Posted on by Marc O. DeGirolami

McGinnis & Rappaport, “Originalism and the Good Constitution”

The importance and influence of originalism as a theory of constitutional interpretation cannot be overstated. Originalism demands a response, and it has been uniquely successful in generating responses (whether sanguine or skeptical) from constitutional scholars as well as the broader public. In recent years, originalism has enjoyed renewed prominence in both the courts and the scholarly community. So-called “new originalism” has come on the scene, garnering a few unexpected adherents. And originalism’s influence has certainly increased on the Supreme Court in the last decade. Indeed, it is difficult to imagine an opinion on, for example, the Recess Appointments Clause in the upcoming Noel Canning case that does not discuss originalist methods and reach conclusions consistent with originalist interpretive theory. That prediction could not have been made in previous eras.

The influence of originalist thinking on the interpretation of the Constitution’s religion clauses has been perhaps less powerful than in other areas (Michael McConnell’s work is a notable exception, and there are a few others). In part this is due to complex and difficult disagreements among scholars about the meaning and scope of the Free Exercise Clause (see, for example, the old debate between McConnell and Philip Hamburger, reflected in the dueling opinions by Justices O’Connor and Scalia in City of Boerne v. Flores). In part it is due to the radical expansion of the coverage of the Establishment Clause in Supreme Court caselaw beginning in the 1940s (see Donald Drakeman’s book, among other treatments) well beyond its original meaning. Nevertheless, there is a distinct possibility that originalist analysis will play a prominent role in the interpretation of the Establishment Clause in the upcoming Supreme Court legislative prayer case–at least in some of the opinions.

All of this is just a little background for what looks to be an extremely Originalism and the Good Constitutionimportant new book on originalism by two of the most acute proponents of originalism (specifically, original methods originalism, which the authors usefully compare against the constitutional construction of another new originalist, Larry Solum) writing today: Originalism and the Good Constitution (HUP 2013) by John McGinnis (Northwestern) and Michael Rappaport (University of San Diego). The book is a must-read for anyone interested in constitutional interpretation (even for–especially for–those of us who are not originalists). For some of my own thoughts about originalism in constitutional interpretation, see the second half of this paper. The publisher’s description follows.

Originalism holds that the U.S. Constitution should be interpreted according to its meaning at the time it was enacted. In their innovative defense of originalism, John McGinnis and Michael Rappaport maintain that the text of the Constitution should be adhered to by the Supreme Court because it was enacted by supermajorities—both its original enactment under Article VII and subsequent Amendments under Article V. A text approved by supermajorities has special value in a democracy because it has unusually wide support and thus tends to maximize the welfare of the greatest number.

The authors recognize and respond to many possible objections. Does originalism perpetuate the dead hand of the past? How can following the original meaning be justified, given that African Americans and women were excluded from the enactment of the Constitution in 1787 and many of its subsequent Amendments? What is originalism’s place in interpretation of the Constitution, when after two hundred years there is so much non-originalist precedent?

A fascinating counterfactual they pose is this: had the Supreme Court not interpreted the Constitution so freely, perhaps the nation would have resorted to the Article V amendment process more often and with greater effect. Their book will be an important contribution to the literature on originalism, which is now the most prominent theory of constitutional interpretation.

Posted on by Mark Movsesian

Conversations: Marc DeGirolami

This summer, Harvard University Press published The Tragedy of Religious Freedom, by our very own Marc DeGirolami (left), CLR’s Associate Director. In the book, Marc argues for a “tragic” understanding of religious freedom, one “that avoids the twin dangers of reliance on reductive and systematic justifications, on the one hand, and thoroughgoing skepticism about the possibility of theorizing, on the other.” This week, Marc answers some questions about his book. Among other things, he discusses the differences between “tragic” and “comic” legal theories; the value of history and tradition in judicial decision-making; and the inevitability of judicial discretion. He also explains why the Court got religious freedom wrong in Employment Division v. Smith and right in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. 

CLR Forum: Marc, explain what you mean by “comic” and “tragic” approaches to law generally. Why do you think religious freedom, in particular, should be addressed from a tragic perspective?

DeGirolami: The terms comic and tragic are ancient and have been used in classical, literary, and philosophical settings. I draw on some of these meanings in the book, but I use comic in the legal context to mean two things: (1) a preference for systematic ordering of the law by reducing legal values either to one or to a small set, in the belief that human society is progressively improved by that reduction; and (2) the marginalization of the loss of other values in the process of accomplishing (1). Tragic approaches to the law resist both of these points. A tragic approach to law says that the reasons we value a practice like religious freedom are plural and cannot be reduced. Each value struggles to avoid absorption and subordination by the others. The clash of values results both from the limits of human reasoning and from the conflict of human interests and aspirations. So in the face of conflict in law, a tragic approach affirms that the comic impulse to reduce legal values, and systematically to marginalize those that are subordinated, will exacerbate conflict and end up deforming, and perhaps eventually destroying, important social practices and institutions.

CLR Forum: You single out Employment Division v. Smith, Justice Scalia’s famous opinion in the peyote case, as an example of the misguided “comic” approach and argue that it should be gradually dismantled. What’s so wrong with Smith? And why not just overrule it? 

DeGirolami: Yes, I am critical of Smith and believe it to be an example of a comic approach. Smith reduced all possible values of free exercise under the Constitution to a single value: formal neutrality. A neutral rule that is applied generally no longer can violate the Free Exercise Clause of the Constitution after Smith, no matter how severely the rule burdens the religious free exercise of an individual or a group and no matter how insubstantial the government’s interest in enforcing the rule on a religious claimant. The Smith decision attempted to accomplish both of the comic points I listed above. It wanted to bring system Read more

Posted on by Marc O. DeGirolami

NYC Council Passes Equal Access Resolution for Churches to School Property

Via Walter Russell Mead, I learn that the New York City Council passed a resolution on Wednesday calling for the granting of equal access to churches and houses of worship to public school property (it calls for new legislation to amend the New York State Education Law in this respect). We have on various occasions discussed the “serpentine path” of litigation in the Bronx Household of Faith case, and it appears from Mead’s report that several Council members who opposed the resolution (as well as schools Chancellor Dennis Walcott) made a public statement citing the concerns of the Board of Education that by granting access, the school might be “appearing to endorse religion.” The Council’s resolution may have been spurred by the events in the Southern District of New York.

I have argued before that it is an intrinsic feature of the endorsement test that it leads to Establishment Clause bloat, in which endorsement is replaced by the “appearance” of endorsement in a kind of infinite regress of subjectivity which enables courts to bloat the Establishment Clause without going to the trouble of ruling that a particular activity actually does violate the Establishment Clause. Here, though, I only want to note that Mead’s view that “the Founders did not intend the First Amendment to deny churches the right to pay money to rent public school properties” is, in my view, correct. The best work on the subject that I know of indicates that as a historical matter, while state use of religious buildings was problematic on Establishment Clause grounds, religious use of public buildings was not. I discuss some of this work in chapter 10 of The Tragedy of Religious Freedom. Of course, depending on one’s views, that is not necessarily conclusive on the question whether the Constitution forbids such use today.

Posted on by Marc O. DeGirolami

Horwitz, “Freedom of the Church Without Romance”

For those interested in the exploding work on the freedom of the church (and you should all be!), do see Paul Horwitz’s new tour de force draft article, Freedom of the Church Without Romance, a typically graduated and thoughtful piece by a defender of ecclesial liberty.

I haven’t yet read the entire piece, but what I have read is rich and very interesting. I touch on ideas of liberty of the church in my chapter on free exercise applications of the tragic-historic method in The Tragedy of Religious Freedom–in Chapter 9 where I discuss the Hosanna-Tabor case. But because (I think!) my view of freedom of the church is perhaps not quite as potent in certain ways as is Paul’s (it is subject to perhaps greater particularistic assessment by courts and is less committed to the general superstructure of Horwitzian First Amendment institutionalism, even as qualified in this piece), I wonder whether, for me, the suggestion of embracing a “strong non-establishment regime” follows as powerfully as it does for Paul (if one understands a “strong” disestablishmentarian regime in the way that I suspect Paul does). Some of Paul’s questions toward the end of the piece about arguments involving church freedom alongside others concerning equal access of religious entities in the provision of services do not seem to me to give churches “a competitive advantage” that is troubling for Establishment Clause purposes (one can believe this, I think, and also agree with Paul about the importance of the economics of religion quite apart from the issue of its constitutional weight), though I understand the point that Paul is making. At any rate, the piece is well worth a good, long read. The abstract follows.

This Article is part of a symposium issue titled “Freedom of the Church in the Modern Era.” Freedom of the church, roughly, connotes the independent nature or sovereignty of the church. The most dramatic moment in its development was the eleventh century Investiture Controversy, with its confrontation between Pope Gregory VII and Emperor Henry IV at Canossa, but it has a long prior and subsequent history. Recently, with the renewed scholarly interest in the institutional rights of churches and religious organizations and the Supreme Court’s decision affirming the “ministerial exception” doctrine in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC,the idea of “freedom of the church” has taken on new champions–and critics.

This Article, from an author who has written supportively about freedom of the church and/or religious institutionalism in prior work, takes a deliberately unromantic look at freedom of the church. It evaluates it through two useful disciplinary lenses: history, and the economics of religion.

Both historical and economic analysis of the concept of”freedom of the church” suggest the following conclusions: (1) The concept should be treated carefully and with a full awareness of its mixed history, without undue romanticism on the part of its champions–or a confident conclusion on the part of its critics that it is no longer necessary. (2) Whatever the concept of “freedom of the church” means today, the present version is decidedly diminished and chastened, a shadow of the medieval version. Supporters of freedom of the church should welcome that fact. Freedom of the church persists, and may have continuing value, precisely because it has become so domesticated. (3) There are solid historical and economic grounds for some form of freedom of the church or religious institutional autonomy. In particular, religion’s status as a credence good, whose value and reliability is certified by religious agents such as ministers, strongly suggests that state interference with religious employment relations can be dangerous to a church’s well-being and long-term survival. (4) The history and economics of religion also teach us something about the optimal conditions for freedom of the church–the conditions under which it is likely to do the most good and the least harm. In particular, they suggest that champions of freedom of the church ought to welcome religious pluralism and a strong non-establishment regime.

The Article closes with some speculation about why there has been a recent revival of interest in freedom of the church, including the possibility that its resurgence, even if it is fully justified, also involves an element of rent-seeking by religious institutions.

There are two broader underlying suggestions as well. First, there are good reasons to support some version of freedom of the church, but it deserves a more critical and nuanced examination by friends and adversaries alike. Second, legal scholars writing on church-state issues have paid far too little attention to the literature on the economics of religion.

Posted on by Michael Helfand

Enforcing the “Jewish Prenup”

Thanks to Mark for the invitation back to the CLR Forum for a guest post.  Yesterday, a couple of law blogs (see here and here) picked up a story in the Jewish Daily Forward about an important Connecticut state court decision that enforced what is often referred to as the “Jewish Prenup” (“In Victory for ‘Chained’ Wives, Court Upholds Orthodox Prenuptial Agreement“).  I’ve written a bit about the decision previously, but wanted to explain a little bit more about what is at stake.  [UPDATE: Here’s a copy of the decision Light v. Light reprinted from Westlaw with permission of Thomson Reuters.  If you wish to check the currency of this case by using KeyCite on Westlaw, then you may do so by visiting www.westlaw.com.”]

Under Jewish law, only a husband can initiate a Jewish divorce.  Moreover, if a husband is “coerced” into granting a divorce, then the divorce is considered invalid.  This combination of rules has caused some significant problems for Orthodox Jewish women seeking to end their marriage where their husband refuses to grant them a Jewish divorce document.  In order to address this growing problem, a number of Jewish organizations – most prominently, the Beth Din of America – created a prenuptial agreement, which is now signed by a growing number of Orthodox Jewish couples.  This agreement’s most salient feature is a provision where the husband agrees to provide his wife with financial support in the amount of $150 per day “so long as the two . . . remain married according to Jewish law.”  The purpose of this provision is to walk a fine line between placing financial pressure on the husband to ensure he grants the divorce without placing so much pressure so as to render any subsequent divorce granted by the husband “coerced” (for a recent article exploring various considerations on this and related points, see here starting on page 12).

It was this support provision that was enforced by the Connecticut Superior Court in its recent decision in the case of Light v. Light.  In so doing, the court considered the husband’s claim that enforcing the prenuptial agreement would violate the First Amendment by requiring the court to “consider[] religious doctrines and ceremonies.”  However, the court rejected this argument, holding that the prenuptial agreement could be interpreted and enforced in accordance with “neutral principles of law”:

In the present case, a determination as to whether the prenuptial agreement is enforceable would not require the court to delve into religious issues. Determining whether the defendant owes the plaintiff the specified sum of money does not require the court to evaluate the proprieties of religious teachings. Rather, the relief sought by the plaintiff is simply to compel the defendant to perform a secular obligation, i.e., spousal support payments, to which he contractually bound himself.

It is important to note here that the prenuptial agreement does not require the husband to grant his wife a Jewish divorce.  Indeed, courts have differed as to whether a contract in which a husband agrees to grant his wife a religious divorce is enforceable; the issue raised in such cases is whether or not civil enforcement of a contract that requires a husband to grant a religious divorce violates the religion clauses of the First Amendment (for contrasting views, see here and here).  By contrast, the prenuptial agreement simply requires the husband to make support payments, thereby avoiding these potential First Amendment problems.

This decision – which is in my view both correctly decided and well reasoned – is likely to have significant impact on any future cases involving this increasingly popular prenuptial agreement.  The “Jewish prenup” has done an impressive job of avoiding a variety of both constitutional objections and Jewish Law conundrums.  And as a result, this prenuptial agreement is likely to go quite far in protecting Orthodox Jewish women by providing them with the financial leverage necessary to ensure that they receive their religious divorces from otherwise reluctant husbands.

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Olree on James Madison’s Formative Experiences with Religious Establishments

Andy G. Olree (Faulkner U. – Jones School of Law) has posted “Pride Ignorance and Knavery”: James Madison’s Formative Experiences with Religious Establishments. The abstract follows.

Judicial interpretations of the First Amendment’s religion clauses have purported to rely heavily on the history of the American Founding era. Today, it seems no Founder carries more weight in religion clause opinions than James Madison, a seminal figure the Supreme Court has repeatedly credited as “the leading architect of the religion clauses of the First Amendment”—most recently in January 2012, as it relied heavily on Madison’s views in deciding the Hosanna-Tabor case. But courts citing Madison have tended to focus on the short period beginning with his “Memorial and Remonstrance” in 1785 and ending with the ratification of the Bill of Rights in 1791. Less frequently, a court might refer to particular subsequent events or writings from Madison’s life. But to this point, both scholars and judges have paid relatively little attention to his early, formative years, the years leading to his interest in church-state issues and his entry into politics. This Article posits that his early experiences with the Anglican religious establishment in colonial Virginia played an instrumental role in shaping his lifelong thought on church and state, in particular his interest in religious liberty and his opposition to religious establishments, religious persecution, and laws that strayed into the sphere of religion. Accordingly, the Article examines Madison’s formative experiences with religious establishments in order to provide a fuller understanding of his views of the natural right of religious liberty.

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Leiter, “Why Tolerate Religion?”

This October, Princeton University Press will publish Why Tolerate Religion? By Brian Leiter (University of Chicago Law School). The publisher’s description follows.

This provocative book addresses one of the most enduring puzzles in political philosophy and constitutional theory–why is religion singled out for preferential treatment in both law and public discourse? Why, for example, can a religious soup kitchen get an exemption from zoning laws in order to expand its facilities to better serve the needy, while a secular soup kitchen with the same goal cannot? Why is a Sikh boy permitted to wear his ceremonial dagger to school while any other boy could be expelled for packing a knife? Why are religious obligations that conflict with the law accorded special toleration while other obligations of conscience are not?

In Why Tolerate Religion?, Brian Leiter argues that the reasons have nothing to do with religion, and that Western democracies are wrong to single out religious liberty for special legal protections. He offers new insights into what makes a claim of conscience distinctively “religious,” and draws on a wealth of examples from America, Europe, and elsewhere to highlight the important issues at stake. With philosophical acuity, legal insight, and wry humor, Leiter shows why our reasons for tolerating religion are not specific to religion but apply to all claims of conscience, and why a government committed to liberty of conscience is not required by the principle of toleration to grant exemptions to laws that promote the general welfare.

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Shiffrin, “The Religious Left and Church-State Relations”

This August, Princeton University Press will publish a paperback edition of The Religious Left and Church-State Relations by Steven H. Shiffrin (Cornell Law School). The cloth edition was published in 2009. The publisher’s description follows and  a book review by the Center’s own Assistant Director Marc O. DeGirolami can be found here.

In The Religious Left and Church-State Relations, noted constitutional law scholar Steven Shiffrin argues that the religious left, not the secular left, is best equipped to lead the battle against the religious right on questions of church and state in America today. Explaining that the chosen rhetoric of secular liberals is poorly equipped to argue against religious conservatives, Shiffrin shows that all progressives, religious and secular, must appeal to broader values promoting religious liberty. He demonstrates that the separation of church and state serves to protect religions from political manipulation while tight connections between church and state compromise the integrity of religious institutions.

Read more

Posted on by Mark Movsesian

DC Court of Appeals: Ministerial Exception Does Not Bar Minister’s Breach of Contract Suit Against Church

Here’s a reminder that, even after Hosanna-Tabor, the ministerial exception does not bar all lawsuits clergy bring against church employers. The DC Court of Appeals has allowed a minister’s breach of contract claim against her former congregation to go forward, notwithstanding the congregation’s claim of immunity. The Rev. Deloris Prioleau, an ordained AME pastor, had a series of one-year employment contracts with the Cornerstone AME Church in DC. When Cornerstone failed to pay Prioleau $39,000 it owed her on her final contract, she brought a breach of contract action. Last week, the DC Court of Appeals ruled that the action could proceed under the “neutral principles of law” approach. Prioleau’s suit, the court said, appeared to be “a straightforward contract case, uncomplicated by ecclesiastical considerations.” Moreover, the ministerial exception did not apply. Prioleau had not challenged Cornerstone’s “authority to hire, to fire, or to assign her duties” and did not seek “reinstatement.” (Oddly, the court did not discuss Hosanna-Tabor itself). The court ended its opinion with a warning, however:  “if it becomes apparent … that this dispute does in fact turn on matters of doctrinal interpretation or of church governance, the trial court may grant summary judgment to avoid ‘excessive entanglement with religion.'” The case is Second Episcopal District African Methodist Episcopal Church v. Prioleau, 2012 WL 3243190 (D.C. Court of Appeals, Aug. 9, 2012).

Posted on by Mark Movsesian

1st Circuit Applies Neutral Principles Approach in Church Copyright Dispute

Here’s an unusual church property dispute. The Holy Transfiguration Monastery in Brookline, Massachusetts brought a copyright infringement action against a former monk who had posted on his website English-language translations of ancient Christian texts the monastery had prepared. The former monk, now an archbishop in a different Christian communion, raised a number of copyright defenses, including fair use and non-originality. Last week, the First Circuit rejected all the archbishop’s defenses and ruled in favor of the monastery. The copyright issues are quite dense and apparently of real importance to copyright lawyers. For CLR Forum readers, though, the case is significant for its implications for church autonomy doctrine. The archbishop argued that the monastery’s statutes gave title to the texts to the monastery’s then-parent body, the Russian Orthodox Church Outside Russia, or ROCOR. (The monastery has since ended its affiliation with ROCOR). Using the neutral principles approach, the First Circuit rejected this argument. Applying “the Monastic Statutes’ plain terms,” and “without treading upon religious doctrine, church governance, and ecclesiastical laws,” title to the texts rested in the monastery, not ROCOR. The case is Society of the Holy Transfiguration Monastery, Inc. v. Gregory, 2012 WL 3125120 (1st Cir., Aug. 2, 2012).