Profs. Kent Greenfield and (MOJ-alum) Eduardo Penalver have an op-ed, at The Hill, called "How the First Amendment Can Save Affirmative Action." They contend that "the robust deference the court extended to the business owner in [303 Creative] may offer a pathway for certain private religious universities to continue considering race in their admissions decisions. " (It's not quite right that the Court extended "deference" to the business owner; it took as given the facts stipulated to during the litigation below.) In my view, the piece is not persuasive, and fails to account for the facts in both 303 Creative and the Harvard/UNC racial-preferences case.
First, it is not the case that "the Supreme Court’s conservative supermajority gutted affirmative action in college admissions by equating it with discrimination[.]" The Court's decision does not outlaw "affirmative action", nor does it mandate strict "color-blindness." Instead, it reviewed carefully the extensive evidence that the two institutions in question engaged in clear -- indeed, obvious and in some cases quite vulgar -- racial discrimination. Nothing in the Court's decision prevents universities from taking "affirmative action" steps to engage in outreach to disadvantaged and marginalized students. But, they cannot do what Harvard and UNC were doing, which was, quite obviously, not diversity-seeking holistic-review, but percentage-pursuing racial discrimination.
Second, it is misleading to write that "[t]he 303 Creative ruling added to a string of opinions offering First Amendment-based exemptions from generally applicable laws to Christian conservatives[.]" The Court has not granted First Amendment (RFRA is different) exemptions from "generally applicable laws" (outside the ministerial-exception context), or from non-discriminatory government action and the "string" of exemptions cases have certainly not been limited to "Christian conservatives[.]" (See, e.g., O Centro, Lukumi, Holt v. Hobbs, etc.)
Third, the authors state that "[t]he creation of diverse communities of students, faculty and staff embodies and expresses our institutions’ Jesuit and Catholic religious commitments." But again, these institutions remain free to create "diverse communities"; but, so long as they accept public funds, they need to find methods -- and, surely, other methods are available -- other than crude racial stereotyping and race-based discrimination. (It seems unlikely that these institutions and authors want to claim a religious justification for racial discrimination in hiring and admissions.) The Court did not disapprove of "diversity" as a goal; it said, instead, that clear racial discrimination is not justified by a diversity-seeking goal. What's more, it is not plausible to contend that most elite institutions' admissions programs (let's put aside, for present purposes, the two authors' institutions') are designed or implemented in ways that aim at "diversity", richly understood.
Finally, the authors write that "the Department of Education should announce that it will not enforce any colorblindness requirement against mission-driven schools where doing so would violate their foundational values, particularly when those values are rooted in religious faith. This carve-out would not cover all (or even most) colleges and universities, but it would protect the expressive and religious freedoms of an important and vibrant segment of American higher education." But again, the Court did not impose a "colorblindness requirement". Also, outside the ministerial-exception context, there is no doctrinal basis for limiting this call to "religious" institutions. And, the authors suggest no reason for the assurance that the proposed "carve-out" would not "cover all (or even most) colleges and universities[.]"
I am, of course, deeply committed to (a) the importance of Catholic educational institutions identifying, embracing, and attending carefully to their meaningfully distinctive Catholic characters and missions and to (b) enhancing educational opportunities and freedom for disadvantaged people. Catholic universities need to do (much) better on both of these fronts. But the particular practices invalidated in the FAIR case are not necessary to pursue schools' Catholic mission and, in my view, should not be embraced or justified as expresions of that mission.
I'm pleased to report that my book project on traditionalism in constitutional law is now under contract with Cambridge University Press, with the tentative title "We Mean What We Do: The New Constitutional Traditionalism." The book will bring together many of the themes and arguments from a number of papers that I've been working on over the last several years, as well as some new papers I'll post soon. But most of it will be new material, and I hope to have a few posts in the coming months trying out some ideas at Mirror of Justice. More soon!
Friday, July 21, 2023
Since our former dean, MOJ-er Rob Vischer has ascended to the university presidency at St. Thomas (a belated blog hurrah to Rob!), we are now officially in a dean search at the law school. MOJ-er Lisa Schiltz co-chairs the committee; I'm a member.
Here is the position announcement on the search firm's (WittKieffer's) site. It also provides a full position profile. (I'll link to both files below as well.) The lede for the announcement:
The University of St. Thomas School of Law is seeking a Dean eager to capitalize on a pivotal moment in the Law School’s short but extraordinary history, and ready to guide it through the next stage of its emergence as a national leader in values-driven, whole-person-centered legal education and in scholarly and societal impact. In the two decades since its opening in 2001, the School of Law has outpaced all expectations, validating the hopes embedded in its mission: “The University of St. Thomas School of Law, as a Catholic law school, is dedicated to integrating faith and reason in the search for truth through a focus on morality and social justice.”
As the announcement concludes: "Review of applicant materials has begun; for fullest consideration, candidate materials should be received by September 30, 2023 and submitted through WittKieffer’s candidate portal" (buttons at the bottom of the linked site above).
If readers (interested in the position themselves, or not) have suggestions for highly qualified candidates (JD required), deeply committed to and knowledgeable about legal education and enthusiastic about the mission above, let me know by email.
Position Advertisement
Full Position/Leadership Profile
Thursday, July 20, 2023
It's become a tradition (HT: Marc DeGirolami!) to join my friend, Prof. Lenny DeLorenzo, of Notre Dame's McGrath Institute for Church Life, for an end-of-SCOTUS-term podcast. Here, if you are interested, in this year's. We discuss (inter alia) the Groff and 303 Creative cases.
Tuesday, July 4, 2023
My new book Religious Liberty in a Polarized Age (Eerdmans Publishing) is available from the publisher, at Amazon, and elsewhere It builds on my scholarly and public-advocacy work for religious freedom in recent years and sets the advocacy of religious freedom in today's conditions of cycles of polarization. A couple of bits to give a taste of what the book is about. From the jacket summary:
Drawing on constitutional law, history, and sociology, Berg shows how reaffirming religious freedom cultivates the good of individuals and society. After the explaining the features of polarization and the societal benefits of diverse religious practices, Berg offers practical counsel on balancing religious freedom against other essential values [like public health, nondiscrimination, etc.]
Protecting Americans' ability to live according to their beliefs undergirds a healthy, pluralistic society--and this protection must extend to everyone, not just political allies.
From a blog summary I did on the book:
[I]t’s sad and ironic that religious-liberty disputes should inflame polarization. One of the chief historic purposes of religious liberty, after all, has been to reduce polarizing fear and resentment. Religious liberty arose in the West precisely to halt the cycles of intergroup violence—among Protestants, between Protestants and Catholics—in which people on each side feared that the other would punish or penalize them for living according to their deepest beliefs. Religious liberty provides security against such threats, reducing the perceived need to attack those who you believe threaten you. It thus helps people of fundamentally differing views to coexist....
A shared commitment to religious liberty obviously will not end polarization. But it can help keep polarization from spiraling out of control—if the commitment is strong, treats all faiths equally, and remains mindful of other interests. Today, religious freedom can play its historic role of countering cycles of suffering, fear, and resentment.
Get your copy for vacation reading!
I have a short piece up at Law and Liberty today (Happy Fourth!), "Refreshing Unity on Religious Liberty", about the Court's recent religious-accommodations case. Here's a bit:
The high-profile Supreme Court decisions announced each year in late June tend to reinforce a narrative—one that, to be clear, is false—that the Court’s justices are merely partisan actors and that all significant cases divide them into strictly political camps. The term-closing rulings on racial preferences in college admissions, the president’s move to cancel many student-loan obligations, and the free-speech rights of a Colorado website designer fit the press’s favored “liberals versus conservatives” narrative, but most of the Court’s decisions do not. And, significantly, neither did this year’s most important religious-freedom case, which was decided unanimously. . . .
To be sure, there have been plenty of religious-freedom cases that have divided the justices and, certainly, there will be more. (Should there be exemptions for religious objectors from vaccine requirements? From public-health-related restrictions on gatherings? From abortion regulations? Stay tuned.) Still, it is important for commentators and citizens alike to remember that religious freedom is, and has long been, notwithstanding our divisions and disagreements, at the heart of the American experiment. We disagree today, as we did at the Founding and as we have ever since, over what, precisely, our Constitution’s promise of religious liberty under and through law means, but we know that the promise matters. . . .
Monday, July 3, 2023
The rightness or wrongness of judicial decisions depends not in the slightest on public opinion, and it is wrong--and indeed would be scandalous--for judges to consider polling data in deciding a case. Still, polling about such decisions can be interesting. Here's an example. My understanding had been that Roe v. Wade, though widely misunderstood, was popular with the American people and that Dobbs v. Jackson Women's Health Organization, the 2022 case that overruled Roe, was extremely unpopular. According to the most recent Rasmussen survey of likely voters, however, that's not true. A majority actually support what the Supreme Court did in Dobbs. Of course, the Rasmussen poll could be an outlier. I don't follow this area closely and don't know what other survey firms are finding.
https://www.rasmussenreports.com/public_content/politics/biden_administration/majority_now_approve_scotus_abortion_ruling
Sunday, July 2, 2023
Saturday's New York Times headlines include:
1) "Justices Say No to Student Debt Relief"
2) "Web Designer Wins Right to Turn Away Gay People"
Both headlines are grotesque distortions if not outright falsehoods. My question is what accounts for them? Are the Times' reporters (or headline writers) ignorant/incompetent? Or are they dishonest? (It's noteworthy that the mistakes, like bank errors, always go in a certain--in the case of the Times, a certain ideological--direction.)
As for 1) the Supreme Court did not "say no to student loan relief." What the justices said "no" to was plenary unilateral executive (i.e. presidential) action to forgive student loans. This is actually made clear to anybody who makes it to the sixth paragraph of the story, where the reporter (Adam Liptak) correctly characterizes the decision as "the latest in a series of rulings curbing presidential power in the absence of clear congressional authorization."
So, you see, this was not a ruling about whether the federal government could provide student loan relief; it was a ruling about whether congressional authorization was required for the President to act. The Court ruled, in effect, that something Nancy Pelosi (of all people) said some time back is correct (which, in truth, it is): student loan relief is a legislative matter on which the executive cannot act unilaterally (i.e., without legislative authorization). The President is not supposed to be legislating. He is supposed to be faithfully executing the laws enacted by the Congress. The very first word of the first sentence of the first Article in the Constitution is the word "all": "ALL legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." Let me let you in on a little secret: By the word "all" the framers and ratifiers of the Constitution meant ... all. Not some. Not most. Not almost all. The legislative power is not shared between Congress and the President. The President doesn't get to legislate. If he wants a piece of legislation (or a whole legislative program) to be enacted, he's got to go to Congress and persuade the people's representatives to enact it.
How about 2)?
Here the misrepresentation is even more egregious (and difficult to explain without reference to ideological partisanship).
The Court in 303 Creative did not confer on the web designer whose First Amendment freedom of speech rights were upheld the right to refuse to do business with ... anyone. The justices in the 6-3 majority did not give her "the right to turn away gay people." What they upheld was her right--and everyone's right--not to be compelled to participate in the crafting or construction of messages that run contrary to one's conscientious beliefs.
Under the ruling (which concerned a devout Christian website designer), an orthodox Jewish calligrapher, doing business with the general public, could not, for example, refuse to do business with a "Jews for Jesus" messianic Jewish person who asked for a card for his friend that simply said "Happy Birthday Shmuley!" He couldn't say, in other words, "I don't agree with your religion, or your interpretation of Judaism, and therefore will not do business with you. Get out of my shop! I'm turning you away." What he could do, however, despite civil rights prohibitions of discrimination based on religion, is refuse the customer's request that he make a poster that says, "Jesus Christ is the messiah long promised to the Jewish people. He is the Son of the living God; the one and only way to salvation. Embrace him, Jewish brethren, or damnation awaits you!" Similarly, he could refuse to make a ketubah (written marriage contract) for a Jews for Jesus Christian-Jewish wedding purporting to be licit under Jewish religious law.
To repeat, the ruling forbids governments from forcing people to participate in the crafting of messages that contradict their conscientious convictions (like the calligrapher's orthodox Jewish religious beliefs). It is an anti-compelled speech case. Its roots are in the Supreme Court's 1943 decision in West Virginia v. Barnette striking down a law compelling Jehovah's Witnesses school children to salute the flag and say the Pledge of Allegiance in violation of their religious convictions. (The Witnesses felt that the ceremony amounted to bowing down before a graven image in defiance of the biblical prohibition of idol worship.)
I believe 303 Creative is an impeccably correct decision. But even if I'm wrong about that--even if the case should have come out the other way--it's not because it created "a right to turn away gay people" or to turn away anybody. It didn't. And, in truth, the website designer hadn't turned away, and doesn't turn, away anybody. In fact, her willingness to serve people irrespective of, among other things, sexual orientation was stipulated to by the parties.
As my friend Richard Doerflinger observes:
"Before the district court, Ms. Smith and the State stipulated to a number of facts: Ms. Smith is 'willing to work with all people regardless of classifications such as race, creed, sexual orientation, and gender' and 'will gladly create custom graphics and websites' for clients of any sexual orientation; she will not produce content that 'contradicts biblical truth' regardless of who orders it; Ms. Smith’s belief that marriage is a union between one man and one woman is a sincerely held conviction; Ms. Smith provides design services that are 'expressive' and her 'original, customized' creations 'contribut[e] to the overall message' her business conveys “'through the websites' it creates; the wedding websites she plans to create 'will be expressive in nature', will be 'customized and tailored' through close collaboration with individual couples, and will 'express Ms. Smith’s and 303 Creative’s message celebrating and promoting' her view of marriage; viewers of Ms. Smith’s websites 'will know that the websites are her original artwork'; and '[t]here are numerous companies in the State of Colorado and across the nation that offer custom website design services'.”
