Thanks to Rick for his post on Emily Bazelon's article about Alito's Religion Clause opinions. The article also misfires in stating that Alito's opinions on free exercise of religion don't show a "libertarian" streak or a sensitivity to minority rights, but are mere "mechanistic applications of precedent."
The major claim for Alito as a strong free exercise proponent rests on two opinions he wrote, one holding that a Muslim police officer in Newark should be able to wear a beard notwithstanding a departmental grooming policy against facial hair (Fraternal Order of Police v. Newark, 170 F.3d 359), and another holding that a Native American holy man (Dennis Blackhawk) was unconstitutionally burdened by a $200 license fee he was charged for keeping a bear that he used in religious rituals (Blackhawk v. PA, 381 F.3d 202). Both decisions mandated an exemption from the laws in question under the Free Exercise Clause, notwithstanding the Supreme Court's ruling in Employment Division v. Smith that such exemptions are not required when the law is "neutral and generally applicable."
Bazelon thinks that these opinions don't reveal much about Alito's commitment to free exercise:
Alito simply followed the Supreme Court, which has said (even in Smith) that the state doesn't get a free pass when it offers an exemption to a law to people who ask for special treatment based on a secular rationale but denies the same exemption to other people who ask for special treatment for a religious reason. Pennsylvania exempted circuses and zoos, among others, from paying licensing fees for their wild animals. Newark let police officers keep their beards if they asked to because of a medical condition. So, why couldn't Dennis Blackhawk keep his bear and the Muslim cops keep their beards? Pennsylvania and Newark lost because they didn't have a good enough answer. Alito didn't stick his neck out to promote religious liberty by finding in favor of Blackhawk and the Muslims, argues Cardozo law professor Marci A. Hamilton, author of the recent book God vs. the Gavel. In light of Supreme Court precedent, he didn't have to.
It's true that in basing a religious-liberty exemption in these cases on the presence of secular exceptions in the law, Alito did not challenge the Smith ruling that exemptions are not required when a law is generally applicable (as a court of appeals judge, he of course couldn't make such a challenge). Rather, he ruled that the presence of other exemptions made the law not generally applicable and therefore triggered strict constitutional scrutiny.
But it is a real overstatement to call these two religious-liberty decisions mere "mechanistic applications of [Supreme Court] precedent." The Alito decisions hold that one comparable exemption for secular interests is enough to render a law not generally applicable, and therefore to require an exemption for religious-liberty interests unless there is a compelling reason to deny it. This is not the only reading of the Smith "general applicability" rule that is out there. For example, another prominent conservative judge, Diarmuid O'Scannlain of the Ninth Circuit, wrote in a 1999 case (Thomas v. Anchorage, 165 F.3d 692) that a law does not trigger strict review under the Smith approach unless it has a lot of exceptions, that is, unless its "underinclusiveness" -- the amount of secular conduct it leaves unregulated -- is very "substantial":
Underinclusiveness is not in and of itself a talisman of constitutional infirmity; rather, it is significant only insofar as it indicates something more sinister. In [the key previous case,] the [Supreme] Court considered considered the ordinances' lack of neutrality and generally applicability as a proxy of the [l]awmakers' illicit intention to single out the [particular] religion for unfavorable treatment.
The O'Scannlain decision says that when a law has "only a single exception," it is still generally applicable and the "permissive Smith standard" still applies. There must be so many exceptions that they show an intent to "single out" or "target" religion.
There is a big difference between the Alito and O'Scannlain approaches. Many laws have one or a few exceptions but not so many that they go to the point of "singling out" religious conduct. Thus the Alito approach would protect free exercise in many more cases, often involving minority religions such as the Muslims and Native Americans in the cases in which Alito sat. The approach has already been used in other cases, in Alito's circuit and elsewhere, to protect Native Americans and Orthodox Jews.
I think that the Alito approach is the better reading of the Free Exercise Clause and the purposes underlying it: when the state exempts secular interest but not comparable religious ones, it sends a message that religious freedom is less important, a message inconsistent with its status as a constitutional right. Alito's approach, requiring exemptions in such cases, salvages a good deal of protection for free exercise even in the face of the Smith decision. But even though I'm a strong proponent of this approach, I cannot claim that it is a mere "mechanistic application" of Smith. Rather, Alito's approach shows that, in an instance where (even as a lower court judge) he could have opted for minimal free-exercise rights or significant rights, he chose the latter. More than any other judge in the country, he is responsible for this approach finding its way into the law. It says a good deal about his attitude toward free exercise.
I must say, though, that I'm happy to have Marci Hamilton -- probably the nation's leading opponent of broad protection for free exercise of religion -- on record as saying that the Alito protective approach is essentially compelled by Smith!
Tom
Store this away in your file of crazy "What if we treated the unborn as persons?" hypotheticals. From the East Valley Tribune in Arizona (via Andrew Sullivan):
A pregnant woman ticketed for driving in the carpool lane will have her day in court next month to argue that her unborn child counts as a second person in the car.
"I understand the reasoning for the HOV Lane," said Candace Dickinson, 23. "But whether my son is in a car seat versus my stomach, I don't get it. It's the same thing."
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Tuesday, November 22, 2005
I would be interested in knowing the reactions of Rick, Michael, Patrick, and others to a few propositions concerning the death penalty:
1. Human life is a preeminent value, even when the life is not innocent (and no matter how un-innocent the life is). Therefore no one (including the state) should take human life for the purpose of ending the life. (The only justifications for killing are self-defense, defense of others, and analogous situations such as defensive war, where the intent is defense not killing.)
2. No life of any human person may reduced in its value to any act that the person has committed (however heinous). No act can exhaust the value of the actor's life. The death penalty logically reduces the value of the offender's life to one act he has committed.
3. Any capital punishment statute that makes the imposition of the penalty turn (in whole or in part) on the unlikelihood of the offender's rehabilitation -- as I believe every or almost every such statute in America does (correct me if I'm wrong) -- contravenes Christian notions of the possibility of redemption.
Do any of these propositions go wrong, and if so how? (I should say that I think all of them have power, although in ascending order -- although I agree with #1, I can see answers to it; #3 seems to me unanswerable; and I'd be interested in people's thoughts about #2.)
Tom
CLARIFICATION: There are probably statutory schemes, and there are certainly individual instances of capital punishment, in which imposition of the penalty does not turn on the question about likely rehabiliation in #3 above. But if the question about rehabilitation is submitted to the jury, proposition #3 would be that such submission as a basis for considering capital punishment is irreconilable with fundamentals of Christian teaching. That's the proposition I see as unanswerable.
Sunday, November 20, 2005
The latest issue of the Atlantic Monthly -- a great magazine, by the way -- has an article by the Washington Post's Hannah Rosin, "Can Jesus Save Hollywood?" (ADDED NOTE: I forgot to say that the whole article is available to subscribers only; but pick up the issue at the newsstand, as the whole issue is well worth reading.) The subject is how conservative Christians in Hollywood are moving from (1) outliers to freaks to (2) a noticeable sub-culture, especially as studios got more interested in "religious/moral" projects after 9/11, to (3) simply people who are working in the industry trying to make good films that reflect their worldview without making it the dominant subject of the film. The focus of her story is on the meetings of Act One, "a Los Angeles program for aspiring Christian screenwriters," where "Bibles are as visible as the hundreds of videos lying around in stacks and on bookshelves, many of which conservative Christians would never let their children watch (American Beauty, Being John Malkovich, The Sopranos, Will & Grace)," and where "Mel Gibson's Jesus gazes down from a movie poster on the wall":
[This] generation makes up the third [wave of Christians in Hollywood as described above]. "They have no interest in this conversation" about how one reconciles one's Christianity with Hollywood, Nicolosi told me. "They think it's like asking why a Latino or a gay person should be in Hollywood." You can see the shape of this emerging generation of Christians in the hundreds of applicants to Act One: a pastor's wife and former teen country singer who wants to write "culture shaping, commercially successful TV shows and films"; an evangelical marooned at Harvard; a woman who used to work in the White House Office of Faith-Based Initiatives. This generation grew up worshipping God and Quentin Tarantino (the latter sometimes secretly). They are the cinematic wing of what the sociologist Alan Wolfe calls the "opening of the evangelical mind," a cultural renaissance among conservative Christians. Though their parents may have taught them to take refuge in a parallel Christian subculture, the movies these people found in Christian bookstores bored and embarrassed them. To be accepted at Act One you have to believe that Jesus is a real presence in your life. But the worst insult you can deliver there is to say that a movie reminds you of such notoriously low-budget Christian schlock as the Left Behind series and The Omega Code, or that the dialogue sounds like "Christianese."
Rosin's pictures of the emerging attitude of younger conservative Christians in the film industry parallels what I know about the move by many in the same generation away from 70s- or 80s=style "contemporary Christian music" and into a broader and more subtle engagement with the pop music world. Those of us who write about the relationship of Christianity and law, politics, and culture should be aware of developments like this, for they may be the model for how Christians relate to the culture in the next generation or two (and they may govern for lots of young Catholics as well as young evangelical Protestants).
There's a lot to be said, of course, for getting away from the cultural separatism, from the cultural separatism, and from the stereotype that a Christian film is limited to Christian subjects like demons or the end of the world (!). At the same time, I think that Christian filmmakers had better have a continuing interest in the question "how one reconciles one's Christianity with Hollywood." There's too much of a danger in any industry -- whether it's Hollywood, investment banking, or legal academia -- of being coopted by values of making money or enjoying success, of treating people as means to these other ends, of giving the audience what it wants, etc., for anyone to ignore the "how do I reconcile?" question for any length of time.
Tom
