Posted on by Mark Movsesian

Religious Arbitration and the Church of Scientology

CLR Forum friend (and soon to be CLR Forum Guest) Mike Helfand has a very interesting post on PrawfsBlawg about a Florida court decision this month upholding an arbitration agreement between the Church of Scientology and two of its former members. The former members, whom the church expelled last year, alleged that the church had wrongfully retained more than $27,000 the members had given it. The church argued that this dispute fell within an arbitration agreement the former members had signed when they joined the church — there’s an interesting rite of initiation — and the court agreed. The former members would have to submit to arbitration, notwithstanding the fact that all the arbitrators, according to the agreement, must be Scientologists in good standing.

Mike’s post addresses the interesting First Amendment issues that lurk here, particularly the intersection with the church autonomy doctrine. Under the Federal Arbitration Act, he notes, a court can vacate an arbitration award that is tainted by fraud, misconduct and collusion. Under the church autonomy doctrine, however, it’s not so clear. Mike reads Supreme Court cases like Serbian E. Orthodox Diocese v. Milivojevich as insulating religious arbitration from judicial review for fraud and collusion. Milivojevich concerned the disciplining of a bishop, though, and I wonder if the Court would extend its language beyond the ministerial context – a question I’m sure Mike will address in subsequent posts.

Posted on by Marc O. DeGirolami

Davie on Law, Sociology, and Religion

I missed this when it came out a few months ago — Grace Davie’s Law, Sociology, and Religion: An Awkward Threesome — in the Oxford Journal of Law and Religion.  Like all of the journal’s content at present, it is available for free.  And our readers will want to check out this piece.  Here is the opening of Professor Davie’s extremely interesting article:

Lawyers are increasingly interested in religion—for good reason. Religious disputes demand the attention of legal experts—an interest that is likely to grow given that almost all of us live in religiously diverse societies, in which effective forms of co-habitation have to be established and regulated. Sociologists, initially distracted by the assumption that modernization implied secularization, are similarly inclined, spurred on by the presence of religion in public as well as private debates. No longer is it possible to relegate religion to the sidelines of social science. Sociologists, finally, have always been interested in the law—recognizing that the law and law-making reflect the changing nature of society.  The interpretation of law, conversely, sharpens the issues at stake and becomes itself an important factor in social change.

All that said, these can be difficult conversations. Lawyers and sociologists are differently trained and ask different questions about religion, as indeed about everything else. They do not always listen to each other. Lawyers, for example, create and interpret legal frameworks, some of which deal with religion; they are less interested in the messy realities of lived religion as this is experienced in everyday life. If it is one thing to deem certain forms of religion to be legally acceptable and others not, it is quite another to grasp the implications for the individuals and communities, that fall—at times arbitrarily—on one side of the line or the other. Why, for example, do certain religious movements fare better in some parts of Europe than in others? Clearly this has nothing to do with the religious movements themselves, and everything to do with the understandings of tolerance and toleration in the host society, and the historical specificities that lie behind this. Legal judgements must be placed in context.

Professor Davie is surely right to say that lawyers, sociologists, and religious studies scholars are pursuing very different sorts of inquiries and projects, and she is surely also right to say that they nevertheless can learn a great deal from one another.

Posted on by Marc O. DeGirolami

Classic Revisited: Stoner, “Common-Law Liberty”

One of the books that I’ve learned most from in the last few years is James R. Stoner’s terrific Common-Law Liberty: Rethinking American Constitutionalism (2003).  Stoner’s thesis is not only that American constitutional law cannot be understood well without reference to the common law tradition, but that “the common law is a key guide to understanding the fundamental principles of our Constitution and a guide for deciding contemporary constitutional cases.”  Common-law constitutionalism has been taken in different directions in recent years (see, e.g., David Strauss’ interesting work).  But it is in Stoner that, in my view, one sees the purest and most convincing expression of common-law constitutionalism.

Here is a particularly insightful passage from the book (at 59) dealing with common-law constitutionalism with respect to the religion clauses.

To attend to the common-law moment in exploring the law of free exercise is, in other words, to examine as a source of law the American experience of religious liberty, as it can be collected from constitutions and statutes, and even from the laws and traditions of particular churches.  Obviously, these various sources of law will not weigh equally in a court’s determination of a particular dispute before it, but it is characteristic of common law to determine the applicability of rules in the context of the facts of the instant case, not to seek a single rule or theory to encompass all imaginable cases.  It is, for example, not irrelevant to such a consideration that common law itself arose in a particular religious context . . . . Nor is it irrelevant to such a consideration that American circumstances with regard to religion, at the time of the Founding and perhaps still today, are unique, and that those circumstances vary markedly from state to state.  To recommend a common-law perspective, then, is to suggest avenues of inquiry rather than to propose a ready theory.  Yet it does suppose a certain openness to experience, both in its deference to the wisdom collected in tradition and in its willingness to entertain the possibility of a genuinely new and unanticipated case. 

Posted on by Marc O. DeGirolami

Justice John Marshall Harlan on Education and Religion

In my constitutional law class, we are studying a very interesting case, Berea College v. Kentucky (1908).  The case involved a private religious college which wished to teach white and African American students together; this was criminalized at the time by the state of Kentucky, which had enacted a statute forbidding any educational institution from integrated teaching.  The statute was upheld on a narrow ground by the Court, and Justice John Marshall Harlan (the first), himself a Kentuckian, dissented (as, of course, he often and famously did).

I reproduce below an interesting and, in my view, constitutionally provocative law-and-religion passage from Harlan’s dissenting opinion:

The capacity to impart instruction to others is given by the Almighty for beneficent purposes; and its use may not be forbidden or interfered with by government, — certainly not, unless such instruction is, in its nature, harmful to the public morals or imperils the public safety . . . . If the common-wealth of Kentucky can make it a crime to teach white and colored children together at the same time, in a private institution of learning, it is difficult to perceive why it may not forbid the assembling of white and colored children in the same Sabbath school, for the purpose of being instructed in the Word of God, although such teaching may be done under the authority of parents of the children.  So, if the state court be right, white and colored children may even be forbidden to sit together in a house of worship or at a communion table in the same Christian church.  In the cases supposed there would be the same association of white and colored persons as would occur when pupils of the two races sit together in a private institution of learning for the purpose of receiving instruction in purely secular matters.  Will it be said that the cases supposed and the case here in hand are different, in that no government, in this country, can lay unholy hands on the religious faith of the people?  The answer to this suggestion is that, in the eye of the law, the right to enjoy one’s religious belief, unmolested by any human power, is no more sacred nor more fully or distinctly recognized than is the right to impart and receive instruction not harmful to the public.  The denial of either right would be an infringement of the liberty inherent in the freedom secured by the fundamental law.

Posted on by Marc O. DeGirolami

Shinar & Su on Analogies Between Religious Law and Foreign Law

Adam Shinar and Anna Su, both SJD students at Havard Law School, have written a provocative paper, Religious Law as Foreign Law in Constitutional Interpretation.  Unfortunately only the abstract is available at present, but those wishing to see the paper in full should contact the authors.  The abstract is below, followed by some little thoughts about the piece.

This article challenges the conventional understanding of the separation of church and state by arguing that there is no analytical or constitutional problem with using religious law for the purpose of constitutional interpretation. We situate our arguments within the context of the broader debate on the use of foreign law in constitutional interpretation, and the more recent controversy surrounding the proposed bans on the use of religious law in U.S. state courts. By examining the arguments for and against the use of foreign law, we show how they equally apply to the use of religious law. More importantly, we conclude that differences between foreign law and religious law are, at best, differences of degree rather than kind, and thus do not militate against the use of religious law in constitutional interpretation. The article demonstrates that religious law can be used, and in fact, has already been used by the Supreme Court for four limited purposes, none of which, we argue, offends the principles underlying the Establishment Clause.

The paper begins by considering several criticisms that are made of the use of foreign law in constitutional adjudication — relevance, selectivity and accuracy, and political legitimacy — and it argues that each of these criticisms is equally applicable conceptually to religious law.  The paper then addresses each of these criticisms as applied to foreign/religious law; it takes a quite strong view that each of the criticisms misfires.  

The most interesting and effective part of the paper (for me) deals with the possible Establishment Clause distinction between reliance on foreign law and reliance on religious law.  The authors write:

[N]otwithstanding the recent shift from the strict separationist view that was the logical byproduct of the Jeffersonian wall to the accomodationist view that started with the move to the endorsement theory of the Clause, it did not stop the often obscured fact that the Supreme Court has regularly referred to religious laws in its decisions.  Thus, the Court could cite both the New Testament and Mosaic Law in interpreting the Treason Clause,  the Sixth Amendment, the Fourth Amendment,the Due Process Clause,and also for prescribing guidelines for criminal sentencing.  In the controversial case of Miranda v. Arizona,the Court traced the roots of the privilege against self-incrimination, and cited the teaching of Maimonides, a 13th century rabbi and one of the greatest exponents of Jewish law, tounderscore its historical importance.

The authors then list four possible uses to which religious law might be put in a judicial opinion — to show historical genesis, as interpretive reinforcement, for evidentiary purposes, and as persuasive authority.  They claim that none of these uses — even the last — is problematic under the Establishment Clause. 

Posted on by Marc O. DeGirolami

The Immanent Frame on the HHS Mandate

I enjoy reading The Immanent Frame blog because it offers insight to a non-specialist like me in the fields of the sociology of religion, religious studies, the political science of religion, the anthropology of religion, and many other areas of importance to law.  It is in general a terrific blog.

That is why I was disappointed overall by the opinions about the legal implications of the HHS mandate offered by a panel of experts assembled by the editors there.  Of course, there are many things to discuss with respect to the mandate, and law is only one of those things.  It would have been interesting to see the opinions generated by a panel which wanted to discuss those other things.  But the panelists, only one of whom is a lawyer, seem actually to want to discuss law in their opinions: many of them talk about the Constitution, religious accommodation, religious liberty, and legal rights.  The problem is that when they talk about religious liberty or the Constitution, they are often dismissive or derogatory, but they say close to nothing about what the law actually is.  There are some references to the Hosanna-Tabor case (which has almost nothing to do with the issues here) and to a corporate speech case (which has exactly nothing to do with the mandate).   

One commentator — Professor Kathleen Sands — does talk about law, but what she says unfortunately is incorrect.  Here is a portion of Professor Sands’s comments:

Consider that “religion,” here, excludes even most Catholics. It discounts Catholic women (most of whom use contraception) and the Catholic Health Association, which accepted the Obama compromise. It discounts the vast majority of all American women, for whom the decision to use contraception is a matter of conscience. “Religious liberty” won’t help them if they work for a Catholic employer and, in fact, will deny them a benefit to which they’re legally entitled. Indeed, this “religious liberty” contradicts current jurisprudence, which clearly states that the Constitution does not provide “religious exemptions” to generally applicable laws.

I’ll confine my comments to the statements about the law, which are wrong in several respects.  Current jurisprudence, assuming that is taken to include federal and state statutes and cases interpreting those statutes, unequivocally does provide exemptions from generally applicable laws, provided the claimant can show that the law substantially burdens its religious exercise and the state cannot show both that it has a compelling interest in enforcing the law and that it has selected the least restrictive means of enforcing the law.  These statutes apply against the government, not against individual private employers.  So for a claim of “religious liberty” to apply, the claim must be made against the government; if anybody has such a claim (including, of course, the specific people that Professor Sands mentions), current jurisprudence, in the form of certain statutory provisions, may well recognize it.

Professor Sands’s statement is also potentially misleading with respect to constitutional law proper.  It is potentially misleading because if Professor Sands means that the Constitution does not permit such accommodations, she is wrong.  If instead Professor Sands means that the Constitution does not require such accommodations, she is correct, but only on the condition that the law is truly neutral and of general application.  That proposition is currently being litigated, and we will see what courts hold.  If they hold that the law is not truly neutral and of general application, then, again, current jurisprudence says that accommodations for religious free exercise are required, provided that the claimant can satisfy the burden-shifting framework described above.

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Denk on the Eighth Amendment, Catholic Teaching and Death Penalty Discourse

Kurt M. Denk, S.J. (Boston College Law School) has posted Jurisprudence that Necessarily Embodies Moral Judgment: The Eighth Amendment, Catholic Teaching, and Death Penalty Discourse. The abstract follows.

Despite obvious differences, certain historical and conceptual underpinnings of Catholic death penalty teaching parallel core elements of U.S. death penalty jurisprudence, particularly given the Supreme Court’s expansive yet contested moral reasoning in Kennedy v. Louisiana, which stressed that Eighth Amendment analysis “necessarily embodies a moral judgment.” This Article compares that jurisprudence with the Catholic Church’s present, near-absolute opposition to capital punishment, assessing how the death penalty, as a quintessential law and morality question, implicates overlapping sources of moral reasoning. It then identifies substantive concepts that permit Eighth Amendment jurisprudence and the Catholic perspective to be mutually translated, presenting this approach as a means to advance death penalty discourse.

Posted on by Marc O. DeGirolami

On the Uses of the Epigraph

“Should Federal Judges Cite the Bible as Authority for Constitutional Decisions?”  That is the question Professor Richard Pildes asks over at Balkinization.  The occasion for asking it is a concurrence by Judge Calabresi in Ognibene v. Parkes, decided by the Second Circuit earlier this year — a case about campaign finance and the First Amendment, in which Judge Calabresi criticizes the Citizens United decision.  In that concurrence, Judge Calabresi uses Luke 21:1-4 as an epigraph for his opinion.

I am not certain that I agree with Professor Pildes that this qualifies as reliance on the Bible as “authority” for a constitutional decision, at least unless the modifier “persuasive” is added.  But even “persuasive authority” is not quite right.  The body of Judge Calabresi’s concurrence discusses American constitutional caselaw alone, and it seems to me that this provides the “authority” for his opinion.  In his post, Prof. Pildes describes the use of the epigraph as providing “normative support” for Judge Calabresi’s views, and this seems closer, though also not exactly right.

I have always thought that epigraphs are not argument.  They are not even suggestions of argument.  Their function is to orient the reader obliquely toward a certain mood or manner of thinking.  In fact, the elegance of the epigraph consists exactly in refraining from doggedly hitting the reader over the head with argumentative authority.  “Authority” is hardly the point.

All the same, I found some of the thoughtful questions that Professor Pildes asks about the uses to which epigraphs with religious origins may be put, and by whom, and in what circumstances, and with what political valences, extremely interesting.

Posted on by Mark Movsesian

Administration Did Not Consult Justice Department on Revised Contraception Mandate

I’m sure some readers will think of this as inside baseball, but it’s actually rather revealing. In response to questioning from Orrin Hatch (R-Utah) at yesterday’s Senate Finance Committee hearing, HHS Secretary Kathleen Sibelius admitted that HHS had not sought a legal opinion from the Justice Department before issuing last week’s “compromise” mandate on employer contraceptives coverage. Here’s the exchange, as relayed by the Deseret News, a Utah paper:

“The President’s chief of staff and press secretary have claimed that this mandate is consistent with the First Amendment, and the final rule you issued last Friday states that it is consistent with the First Amendment and the Religious Freedom Restoration Act . . . . Let me just ask you again, did HHS conduct or request any analysis of the constitutional or statutory religious freedom issues?” Hatch asked Sebelius. . . .

“Well we certainly had our legal department look at a whole host of legal issues,” Sebelius said.

Sebelius also acknowledged that she had not contacted the Justice Department for an opinion, which would be a common practice when facing a delicate constitutional question.

Hatch asked her, “Did you ask the Justice Department?”

“I did not. No sir,” she replied.

As the report suggests, executive departments and agencies routinely request the advice of the Justice Department on proposed regulations that implicate serious constitutional and statutory questions. In fact, a specific office at Justice, the Office of Legal Counsel, handles such requests, often on an urgent, rush basis (I know, I used to work there). So it really is remarkable that HHS did not seek OLC’s views on legal questions of this magnitude. It suggests that the Administration does not take these questions seriously, an attitude that may come back to haunt it — after the November election, of course.

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Schwartzman on Questioning the Special Treatment of Religion

Micah Schwartzman  (U. of Virginia School of Law) has posted What if Religion is not Special? The abstract follows.

This Article argues that leading accounts of the First Amendment’s Religion Clauses fail to provide a coherent and morally attractive position on whether religion warrants special treatment as compared with secular ethical and moral doctrines. Focusing on two central issues involving whether laws must have a secular purpose and whether religious exemptions are constitutionally mandatory, this Article rejects existing theories as either theoretically inconsistent or substantively mistaken. If religion does not warrant special treatment, then it is important to ask what our attitude should be toward the Religion Clauses. Under originalist theories of constitutional interpretation, the Religion Clauses should be considered morally regrettable. Under non-originalist theories, there may be interpretations of the constitutional text that allow for the possibility of moral reconciliation. Either way, rejecting the idea that religion is special requires reassessing our understanding of the Religion Clauses.