Kavanaugh (and Kennedy) on Church and State

Judge_Brett_KavanaughAt the Law and Liberty Blog today, I have an essay on how a Justice Kavanaugh would likely rule in church-state cases. I argue he is likely to look a lot like Justice Kennedy, the person he would replace:

It’s always difficult to predict how a nominee would rule in cases once on the Court. The best evidence is the way he has ruled as a lower court judge—and even that evidence is imperfect, since lower court judges have a greater duty than Supreme Court Justices to follow the Court’s precedents. Although he has been on the DC Circuit for a dozen years, Kavanaugh has written only two opinions on the merits in church-state cases, one on establishment and the other on free exercise. (He has written one opinion dismissing an Establishment Clause challenge on standing grounds and joined a few church-state opinions other judges have written, but those opinions are less probative). On the basis of those two opinions, I think Justice Kavanaugh would likely be a centrist conservative in the middle of the Court—a Justice remarkably like the one he would replace.

You can read the whole essay here.

Podcast: “Who Is Brett Kavanaugh?”

gs-FdUf9_400x400Last week, I sat down with First Things‘s senior editor Mark Bauerlein to discuss Judge Brett Kavanaugh’s record on church-state issues and what it might suggest about his future as a Justice. (Bottom line: he’s likely to look a lot like the person he’s replacing). You can listen to the podcast on the First Things site, here.

Masterpiece Cakeshop Explained

For those who are interested, I’ve done a short video for the Federalist Society explaining the arguments in Masterpiece Cakeshop, the gay wedding cake case, which will be argued tomorrow at the Supreme Court. The link to the video is below:

Around the Web

Here are some important law-and-religion news stories from around the web:

 

Supreme Court Roundup at First Things

Kevin Walsh and I have the annual Supreme Court Roundup at First Things, A Less Corrupt Term. In it we look back at some of the cases from last term and forward too. The range of cases looking back span the Obergefell-inflected genre, free speech (Packingham and Matal), law and religion (the church plan case and Trinity Lutheran), and Trump v. IRAP. We also discuss the political gerrymandering case on the upcoming docket (Gill v. Whitford) as well as Masterpiece Cakeshop. Here is a bit from the beginning:

In these unusually turbulent times for the presidency and Congress, the Supreme Court’s latest term stands out for its lack of drama. There were no 5–4 end-of-the-term cases that mesmerized the nation. There were no blockbuster decisions.

Even so, the Court was hardly immune to the steady transformation of our governing institutions into reality TV shows. Over the weekend leading into the final day of the term, speculation ignited from who-knows-where about the possible departure of its main character, Justice Anthony Kennedy. To us, the chatter seemed forced—as if the viewing public needed something to fill the vacuum left by a season of episodes with fewer sex scenes and less louche intrigue than usual.

But the scriptwriters did not disappoint entirely. In the season finale, the justices delivered split opinions in two cases that had not even been fully briefed and argued on the merits—one about President Trump’s limits on immigration from six majority-Muslim nations, the other about the right of a female same-sex spouse to be listed as a parent on a birth certificate alongside the birth mother. These opinions hint at some of the stories that will shape next year’s plotline—the first full term for the new character, Justice Neil Gorsuch.

And the producers promise a thrilling new season. For readers of this journal, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission is likely to be the most prominent case, one about the freedom of a Christian baker to decline to design a custom cake for a same-sex wedding celebration. Other potential showstoppers include a case about partisan gerrymandering and another round on President Trump’s executive order on immigration. We may also see more shake-ups in the cast. Before peering ahead to what may be coming, though, we look back at some of the signal events of the past term.

My Take on Gorsuch: A Solid Conservative

At the First Things site today, I reflect on this week’s nomination of Judge Neil Gorsuch to serve on the Supreme Court. In my opinion, he’s likely to be a solid conservative–the sort of judge that any Republican administration in the last generation could have nominated. Here’s an excerpt:

He holds to originalism in constitutional interpretation and textualism in statutory interpretation—two positions that have been the foundation for judicial conservatism since the 1980s. His record in religion cases is reassuring. On the free exercise side, he has shown sensitivity to the right of believers to claim exemptions from laws that substantially burden their religious exercise. And he has done so not only in the famous Hobby Lobby case, in which the claimants were conservative Christians, but in a case involving a Native American prisoner. In fact, his opinion in the latter case, Youngbear v. Lambert, is a sophisticated, engaging essay on the law of religious exemptions generally. Gorsuch is a clear and accessible writer—something one cannot say for many judges.

His opinions on the Establishment Clause side, less well known, are also encouraging. Judge Gorsuch has signaled his opposition to the thirty-year-old “endorsement test,” which forbids state-sponsored displays that a reasonable observer would understand as an endorsement of religion. The test is famously malleable, and Judge Gorsuch has criticized the way his own circuit, in particular, has misinterpreted it to forbid some traditional public displays—including, notably, a Ten Commandments monument. His apparent dissatisfaction with the endorsement test bodes well for restoring a more sane Establishment Clause jurisprudence that honors American traditions.

You can read the whole post here.

 

No Protestants on the Court

At the Liberty Law site this morning, I have a post on the absence of Protestant Christians on the Supreme Court. In historical terms, the lack of Protestants is a striking anomaly–the large majority of the 112 men and women who have sat as Justices over time has been Protestant. What explains the current situation, and might it have an effect on American law?

With regard to the first question, I argue that the absence of Protestants as to to with larger social and cultural questions. With respect to the second question, I argue, it depends on what sort of Protestant, and what sort of legal issues, one has in mind:

If Reno is right about the transformation of Mainline Protestantism into a post-Protestant WASP ethos, then it shouldn’t matter whether actual Mainline Protestants are on the Court. Given the composition of the legal profession, most people likely to be appointed to the Court will have post-Protestant WASP values, whatever their particular faith tradition. Recall my example of the Catholic or Orthodox 1L at Harvard. Post-Protestant WASP values, in other words, will be represented even without actual Mainline Protestants.

On the other hand, the absence of Evangelicals might make a difference to the Court’s decisions, at least with regard to some issues—for example, questions regarding religious liberty. Notwithstanding the Supreme Court’s 1990 decision in Employment Division v. Smith, which abandoned the test for constitutional purposes, most hot-button religious liberty cases nowadays turn on some version of the “compelling interest” test. This test holds that the government cannot substantially burden a person’s exercise of religion unless it has a compelling interest for doing so and has chosen the least restrictive means. This is the test contained in the Religious Freedom Restoration Act (RFRA), for example—the statute at issue in the Court’s recent decisions regarding the contraception mandate in Obamacare.

The compelling interest test requires many judgment calls: What is a “substantial burden” on religious exercise? What is a “compelling interest”? Is there a “less restrictive means” available? (In fact, it was the necessity of such intuitive judgments that led the Smith Court to abandon the compelling interest test in the constitutional context). And judgment calls depend on the intuitions of the people doing the judging. An Evangelical Christian likely would have different intuitions about these matters than a post-Protestant WASP who views religions as more or less interchangeable, and anyway not all that important. Someone who views religion as a vital guide to behavior might be more skeptical of claims that a rule does not “substantially burden” religious exercise, or that the government has offered a “compelling” interest to justify the intrusion.

In short, on at least some questions, the religious background of the justices could well make a difference, and the absence of Evangelicals on the Court affect the course of the law. You can read the whole post here.

More on Yesterday’s Decision in Zubik

Marc has posted a rundown of yesterday’s decision in Zubik v. Burwellthe 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.

Zubik v. Burwell Remanded

Today the Supreme Court issued a short per curiam opinion vacating the circuit courts’ respective opinions in the nonprofit contraception mandate cases and remanding them to those circuits, in light of the “substantial clarification and refinement” in the claimants’ and the government’s respective positions that the Court claims was generated by the supplemental briefing. To wit:

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.”

Disagreements as to implementation to be worked out below.No taxes or penalties on the claimants during the pendency of the new implementation for failure to provide adequate notice to the government. No opinion expressed on the merits (substantial burden, compelling interest, least restrictive means), other than by Justice Sotomayor, who concurred (joined by Justice Ginsburg) in the Court’s order essentially to make crystal clear to the government that she was sympathetic to its views.

Survey Finds a Majority Agree with the Little Sisters of the Poor’s Fight Against the HHS Mandate

On April 19, 2016, the Catholic News Agency reported on the results of a new Marist Poll survey relating to the Little Sisters of the Poor’s pending litigation before the U.S. Supreme Court. The article begins as follows:

A new survey says most Americans think the Obama administration’s federal contraception mandate is unfair to the Little Sisters of the Poor and other religious groups defending themselves before the U.S. Supreme Court.

little sisters

About 53 percent of Americans said the process required by the government is “unfair,” while only 32 percent did not, according to a new Marist Poll commissioned by the Knights of Columbus.

The federal government has exempted many other organizations’ employee health care plans from a requirement to provide contraception and drugs that can produce abortions. But it has no exemption for the Little Sisters of the Poor, who help run houses to care for the elderly poor.

The full text of the article appears here.

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