Readers may recall that during the course of the Hobby Lobby litigation, some contraceptives mandate supporters argued that religious accommodations that impose "significant" harms or burdens on third parties constitute violations of the Establishment Clause. In this post, I argued that this view of the reach of the Establishment Clause was not convincing. It was based on a misreading (and substantial extension) of the relevant case law but also on a controversial conceptual view of the permissible scope of religious accommodation that, I claimed, should be rejected.
Virtually all accommodations impose harms or burdens of some kinds on others, though both the nature and the degree of the harms will vary. Some harms are financial, others are symbolic, and still others are to value systems more generally. Some harms are acute and others are mild. Yet it would reflect an impoverished conception indeed of what is valuable in life to claim that only financial costs are real or cognizable harms: it simply isn't true that the only way in which a person can be harmed or burdened is through the pocketbook. Some financial burdens may be much less harmful than some symbolic harms, and vice versa, depending on factors too numerous to list. Whether money is involved or not, choices to accommodate or not to accommodate are often choices between ways of life that specify totally different virtues, or if they specify the same virtues, weigh them completely differently. In Goldman v. Weinberger, for example, a choice to accommodate Goldman would have been a choice against the set of values that the military was bringing to bear, and there were many of them. Ultimately I disagree with the outcome in Goldman. But the reason is not that the military would not have been harmed at all by accommodating him. In fact, it's only by ignoring, flattening out, or misdescribing the military's interests and concerns that we can say that the only issue in the case was accommodating Goldman, and the military was simply being obtuse. Perhaps there are rare situations in which the costs on third parties are so small as to be invisible (O Centro?). But in the main, it is in the nature of these kinds of conflicts that when one side loses, so does its way of life to some greater or lesser degree. The Hobby Lobby majority discussed the third-party-harm theory briefly at footnote 37, where it made the point that if all that was required to invalidate a religious accommodation was that a law conferred a benefit on a third party, and consequently that the deprivation of that benefit would be a burden, then the effect might (depending on what exactly "significant" means) be to destroy RFRA and render many religious accommodations unconstitutional.
Now that Holt v. Hobbs is in the offing (argument is scheduled for today, I believe), I am curious why nobody is making the third-party harm claim. Perhaps it is because the degree of deference ostensibly due to prison authorities in the Arkansas system is so great. Still, I would have thought that for somebody who subscribed to the third-party-harm theory of the Establishment Clause, Holt v. Hobbs would present a far clearer case than Hobby Lobby in which there might be serious, or significant, or at the very least cognizable, or tangible, harms to third parties--and easily identifiable third parties at that. I am writing this in haste (for a much more thorough treatment, see this excellent student note by Taylor Stout, The Cost of Religious Accommodation in Prisons), but I can think of three:
1. Increased risk of prison escape, harm to other inmates, and harm to those who must be in physical contact with the prisoner. This is a particularly vicious prisoner, who has shown himself capable of very violent behavior using a knife. He slashed a woman's throat with a knife. And while in prison, he held a knife to another prisoner’s throat as a result of a religious dispute. Though Arkansas prisons do not themselves have experience with prisoners hiding weapons and other contraband in their facial hair (naturally, since they don’t allow beards) other state prison systems do (see page 25 and following of this brief). Again, I recognize that it is perhaps the total deference to prison administrators which makes this particular prison policy specially objectionable. But I would have thought that these sorts of harms—harms to the personal security and safety of other people in physical proximity to the prisoner—are not obviously less “significant” than the harms to third parties in Hobby Lobby.
2. Administrative and financial harm to the prison system. The administration of religious accommodations in a prison system is burdensome. It requires more decision-making, more exercise of discretion, more manpower in the monitoring of the exceptions, and therefore more cost. One can dismiss these costs as de minimis, or unimportant, but that seems to me a cavalier view that can be bought rather cheaply at a great distance (which is where most of us are privileged to live) from the actual operations of prisons.
3. Symbolic harm, including harm to the idea of equality in the treatment of prisoners. A prison’s legitimacy depends in part on treating its prisoners equally and fairly, without privilege or favor. Dissimilarity of treatment can breed resentment on the part of the “disadvantaged” prisoners and on the part of the prison population more broadly. Moreover, prisons have important interests in uniformity of treatment that go not to equality concerns, but instead to order and discipline. Prisons are dangerous places. They are populated with people who have been convicted of crimes. Sometimes, as in the case of this particular prisoner, those crimes are extremely violent. Prisons therefore need systems to regularize and impose discipline on such people. It is at least a symbolic harm—but quite possibly much more than that—to burden the efforts of prisons to cultivate uniformity in the service of prison discipline.
To be clear, I believe that the prisoner should win in this particular case. But the reason is certainly not that the prison is simply being obtuse inasmuch as accommodations of this kind are harmless or nothing at all to it. Yet the absence of the third-party-harms theory of the Establishment Clause in general public debate has puzzled me. Setting aside the issue of the remoteness of the potential harms, the nature of the potential harms relating to accommodation under RLUIPA in a case like this goes to deeply important interests in personal and institutional safety—interests that do not seem categorically less important than those of the third parties at stake in Hobby Lobby.
Thursday, October 2, 2014
Linda Greenhouse has a column purporting to reflect on the Roberts Court's first nine years that doubles as an occasion to offer the hope that Chief Justice Roberts will "moderate" in the next decade--a hope then despaired of at the end of the column.
She also says this:
It has been an eventful nine terms for the court and its chief. Samuel A. Alito Jr., Justice O’Connor’s eventual replacement, is well to her right and has provided Chief Justice Roberts with a reliable if narrow majority for the court’s steady regression on race and its deregulatory hijacking of the First Amendment. Along with ever-expanding accommodation of religious interests, these are the areas in which the Roberts court has made its increasingly predictable mark.
But on the issue of religious interests, Greenhouse is, I believe, mistaken, at least insofar as constitutional law is concerned. As I show in this article, the defining mark of the Roberts Court in the area of religious rights has been contraction, not expansion. One of the very cases cited by Greenhouse herself involving the religion clauses--Town of Greece v. Galloway--is much more plausibly conceived as a contraction of the Establishment Clause, not an expansion. The Court's exercise of judicial review, the range of views among the Justices about religious rights, and the substance of the Clauses themselves--all of these, contra Greenhouse, have contracted over the last decade.
Friday, September 26, 2014
A lovely column by Roger Cohen a few days ago on the stubborn persistence of personal attachments and traditions, and the way in which they seem perpetually to obstruct efficiency, globalization, progress, and other modern dispensations of the spirit of the age. I remember a few years ago when our family sold the home in which it had thrived, and grown, and lived together. Even property is never "just property." A bit:
A few weeks ago I was in France, where I’ve owned a village house for almost 20 years that I am now planning to sell. A real estate agent had taken a look at the property and we had made an appointment to discuss how to proceed. She swept into the kitchen, a bundle of energy and conviction, with an impassioned appeal:
“Monsieur Cohen, whatever you do, you must on no account sell this house!”
I gazed at her, a little incredulous.
“You cannot sell it. This is a family home. You know it the moment you step in. You sense it in the walls. You breathe it in every room. You feel it in your bones. This is a house you must keep for your children. I will help you sell it if you insist, but my advice is not to sell. You would be making a mistake.”
This was, shall we say, a cultural moment....
Wednesday, September 24, 2014
Sir Edward Coke was a lawyer, an MP, Attorney General, and Chief Justice of the Court of Common Pleas of the King's Bench. He is widely considered one of the fathers of the common law. Here is a fragment of the preface to Part Two of his Reports. I was struck by the terms in which he discusses the common law:
To the learned Reader
There are (sayeth Euripides) three Virtues worthy [of] our meditation; To honor God, our Parents who begat us, and the Common Lawes of Greece: The like doe I say to thee (Gentle Reader) next to thy dutie and pietie to God, and his annointed thy gracious Soveraigne, and thy honor to thy Parents, yeeld due reverence and obedience to the Common Lawes of England: For of all Lawes (I speak of humane) these are most equall, and most certaine, of greatest antiquitie, and least delay, and most beneficiall and easie to be observed; As if the module of a Preface would permit, I could defend against any man that is not malicious without understanding, and make manifest to any of judgement and indifferency, by proofes pregnant and demonstrative, and by Records and Testimonies luculent and irrefragable: Sed sunt quidam fastidiosi, qui nescio quo malo affectu oderunt Artes antequam pernoverunt [MOD trans.: But there are some disdainful types who hate every high calling with which they are unfamiliar, I know not for what reason]. There is no Jewell in the world comparable to learning; No learning so excellent both for Prince and Subject as knowledge of Lawes; and no knowledge of any Lawes, (I speak of humane) so necessary for all estates, and for all causes, concerning goods, lands, or life, as the Common Lawes of England....
Their example [that of the "Sages of the Law"] and thy profession doe require thy imitation: for hitherto I never saw any man of a loose and lawlesse life, attaine to any sound and perfect knowledge of the said lawes: And on the other side, I never saw any many of excellent judgement in these Lawes, but was withall (being taught by such a Master) honest, faithfull, and vertuous.
If you observe any diversities of opinion amongst the professors of the Lawes, contend you (as it behoveth) to be learned in your profession, and you shall finde that it is Hominis vitium, non professionis [MOD trans.: the vice of man, not of the profession].
Thursday, September 11, 2014
I am pleased to announce that Foundational Texts in Modern Criminal Law, edited by Markus D. Dubber, is now available for pre-order. I've listed the description of the volume below. As Markus explains in his introduction, the aim of the volume is to provide a set of comments (and in some cases, an introduction) to criminal texts that are canonical for the modern liberal state, but also that grew out of and from within the modern liberal state. The collection begins with Hobbes and ends with the contemporary German theorist, Günther Jakobs. I was delighted to contribute the chapter on J.F. Stephen. The primary texts themselves can be accessed here.
Foundational Texts in Modern Criminal Law presents essays in which scholars from various countries and legal systems engage critically with formative texts in criminal legal thought since Hobbes. It examines the emergence of a transnational canon of criminal law by documenting its intellectual and disciplinary history and provides a snapshot of contemporary work on criminal law within that historical and comparative context.
Criminal law discourse has become, and will continue to become, more international and comparative, and in this sense global: the long-standing parochialism of criminal law scholarship and doctrine is giving way to a broad exploration of the foundations of modern criminal law. The present book advances this promising scholarly and doctrinal project by making available key texts, including several not previously available in English translation, from the common law and civil law traditions, accompanied by contributions from leading representatives of both systems.
Thursday, September 4, 2014
I've posted a new paper, Constitutional Contraction: Religion and the Roberts Court. Here's the abstract:
This essay argues that the most salient feature to emerge in the first decade of the Roberts Court’s law and religion jurisprudence is the contraction of the constitutional law of religious freedom. It illustrates that contraction in three ways.
First, contraction of judicial review. Only once has the Roberts Court exercised the power of judicial review to strike down federal, state, or local legislation, policies, or practices on the ground that they violate the Free Exercise or Establishment Clauses. In this constitutional context the Court has been nearly uniformly deferential to government laws and policies. That distinguishes it from its two predecessors—the Rehnquist and Burger Courts—both of which exercised judicial review more regularly.
Second, contraction in the range of voting patterns. The votes of the Justices in law and religion cases overwhelmingly are either unanimous or split 5-4, with relatively few separate dissents or concurrences expressing distinctive approaches, and with the split correlating with partisan political or ideological divisions. The “liberal” and “conservative” wings vote in bloc, and frequently reason in bloc as well. This again contrasts with the voting patterns of prior Courts in religious freedom cases.
Third, contraction in coverage. As a substantive matter, the Court is narrowing the religion clauses. Every member of the Court seems now to accept that Employment Division v. Smith properly interpreted the Free Exercise Clause. Matters are more complicated for the Establishment Clause, where there is far greater division among the Justices. Nevertheless, the essay claims that the Court is moving in a variety of ways toward a narrow interpretation of the Establishment Clause as well.
Whether the Roberts Court’s contraction of the religion clauses, and its general preference for narrow readings of both, are positive developments will depend on one’s views about fundamental questions of constitutional interpretation. Yet there is a conceptual unity to the Court’s approach—logical and complementary, even if not inevitable: just as the Rehnquist Court narrowed the scope of constitutional protection for free exercise, so, too, is the Roberts Court narrowing the scope of constitutional prohibition under the Establishment Clause. In this corner of constitutional law, the Court is gradually withdrawing from the scene.
Comments are welcome!
Wednesday, September 3, 2014
I have posted several videos of the presentations at the conference in Rome this summer co-sponsored by the Center for Law and Religion at St. John's. The title of the conference was "International Religious Freedom and the Global Clash of Values." Tom Farr delivered the keynote address, and we had panels on The Politics of International Religious Freedom (Pasquale Annicchino, Heiner Bielefeldt, and Ambassador Ken Hackett), Comparative Perspectives on International Religious Freedom (Francisca Pérez-Madrid, Marco Ventura, and Roberto Zaccaria), and Christian and Muslim Perspectives on International Religious Freedom (Abdullahi Ahmed An-Na'im, Olivier Roy, and Nina Shea).
