Posted on by Marc O. DeGirolami · 1 Comment

“Blaine Amendment” Case Decided, Without Reference to Blaine Amendments or Animus Inquiry

Trinity Lutheran Church has just come down, and Tom Berg has a nice summary and set of good comments on it at Mirror of Justice. I agree with much of what he says, though I have a different sense of the considerable staying power of separationism than he does. More on that in the coming months.

For now, here’s one thought: this case concerned Missouri’s Blaine Amendment, which is quoted in full by the Court. Many states have similar amendments, enacted frequently sometime after the failure of James G. Blaine’s proposed federal constitutional amendment. The Blaine Amendments are the subject of great controversy in legal scholarship because of the anti-Catholicism that has been shown to have motivated them–the “animus” in the conventional argot. Some scholars believe that this motivational evidence is overblown. Others believe that even if the evidence exists, these provisions can be justified today on “neutral” grounds, or grounds of public reason liberalism, or some such grounds. Discussion about the Blaine Amendments’ tainted genesis–their anti-Catholic animus–has been on the law and religion scholarly agenda for years. And in Locke v. Davey, the opinion of CJ Rehnquist for the Court focused very much on animus issues (Justice Scalia, in his dissent, disputed that animus was relevant, insisting instead that what the law did was relevant). In Mitchell v. Helms, another funding case that was challenged on Establishment Clause grounds, Justice Thomas devoted a chunk of his plurality opinion to disavowing the claim that aid to “sectarian” schools is justified on Establishment Clause grounds as tainted by wicked animus:

Finally, hostility to aid to pervasively sectarian schools has a shameful pedigree that we do not hesitate to disavow….Although the dissent professes concern for “the implied exclusion of the less favored,” the exclusion of pervasively sectarian schools from government-aid programs is just that, particularly given the history of such exclusion. Opposition to aid to “sectarian” schools acquired prominence in the 1870’s with Congress’ consideration (and near passage) of the Blaine Amendment, which would have amended the Constitution to bar any aid to sectarian institutions. Consideration of the amendment arose at a time of pervasive hostility to the Catholic Church and to Catholics in general, and it was an open secret that “sectarian” was code for “Catholic.”

Mitchell did not involve a state Blaine Amendment. Trinity Lutheran did. And yet you will search in vain for any reference to Blaine Amendments, the constitutional history of the period, “animus” analysis (or even the word “animus”), the motivation of those who excluded Trinity Lutheran from the funds at issue, or indeed any inquiry as to motivation. The focus is squarely on what the law did here, in this case, seemingly for this day only. In classic Roberts style, it is exquisitely minimalist. Just like Hosanna-Tabor, it goes in for hyper-particularism. This is why I very much agree with Tom’s point # 3 below. Indeed, the Chief’s opinion is taken to task by Justice Gorsuch for being insufficiently “principled.” Justice Gorsuch would have preferred a decision more maximal in nature.

But quite apart from the scope of the decision, nobody, but nobody, went in for deep dives into motivational inquiry in this case. It will be interesting to see just how that methodological preference works itself out in future disputes.

Posted on by Christina Vlahos

Thomassen, “British Multiculturalism and the Politics of Representation”

In April, Oxford University Press releases “British Multiculturalism and the Politics of Representation,” by Lasse Thomassen (Queen Mary, University of London).  The publisher’s description follows:

Lasse Thomassen argues that the politics of inclusion and identity should be viewed as struggles over how these identities are represented. He centres thislogoargument through careful analysis of cases from the last four decades of British multiculturalism.

Uses a fresh, poststructuralist approach to reconcile the theoretical and practical issues surrounding inclusion and exclusion – a rare example of how poststructuralism can speak to mainstream concerns and theory

Opens up debates and themes including Britishness, race, the ature and role of Islam in British society, homelessness and social justice

Case studies include public debates about the role of religion in British society; Prime MInisters Gordon Brown and David Cameron>’s contrasting versions of Britishness; legal cases about religious symbols and clothing in schools; and the Nick Hornby novel How to Be Good – most of which have never been covered in such detail before

Examines a number of legal cases: ‘The Queen on the application of Sarika Angel Watkins-Singh v. The Governing Body of Aberdare Girls’ High School and Rhondda Cynon Taf Unitary Authority’, High Court, 2008; ‘Playfoot (a minor), R (on the application of) v Millais School’ High Court 2007; ‘X v Y’, High Court, 2007; and ‘Mandla and another v Dowell Lee and another’, House of Lords, 1983

Posted on by Mark Movsesian

More on Yesterday’s Decision in Zubik

Marc has posted a rundown of yesterday’s decision in Zubik v. Burwell, the ACA case. I’d like to add just a few quick observations.

Some commentators, including the New York Times, have decried the result as the inevitable consequence of having an eight-member Court, which prevents the formation of five-person majorities in close cases. If only the Senate had confirmed Merrick Garland, we wouldn’t be in fixes like this. But it’s worth noting that the Court’s opinion yesterday was unanimous. All eight Justices joined it in full. If Merrick Garland had been on the Court, it likely would have been 9-0. In fact, an unsigned, per curiam opinion like yesterday’s traditionally signals that the Court does not see a decision as particularly significant or controversial.

Now, it’s true that Justice Sotomayor, joined by Justice Ginsburg, wrote a separate concurrence. But, in Supreme Court practice, a concurrence signals that the author agrees with the Court’s reasoning and wishes only to offer further support or highlight certain aspects of the case. And that’s what Justice Sotomayor did here. She went out of her way to highlight the fact that the Court was not ruling on the merits of the case. I’m not sure that was entirely necessary; the Court itself expressly said it was not ruling on the merits. But, anyway, her writing separately doesn’t reflect disagreement with the Court’s reasoning.

So the Court does not seem to have been divided at all. Now, it’s possible, as some speculate, that the Court did a quick vote after oral argument, saw that there would be no clear majority on the merits, and reached for a compromise that would preserve the Court’s credibility while allowing further consideration down the road, when the Court is back to nine members. But that’s more than we can know right now, and, at least to me, there seems another, more likely explanation for the Court’s unanimity. The Court determined that the whole dispute may well be unnecessary.

After oral argument and supplementary briefing in March, it became clear to the Court that there might be a way out of the conflict the lower courts had missed. It might be possible for employees to receive coverage for contraceptives without requiring employers to file the so-called “opt out form” — the form to which the petitioners had objected on religious grounds. As the Court explained:

Following oral argument, the Court requested supplemental briefing from the parties addressing “whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.” Both petitioners and the Government now confirm that such an option is feasible. Petitioners have clarified that their religious exercise is not infringed where they “need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,” even if their employees receive cost-free contraceptive coverage from the same insurance company. The Government has confirmed that the challenged procedures “for employers with insured plans could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.”

In other words, the parties might be able to reach a settlement that would satisfy everyone. The Supreme Court is not the place to hammer out such a settlement, though, so the Court remanded the dispute to the lower courts, which, it said, were in a position to “allow the parties sufficient time to resolve any outstanding issues between them.” (Hint, hint). In that event, the dispute would be moot–and it is hornbook law that courts, including the Supreme Court, do not decide moot issues. As one commentator observed, what the Court is saying is, “We don’t need to decide this case right now. The parties should be able to work it out for themselves.”

Although the Court did not rule on the merits, it’s hard not to see this as a loss for the Obama Administration. A determination that the dispute may not have been necessary at all is, implicitly, a judgment on the Administration’s strategy in these cases. The Administration has taken a very hard line on the Contraception Mandate, harder than it needed to in order to achieve its stated goal of providing cost-free contraceptive coverage for women. Two terms ago, in Hobby Lobby, the Court ruled that the Administration could reach that goal without requiring for-profit corporations with religious objections to cover contraceptives in their health plans. Now, the Court has suggested the Administration can reach that goal without requiring religious non-profits like the Little Sisters to violate their religious convictions. So why did the Administration take such a hard line? Why didn’t it accommodate the concerns of people with religious objections to the mandate–an extremely small group, it must be conceded–especially as accommodation wouldn’t have changed the ultimate outcome? It’s almost as though the Administration had goals other than women’s health in mind.

Posted on by Marc O. DeGirolami

Supreme Court Unanimously Strikes Down Arizona Municipality’s Sign Code as Violating Speech Clause

A busy First Amendment day at the Court today. In Reed v. Town of Gilbert, the Court unanimously strikes down the town’s byzantine sign ordinance as violating the Speech Clause, and in particular as being content-based regulations that do not survive strict scrutiny. Justice Thomas writes the opinion for the Court in which everybody joins except Justice Breyer (who concurs in the judgment only) and Justice Kagan (who concurs in the judgment only and is joined by Justices Ginsburg and Breyer).

The majority holds that the town’s sign code was content-based on its face, permitting larger signs for political and ideological messages than for other sorts of messages, such as the plaintiff’s desired sign concerning its church services. The Court had some rather pointed words for the Ninth Circuit, whose justifications for the restriction the Court rejected emphatically. I previously discussed the case here.

Perhaps of interest only to Supreme Court watchers, but note that this is yet another law and religion case decided 9-0 by the Roberts Court. True, there were a few concurrences in the judgment only, but it’s still an interesting feature of the case. As I discuss at greater length in this paper, the Roberts Court’s uniform pattern is 9-0 or 5-4 in this context. I speculate about why in the article.

Posted on by Marc O. DeGirolami

Specialty License Plate Case Decided by the Supreme Court on Government Speech Grounds

The Supreme Court today decided Walker v. Sons of Confederate Victims, which dealt with a state’s capacity to deny a specialty license plate to a group that wanted to feature a Confederate flag and the words “Sons of Confederate Veterans.” In an opinion by Justice Breyer (and joined by Justice Thomas), the Court holds 5-4 that speech on license plates is “government speech,” and therefore that the First Amendment does not stop the state of Texas from choosing what sort of message it will endorse. It would be one thing, said the Court, if the state were demanding that individuals “convey the government’s speech”–in essence acting as the government’s mouthpiece. But “as a general matter, when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position. In doing so, it represents its citizens and it carries out its duties on their behalf.” The Court relied extensively on Pleasant Grove City v. Summum, another government speech case concerning a municipality’s rejection of a religious organization’s proposed monument in a public park that contained a Ten Commandments monument as well as several others. In Summum, the Court held that the municipality had not made the park available for private speech; all of the displays were government speech. The majority opinion here held that such was the case with the speciality license plates as well (oddly enough, since Texas had accepted applications from other organizations for specialty plates). Justice Alito dissented on the ground that Texas in fact does authorize specialty plates with distinctive messages that are obviously not government-endorsed speech (do see the Appendix beginning at page 18 of his opinion).

Posted on by Marc O. DeGirolami

Religious Belief and Executive Power: A Thought on Zivotofsky v. Kerry

One prominent theme in Barack Obama’s presidency is that of the escalation of conflict between traditional religious belief and executive power–in particular the executive/administrative powers brought to bear against religious believers and institutions in a variety of contexts. One can agree with this description, of course, while seeing that escalation of conflict as either a favorable or regrettable development. A recent essay by Adam White in The Weekly Standard takes the latter view; more than a few other commenters and scholars take the former.

Today’s Supreme Court decision in Zivotofsky v. Kerry does not obviously concern this issue. It instead involved a separation of powers question: whether a congressional statute permitting a U.S. citizen born in Jerusalem to request a designation of his place of birth as “Israel” on his passport unconstitutionally interfered with the Executive’s power to recognize sovereign nations (while Israel has been recognized, the national status of Jerusalem remains unresolved). Ultimately the Court held, inter alia, that the Executive’s power to receive ambassadors gives him the exclusive power of recognition, and that this statute interfered with that power. So in a tussle between Congress and the President, the President won.

And yet this was not simply an inter-branch heavyweight fight. Consider the question of Jerusalem. Jerusalem’s status is not only a matter of geopolitical disagreement, but of deep geo-religious contention. That contention stretches back through the past millennia to innumerable wars and religious controversies. The function of this particular statute is plain: to allow those U.S. citizens born in Jerusalem and who, for religious reasons (that is, reasons that may implicate religious convictions), believe that Jerusalem is properly described as an Israeli city, the right to note that association on their passports. As Justice Scalia notes in his dissent: Zivotofsky’s parents believed “as a matter of conscience” that it was important to note “their son’s birthplace as part of Israel” and that his “Israeli nativity ‘not be erased’ from his identity documents.” In defending Congress’s power to enact the statute (under the Naturalization Clause and the Necessary and Proper Clause), Scalia continued: “[Congress may conclude] that regardless of international politics, a passport or birth report should respect its bearer’s conscientious belief that Jerusalem belongs to Israel.”

Whoever has the better of the argument as a matter of constitutional interpretation, one can see in this case another example of the conflict between Executive power and religious conscience: the Obama Administration refused to permit an individual citizen with a religious belief in the importance of listing Israel as the place of birth of his son to do so. It took an aggressive view of Executive power (both as to whether sovereign recognition powers are exclusive to the Executive and as to whether this particular designation of an individual citizen counts as sovereign recognition) in a context in which it was, once again, opposed to traditional religious conscientious belief. A notation by a private U.S. citizen on his passport, motivated by religious belief in the importance of the designation, is thus transformed into a usurpation of Executive power.

Justice Scalia cited Bowen v. Roy (1986), a religious liberty case where parents objected to government use of the Social Security number of their daughter, “Little Bird of Snow,” and to having to supply that number when they applied for benefits. According to the parents’ Native American beliefs, a person needs control over his life for spiritual reasons and use of the number would have “rob[bed] the spirit” of their daughter.” Ultimately the Court had no occasion to balance the government’s interest against a possible religious burden, because it held that the government can use the number for its own internal purposes without impairing anyone’s religious conscience. But a majority of five justices held that the parents should not be required to supply the number, because the government’s asserted interest in combating welfare fraud would not be much compromised if those with religious objections did not have to supply Social Security numbers.

Obviously Justice Scalia is not suggesting that the Zivotofsky parents have a religious freedom claim here. So why the citation to Bowen?

Perhaps for this reason. The argument is not about constitutional compulsion, but about religious (and other sorts of) accommodation. The government is not forced by the Constitution to make an exception for the Zivotofskys. But Congress did–here, and in other contexts (allowing those who wish to specify “Belfast,” rather than “United Kingdom,” to do so on their passports, for example). It grants these exceptions not because it is thereby recognizing Israel’s sovereignty over Jerusalem (as it is not thereby de-recognizing the United Kingdom’s sovereignty over Belfast), and not because the Constitution commands it, but because it understands that for some American citizens, religious and identity-based convictions about Jerusalem’s status are deeply important, and because people care about what the federal government says about them on official documents. The Obama Administration’s position, instead, was that this sort of conscience-based designation trenches on Executive authority. And in staking out that position (and now in vindicating it before the Supreme Court, in a ruling about which I have no comment) the Administration repeated the pattern of conflict with traditional religious belief that it has established in several other controversies and that have characterized its years in power.

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James, “Current Conflicts in Law and Religion”

Last month, Vandeplas Publishing released “Current Conflicts in Law and Religion” by Vaughn E. James (Texas Tech University School of Law). The publisher’s description follows:

The core of Current Conflicts in Law and Religion takes the reader through eleven hot-topic issues in law and religion in twenty-first century society:
• The role of religious voices in the political debate;
• Religious voices in the abortion rights debate;
• The legalization of same-sex marriage in the United States;
• The ordination of LGBT clergy;
• Prayer and religious exercises in the public schools;
• The place of the phrase “Under God” in the Pledge of Allegiance;
• Evolution versus Creationism;
• The place of Intelligent Design in the public school curriculum;
• The patient’s right to refuse medical treatment based on religious belief;
• The Affordable Care Act, RFRA and the Free Exercise Clause; and
• International issues in law and religion.

Professor James has presented in this one book a review of at least eleven hot-topics in law and religion in contemporary society. Yet, the cases the book covers span a vast expanse of time. They are as old as Reynolds v. United States (1879), and as new as Burwell v. Hobby Lobby Stores, Inc. (2014).

Two things set this book apart from others that discuss these two clauses of the Constitution. First, the book devotes a lengthy first chapter to discussing the basic tenets of some world religions. Some of these religions are well-known and often talked about; their tenets are well-known, even to non-adherents. Others are not-so-well-known, are even obscure; their tenets are hardly known or talked about.  Second, the book begins each chapter with a true story (with names and places changed or otherwise disguised) that depicts one or more of the current conflicts in law and religion.

Posted on by Marc O. DeGirolami

Supreme Court Rules Against Abercrombie & Fitch in Headscarf Case

The Supreme Court yesterday decided a case we’ve discussed here at CLR Forum (including in this podcast), EEOC v. Abercrombie & Fitch, concerning the department store’s decision not to hire a job applicant because her head scarf conflicted with the store’s “look policy,” which prohibited all “caps.”  The rejected applicant sued pursuant to a federal nondiscrimination provision that prohibits “disparate treatment” on the basis of religion, among other categories. There was a dispute in the case about what the employer knew about the applicant’s reasons for wearing the headscarf and about whether the prospective employee must so inform the employer before bringing a claim.

The decision is short and not especially interesting. In an opinion by Justice Scalia, the Court held (8-1, with Justice Alito concurring only in the judgment and Justice Thomas concurring in part and dissenting in part) that in order to prevail on a disparate treatment claim under the “disparate treatment” provision of Title VII, a plaintiff need not show that a defendant had “actual knowledge” of the plaintiff’s need for a religious accommodation. The plaintiff need only show that the need for an accommodation was a “motivating factor” in the decision. Much of the rest of the majority’s opinion was consumed with interpreting the meaning of “because of” in the statutory phrase, “fail or refuse to hire…any individual…because of such individual’s…religion….” According to the Court, the provision prohibits certain motives, irrespective of the actor’s state of knowledge. The decision accords with what many scholars believe is the primary function of antidiscrimination statutes–to smoke out and punish illicit motivations, irrespective of what is known or not known as a factual matter.

One mildly interesting section of the opinion responds to Abercrombie’s claim that a religion-neutral policy like the Look Policy cannot “intentionally discriminate” against religion. As in the case of the Religious Freedom Restoration Act, Title VII, said the Court, requires more than a neutral policy:

But Title VII does not demand mere neutrality with regard to religious practices—that they be treated no worse than other practices. Rather, it gives them favored treatment, affirmatively obligating employers not “to fail or refuse to hire or discharge any individual . . . because of such individual’s” “religious observance and practice.” An employer is surely entitled to have, for example, a no- headwear policy as an ordinary matter. But when an applicant requires an accommodation as an “aspec[t] of religious . . . practice,” it is no response that the sub- sequent “fail[ure] . . . to hire” was due to an otherwise- neutral policy. Title VII requires otherwise-neutral policies to give way to the need for an accommodation.

Justice Alito concurred only in the result, arguing that the statute does impose a knowledge requirement but that there was sufficient evidence in the record to defeat summary judgment on the question whether Abercrombie knew that the applicant needed a religious accommodation. Justice Thomas dissented on the ground that application of a religion-neutral policy cannot constitute “intentional discrimination.”

Posted on by Marc O. DeGirolami

Greve on “The Bob Jones Rule”

I was going to post on one particular exchange between Solicitor General Verrilli and Justice Alito in yesterday’s oral argument in the same-sex marriage case, but Professor Michael Greve’s post is a better read than what I can come up with. A bit:

Justice Alito: Well, in the Bob Jones case, the Court held that a college was not entitled to tax exempt status if it opposed interracial marriage or interracial dating. So would the same apply to a university or a college if it opposed same-sex marriage?

Solicitor General Verrilli: You know, I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue. I don’t deny that.

That answer is about as straightforward and committal as you’ll see from an experienced lawyer. It’s curious because the Solicitor General had excellent reasons to deny the point and to deflect the question. His task was to assuage worries about what the Court is being asked to do here and to script the justices’ forthcoming press release (formally known as “the opinion for the Court”): that’s not what this means. And he had a million ways of making reassuring noises. It’s not some complicated legal case, for Pete’s sake: all Mr. Verrilli needed was to argle-bargle for the remaining five minutes of friendly colloquy about First Amendment values, competing dignities, the arc of history, and the meaning of life. In short, Verrilli made the concession not because he had to; he volunteered it. Why?

Because if the tax exemption jazz becomes “an issue,” it’s decided the minute gay marriage becomes the constitutional baseline. Because everyone knows that. Because the LBGT folks already have those complaints and briefs in their drawers, to be filed (almost “certainly”) on July 1.  And because DoJ and the IRS and OCR, in their last remaining eighteen months in office, are in a hurry to roll over to their constituencies and to hammer the hold-outs, in meticulous observance of the law. A hallmark of this administration. Or maybe they’ll hand out waivers.

“I don’t deny that” says “dare me. It’s not going to hurt me in this case, and I’ll plant a flag for the next cases.” Mr. Verrilli could have coasted; instead, he waited for his opening to push further. A heck of a lawyer, at his considerable best.

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Canada’s Hobby Lobby Moment?

Supreme Court justicesIn a landmark decision on March 19, the Supreme Court of Canada decided Loyola High School v. Quebec.  At issue in the case was whether Loyola High School, a private Catholic school, should be required to teach Quebec’s “Ethics and Religious Culture” curriculum in a “neutral” manner.  Loyola sought an exemption from the neutrality requirement when teaching the Catholic faith and the ethics portion of the course.  Although the Supreme Court divided 4-3 with respect to the rationale, it unanimously held that Loyola should be granted an exemption.

As Barry Bussey explains below, this case is significant because the Court came very near to granting corporations religious freedom rights (read Bussey’s full article here).  The extent to which corporations enjoy religious freedom protections was, of course, a controversial issue decided last year by the American Supreme Court in Hobby Lobby v. Burwell.  In that case, the American Court held that RFRA grants religious exercise rights to certain for-profit corporations.  It seems that the Canadian Supreme Court may be following the American lead, albeit incrementally. Here is Bussey (footnotes omitted):

While all seven members of the Court were of the view that Loyola’s freedom of religion was infringed, the Court split in its reasoning 4-3 over the issues of religious corporate rights and the remedy in the case. Both opinions held that religious freedom is not only an individual right but also includes communal dimensions. This is significant. Justice Abella recognized that “individuals may sometimes require a legal entity in order to give effect to the constitutionally protected communal aspects of their religious beliefs and practice, such as the transmission of their faith.” But she did not think it was necessary to decide whether corporations enjoy religious freedom in their own right under s. 2(a) of the Charter to decide the case. Religious freedom, she maintained, must “account for the socially embedded nature of religious belief, and the deep linkages between this belief and its manifestation through communal institutions and traditions.”

…

Justices McLachlin and Moldaver were unequivocal in their acceptance of the Charter’s protection of the “communal character of religion”:

The individual and collective aspects of freedom of religion are indissolubly intertwined. The freedom of religion of individuals cannot flourish without freedom of religion for the organizations through which those individuals express their religious practices and through which they transmit their faith.

MacLachlin and Moldaver held that a corporation was entitled to religious freedom protection as long as it was constituted primarily for religious purposes and operated in accordance with those religious purposes.

Since a corporate organization does not demonstrate a sincere belief as an individual, it must show that its belief or practice is consistent with its purpose and its operation. Such beliefs and practises are more static and less fluid than those of an individual, which makes the inquiry into past practises and consistency of positions more relevant than it would be if the claimant were an individual. In this case, the beliefs and practises of Loyola were consistent and ought to be protected. The Minister’s refusal to accommodate those beliefs was in violation of the Charter right.

McLachlin and Moldaver’s decision forms a great foundation for a future case to clearly outline the boundaries of the religious freedom for religious corporate bodies. It is an incremental development in the right direction.