Posted on by Marc O. DeGirolami

The Tale of Psychic Sophie, Part II

Psychic Sophie, as I mentioned in Part I, appealed the district court’s unfavorable disposition of her case to the Fourth Circuit U.S. Court of Appeals, which held oral argument on it Tuesday.  Chief Judge Traxler, Judge Wilkinson, and Judge Duncan made up the panel.  Here’s a news report on the argument.  A couple of highlights.

First, in response to an inquiry about whether predicting the future is “inherently deceptive” (and therefore should not receive constitutional protection), counsel for the defendant County said, “Yes, sir, it is.”  To which CJ Traxler responded, “How would you characterize the Book of Revelation?”  Counsel for the plaintiff seems to have argued that predicting the future is not “inherently” deceptive provided that the prognosticator “sincerely believes” the prediction or does not believe that he is being deceptive.  Does the deceptiveness of a prediction of the future depend on the speaker’s subjective belief as to its truthfulness and/or his intent to deceive?  I wouldn’t think so, but I’m not a free speech maven.  But I suppose one might have replied that predictions of the future are not “inherently” deceptive; they are only contingently true (or false) — the contingency being their (dis-)confirmation on the appointed day.  We’re still waiting on Revelation.  On the other hand, Montaigne, in his essay, “On Prognostication,” doesn’t see what all the fuss is about: “[A]lthough there still remain among us certain methods of divination, by the stars, by spirits, by ghosts, by dreams, and otherwise — a notable example of the senseless curiosity of our nature, occupying itself with future matters, as if it had not enough to do in digesting those at hand –…. It is no advantage to know the future; for it is a wretched thing to suffer suspense all to no purpose[.]”

Second, Judge Duncan was interested in the question of whether Psychic Sophie’s business and belief system were “religious” or instead a “way of life.”  But Judge Wilkinson seemed dubious: “If what she’s expressed is a religion, then anything and everything is a religion.”  Kevin Walsh quite rightly suggested to me that skepticism about astrology has a distinguished pedigree dating back at least to St. Augustine.  From Book IV, Chapter 3 of the Confessions:

There was in those days a wise man, very skillful in medicine, and much renowned therein, who had with his own proconsular hand put the Agonistic garland upon my distempered head, not, though, as a physician; for this disease Thou alone healest, who resistest the proud, and givest grace to the humble. But didst Thou fail me even by that old man, or forbear from healing my soul? For when I had become more familiar with him, and hung assiduously and fixedly on his conversation (for though couched in simple language, it was replete with vivacity, life, and earnestness), when he had perceived from my discourse that I was given to books of the horoscope-casters, he, in a kind and fatherly manner, advised me to throw them away, and not vainly bestow the care and labour necessary for useful things upon these vanities; saying that he himself in his earlier years had studied that art with a view to gaining his living by following it as a profession, and that, as he had understood Hippocrates, he would soon have understood this, and yet he had given it up, and followed medicine, for no other reason than that he discovered it to be utterly false, and he, being a man of character, would not gain his living by beguiling people.

Looking forward to the panel’s decision.

Posted on by Marc O. DeGirolami

The Tale of Psychic Sophie, Part I

Apropos of Trollope and Ike, here’s a neat case — courtesy of CLR Forum friend and former guest Kevin Walsh — that raises all kinds of interesting questions and which was just up for argument at the Fourth Circuit.  It concerns one Psychic Sophie, a self-described “spiritual counselor” operating a business in Chesterfield County, Virginia, which provides the following services (for a fee, of course): Tarot card readings, psychic and clairvoyant readings, and answering strangers’ personal questions in person, over the phone, and via email.  She offered these services from a small office within a larger office complex which included licensed mental health professionals.

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Gedicks on the Affordable Care Act’s Contraception Coverage Mandate

Frederick Mark Gedicks (BYU – J. Reuben Clark Law School) has posted With Religious Liberty for All: A Defense of the Affordable Care Act’s Contraception Coverage Mandate. The abstract follows.

 The “contraception mandate” of the Patient Protection and Affordable Care Act of 2010 poses a straightforward question for religious liberty jurisprudence: Must government excuse a believer from complying with a religiously burdensome law, when doing so would violate the liberty of others by imposing on them the costs and consequences of religious beliefs that they do not share? To ask this question is to answer it: One’s religious liberty does not include the right to interfere with the liberty of others, and thus religious liberty may not be used by a religious employer to force employees to pay the costs of anti-contraception beliefs that they do not share.

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Posted on by Marc O. DeGirolami

Amicus Brief of Constitutional Law Scholars in Stormans v. Salecky

I am happy to have joined an amicus brief together with several other constitutional law professors –but written by Doug Laycock and some excellent lawyers in Austin, Texas — in Stormans v. Salecky, a case currently being litigated in the Western District of Washington and the Ninth Circuit.  The case concerns the free exercise rights of several pharmacists at small pharmacies who have religious conscience objections to dispensing Plan B emergency contraception, and who are being compelled to do so by the Washington State Board of Pharmacy’s regulations requiring all pharmacies to dispense certain drugs, without exception.  I am particularly keen on the description in the brief of Smith and Lukumi-Babalu as representing a kind of range of general applicability — the idea being that many cases will fall somewhere between those two points.  That’s nifty, because one often sees Lukumi instead described as an “exception” to the Smith “rule,” which has different connotations.  You can read more about the case in Judge Leighton’s most recent opinion.

Posted on by Marc O. DeGirolami

District Court Rules Against For-Profit Plaintiff in Contraception Mandate Litigation

The United States District Court for the Western District of Oklahoma has denied a preliminary injunction to a for-profit company which had sued the Department of Health and Human Services on the grounds that the contraception mandate violated its religious liberty.  Hobby Lobby Stores, Inc. is a closely held corporation whose business is arts and crafts — operating over 500 stores in 41 states and with over 13,000 employees.  The company, the court says, is “secular,” but also operated by the owners “according to their Christian faith.”  This is confusing.

At any rate, the court denied the PI both as to the Free Exercise Clause claim and the RFRA claim.  On the particular issue of whether a corporation can exercise religion (see CLR Forum posts here (Professor Colombo’s paper) and here), the court had this to say:

General business corporations do not, separate and apart from the
actions or belief systems of their individual owners or employees, exercise religion. They do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors. Religious exercise is, by its nature, one of those “purely personal” matters referenced in [Nat’l Bank of Boston v.] Bellotti  which is not the province of a general business corporation.  (18)

This is a bizarre and unnecessarily maximalist statement.  It is not needed to reach the result in the case.  It also seems untrue: it is perfectly natural to say that a corporate body can exercise religion.  I take it that at least one of the reasons that even the government itself carved out an exception in the mandate for houses of worship was that it recognized that corporate bodies can and do exercise religious freedom.  To the extent that the court is drawing a line between for-profit and not for-profit “businesses,” one might have wished for a bit more discussion about what it is exactly about the for-profit context that makes it conceptually impossible for such businesses to exercise religion.  The interesting question, I had thought, about the issue of for-profit corporations was not whether it is impossible conceptually for corporations to exercise religion full stop.  Surely it is.  The interesting question is also clearly not whether religious exercise is “a purely personal matter”; it isn’t, and in any case, one wonders why the court is qualified to opine on that sort of issue.  The interesting question, I thought, has to do with how we can know, when a corporation is very large and diffuse, or is owned by many people with different religious beliefs, what the corporation’s religious beliefs are.

The case is Hobby Lobby Stores, Inc. v. Sebelius.  Lawyers for the plaintiff have said that they will appeal.

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Beschle on a Broad Free Exercise and a Narrow Definition of Religion

Donald L. Beschle  (John Marshall Law School) has posted Does a Broad Free Exercise Right Require a Narrow Definition of “Religion”? The introduction follows.

In the 1990 case of Employment Division v. Smith, a sharply divided Supreme Court abandoned the routine application of strict scrutiny when considering Free Exercise Clause claims seeking exemption from generally applicable legal duties or prohibitions. The Court returned to an older view of the Free Exercise Clause as protecting believers only from government acts that were aimed specifically at beliefs, and that grew out of hostility to the religion rather than a desire to further legitimate secular goals.

Reaction to Smith was largely negative, and legislative and state court responses followed, seeking to restore strict scrutiny as the appropriate standard when a free exercise exemption was denied. Smith was seen as an unfortunate decision reflecting insensitivity to the significance of the free exercise right. This article explores the possibility that Smith may have been less the result of that insensitivity than it was a response to the vast expansion of the concept of religion in constitutional law since the Court’s first free exercise decisions employing strict scrutiny. This expansion made the application of strict scrutiny, at least as it is normally understood, wildly impractical.

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Posted on by Mark Movsesian

Thanks to Barak Richman and Dan Crane

Thanks to Barak Richman and Dan Crane for participating in our first online debate at CLR Forum, “Are Conservative Rabbis a Cartel?” You can follow the posts by scrolling to the “Debates” category over on the right. We’re very grateful for the thoughtful and fun exchange. Come back soon!

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.

Posted on by ddrakeman · 3 Comments

Getting Out of Our Grooves — Part 3: Where Does Religious Liberty Come From?

The canonical view of American religious liberty was set out in Justice Hugo Black’s opinion in the Everson case (1947):  A “large proportion” of the “early settlers of this country . . . came from Europe to escape the bondage of laws which compelled them to support and attend government favored churches.”  Religious persecution “shocked the freedom-loving colonials into a feeling of abhorrence,” a feeling, he noted “which found expression in the First Amendment.”  Ultimately, the leadership for our national commitment to religious liberty came from Virginia, since Jefferson’s Bill for Establishing Religion Freedom and the First Amendment “had the same objective and were intended to provide the same protection . . . .”

This classic statement of the Jeffersonian origins of the religion clauses basically says that “ideas have consequences.”  And it’s hard to disagree with that principle in the abstract.  But it is also worth looking at some more pragmatic concerns that led Revolutionary America to embrace a greater level of religious freedom.  As discussed in my earlier blog, religious liberty, in addition to being a good idea, can be a useful strategy for governments seeking to expand or consolidate their power.

Scholars have suggested, for example, that the War itself may have had a beneficial trickle down effect on religious liberty.  Most recently, John Ragosta’s Wellspring of Liberty (2010) shows how Virginia’s dissenters, particularly the Baptists and Presbyterians, negotiated for greater religious liberty from the Anglican-dominated state in return for their support of the war effort.

Meanwhile, Charles Hanson’s Necessary Virtue: The Pragmatic Origins of Religious Liberty in New England (1998) shows how events in Massachusetts, where anti-Catholicism had been ingrained for a very long time, led to a “wartime accommodation” of Catholic France.  Hanson’s story touches in part on the oldest endowed university lecture in America, Harvard’s Dudleian Lecture.  Donor Dudley’s carefully drawn will required that, at least once every four years, the distinguished lecturer would be required to address the following topic:  “The detecting and convicting and exposing the idolatry of the Romish Church, their tyranny, usurpations, damnable heresies, fatal errors, abominable superstitions, and other crying wickedness in their high places.”

And so, while New Englanders had blasted the 1774 Quebec Act guarantying Canadian Catholics the “free exercise of religion,” the colonists’ formal alliance with Catholic France in 1788 led to wartime “accommodations,” including far milder Dudleian Lectures during the war years.  Old prejudices tend to die hard, however, and Harvard didn’t look seriously at changing the anti-Catholic focus of the lectures until the end of the 19th century, a move that we may choose to applaud for its liberalness or to criticize for its violation of the principle of upholding donor intent in charitable giving.

Don Drakeman

Posted on by Marc O. DeGirolami

District Court: Prohibiting Religious Groups From Feeding the Homeless in Park Likely to Violate Pennsylvania RFRA

Here’s an interesting case from Philadelphia involving the religious mission to feed the homeless.  The City of Philadelphia enacted a local ordinance prohibiting the distribution of food free of charge to three or more people anywhere in the Fairmont Park System (picnics for individual families, school trips, and so on, as well as special events, were exempted from the ordinance).  The City’s reasons for the ordinance had to do with civil order, sanitation, and also an asserted dignitarian interest on behalf of the homeless.  Several Christian religious groups had for decades distributed food to the homeless in the parks, but the mayor wanted these programs moved indoors.  A temporary relocation effort of one of the religious groups’ food-sharing programs resulted in a drastic reduction in the number of homeless people who partook of the food-sharing services.

Plaintiffs sought a preliminary injunction prohibiting the City from enforcing the ordinance, alleging that the ordinance violated their rights under the Pennsylvania Religious Freedom Protection Act (PRFPA), which is essentially Pennsylvania’s version of the federal Religious Freedom Restoration Act, as well as the First Amendment.  Readers will know that RFRA (as well as PRFPA) reinstated the interest-balancing test which preceded Employment Division v. Smith.  (One interesting feature of PRFPA is that it requires “clear and convincing evidence” as its standard for the “substantial burden” component).

The Court granted the preliminary injunction on PRFPA grounds (it avoided the constitutional issue).  It held that the plaintiffs (1) have a sincere belief that it is their religious obligation to “provide sustenance to the poor and needy” (and, added the Court, “Plaintiffs are not unique in this respect.  Acts of charity are central to Christian worship”); (2) the ordinance constitutes a “substantial burden” on the free exercise of plaintiffs’ religion; (3) the dignitarian “compelling interest” offered by the City was “difficult to comprehend”: “I am at a loss to understand how taking choice away from the homeless advances their dignity”; (4) even if reducing litter and other waste is a “compelling interest” (about which the Court expressed some skepticism), the City had not used the least restrictive means to achieve that interest (portable restrooms, trash compactors, additional maintenance staff, and other methods were raised by the Court).

One noteworthy item, which may have various broader applications.  In response to the City’s claim that it did not burden the plaintiffs’ free exercise because it did not impose “restrictions upon praying or preaching or reading the Gospel or engaging with the homeless [in the Park],” the Court said:

What defendants fail to appreciate is that to plaintiffs, sharing food with the poor is as much a form of religious worship as is prayer, preaching, or reading the Bible . . . . But defendants’ argument is not persuasive for an additional and more fundamental reason. Essentially, defendants have assumed the authority to ascribe [to] some of plaintiffs’ religious activities more religious significance than others, irrespective of the significance that plaintiffs themselves ascribe to their own religious activities. Defendants compound this error by offering to grant Rev. Little a limited exception for the food and drink she uses during her Communion service, which they characterize as a “core component of a religious service,” but not for the food Rev. Little shares with the homeless after the service despite the fact that Rev. Little considers this food an ongoing representation of the Communion observed during the service . . . . It is no more appropriate for defendants to “presume to determine the place of a particular belief in a religion” than it would be for me to do so.
 
The case is Chosen 300 Ministries, Inc. v. City of Philadelphia, 2012 WL 3235317 (E.D. Pa. Aug. 9, 2012).