Here's a paper of mine, "Religious Freedom and the Nondiscrimination Norm", written for a (great) conference last year at the University of Alabama, which was organized by Austin Sarat and Paul Horwitz.
Abstract:
“Discrimination,” we believe, is wrong. And, because “discrimination” is wrong, we believe that governments like ours – secular, liberal, constitutional governments – may, and should, take
regulatory and other steps to prevent, discourage, and denounce it. However, it is not true that “discrimination” is always or necessarily wrong. Nor is it the case that governments always or necessarily should or may regulate or discourage it even when it is. Some wrongs are beyond the authorized reach of government policy; some are too difficult or costly to identify, let alone regulate; others are none of the government’s business.
When we say that “discrimination” is wrong, what we actually mean is that wrongful discrimination is wrong, and when we affirm that governments should oppose it we mean that governments should oppose it when it makes sense, all things considered, and when it is within their constitutionally and morally limited powers to do so. To label a decision or action “discrimination” is simply to note that one factor or another was or will be taken into account in the course of a decision; it is to invite, but not at all to answer, the questions whether that decision or action was or would be wrong, and whether the public authority may or should forbid or discourage
it.
The important enterprise of respecting and protecting religious freedom in and through law is closely related, in several ways, to the also-important enterprise of deploying public power to identify, regulate, and discourage wrongful discrimination. It is suggested in this chapter the
rhetorical, moral, and legal power of the antidiscrimination norm can sometimes distort or distract our thinking about how we do and should protect religious freedom through law. This is because the near-universal, if sometimes unreflective, conviction that “discrimination” is wrong means that assertions of religious freedom are sometimes heard as requests that the political authorities
tolerate a wrong – i.e., “discrimination” – which they would otherwise prohibit, penalize, or discourage. Such requests then raise the question whether it is “worth it” for the authorities to do so – that is, whether doing so would complicate too much the government’s own projects or conflict too glaringly with its values—and so, when they are granted, accommodations are regarded all around as concessions. Sometimes, to be sure, we do and probably should think about
legal rights as protecting, or simply tolerating, a liberty to do even the wrong thing (so long as the wrong thing is not too wrong). We should not forget, though, that a dimension of the freedom of religion is, sometimes, precisely the freedom to “discriminate,” and that this freedom should be protected not simply because such discrimination is an all-things-considered tolerable wrong –
sometimes it is, sometimes it isn’t – but because it is inextricably tied to a human right and is, sometimes, beyond political authorities’ legitimate reach.
A few days ago I provided a snippet of Archbishop Chaput's address on religious freedom. Here is the full thing.
The Supreme Court has issued its long awaited opinion in Arizona v. United States, in which it found major portions of Arizona's recent immigration law to be preempted by federal immigration law. Justice Scalia's dissent is fascinating for two reasons. First, citing Vattel and Pufendorf, he seems to argue that Arizona (at least when not acting contracy to federal law) has sovereign powers to exclude rooted in international law. Second, he recognizes that these "17th-, 18th-, and 19th-century commentators maintained that states should exclude foreigners only for good reasons. Pufendorf, for example, maintained that states are generally expected to grant 'permanent settlement to strangers who have been driven from their former home..." Page 1, note 1.
While his first point is unlikely to gain much traction among the current court, he second point plants a seed that may bear fruit in the future. Misreading Vattel, Pufendorf, and others, the Supreme Court in the 19th century created what is known in immigration circles as the plenary power doctrine, concluding that Congress (and to some extent the Executive) have almost unbridled power over issues of immigration: admission, exclusion, and expulsion. This view has carried over into the 20th- and 21st- centuries. Justice Scalia is the first justice - as far as I can tell - to recognize that even the Law of Nations counciled sovereigns to exercise this "plenary power" prudentially with an eye toward opening boarders as far as possible to those in need. Although it is too early to tell, this footnote might be provide a basis for revisiting the absolutist misreading of the right to exclude.
What does this image represent? Best answer gets the MOJ honorary gold star.
UPDATE: The commenters seem to be on to it. Gold stars all around. I will make the next one more challenging.
This is a big day for Supreme Court opinions (not the big day, but a big day). But it's also perhaps worth noting that the Supreme Court has denied certiorari in the Ninth Circuit's Mt. Soledad cross case, Trunk v. City of San Diego.
Justice Alito issued a separate statement regarding the denial of cert. Note that this is not a dissent from the denial of cert., but only a "statement." In his statement, Justice Alito makes clear that he agrees with the decision to deny cert. at this time. The reason is the posture of the case. In the Ninth Circuit decision, the panel (in an opinion by Judge McKeown) had not required that the cross be removed. Instead, it had only required that the memorial in toto be modified so as to pass constitutional muster, in conformity with the approach the court laid out. Justice Alito wrote:
Because no final judgment has been rendered and it remains unclear precisely what action the Federal Government will berequired to take, I agree with the Court’s decision to denythe petitions for certiorari. Our denial, of course, does not amount to a ruling on the merits, and the Federal Government is free to raise the same issue in a later petition following entry of final judgment.
(footnotes and citations omitted).
I have mentioned this before, but if you have not read Judge McKeown's Trunk opinion, you'd do yourself a favor by checking it out. One can agree or disagree with the outcome (I have my own disagreements with it), but I believe it to be a model of judicial craftsmanship and method. Or...just wait for next spring to see in greater detail why I think Trunk is an elegant and methodologically appealing decision!
