurors on account of race or sex, but has never ruled on whether attorneys may strike jurors on account of religion.

According to my colleague Larry Cunningham, an expert in criminal procedure, lower courts are split on that question. There’s learning for the proposition that attorneys may not strike jurors on the basis of religious affiliation itself, but may strike jurors on the basis of religious intensity. For example, in one federal trial in New Jersey, a prosecutor struck two jurors who were active in their churches on the ground that the jurors’ religious convictions would make it hard for them to vote to convict the defendant. An appellate court ruled that the exclusion was proper. As Robert Miller quipped at the time, “You may thus be struck from a jury not for being a Christian, a Jew, or a Muslim, but only for being a rather devout Christian, Jew, or Muslim.”

So, Shehadeh’s lawyer really should have been more subtle. Perhaps he will revise revise his request to cover only Jews who keep kosher.

Posted on by Marc O. DeGirolami

Prepared Testimony for US Commission on Civil Rights Briefing

I will be appearing before the US Commission on Civil Rights next week, for a briefing whose subject is the conflict between civil rights and nondiscrimination norms.  My prepared testimony may be found here.  I’ve also reproduced it below (without footnotes).

____________________________

Dear Members of the Commission:

Thank you for the chance to testify before you today. I am an associate professor at St. John’s University School of Law. My work focuses on constitutional law, criminal law, and the law of religious liberty.

The subject of our panel concerns the conflict of anti-discrimination norms and civil rights, and the specific civil right of our collective focus is the right of religious liberty. My prepared remarks divide into two parts.

The first part considers the importance of studying and, to some extent, preserving the conflicts that we are considering. The wish to resolve a conflict sometimes can mask the depth and complexity of the conflict. Even more than this, an overeager desire to resolve a conflict can obscure the possibility that conflicts are part of every person’s experience, and, perhaps more controversially, that justice often does not consist of any sort of large-scale harmonious solution or consensus either within an individual or within a polity.

The second part reflects on the ways in which our law attempts to negotiate around one specific type of conflict between non-discrimination norms and the right of religious liberty in the doctrine of the ministerial exception, which was recently recognized by the United States Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC.

Conflict

We are asked to consider certain types of conflicts—conflicts between and among rights. Underlying each of these rights are multiple values. The right of religious liberty includes within it the conventional values of liberty, autonomy, and equality, but also less conventional values like piety, asceticism, charity, devotion, self-control, fidelity, temperance, patience, and obedience. These are only some of the values that religious liberty can help a person or an institution to achieve, and therefore only some of the reasons that we should want to protect it as a right. It is not possible to understand what is valuable about religious liberty without also, as Catholic University of America President John Garvey has put it, thinking about what religious liberty is valuable for.

But the values that underwrite the right of religious liberty can and often do intersect and compete with others that obtain in the particular social, political, and legal culture. Values against unjust discrimination are one such set. And conflicts arise whenever these various values of religious liberty clash with other values, so that a decision must be made in favor of some and against others.

Conflicts can occur not only among different types of values, as when a religious organization’s autonomy conflicts with the state’s interest in a certain conception of equality, public welfare, or health, but also among different values of the same type, as when a religious organization’s conception of equality conflicts with the conception of equality contained in, for example, the Americans With Disabilities Act (ADA) or Title VII of the Civil Rights Act. We might be able to reach consensus in the abstract that equal treatment means the absence of unjust discrimination, but what counts as unjust discrimination is open to an array of conflicting interpretations, underwritten by conflicting values.

It is not the burden of constitutional law conclusively to resolve these conflicts.  That is because the state of being in conflict—the condition of experiencing and living within these kinds of conflicts—is often the best approximation of justice of which we are capable. Conflicts are not great evils to be hidden from or dodged. In fact, as the philosopher Stuart Hampshire once said: “Conflict is perpetual. Why then should be deceived?” Conflict is an essential and deep feature of our society—both unavoidable and actually desirable, since its source is our different backgrounds, different outlooks, and different memories. And the most plausible interpretations of our legal traditions—including our constitutional traditions—have acknowledged that we want multiple and conflicting goods from our laws. As Justice Souter put it a few years ago:

[T]he Constitution contains values that may well exist in tension with each other, not in harmony . . . . The explicit terms of the Constitution . . . can create a conflict of approved values, and the explicit terms of the Constitution do not resolve that conflict when it arises . . . . A choice may have to be made, not because the language is vague but because the Constitution embodies the desire of the American people, like most people, to have things both ways. We want order and security, and we want liberty. And we want not only liberty but equality as well. These paired desires of ours clash, and when they do a court is forced to choose between them, between one constitutional good and another one.

It is true, and everyone agrees that it is true, that when there are certain particularly powerful interests at stake—interests in protecting the weak from physical harm and abuse, for example—those interests should always trump any countervailing interest. But most conflicts between religious liberty and nondiscrimination norms are not of this extreme character and should not be analogized to the most extreme circumstances. Likewise, nothing that I have said about the justice of conflict negates the importance of compromise, particularly legislative compromise. But compromise does not mean harmony, or the absence of tension. A good compromise is one where the tension between conflicting forces and impulses remains, even after the compromise, perceptible and vivid. Because of the nature of conflict as constitutive of our lives, it is probable that our own lives could be characterized as a series of compromises between competing values. Much the same may be said of the institutions of civil society, very much including our legal institutions.

The Ministerial Exception

In light of the clash of values I have described, one may well wonder how a court is to proceed in negotiating these clashes as a matter of constitutional adjudication. No matter how important preserving conflict may be, adjudication requires the termination of a specific dispute, and so it is necessary to consider what courts ought to say in carrying out their obligations.

The best way forward for courts—the way that permits them to preserve as much of an existing conflict between religious liberty and non-discrimination norms as possible while fulfilling the duties of their office—is to decide cases narrowly and with close attention both to our historical traditions and to the factual particulars that shape each specific dispute. In these types of cases, courts should avoid issuing decisions that imprint a single value or class of values (whether, for example, those of religious liberty or of nondiscrimination) as categorically superior to other values. Decisions that are informed by historical compromises and our national traditions, and that reflect careful consideration of factual particulars, are preferable to those which proceed by reference to the all-out vindication of an abstract value, such as liberty, equality, neutrality, non-discrimination, or the separation of church and state, at the expense of all other goods.

It is a fortuity that the Supreme Court’s most recent, unanimous, religious liberty case, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, reflects just this approach to adjudication. As the Commission Members are aware, Hosanna-Tabor involved the issues of the existence and scope of the ministerial exception, a doctrine which recognizes that in certain contexts, the state’s interest in enforcing its nondiscrimination norms must be qualified by a religious institution’s interest in retaining control over employment decisions involving its ministerial employees. The Court concluded that the Hosanna-Tabor Evangelical Lutheran Church and School had the right to make employment decisions as to a “called teacher” in its employ, Cheryl Perich, who had sued the church pursuant to the ADA. Yet just as important as the Court’s recognition of the doctrine of the ministerial exception in Hosanna-Tabor was its methodology.

The Court began by giving serious consideration to the history of “[c]ontroversy between church and state over religious offices” stretching back to the medieval period. It concluded that this history formed an important part of the foundation for religious liberty in the United States, especially the idea of church-state separation as properly understood—a concept which at its source has far more to do with recognizing distinct realms of temporal and spiritual authority than with the civic acknowledgement of religion in the public square. That history explains the source of the American commitment both to free exercise and disestablishment. And it uncovers a fact often hidden to the modern mind: church-state independence was first sought by religious, not secular, institutions. The Court rightly rejected the view advanced by both the federal government and certain of its academic supporters that this history should be ignored or marginalized, and that religious liberty should simply be subsumed within and reduced to the very different doctrine of freedom of association. Instead, the Court properly relied on both our distinctive tradition of religious liberty and the consensus view of the Circuit Courts of Appeals that the ministerial exception exists and is grounded in the First Amendment.

In determining the scope of the ministerial exception, however, the Court was circumspect, approaching its task narrowly and incrementally:

We are reluctant . . . to adopt a rigid formula for deciding when an employee qualifies as a minister. It is enough for us to conclude, in this our first case involving the ministerial exception, that the exception covers Perich, given all the circumstances of her employment.

What is important in these lines and what is reflected in the balance of the opinion is a highly particularized set of questions about the nature and function of the plaintiff’s duties—a suite of fact-specific inquiries—without reliance on any one of those inquiries as of itself controlling. The Court signaled that it will depend on this method, rather than any categorical rule or master value, to fashion the doctrine of the ministerial exception over time. And though its analysis was not ideal in certain respects, the Court rightly recognized that on balance, in light of what both Perich and the church understood and expected from the position, Perich’s job responsibilities were sufficiently ministerial that she should come within the compass of the rule.

Yet the Court refused to extend that holding any more than necessary. It declined to opine on other kinds of law suits and other types of positions. And it did not adopt the view that churches have unbridled discretion to define any job as “ministerial” thereby to circumvent the state’s laws. That, too, was proper, inasmuch as the fact that a religious institution is involved in this type of conflict does not diminish, let alone erase, the state’s—or Perich’s own—interest in vindicating the equal application of non-discrimination laws. That interest remains powerful, even in the presence of a religious institution in the conflict. But the involvement of a church does qualify or complicate the government’s interest, introducing important competing values with which the government’s and Perich’s interests clash. It would be a mistake to select between these values categorically for constitutional purposes—choosing one set that ought to dominate the other set in all future cases. It would do violence to commitments each of which are important features of our political and legal traditions.

It is true that narrow decisions may have costs. A narrow decision may provide less certainty than a broad decision; it may give prospective litigants less guidance; and it may leave the law less stable than is optimal. But that same uncertainty and instability may also promote compromise at the individual level; it may enable courts to communicate effectively with other government actors; and it may be more honest about the realities of constitutional adjudication—more candid and therefore more legitimate in a liberal democracy. Most importantly, however, narrow constitutional decisions avoid the trap of fixing in amber a monolithic ranking of values and interests. They reserve judgment for future cases and controversies.

The Supreme Court avoided these mistakes in Hosanna-Tabor, instead adopting a highly particularized, historically sensitive approach. And it is that method, more than any specific outcome, which does justice to conflict when religious liberty and norms of nondiscrimination inevitably clash.

Thank you for the opportunity to offer these remarks.

Posted on by Marc O. DeGirolami

Brooks on the Rising Orthodox Jewish Community

An excellent column by David Brooks this morning (noted by Ms. Wright below) on the rising strength of New York’s Orthodox Jewish Community.  One highly relevant feature of his piece is the importance of law as a structure that limits choice, and of the beneficent constraining power of law.  You should read the whole piece.  But by far the sharpest line in it is not Brooks’s, but belongs to Chief Rabbi of the British Commonwealth Jonathan Sacks: “The Torah is an anthology of argument with a shared vocabulary of common restraint.”

An analogy is made here (by Brooks and Rabbi Sacks both, it seems) to constitutional law — that is, a conceptual connection between shared cultural norms and norms of constitutional interpretation and adjudication.  Amen.

Posted on by Mark Movsesian

You Are Not a Religion

In Habits of the Heart, written almost 30 years ago, sociologist Robert Bellah and his co-authors came up with a term to describe a new American religion: “Sheilaism.” The phrase comes from an interview Bellah conducted with a woman called  Sheila, who described her religion as follows:

I believe in God. I am not a fanatic. I can’t remember the last time I went to church. My faith has carried me a long way. It’s Sheilaism. Just my own little voice. . . . My own Sheilaism . . . is just to try to love yourself and be gentle with yourself. You know, I guess, take care of each other.

You don’t have to be a sociologist to appreciate how well Sheila’s comments reflect the mindset of millions of Americans. You can dismiss that mindset as empty and self-indulgent, but in the land of  postmodern individualism, Sheilaism has powerful rhetorical appeal. It is preached relentlessly in advertising, books, movies, music, TV programs, even presidential politics (“We are the ones we’ve been waiting for”). It is the effective religion of the “Nones”– the rapidly increasing cohort of Americans who claim no formal religious affiliation–and, one imagines, many churched people as well.

Yet Sheilaism is not a constitutionally recognized religion, at least in the Fourth Circuit. That’s one lesson of the recent, fascinating Psychic Sophie case that Marc described in his post this week. In the case, a Virginia fortune teller, “Psychic Sophie,” argued that local licensing and zoning rules violated her First Amendment right to freely exercise her religion. She described her religion this way:

I am very spiritual in nature, yet I do not follow particular religions or practices, and “organized” anythings are not for me. I pretty much go with my inner flow, and that seems to work best.

She didn’t use the phrase, but Psychic Sophie’s religion is Sheilaism. And, as Marc notes, the Fourth Circuit held that this worldview does not constitute a religion for purposes of the First Amendment. For constitutional purposes, the court reasoned, religion means some organizing principle or authority other than oneself.  Going with one’s inner flow does not qualify.

That makes a good deal of sense. Sheilaism is a very useful concept in sociology, but it doesn’t really work in constitutional law. Recognizing Sheilaism as a religion for constitutional purposes would create all sorts of problems. We’d have millions of religions in America, each of which could claim a right to free exercise. We’d be courting anarchy. 

Or would we? The really interesting thing about the Psychic Sophie case is that it’s so unusual. With so many Sheilaists in America claiming to follow their own paths, surely we should be seeing many more claims for religious exemptions from generally applicable laws. There should be much more friction in American life. But there isn’t. All these free spirits wind up believing pretty much the same things and acting in pretty much the same ways. Perhaps Sheilaism isn’t really about following one’s inner voice, but the voice of the mainstream culture. In which case, Sheilaism isn’t really about individualism, but conformity. Like the guy said, you can have a car painted any color you like–as long as it’s black.

Posted on by Marc O. DeGirolami

The Tale of Psychic Sophie: Denouement

Back in December, I wrote a couple of posts about “Psychic Sophie,” —  Part I and Part II — the “spiritual counselor” who was classified as a “fortune-teller” by Chesterfield County and in consequence was deemed to be violating various County zoning ordinances and a licensing requirement.  Psychic Sophie’s free speech, free exercise, and RLUIPA complaint was dismissed by the US District Court for the Eastern District of Virginia, and she appealed to the Fourth Circuit.

Things did not sound very good for Psychic Sophie at oral argument, and, as Kevin Walsh reports, the Fourth Circuit affirmed the grant of summary judgment for the County today.  From Kevin’s post about the opinion:

With respect to the definition of religion, Judge Duncan distinguishes between “personal and philosophical choices consistent with a way of life,” on one hand, and “deep religious convictions shared by an organized group deserving of constitutional solicitude,” on the other hand. The court determined that Moore-King’s practices fit in the philosophical-not-religious category: “That a wide variety of sources–the New Age movement, the teachings of Jesus, natural healing, the study of metaphysics, etc.–inform and shape Moore-King’s ‘inner flow’ does not transform her personal philosophical beliefs into a religion any more than did Thoreau’s commitment to Transcendentalism and idealist philosophy render his views religious.”

From a practice perspective, it may be worth noting that Chesterfield County prevailed even though the court knocked down its lead defense to the free-speech claim. That defense rested on two premises, both of which the panel rejected: “(1) fortune telling is inherently deceptive; and (2) inherently deceptive speech warrants no protection under the First Amendment.”

The problem of the legal definition of religion only occasionally vexes courts, and the Supreme Court has never said anything definitive about it for constitutional purposes (Yoder may offer “guidance,” as the court says, but its guidance is not definitive — and I don’t mean that in the least as a criticism ofYoder).  Judge Arlin Adams’s Third Circuit concurring opinion in Malnak v. Yogi many years ago is certainly worth reading as a classic period opinion of the late 1970s on the subject, but it seems to me that the Fourth Circuit’s approach is quite different (different times).

One final note.  Writing for the panel here, Judge Duncan said this: “Yoder teaches that [Psychic Sophie] must offer some organizing principle or authority other than herself that prescribes her religious convinctions, as to allow otherwise would threaten ‘the very concept of ordered liberty.’  Yet [she] forswears such a view when she declares that instead of following any particular religion or organized recognized faith, she ‘pretty much goes with [her] inner flow, and that seems to work best.'”  But, taking care not to “belittle” Psychic Sophie’s beliefs, the court seems to hold here that a self-referential religion of one will not receive protection under the Constitution or RLUIPA.

Perhaps the “Eisenhower principle” has its limits.

Posted on by Mark Movsesian

Campus Free Speech and Sabotage

Many CLR Forum readers will be familiar with Christian Legal Society v. Martinez, the Supreme Court’s 2010 opinion upholding the constitutionality of an “all-comers” policy at the UC-Hastings law school. The all-comers policy required student groups, including religious organizations like CLS, to open their membership to all law students, regardless of belief. By a 5-4 vote, the Court held that this policy was a reasonable, viewpoint-neutral regulation consistent with the First Amendment.

One of the arguments CLS made against the all-comers policy was that the policy made it vulnerable to sabotage by students hostile to its message. Non-Christians could join CLS precisely in order to hijack the organization and subvert its mission. The Court dismissed this concern as fanciful. There was no history of hostile takeovers of campus groups, Justice Ginsburg wrote, and one had to give law students more credit for maturity. Besides, the law school’s code of student conduct prohibited disruption of campus activities; if such things happened, the law school would surely intervene.

Justice Ginsburg’s dismissal of the possibility of student hijacking came to mind as I was reading this post on Rod Dreher’s blog. Dreher describes a recent forum on marriage organized by a student group at Columbia University. The forum was open to everyone on campus and featured speakers with traditional views, including Sherif Girgis, Lynn Wardle, and Bradford Wilcox. Even though  the forum was sold out, the room was half empty. Why? Campus Democrats had hoarded tickets, apparently in an effort to prevent people from attending and hearing the speakers. Some campus Democrats did attend briefly to hold up protest signs and walk out. Here’s one student’s view of the situation, from the Columbia student paper:

From the start, the CU Democrats seemed misinformed—if not intent on spreading misinformation—about the purpose of the forum. It was not, as some that day said, an “anti-gay marriage tirade,” but a debate on the status of the modern family. . . . [T]he issue of the future of the family is a conversation that the CU Democrats seem unwilling to allow to take place, much less to take part in, despite their physical presence.

To be sure, hoarding tickets to a one-day conference is not the same thing as taking over a group. And, depending on your view of things, you might think of what the Columbia Democrats did as a harmless stunt or even a brave gesture for equality. Still, the campus Democrats used an all-comers policy to disrupt an event sponsored by another student group and limit that group’s message from reaching its intended audience. To me, this suggests that the possibility of hostile takeovers is not as far-fetched as the Martinez Court believed.