Posted on by Marc O. DeGirolami

The HHS Mandate at Yale Law School

I was pleased to participate in a panel at Yale Law School yesterday sponsored by the Catholic Law Students’ Association and the St. Thomas More Chapel dealing with the HHS Mandate.  I learned a great deal from my co-panelists, Matthew Boudway of Commonweal and Ashley McGuire of the Becket Fund.  I thought I could make myself most useful by focusing on the federal legal framework within which the mandate is likely to be assessed, and my comments drew from many of the posts and discussions about it here at CLR Forum (with maybe a little more emphasis on the individual assessment exception to Smith than some might think warranted).  And I was pleased at the number of interested folks who attended and the thoughtfulness of the questions.

Thanks to Christian Burset for putting the event together.

Posted on by Marc O. DeGirolami

A Thought on Evolutionary Textualism

One of the more interesting things about the directions in which Employment Division v. Smith has been interpreted by subsequent judges is the possible implication for textualism as a theory of constitutional interpretation.  The primary virtue of textualism is sometimes said to be its fixity: words mean something — and that something can be fixed and understood by later interpreters to mean exactly what it meant at the time of the words’ authorship.  And yet it seems to me that the interpretation of the Smith decision — and particularly the expansion of the exceptions which Smith itself mentions (including by the Court itself in Hosanna-Tabor) — may suggest something like the opposite view.  Textualism is in some ways a theory of interpretive change, in a way that intentionalism could never be.

Here’s why. 

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Posted on by Marc O. DeGirolami · 1 Comment

The USCCB Statement on Religious Freedom and Widespread Misunderstanding About the State of Free Exercise

Unlike some, I find much to praise in the recent statement by the USCCB Ad Hoc Committee for Religious Liberty, which Mark noted here.  This being a legal blog, however, I want to respond specifically to a claim being advanced on some blogs about the state of constitutional free exercise in this country.  It’s one that I’ve encountered many times before, but the response to it needs much more ventilation, as the media in various sorts of fora are just not getting it.  The misunderstanding leads commentators, even law professors, to make grossly incomplete, and unintentionally misleading, statements about whether the Free Exercise Clause may be invoked for infringements of religious liberty.  I’ll focus some of these comments on the HHS mandate, though I do not think the point is limited to that context.  The bottom line, in my view, is that it is very unclear whether the Free Exercise Clause is a viable legal possibility.  If I were a betting man in the mandate context, I’d put the odds somewhere around 60-40 for upholding the mandate.

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Posted on by Mark Movsesian

Cert Petitions Filed in Church Property Disputes

Howard Friedman at Religion Clause reports that coordinated cert petitions have been filed in three recent property disputes between national church bodies and local congregations.  Two decisions, discussed by CLR Forum here, arise from the Georgia Supreme Court; one comes from the Connecticut Supreme Court. All three cases question the application of the “neutral principles of law” doctrine, one of the two main approaches to church property disputes, which allows civil courts to resolve such disputes using regular civil law principles. The local congregations that lost these cases, two Episcopalian and one Presbyterian, are the petitioners; the national church bodies have not yet filed their responses.

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Heise and Sisk on Extra-Judicial Factors Influencing Free Exercise Claims

Michael Heise (Cornell Law School) and Gregory C. Sisk (University of St. Thomas School of Law) have posted Free Exercise of Religion Before the Bench: Empirical Evidence from the Federal Courts. The abstract follows.

We analyze various factors that influence judicial decisions in cases involving Free Exercise Clause or religious accommodation claims and decided by lower federal courts. Religious liberty claims, including those moored in the Free Exercise Clause, typically generate particularly difficult questions about how best to structure the sometimes contentious relation between the religious faithful and the sovereign government. Such difficult questions arise frequently in and are often framed by litigation. Our analyses include all digested Free Exercise and religious accommodation claim decisions by federal court of appeals and district court judges from 1996 through 2005. As it relates to one key extra-judicial factor — judicial ideology — our main finding is that judicial ideology did not correlate with case outcomes. While judicial ideology did not emerge as a significant influence in the Free Exercise context, however, other variables did. Notably, Muslim claimants fared poorly, cases involving exemption from anti-discrimination laws were significantly more likely to result in pro-accommodation rulings, and Asian and Latino judges as well as judges who were former law professors were particularly amenable to Free Exercise and accommodation claims. On balance, our results paint a more complex and nuanced picture of how extra-judicial factors inform Free Exercise and accommodation litigation outcomes as well as judicial decision making more generally.

Posted on by Marc O. DeGirolami

Bowers & Carpenter on Lyng v. Northwest Indian Cemetery Protective Ass’n

Amy Bowers and Kristen Carpenter have posted a very nice historical and sociological piece, Challenging the Narrative of Conquest: The Story of  Lyng v. Northwest Indian Cemetery Protective Ass’n.  Lyng is a very famous religious liberty case, in which the Supreme Court denied a free exercise claim by a Native American group which objected to the federal government’s plan to build a road through its sacred lands.  The abstract follows.

In Lyng v. Northwest Indian Cemetery Protection Association (1988), the Supreme Court held that it would not violate the Free Exercise Clause for the U.S. Forest Service to build a road through the “High Country,” an area that is sacred to Yurok, Karuk, and Tolowa Indians living in Northern California and Southern Oregon. Unable to show “coercion” of their religious beliefs, the Indian plaintiffs could not rely on the First Amendment to protect their interests in aboriginal territory now owned by the United States. As Justice O’Connor wrote: ‘‘Whatever rights the Indians may have to the use of the area, those rights do not divest the Government of its right to use what is, after all, its land.’’ Scholars have criticized the case as narrowing individual Free Exercise rights and expanding the government’s property rights, to the detriment of religious freedoms. While Lyng deserves this notoriety, an exclusive focus on defects in the holdings obscures other important dimensions of the case. In particular, the Supreme Court’s opinion comes close to silencing altogether the Indians’ perspective on their sacred High Country. Law and religion scholarship, with few exceptions, also ignores tribal voices both on the religious practices and advocacy strategies that were so key to the Lyng case and its aftermath. Indeed, the Forest Service road was never built and the tribes continue to practice their religions in the High Country.

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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

Michael McConnell at St. John’s Law School

The Center for Law and Religion is delighted to announce that Professor Michael McConnell (Stanford) will visit us at St. John’s Law School next Monday, March 19, at 5:30 pm.  His is the fourth session in our ongoing seminar, Colloquium in Law: Law and Religion.  Professor McConnell will reconsider Employment Division v. Smith in light of Hosanna-Tabor v. EEOC, and he will offer us his always illuminating thoughts about the future of free exercise (those who have not read Professor McConnell’s two 1990 pieces on free exercise — one on the historical origins of free exercise and one in response to Smith — will profit from them greatly).

Academics in the New York area and beyond are welcome to attend.  Please let me know.

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.