Posted on by Marc O. DeGirolami

Conversations: Paul Horwitz

I had the pleasure and good fortune of sitting down with my good friend, Paul Horwitz (Alabama), a Paul Horwitzcouple of  weeks ago to talk with him a little about his superb new book, First Amendment Institutions (2013), under the auspices of a Federalist Society program that considers interesting and important new books.  I will post the podcast of that interview when it is ready.  But Paul also generously agreed to answer some written questions about the book, which ranges over all manner of First Amendment subjects, including, of course law and religion, for our ‘Conversations’ feature here at CLR Forum.

Q: The book, as its title indicates, is concerned with examining First Amendment disputes from an institutional point of view.  You define institutions as organizations comprised of individuals bound together by some common purpose to achieve certain objectives.  Why are institutions particularly important phenomena to study when it comes to the First Amendment?  After all, when one thinks of personal expression or religious practice, one does not think immediately of institutions.  Indeed, the paradigmatic case of speech or religious exercise is, for many, not about institutional or organizational rights but about individual rights.

A: I don’t think they’re uniquely important phenomena to study when it First Amendment Institutionscomes to the First Amendment. But I absolutely believe that they’re important phenomena to study, for at least three reasons. 1) A good deal more individual speech is formed or influenced by or within those institutions than the paradigm case may acknowledge. 2) Much important speech or activity takes place within those institutions. 3) These institutions often play an important structural role in public discourse.

Q: One of the major methodological issues that you raise – applicable both to the First Amendment and, you suggest, to all of law – is the law’s tendency toward acontexualism.  You say, for example, that law is indifferent to real world context and is instead only interest in analysis according to concepts of its own making.  Judges think about the cases that come before them in distinctively legal categories.  Could you say more about this and how it pertains specifically to the sorts of issues that you tackle in FAI?  More than this, can you explain why it is an inapt way to think about such cases?

A: Of course, there are lots of reasons why it is not a bad thing for judges to think acontextuality. Most of them involve what we think of as rule of law values, while others have to do with reasons of the particular institutional competences of the judiciary. That said, like any reasoning device or habit of mind, acontextuality can end up obscuring or missing important facts, contexts, and details. The point of acontextuality, in part, is to think only about morally relevant differences or similarities between things; but too acontextual a view can end up missing some of those morally relevant distinctions, especially where First Amendment institutions are concerned.

Q: A different question about acontextuality.  Sometimes it seems that what you describe as the snare of acontextuality is just as much a debate about whether facts or doctrine should rule as it is a fight about which facts are the (morally) salient ones.  For example, in your discussion of Arkansas Educational Television Comm’n v. Forbes, you say that the 8th Circuit got hung up in trying to slot the commission as a public entity, and so it did not see that it was simply exercising its journalistic discretion like a private broadcaster might.  But one might recharacterize what the court did as valuing certain types of facts (the issue of the commission’s private status) MORE than other sorts of factors.  Even though the Supreme Court reversed, isn’t this really a fight about which facts are relevant, more than a fight about whether facts or legal categories matter.

A: This is a fair pushback, I think. But I suppose I would say that cases like Forbes were more about finding what the court considered legal categories than about considering facts or context as such. Certainly, however, there is a relationship between legal categories and morally relevant facts. The question is whether the fixation on legal categories can end up failing to see other kinds of relevant categories.

Q: A question about the relationship of institutionalism and acontextualism. Can one be a formalist about institutional categories?  It seems that Professor Fred Schauer’s approach, which is important for your own, espouses something like this position.  Is there a necessary connection between a focus on institutions and a contextual method?

Read more

Posted on by Mark Movsesian

Wheeler, “How Sex Became a Civil Liberty”

In America, sex has been constitutionalized. In a series  of opinions over several decades, the Supreme Court has held that the Constitution protects sexually explicit speech, contraception, abortion, and, latterly, homosexual conduct. The Court may be about to declare same-sex marriage a constitutional right. All this has put significant pressure upon traditionalist religions. More and more, fights about religious liberty involve the right to dissent — and to act in ways that reflect that dissent — from the legal consensus on sexuality.

How did this conflict develop? A new book from Oxford University Press, How Sex Became a Civil Liberty (2012), traces the role of one particular organization, the American Civil Liberties Union. Leigh Ann Wheeler (Binghamton University) argues that “creative individuals” at the ACLU “wrote sexual rights into the U.S. Constitution, a document that made no mention of them,” and helped change American culture. She does not simply celebrate these developments, however; she “shows how hard-won rights for some often impinged upon freedoms held dear by others.” Here’s the publisher’s description of the book:

How Sex Became a Civil Liberty is the first book to show how and why we have come to see sexual expression, sexual practice, and sexual privacy as fundamental rights. Using rich archival sources and oral interviews, historian Leigh Ann Wheeler shows how the private lives of women and men in the American Civil Liberties Union shaped their understanding of sexual rights as they built the constitutional foundation for the twentieth-century’s sexual revolutions.

Wheeler introduces readers to a number of fascinating figures, including ACLU founders Crystal Eastman and Roger Baldwin; nudists, victims of involuntary sterilization, and others who appealed to the organization for help; as well as attorneys like Read more

Posted on by nelsontebbe · 1 Comment

Government Nonendorsement

Warm thanks to Marc DeGirolami and Mark Movsesian for including me this month.  I am looking forward to participating in this terrific forum.

It is often said among scholars of religious freedom that there is no secular Establishment Clause.  When the government speaks, according to this view, the only real constitutional restriction is the rule against religious endorsement.  So while public officials may not declare that “America is a Christian nation,” they may endorse environmentalism or denigrate smoking.  Religion has special constitutional status in this area, or so it is often assumed.

Likewise, scholars and judges writing about free speech commonly say that the only enforceable restriction on government speech is the rule against religious endorsement.  In the Summum decision, for example, the Supreme Court reiterated that the Speech Clause simply does not apply to government expression, and it implied or assumed that the only other constitutional restriction on official endorsement of ideas is the Establishment Clause.

Is this assumption—which is commonly repeated, although not commonly interrogated—actually correct?   In a draft article available on ssrn, I argue that it is mistaken.  In fact, government speech is properly limited in multiple situations by multiple constitutional doctrines, rooted variously in equal protection, due process, and free speech itself.   To take only the most obvious example, it would be unconstitutional for the government to declare that “America is a White nation,” even if that statement carried no material consequences.  In the piece, I give additional examples concerning electioneering, same-sex marriage exclusions, political gerrymandering, and messages about reproductive decisions.  From these examples, and from the principles supporting them, I derive a constitutional theme called government nonendorsement.

I also draw out implications of this argument for theoretical debates over political morality, free speech, and religious freedom.  With regard to the last, the principle of government nonendorsement bears on the pressing question of whether religion enjoys special constitutional solicitude.  Mostly, my argument supports the position that religion is not special, but it also leaves room for the possibility that some constitutional values barring government expression on religion do not have secular counterparts.

Posted on by Mark Movsesian

Massachusetts High Court to Hear Challenge to Pledge of Allegiance

The Massachusetts Supreme Judicial Court has agreed to hear a challenge to a state law requiring schoolchildren to recite the Pledge of Allegiance. Plaintiffs, a Secular Humanist family with children in Massachusetts public schools, argue that the phrase, “under God,” in the Pledge violates a state constitutional ban on religious discrimination. Eight years ago, in Elk Grove Unified School District v. Newdow, the US Supreme Court dismissed a federal constitutional challenge to the Pledge on the ground that the plaintiff in that case lacked standing. It doesn’t look like standing will be a problem in the Massachusetts case, however, so the Massachusetts court may well reach the merits. Apparently, there is little case law under the state constitution that addresses the question. Can Newdow  provide any guidance? Newdow is noteworthy mostly for Justice O’Connor’s concurrence, arguing that the phrase “under God” would be permissible under the Establishment Clause as a sort of ceremonial deism. It will be interesting to see whether the Massachusetts court adopts similar reasoning under the state constitution. The case is Doe v. Acton-Boxborough Regional School District.

Posted on by Marc O. DeGirolami

USD Institute for Law and Religion: Garnett and Koppelman Debate Religious Liberty

Sorry I’ve been off-line for a bit — we are without power over here and trying to saw our way out of a tree strewn neighborhood — but I wanted to use the generosity of a coffee-shop hotspot to link to a really terrific debate between constitutional titans Rick Garnett and Andy Koppelman hosted by the San Diego Institute for Law and Religion and our friend (who is himself pretty titanic) Steve Smith.  The subject of the debate: “Is Religious Freedom in America at Risk?”  Professor Koppelman is clearly in a feisty, debating mood, as readers may remember that he took on Mike Paulsen over here at St. John’s a few weeks earlier.  You can view the USD debate here.

Posted on by Marc O. DeGirolami

The Tragedy of Religious Freedom — HUP page is up

Just wanted to alert CLR Forum readers that HUP’s page for my book is now up (I’m sure you were all waiting with bated breath).  The process of negotiation over both title and cover art was a very pleasant one, and interesting to go through for the first time from my perspective.  Not that readers can get the book yet, even if they so desired.  But you can be sure that I will prime the pump at each stage of the production!!  In fact, I’m afraid you will all have to suffer through some rank self-promotion over the next few months, so my apologies in advance.

Posted on by JCPW

Laborde on Equal liberty, Non-Establishment, and Religion

Cecile Laborde (University College London) has posted Equal Liberty, Non-Establishment, and Religion. The abstract follows.

Egalitarian theories of religious freedom deny that religion is entitled to special treatment in law, above and beyond that granted to comparable beliefs and practices. The most detailed and influential defense of such an approach is Christopher Eisgruber and Lawrence Sager’s Religious Freedom and the Constitution (2007). In this essay, I develop, elucidate, and show the limits of the reductionist strategy adopted by Eisgruber and Sager. The strategy requires that religion be analogised with other beliefs and practices, according to a robust metric of comparison. I argue that Eisgruber and Sager fail to develop a consistent and coherent metric, and I further suggest that this failure is symptomatic of the broader difficulty encountered by liberal theory in fitting the concept of religious freedom into a broadly egalitarian framework.

Posted on by Mark Movsesian

Religious Organizations and the Affirmative Action Case

In America this week, the big legal news was the Supreme Court’s oral argument in Fisher v. University of Texas at Austin, a case concerning the constitutionality of race-based affirmative action in higher education. This will be the second time in a decade that the Court has addressed this issue, and the case has potentially huge ramifications. It’s not surprising, therefore, that Fisher has drawn great interest. Hundreds (!) of amicus briefs were filed in the case, most of which will be read, if at all, only by hapless law clerks. Among these was a brief from about a dozen religious organizations and campus ministries, including the National Council of Churches, the United Methodists, the Presbyterian Church (USA), the United Church of Christ, the Progressive National Baptist Convention, and the African Methodist Episcopal Zion Church (USA). These organizations, the brief explains, support affirmative action partly for religious reasons: in order to affirm “all persons as equally valuable in the sight of God.” The organizations depend on racial diversity in universities, the brief continues, in order to “fulfill their own missions of helping their members grow in their faith, understanding and compassion; providing the tools their members will need to reach their full potential as individuals in our ever-changing pluralistic society; and cultivating leaders for the next generation.” Secularist organizations such as the Freedom from Religion Foundation and Americans United for the Separation of Church and State strongly protested, asserting that religious organizations had no right to interfere in a matter of public debate in order to advance a narrow sectarian position, or to rely on religious propositions inaccessible to non-believers.

Just kidding about that last part.

Posted on by Mark Movsesian · 1 Comment

Offensive Speech in NYC

Living in New York City, one develops a taste for irony. This past week, residents were treated to an unusually good display. In remarks at the UN on Tuesday, President Barack Obama gave an eloquent defense of American free speech principles, which prohibit government from restricting religiously offensive speech as long as there is no threat of imminent violence. Government may state its own views, however, and President Obama roundly condemned, on behalf of the US Government, “The Innocence of Muslims,” that “crude and disgusting video” that has “sparked outrage throughout the Muslim world.” In a widely quoted passage, the President declared,

The future must not belong to those who slander the Prophet of Islam.  But to be credible, those who condemn that slander must also condemn the hate we see in the images of Jesus Christ that are desecrated, or churches that are destroyed, or the Holocaust that is denied.

Now, as it happens, at a swanky gallery near where President Obama was speaking, an exhibition of Andres Serrano’s Piss Christ, the infamous photograph of a crucifix submerged in a glass of urine, was under way. Neither President Obama nor anyone else in his administration, as far as I know, thought that credibility required them to condemn this particular example of religiously offensive speech. Why not? Because, of course, nobody was complaining about it, much less rioting. (That’s not quite  Read more

Posted on by JCPW

Harris, “The Serpentine Wall: The Winding Boundary between Church and State in the United States”

This January, Transaction Publishers will publish The Serpentine Wall: The Winding Boundary between Church and State in the United States by James F. Harris (College of William and Mary). The publisher’s description follows.

The Serpentine Wall is chronologically structured, befitting a history of church-state separation in the United States. It begins with a history of ideas approach to the European backgrounds and colonial American experiments in theocracy and freedom of religion. It covers pre-modern American debates about religious freedom among the founding generation right up through the nineteenth century. The final section of the book focuses on the separation of church and state and how this has become a matter determined by the Supreme Court.

The resolution of the proper interpretation of the religious clauses of the First Amendment and the course of the boundary between church and state has been slow. Many changes that took place throughout the nineteenth and the first half of the twentieth century have influenced the increasingly circuitous route taken by the Serpentine Wall between the two. The result has been an increased focus on social issues involving questions of interpretation of the establishment and free exercise clauses of the First Amendment.

The founding of the United States was a unique event in human history and the result of factors that are unlikely to be repeated. To understand the founding of a democratic country with a unique arrangement between church and state, it is important to view that development as both a product of and a departure from what had come before. Harris’ interesting, unique, philosophical viewpoint will be important to those interested in how the roles of church versus state have evolved in the United States.