Posted on by Mark Movsesian

Clergy Libel Suits and the Limits of Hosanna-Tabor

At my panel at the Federal Bar Council retreat this past weekend, someone from the audience asked the following question. After Hosanna-Tabor, last term’s Supreme Court decision endorsing the ministerial exception to the employment discrimination laws, what happens to tort claims by clergy against their churches? For example, what if a priest sues his church for defamation? Would Hosanna-Tabor bar such an action?

It turns out this is a real, live case. The New York Times reports that a defrocked Catholic priest, Charles Kavanaugh, has sued the Archdiocese of New York for defamation. Kavanaugh alleges that the archdiocese libeled him when it stated in a recent press release that a church tribunal had found him guilty of multiple counts of sexual abuse. Kavanaugh says this statement is untrue. The details aren’t really important here. The question is whether Hosanna-Tabor bars Kavanaugh’s suit.

The short answer appears to be no. The Hosanna-Tabor Court expressly declined to decide whether the ministerial exception barred “actions by employees alleging . . . tortious conduct by their religious employers.” So the question remains open. Would the logic of the ministerial exception bar a claim like Kavanaugh’s? It wouldn’t seem so. Kavanaugh does not seek to be returned to the ministry or even damages for wrongful dismissal. If he wins, a victory would have absolutely no effect on what Hosanna-Tabor says is the principal concern underlying the ministerial exception: a church’s ability to select those who will lead it and express its message.  Of course, if Kavanaugh’s claim turns on some matter of religious doctrine, for example, whether he was espousing authentic Catholic teaching, that would be different. Civil courts are not going to get entangled in that sort of dispute. But courts should be able to decide a straight-up defamation claim on neutral principles of law. I don’t think Hosanna-Tabor poses a problem here.

Posted on by ddrakeman

Things I Thought I Knew — Part 3: The Antifederalists and Religion

 

In the last few decades, the Antifederalists have surged, partially because they look like the patron saints of small government, and, for our purposes, because they have been held up as recognizing the importance of religion for the health of a republic.

“[M]any Antifederalists,” according to Herbert Storing, “were concerned with the maintenance of religious conviction as a support of republican government.” And he should know. Storing was not only the dean of Antifederalist scholars, he created a 7 volume canon called (perhaps over-optimistically), The Complete Antifederalist.  Since Storing’s book is all about the constitutional debates, it’s hard not to assume that he meant that they were looking for ways for the federal government to support religion.

But, what I found perplexing, when I looked into it, is that even he has trouble documenting his statement about “many Antifederalists.” In all 7 volumes, he only has one Antifederalist, Charles Turner of Massachusetts,” talk about the importance of “Christian piety and morals” to the country.  Storing bolsters this statement with a letter by another Massachusetts writer who wasn’t an Antifederalist, and a Virginia writer who wasn’t talking about the Constitution.

To be sure, many Antifederalists did think religion was important to republican government; they shared that belief with many Federalists. The point is that very few Feds or Antifeds thought it was a federal issue.  At the state level, there had been – and would continue to be – battles over just how much the government needed religion. But what is most impressive about looking for religion in Storing’s Complete Antifederalist is that it’s rarely there – just an occasional comment about protecting religious freedom, and a few statements both for and against a religious test for public office.

In short, the Antifederalists – in their discussions of the federal Constitution – really didn’t have much to say about religion.  If they had thought it was an issue, they probably would have had a lot to say.  But it wasn’t, and they didn’t. So anyone who wants to enlist them in a push for more recognition of the importance of religion at the national level must first remember what is abundantly clear from Storing’s collection — that the Antifederalists didn’t want a “national” (a word they hated) government to have power over anything.

Don Drakeman

Posted on by JCPW

Fleming & McClain, “Ordered Liberty: Rights, Responsibilities, and Virtues”

This November, Harvard University Press will publish Ordered Liberty: Rights, Responsibilities, and Virtues by James E. Fleming and Linda C. McClain (both Boston University School of Law). The publisher’s description follows.

Many have argued in recent years that the U.S. constitutional system exalts individual rights over responsibilities, virtues, and the common good. Answering the charges against liberal theories of rights, James Fleming and Linda McClain develop and defend a civic liberalism that takes responsibilities and virtues—as well as rights—seriously. They provide an account of ordered liberty that protects basic liberties stringently, but not absolutely, and permits government to encourage responsibility and inculcate civic virtues without sacrificing personal autonomy to collective determination.

The battle over same-sex marriage is one of many current controversies the authors use to defend their understanding of the relationship among rights, responsibilities, and virtues. Against accusations that same-sex marriage severs the rights of marriage from responsible sexuality, procreation, and parenthood, they argue that same-sex couples seek the same rights, responsibilities, and goods of civil marriage that opposite-sex couples pursue. Securing their right to marry respects individual autonomy while also promoting moral goods and virtues. Other issues to which they apply their idea of civic liberalism include reproductive freedom, the proper roles and regulation of civil society and the family, the education of children, and clashes between First Amendment freedoms (of association and religion) and antidiscrimination law. Articulating common ground between liberalism and its critics, Fleming and McClain develop an account of responsibilities and virtues that appreciates the value of diversity in our morally pluralistic constitutional democracy.

Posted on by ddrakeman

Things I Thought I Knew — Part 2: The Simple Cobbler from Connecticut

American statesman Roger Sherman is best known to us for not being very well known.  We find him mostly in collections of works by “Forgotten Framers.”  Or, for those of us raised in the era of the Broadway play and film, 1776,  he is “just a simple cobbler from Connecticut,” whose intellect isn’t up to helping draft the Declaration of Independence.

Mark David Hall’s excellent new book, Roger Sherman and the Creation of the American Republic (2012), shows us what we’ve been missing by focusing too much attention on the more famous founders.  Hardly just a simple merchant, Sherman was smart, articulate and thoughtful, and he was a deeply religious and intellectually engaged Calvinist in the New England tradition. Sherman’s Reformed Protestant faith was not only important to him, but, thanks to Sherman and his New England colleagues, it ended up contributing as much to American nation-building as the much more commonly credited Enlightenment.

Meanwhile, the original “simple cobbler” from New England is always worth revisiting.  Nathaniel Ward was a Puritan minister who wrote, under a pseudonym, a satiric 1646 essay titled, “The Simple Cobbler of Aggawam in America.”  The Simple Cobbler sets out a New England view of religious toleration not long after Roger Williams was banished, as follows:   “Antinomians, Anabaptists, and other Enthusiasts shall have free Liberty to keep away from us, and such as will come to be gone as fast as they can, the sooner the better.”

Don Drakeman

Posted on by ddrakeman

Things I Thought I Knew — Part 1: Supreme Court Facts

When I was teaching an undergraduate research class on the Constitution, I would sometimes give the students this assignment:  Find a Supreme Court opinion making a constitutional argument that relies on a factual statement.  Then go do the research and see if the facts that are necessary to the argument are accurately stated.  At the outset, I thought the Court’s batting average would be pretty high, but that wasn’t necessarily the case.

Take, for example, the Everson case where Justice Rutledge read the establishment clause in light of James Madison’s Memorial and Remonstrance because of Madison’s “authorship” of the religion clauses and the fact that the First Amendment was the “direct culmination” of the struggle for religious freedom in Virginia.

Does the documentary record support Rutledge’s factual claims about the religion clauses?  The answer, at least in my view, is somewhere between “no” and “not really.”  But this isn’t just an academic research exercise or a chance to say, “Gotcha.”  It’s a question about what makes a persuasive constitutional argument.

This what-are-the-real-facts issue might seem to be narrowly focused on originalist arguments, since they need to cite the historical record showing the Constitution’s original meaning (whether they are “Old” Originalist arguments focused on the framers or “New” Originalist ones about the “public meaning” of the text).  But even non-originalist justices sometimes rely on economics, sociology, psychology and other academic fields.  In those cases, we can ask whether the justices are fairly representing the state of scholarship, or are they engaging in a bit of “law office social science.”

So what if the Court is wrong, or if, perhaps, it over-interprets a bit?  That’s a deeper question, but I tend to side with the distinguished Princeton professor, Edward Corwin, who said (in 1951) in connection with the Supreme Court’s landmark church-state cases, “the Court has the right to make history [but] it has no right to make it up.

Don Drakeman

Posted on by Mark Movsesian

Calabresi and Salander on Religion and the Equal Protection Clause

Here’s an important new paper,  Religion and the Equal Protection Clause, arguing that the Fourteenth Amendment independently forbids state action that discriminates on the basis of religion, even without incorporation of the First Amendment’s Establishment and Free Exercise Clauses. Steve Calabresi (Northwestern) and a student co-author defend this novel claim by looking to the Fourteenth Amendment’s original meaning. They also reference trends in foreign constitutional and international human rights law. (Originalism and comparative constitutionalism – there’s an unusual combination). The wide-ranging and provocative paper also argues that public education, as currently funded, is unconstitutional. Here’s the abstract:

This article argues that state action that discriminates on the basis of religion is unconstitutional under the Equal Protection Doctrine even if it does not violate the Establishment Clause or the Free Exercise Clause as incorporated by the Fourteenth Amendment. State action that discriminates on the basis of religion should be subject to strict scrutiny and should almost always be held unconstitutional. We thus challenge the Supreme Court’s recent decision in Christian Legal Society v. Martinez in which a 5 to 4 majority of the Court wrongly allowed a California state school to discriminate against a Christian Legal Society chapter on the basis of religion. We defend our argument that the Fourteenth Amendment bans Read more

Posted on by ddrakeman

Things that Aren’t on Enough Church-State Syllabi — Part II: Never on Sunday?

The first major nationwide battle over church and state didn’t take place when the First Amendment was adopted.  It happened decades later in the 1830s, and it involved the agency employing 75% of the U.S. government’s civilian workforce – the Post Office.  Congress required mail delivery seven days a week, and a coalition of prominent Presbyterian, Congregationalist, Baptist and other churches led the charge to make sure that the nation (in their view, a Christian nation) lived up to its obligations under the 4th Commandment.  Richard John’s beautifully written, Spreading the News (1995), tells the story brilliantly.

The Sabbatarian side can best be found in Jasper Adam’s essay, “On the relation of Christianity to civil governments,” found in Daniel Dreisbach’s excellent, Religion and Politics in the Early Republic: Jasper Adams and the Church-State Debate (1996):  In light of the “close relation between religion and Government that had always  existed” in the states, Adams concluded that it was “unlikely” that the Founders would “lay aside all connection with Christianity in the general institutions to which they gave birth . . . Though a strong aversion had arisen to the national establishment of any one form of Christianity, none had grown up against a  distinct recognition of Christianity itself as a religion of the nation.”

Colonel (later, Vice President) Richard Johnson chaired the relevant congressional committees, and he released sharply worded, largely anticlerical, reports that don’t really talk about the establishment clause or any other specific part of the Constitution.  The spirit of the Constitution, however, is clearly stated:  “The Constitution regards the general government in no other light than that of a civil institution, wholly destitute of religious authority.”  In a nice bit of irony, the official congressional reports were actually ghostwritten by Johnson’s Washington landlord, a Baptist minister named Obadiah Brown.

Here was the big church-state fight that we sometimes pretend happened when the establishment clause was adopted.  When it finally occurred forty years later, the first round went to the separationists.  But, the Sabbatarians never gave up, and they shut down the Sunday mails for good in 1912.  American’s competing church-state views seem to be so deeply rooted that these kinds of disputes – perhaps like the 20th century school prayer arguments – can literally endure for generations, if not centuries.

Don Drakeman

Posted on by Marc O. DeGirolami

Garnett on the Virtues of Waiting

Have a look at our friend Rick Garnett’s short article at Commonweal on the the dangers of executive overreach — in this as well as prior presidential administrations — in response to the generally salutary frustrations of constitutionalism.  A bit from Rick’s essay:

The apparent urgency of these challenges prompts many to contend, understandably enough, that we have to act now and dramatically, that something bold must be done, that progress matters more than process, and that—in the words of one of President Barack Obama’s campaign themes—“we can’t wait.”

Last October, for example, after Congress responded coolly to his proposed jobs bill, the president promised—or warned—“If Congress won’t act, I will.” And he has. In a variety of contexts, he has moved on policy and personnel in ways designed to avoid the time-consuming gridlock that sometimes results from procedures mandated and constraints imposed by the Constitution. That document prescribes how high-ranking federal officials are to be appointed and gives the Senate a role in that process. The president—like, but to a greater extent than, other recent presidents—has avoided that check by creating a stable of “czars,” whose selection and portfolios are generally not reviewed by legislators. He has also outdone his predecessors in exploiting the Constitution’s authorization of “recess appointments” to install controversial appointees in powerful positions. Rather than wait for Congress to revise unpopular requirements of the No Child Left Behind law, he has offered to waive those requirements on the condition that states adopt practices, standards, and guidelines supported by his administration. Like other presidents, he has used both executive orders and the administrative-rulemaking process to implement substantive policies that the Republican-controlled House of Representatives would likely reject. And, in a widely criticized effort to leap over the jurisdictional limits imposed by the First Amendment, his administration argued before the Supreme Court that the Constitution’s religious-freedom guarantees should not stand in the way of anti-discrimination lawsuits brought by ministerial employees against religious institutions.

Again and again, we hear the same rationale: “If Congress won’t act, I will,” because “we can’t wait.” This should worry, not rally. In the politics of a free society committed to the rule of law, we (usually) can wait, and even when it seems like we can’t, we sometimes have to. It is easy, but mistaken and dangerous, to equate disagreement with bad-faith obstructionism, and to cast one’s own side as an enlightened vanguard, empowered by this or that emergency to do whatever it takes to achieve unity, to make progress, to bring about change. In this election season, though, what is needed—from candidates and citizens alike, and on both the left and right—is humility, restraint, and patience. These are more than useful life skills. They are constitutional virtues.

Posted on by Marc O. DeGirolami

Federal Court Denies Preliminary Injunction Against County Legislative Prayer

Another skirmish in the legal contests about the constitutionality of legislative prayer — this time in a thoughtful district court decision.  The plaintiff sued a local Tennessee County to stop it from beginning its regular meetings with a prayer.  The stipulated facts indicated that prayers were given by members of various faiths through the years, but that “[s]ome of the invocations ‘referred to a deity in a way consistent with the Christian faith.'”  Most recently, the Lord’s Prayer was recited, and several commissioners “stood and joined in the spoken recitation of the prayer.”  After these incidents, the County adopted a policy indicating that its list of invocation-givers is drawn from a variety of religious traditions and is entirely voluntary, and that legislative prayer has been held by the Supreme Court in Marsh v. Chambers to be constitutional.  The Freedom From Religion Foundation nevertheless sued, seeking a preliminary injunction to stop the County from conducting the prayers pursuant to the policy and alleging a violation of the Establishment Clause.

The United States District Court for the Eastern District of Tennessee denied the preliminary injunction.  After remarking on the extremely murky status of the Lemon Test (and I loved this quote from a Sixth Circuit opinion: “[W]e remain in Establishment Clause purgatory.”), the court held that in the specific context of legislative prayer, the Lemon Test “simply does not apply.”  Instead, Marsh v. Chambers is the standard, in which the Supreme Court engaged in a historical examination of the practice of legislative prayer, concluding that it is “deeply embedded in the history and tradition of the country.”  The court quoted this specific language from Marsh:

Beyond the bare fact that a prayer is offered, three points have been made: first, that a clergyman of only one denomination—Presbyterian—has been selected for 16 years; second, that the chaplain is paid at public expense; and third, that the prayers are in the Judeo–Christian tradition. Weighed against the historical background, these factors do not serve to invalidate Nebraska’s practice. 

The court recognized that Marsh’s holding had been qualified in City of Allegheny v. ACLU (a religious display case, not a legislative prayer case), where the Supreme Court had some limiting things to say about the force of history and tradition.  But the Sixth Circuit has not (yet) decided a case specifically about the constitutionality of legislative prayer.

In light of the holding and dicta in Marsh, as well as the recent legislative prayer decisions in the Second Circuit (discussed here), Fourth Circuit (particularly Joyner v. Forsyth County), and the Eleventh Circuit (Pelphrey v. Cobb County), the court distilled several broad “themes” relating to the constitutionality of legislative prayer:

  1. “[L]egislative prayer has a unique and well-established history that, relative to the First Amendment, renders it unlike other types of government conduct. It presents a sui generis legal question[.]”
  2. “I]n large measure due to the unique historical place it occupies, legislative prayer is, in general, permissible . . . . Legislatures may call upon—or even employ—ordained ministers to invoke divine guidance on a group of elected officials . . . . [T]o the extent a clear message can be heard from Marsh, it is this: as a basic legal principle, the Establishment Clause is not offended if a legislature formally invokes divine blessings on its official business.
  3. “[D]espite its marked differences from other governmental involvement with the sacred, a legislature’s ability to call on the divine at public meetings is not limitless. Historical patterns, standing alone, cannot justify violations of constitutional guarantees, and the government may not express its allegiance to a particular sect or creed . . . . It is for that reason that the prayer opportunity cannot be used to proselytize listeners . . . . Likewise, such prayer practices may not be used to advance any one belief or to disparage any other . . . . Even when operating under a facially neutral policy, a legislature may not select invocational speakers based on impermissible motives or sectarian preferences.” 

Applying these themes, the court held that the County’s policy did not, on its face, violate the Establishment Clause.  The policy specifically states that it is not intended to proselytize or to promote any particular religion.  It is inclusive in its scope, extending to all religious congregations with an established presence in the County and open to all that wished to be included.  The court rejected as speculative and “unripe” FFRF’s allegation that the Policy is “a sham” and that, when applied, it will certainly be unconstitutional.  Neither, however, does the County’s policy insulate it from further review down the road.

The case is Jones v. Hamilton County, 2012 WL 3763963 (E.D. Tenn. Aug. 29, 2012).

Posted on by JCPW

Day & Diaz on The Affordable Care Act and Religious Freedom

Terri Day & Leticia M. Diaz (Barry U. Dwayne O. Andreas School of Law) have posted The Affordable Care Act and Religious Freedom: The Next Battleground. The abstract follows.

This article presents a comprehensive analysis of the Health and Human Services (HHS) Mandate, which is the controversial required insurance coverage for preventative and wellness services, which include all FDA approved contraceptives, sterilizations, and related patient education and counseling. Failure to provide this coverage will result in an employer penalty. Non-exempt religious employers/insurers contend that this Mandate requires them to violate their freedom of conscience or suffer a penalty. The article discusses the religious reaction to the Mandate and provides a thorough legal analysis of the constitutional issues. Based on the recent health care decision and the likelihood that the Supreme Court will apply strict scrutiny review as required by the Religious Freedom Reformation Act, the authors conclude that the HHS Mandate will not likely pass constitutional muster.