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Williams (ed.), “Social Difference and Constitutionalism in Pan-Asia”

Next month, Cambridge will publish Social Difference and Constitutionalism in9781107036277 Pan-Asia, edited by Susan H. Williams (Indiana University). The publisher’s description follows.

In many countries, social differences, such as religion or race and ethnicity, threaten the stability of the social and legal order. This book addresses the role of constitutions and constitutionalism in dealing with the challenge of difference. The book brings together lawyers, political scientists, historians, religious studies scholars, and area studies experts to consider how constitutions address issues of difference across “Pan-Asia,” a wide swath of the world that runs from the Middle East, through Asia, and into Oceania. The book’s multidisciplinary and comparative approach makes it unique. The book is organized into five sections, each devoted to constitutional approaches to a particular type of difference – religion, ethnicity/race, urban/rural divisions, language, and gender and sexual orientation – in two or more countries in Pan Asia. The introduction offers a framework for thinking comprehensively about the many ways constitutionalism interacts with difference.

Posted on by Marc O. DeGirolami

A Column on Legislative Prayer

I have a short column up at Commonweal on Town of Greece v. Galloway (which the Supreme Court is now considering) and the general question of the constitutionality of legislative prayer.

Posted on by Mark Movsesian

Joint Colloquium on Law and Religion

This semester, the Center for Law and Religion at St. John’s and Villanova Law School are teaming up to host the Joint Colloquium in Law and Religion. The course invites leading law and religion scholars to make presentations to an audience of selected students and faculty. The schools will be connected in real time by video link so that students and faculty at both schools can participate in a virtual classroom experience. At St. John’s, the colloquium will be hosted by Mark Movsesian and Marc DeGirolami, the Director and Associate Director of the Center. Vice Dean and Professor Michael Moreland will host at Villanova.

The following speakers have confirmed:

January 27, 2014 (at St. John’s)
Michael Walzer, Institute for Advanced Study
The Ethics of Warfare in the Jewish Tradition

February 10, 2014 (at Villanova)
Sarah Barringer Gordon, University of Pennsylvania Law School
The African Supplement: Religion, Race, and Corporate Law in the Early Republic

February 24, 2014 (at St. John’s)
Kent Greenawalt, Columbia Law School
Original Understanding: What is Relevant and How Much Does It Matter?

March 17, 2014 (at St. John’s)
Donald L. Drakeman, Cambridge University
Which Original Meaning of the Establishment Clause is the Right One?

March 31, 2014 (at St. John’s)
Kristine Kalanges, Notre Dame Law School
Transcendence and the Just Order

April 14, 2014 (at Villanova)
Steven D. Smith, University of San Diego Law School
Topic TBD

For more information, or if you would like to attend any of the sessions, please email one of the colloquium’s organizers:

Marc DeGirolami | degirolm@stjohns.edu
Mark Movsesian | movsesim@stjohns.edu
Michael Moreland | moreland@law.villanova.edu

Posted on by Perry Dane

The Polygamy (aka “Religious Cohabitation”) Decision

Just a few words about the decision a few days ago in Brown v. Buhman, in which a federal district court judge in the District of Utah struck down a portion of Utah’s bigamy statute.

The Utah statute provides that:

A person is guilty of bigamy when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person.

At its core, this statute, like all bigamy statutes, criminalizes knowing efforts by a married person to enter into another state-licensed, state-sanctioned, marriage.  Such marriages are both criminally punishable and void.  (This might seem like a paradox, but it’s not.  Many illegal contracts are both punishable and void).  But in the light of Utah’s distinct history with polygamy, both the language of the statute and its interpretation by courts go a step further than most other states:  They also seek to punish persons who “purport to marry” even by entering into purely “private” or religious marriages. without trying to get a license, and without demanding any legal benefits or rights from the state.  On the other hand, the Utah courts have also held that the statute only covers relationships that hold themselves out to be “marriages” of one sort or another.  Thus, despite the “cohabitation” language, the statute does not cover simple adultery, even when the adulterers live together.  Nor does it cover someone like Hugh Hefner, who often lived with several women in one household, but was never married (or held himself out to be married) to more than one at a time.

The district court upheld what I’m calling the core application of the statute.  It really had no choice given Reynolds v. United States, the famous 1879 United States Supreme Court decision that denied Mormon polygamists religion-based exemptions from territorial bigamy laws.  But the district court struck down the extended application of the statute.  It held that (1) the state had no legitimate interest trying to regulate purely “religious cohabitation” and (2) that the law unconstitutionally discriminated between such “religious cohabitation” (in which the parties held themselves out to be in some sense “married”) and other extra-marital or multiple-partner arrangements.

I don’t want to discuss the opinion at length here.  I don’t want to discuss whether the district court played fast and loose with the precedents.  Nor do I want to discuss whether there should be a constitutional right to religiously-based polygamy.  

But I do think one point deserves emphasis:  This opinion is yet another instance of a serious and damaging failure, which I’ve discussed in other contexts here, here, and here, to appreciate the distinctively interwoven, intertwined, character of marriage in the United States.  Marriage as we know it carries a complex combination of governmental, religious, cultural, sociological, psychological, and maybe even “natural” meanings.  And those meanings have never been, and probably cannot be, kept hermetically sealed off from each other. Read more

Posted on by Marc O. DeGirolami · 1 Comment

Bartrum on Religion and the Restatements

Here’s a very interesting piece by Ian Bartrum (UNLV) on the ways in which the Restatements of Law (assembled by the American Law Institute, the Restatements aim to condense and synthesize bodies of law) incorporate or otherwise treat religion, and how they might do so more effectively. Because the abstract is very short, but because there is a request not to cite from the paper, I’ll just say quickly that Ian divides up the treatment of religion into two components which correspond roughly to the two guarantees of religious freedom under the religion clauses. There are provisions in various Restatements that approach religion as a matter of “natural” or fundamental right (as in the Restatement of Foreign Relations and in the Restatement of Servitudes [who knew that there was a Restatement of Servitudes!?]). But there are other provisions that seek to avoid judicial entanglement in issues of personal or institutional autonomy–such as in the “Principles of the Law of Family Dissolution” involving the religion of children of divorced couples and the extent to which courts should involve themselves in making comparative judgments about religions–reflecting familiar establishmentarian concerns.

After considering several examples where the Restatements seem to evince cross-cutting views about religion, Prof. Bartrum notes a few places where the Restatements might give greater (or even some) attention to religion. The Restatement of Torts, for example, might attend to some of the recent issues involving church autonomy and the ministerial exception. And the Restatement of the Conflict of Laws might consider some of the recent issues involving the enforceability of arbitration decisions in religious contexts. I hope these suggestions are adopted by the American Law Institute.

Posted on by Marc O. DeGirolami

Does RFRA’s Least Restrictive Means Test Violate the Constitution?

Those pressing the claim that an exemption in the contraception mandate cases before the Supreme Court would violate the Establishment Clause face a few challenges–doctrinal, textual, and historical. The one that interests me in this post is that the test they favor is in considerable tension with the RFRA framework. Under the interpretation of the Establishment Clause being pressed, it seems to me that the least restrictive means test that represents the third prong of the strict scrutiny standard in RFRA and RLUIPA is constitutionally suspect.

Recall the theory: religious accommodations are unconstitutional if they shift “significant burdens” onto a “focused and identifiable class of third parties.” For the moment, leave aside the “focused and identifiable” component. We know that under RFRA, the religious claimant must allege a substantial burden on religious exercise. If it does so, the burden shifts to the government to show that the substantial burden on religious exercise it has imposed is justified by a compelling governmental interest. But the government must also show that it is using the least restrictive means to achieve its interest. So, for example, the government cannot simply say that the contraception mandate is supported by its compelling interest in good health care, full stop. Its statement of its interest is invariably focused and refined by the need to demonstrate that it has used the narrowest means available–that means which least burdens the religious claimant–to achieve its interest. And the least restrictive means component of the RFRA test is, in fact, one of the points on which it has been argued that the government’s case for the contraception mandate is weakest.

Suppose one accepts the claim that any “significant” burden resulting from cost shifting onto third parties triggers an Establishment Clause claim (again, for the moment, set to the side the question of what constitutes a “focused and identifiable” group). It seems to me that one would also be saying that the least restrictive means test is at least presumptively constitutionally suspect. The more narrowly tailored a means is so as to avoid burdens on religious objectors, the more probable it becomes that the means selected will burden third party interests. There may perhaps be rare occasions when an accommodation imposes no costs at all on third parties. But very often this will look like a sliding scale: as the imposition on the religiously burdened party decreases, the imposition on third parties increases. And by the time that one gets to the least restrictive means, the sliding scale is very much calibrated against the third party interests. By that point, it will have become highly probable–in some cases verging on certain–that the means chosen will impose “significant” burdens on third parties.

Take these cases.

Read more

Posted on by Mark Movsesian

Compton, “The Evangelical Origins of the Living Constitution”

Next spring, Harvard will publish The Evangelical Origins of the Living Constitution, by Chapman University Professor John Compton. The publisher’s description follows:

The New Deal is often said to represent a sea change in American constitutional history, overturning a century of precedent to permit an expanded federal government, increased regulation of the economy, and eroded property protections. John Compton offers a surprising revision of this familiar narrative, showing that nineteenth-century evangelical Protestants, not New Deal reformers, paved the way for the most important constitutional developments of the twentieth century.

Following the great religious revivals of the early 1800s, American evangelicals embarked on a crusade to eradicate immorality from national life by destroying the property that made it possible. Their cause represented a direct challenge to founding-era legal protections of sinful practices such as slavery, lottery gambling, and buying and selling liquor. Although evangelicals urged the judiciary to bend the rules of constitutional adjudication on behalf of moral reform, antebellum judges usually resisted their overtures. But after the Civil War, American jurists increasingly acquiesced in the destruction of property on moral grounds.

In the early twentieth century, Oliver Wendell Holmes and other critics of laissez-faire constitutionalism used the judiciary’s acceptance of evangelical moral values to demonstrate that conceptions of property rights and federalism were fluid, socially constructed, and subject to modification by democratic majorities. The result was a progressive constitutional regime—rooted in evangelical Protestantism—that would hold sway for the rest of the twentieth century.

Posted on by Perry Dane

“Prayer is serious business”

With Thanksgiving weekend coming to an end, it seems like a good time to share a few words about Town of Greece v. Galloway, the legislative prayer case on which the Supreme Court heard oral argument early last month, on November 6.

I have a special personal interest in this case because I was a law clerk to William J. Brennan, Jr. when the Supreme Court decided Marsh v. Chambers, the case that first upheld the practice of legislative prayer on essentially historical grounds, and worked on Justice Brennan’s dissent.  The dissent argued, compellingly I think, that official legislative prayers violated the Establishment Clause despite their long history in both Congress and state legislatures.  But my favorite passage in the dissent, and the one possibly most relevant to the Town of Greece case, is this:

[L]egislative prayer, unlike mottos with fixed wordings, can easily turn narrowly and obviously sectarian.  I agree with the Court that the federal judiciary should not sit as a board of censors on individual prayers, but, to my mind, the better way of avoiding that task is by striking down all official legislative invocations.

More fundamentally, however, any practice of legislative prayer, even if it might look “nonsectarian” to nine Justices of the Supreme Court, will inevitably and continuously involve the State in one or another religious debate.  Prayer is serious business — serious theological business — and it is not a mere “acknowledgment of beliefs widely held among the people of this country” for the State to immerse itself in that business. Read more

Posted on by Marc O. DeGirolami

McConnell on the Privileges or Immunities Clause as Repository of Traditional Rights

Michael McConnell has a very interesting article just out in the University of Illinois Law Review called, Ways to Think About Unenumerated Rights (one of several papers considering Akhil Amar’s book, The Unwritten Constitution). After criticizing the Supreme Court’s substantive due process jurisprudence as a historically unsupportable source of unenumerated rights, Michael goes on to note two other possible sources of unenumerated rights in the Constitution: the Ninth Amendment and the Privileges or Immunities Clause of the 14th Amendment.

In both cases, however, the nature and scope of unenumerated rights are substantially limited. The Ninth Amendment states that the enumeration of rights in the Constitution “shall not be construed to deny or disparage others retained by the people.” In contrast to theorists who read the clause to protect a whole suite of positive rights, Michael sees it as protecting negative rights–freedoms from interference–which the people may give up in exchange for more attractive protections from the government. These negative rights are, therefore, violable: “the people decide which of these rights to relinquish in exchange for the protections and benefits of civil society.” All that the Ninth Amendment is doing is not “denying or disparaging” those “retained” rights; it is not enshrining them or giving them the stature of enumerated rights. These “natural” rights control unless “legislative abrogation is clear.”

Michael’s second example of unenumerated rights in the Constitution is even more interesting: the Privileges or Immunities Clause of the Fourteenth Amendment (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States….”), which was rendered toothless and superfluous by the Slaughterhouse Cases.

But if one were to give the Clause content, there are two options–an enumerated and an unenumerated possibility. The enumerated possibility is to say that the content of the Privileges or Immunities Clause is the Bill of Rights, now applied against the states. This is the familiar and highly plausible position that the Privileges or Immunities Clause is the true vehicle for incorporation of the Bill of Rights against the states (see, e.g., some of the work of Kurt Lash and Amar himself).

The unenumerated possibility is to say that the content of the Privileges or Immunities Clause mirrors the content of the Privileges and Immunities Clause of Article IV. Some of that content was fleshed out by Justice Bushrod Washington in the federal circuit case of Corfield v. Coryell (1823) (my former constitutional law students will remember this as the “clamming case”). There, Justice Washington wrote that the P&I Clause refers to those unenumerated rights “which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign.”

But how would one know which sort of unenumerated rights fell into this group? If the Ninth Amendment’s limits are set by the concept of negative liberty, what are the limits on unenumerated rights under this theory of the Privileges or Immunities Clause? The answer is that only those rights that are long-standing, traditionally and broadly recognized, and with deep historical roots qualify:

Taken in a broad spirit, this might be thought to authorize judges to identify those rights that are firmly embedded on our laws and traditions, both as a matter of longevity and as a matter of national consensus—as the Court held in Washington v Glucksberg. This interpretation draws strength from the overall thrust of the Fourteenth Amendment as a nationalization of the content of rights. In effect, when a particular right has been recognized by a large majority of states for a long period of time, judges are empowered to treat it as a “privilege or immunity” of national citizenship and enforce it against outlier states that may depart from that consensus. Rights become national by virtue of time, consensus, and experience. This could provide a stronger explanation for Griswold [v. Connecticut]: because every other state recognized the right of married couples to use contraceptives, and had for many decades, the Court was within its authority to declare Connecticut’s law invalid.

Note, though, that this approach does not give courts authority to engage in contentious moral reasoning or to elevate one side in a reasonable disagreement to constitutional victor. It provides no support for Roe v. Wade, for example. Enforcing national consensus is not an exercise in moral philosophy but of determining the weight of national practice. It is a nationalistic and traditionalist inquiry, not a moralistic or progressive one.

Posted on by JCPW

Mancini & Rosenfeld (eds.), “Constitutional Secularism in an Age of Religious Revival”

9780199660384_450This December, Oxford University Press will publish Constitutional Secularism in an Age of Religious Revival edited by Susanna Mancini (University of Bologna Law) and Michel Rosenfeld (Yeshiva University). The publisher’s description follows.

The global movement of culture and religion has brought about a serious challenge to traditional constitutional secularism. This challenge comes in the form of a political and institutional struggle against secular constitutionalism, and a two pronged assault on the very legitimacy and viability of the concept. On the one hand, constitutional secularism has been attacked as inherently hostile rather than neutral toward religion; and, on the other hand, constitutional secularism has been criticized as inevitably favouring one religion (or set of religions) over others.

The contributors to this book come from a variety of different disciplines including law, anthropology, history, philosophy and political theory. They provide accounts of, and explanations for, present predicaments; critiques of contemporary institutional, political and cultural arrangements, justifications and practices; and suggestions with a view to overcoming or circumventing several of the seemingly intractable or insurmountable current controversies and deadlocks.

The book is separated in to five parts. Part I provides theoretical perspectives on the present day conflicts between secularism and religion. Part II focuses on the relationship between religion, secularism and the public sphere. Part III examines the nexus between religion, secularism and women’s equality. Part IV concentrates on religious perspectives on constraints on, and accommodations of, religion within the precincts of the liberal state. Finally, Part V zeroes in on conflicts between religion and secularism in specific contexts, namely education and freedom of speech.