Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, January 9, 2023

Syllabus for my Course on Freedom of Speech and Freedom of Inquiry

By Marc DeGirolami

Still a work in progress, but this is the rough plan for a new seminar I'm teaching this spring at Princeton on the subject, as part of the Initiative on Freedom of Thought, Inquiry, and Expression of the James Madison Program in American Ideals and Institutions.

One focus for the course concerns the connection between free inquiry and knowledge--what knowledge's value is, how it is gained, and how it is produced. More broadly, I'd like to explore in this course the goods that freedom of speech and inquiry are for, to borrow a line from John Garvey.

Suggestions most welcome. 

PRINCETON UNIVERSITY

Department of Politics

 POL 494: Freedom of Speech and Freedom of Inquiry

 

Instructor. Marc O. DeGirolami

Description. American law vigorously protects free speech. Free speech lies at the core of our politics and culture. But many argue for greater government regulation of speech, particularly for “hate speech” and other speech deemed “offensive.” Social media and speech at universities present additional challenges, some of which have involved Princeton itself. And what about “cancel culture” and other social controls on speech? Are these healthy limits or stifling constraints? This course explores the historic and philosophical justifications for protecting speech, focusing on the freedom of inquiry—the freedom to ask questions in pursuit of knowledge and truth. It also introduces students to the constitutional law of free speech. It asks students to think about speech’s value in historical perspective and today.

The course is sponsored by the James Madison Program’s Initiative on Freedom of Thought, Inquiry, and Expression, and by a grant from the Stanton Foundation.

Freedom of Thought, Expression, and Discussion. As set forth in Rights, Rules, Responsibilities section 1.1.3, Princeton University strictly respects the right to free speech of everyone in our community of scholars and learners. That right is sacrosanct in this class and is possessed by faculty and students alike. With the aim of advancing and deepening everyone’s understanding of the issues addressed in the course, students are urged to speak their minds, explore ideas and arguments, play devil’s advocate, and engage in civil but robust discussions. There is no thought or language policing. We expect students to do business in the proper currency of intellectual discourse—a currency consisting of reasons, evidence, and arguments—but no ideas or positions are out of bounds.

Readings. All readings are posted to the Canvas page with the following exceptions. Please purchase a copy of the following:

  • John Stuart Mill, On Liberty (Dover Thrift Edition 2002)
  • Keith Whittington, Speak Freely: Why Universities Must Defend Free Speech (2018)

Grading. The grading breakdown for the course is as follows: mid-term paper 30%; final paper 50%; class participation 20%.

Late Penalty. Due dates are strictly enforced. Papers received with a time stamp after 5 pm but before midnight on the date on which they are due will be penalized a half letter grade. Papers will be penalized another half letter grade if they are received by 5 pm the subsequent day and another half letter grade the day after that.

SCHEDULE OF COURSE MEETINGS AND ASSIGNMENTS

Assignments are tentative and subject to revision as the course proceeds

Week 1, Thursday, February 2: Introduction to the Course, the Constitution of the United States, and the First Amendment Freedoms

Syllabus

U.S. Constitution (all)

Geoffrey Stone, “The Story of the Sedition Act of 1798: ‘The Reign of Witches,’” in First Amendment Stories (Garnett & Koppelman, eds. 2012)

Jud Campbell, “Natural Rights and the First Amendment,” Yale Law Journal (2017) (Introduction, Part II, Part III, Part IV)

 

THEORY

Week 2, Thursday, February 9: English Antecedents and American Foundations

Thomas Hobbes, Leviathan, Part II, Chapter XXIX (“Of those things that weaken or tend to the dissolution of a Commonwealth”) (1651)

John Locke, Letter Concerning Toleration (1689)

James Madison,

Federalist 10 (1787)

Federalist 51 (1788)

Report on the Virginia Resolutions (1799-1800)

Judith N. Shklar, “The Liberalism of Fear,” in Judith Shklar, Political Thought and Political Thinkers (Hoffman, ed. 1998)

 

Week 3, Thursday, February 16: Classic Justifications and Critiques

Abrams v. United States (1919) (majority and dissent of Holmes, J.)

John Stuart Mill, On Liberty, Chapters 1, 2, 3 (1859)

James Fitzjames Stephen, Liberty, Equality, Fraternity (1873) (selection)

Herbert Marcuse, “Repressive Tolerance” (1965)

Robert P. George, Making Men Moral: Civil Liberties and Public Morality (1993) (Chapters 1 and 7)

 

Week 4, Thursday, February 23: Free Speech and Free Inquiry at the University, Part I—The Purpose of the University

Plato, Apology

Aristotle, Politics, Book 7.13; Book 8

Zena Hitz, Lost in Thought: The Hidden Pleasures of the Intellectual Life (2020) (Introduction, Chapter 3)

Alasdair MacIntyre, “The Very Idea of a University: Aristotle, Newman, and Us,” British Journal of Educational Studies (2009)

Anthony Abraham Jack, The Privileged Elite: How Elite Colleges are Failing Underprivileged Students (2019) (Introduction)

Jonathan Haidt, “When Truth and Social Justice Collide, Choose Truth,” Chronicle of Higher Education (2022). 

 

Week 5, Thursday, March 2: Free Speech and Free Inquiry at the University, Part II—Free Speech, Academic Freedom, and Cancel Culture

Keith Whittington, Speak Freely: Why Universities Must Defend Free Speech (2018) (selection)

Patrick Deneen, “Against Academic Freedom,” Irish Rover (2022)

Naomi Oreskes & Charlie Tyson, “Is Academe Awash in Liberal Bias?” Chronicle of Higher Education (2020) & Phillip W. Magness, “Tenured Radicals Are Real,” Chronicle of Higher Education (2020)

Justin McBrayer, “Diversity Statements are the New Faith Statements,” Inside Higher Education (2022)

Brian Soucek, “How to Protect Diversity Statements from Legal Peril,” Chronicle of Higher Education (2022)

Brian Leiter, “Diversity Statements are Still in Legal Peril,” Chronicle of Higher Education (2022)

Clifford Ando, “Princeton Betrays Its Principles,” Chronicle of Higher Education (2022)

Sarah Brown, “‘Public-University Curricula are Government Speech,’ Florida Says,” Chronicle of Higher Education (2022)

Katha Pollitt, “Cancel Culture Exists,” The Nation (2022) 

 

Week 6, Thursday, March 9: Free Speech Skepticism

Gerhart Niemeyer, “A Reappraisal of the Doctrine of Free Speech,” Thought: Fordham University Quarterly (1950)

Jamal Greene, How Rights Went Wrong (2021) (selection)

Anthony Leaker, “Against ‘Free Speech,’” Cato Unbound (2019)

Note, “Blasphemy and the Original Meaning of the First Amendment,” Harvard Law Review (2021)

Marc O. DeGirolami, “The Sickness Unto Death of the First Amendment,” Harvard Journal of Law and Public Policy (2019) (selection)

Richard George Wright, “Free Speech as a Cultural Holdover,” Pace Law Review (2019)

 

MIDTERM PAPERS DUE FRIDAY, MARCH 10, BY 5:00 PM

 SPRING BREAK

 

LAW 

Week 7, Thursday, March 23: The Content-Based//Content-Neutral Framework, Expressive Conduct

United States v. O’Brien (1968)

Texas v. Johnson (1989)

Frisby v. Schultz (1988)

Renton v. Playtime Theaters (1986)

 

Week 8, Thursday, March 30: Categorical Exceptions to the Freedom of Speech 

Chaplinsky v. New Hampshire (1942) (fighting words)

Brandenburg v. Ohio (1969) (incitement to violence)

Miller v. California (1973) (obscenity)

United States v. Alvarez (2012) (false statements of fact)

 

Week 9, Thursday, April 6: Offensive Speech, Hate Speech 

Cohen v. California (1971)

Snyder v. Phelps (2011)

Matal v. Tam (2017)

Richard Delgado, “Words That Wound: A Tort Action for Racial Insults, Epithets, and Name Calling,” Harvard Civil Rights Civil Liberties Law Review (1982)

Jeremy Waldron, The Harm in Hate Speech (2012) (selection)

Steven D. Smith, “Liberalism and Hate Speech,” Law and Religion Forum (2022)

 

Week 10, Thursday, April 13: Compelled Speech and Association

West Virginia State Board of Education v. Barnette (1943)

Wooley v. Maynard (1977)

Janus v. American Federation of State, County, and Municipal Employees, Council 31 (2018)

303 Creative LLC v. Elenis (2022) [listen to LegalSpirits Podcast on the case]

 

Week 11, Thursday, April 20: Government as Subsidizer and Employee Speech

Rust v. Sullivan (1991)

Christian Legal Society v. Martinez (2010)

Pickering v. Board of Education (1968)

Garcetti v. Ceballos (2006)

 

Week 12, Thursday, April 27: Issues in Social Media Speech and Regulation 

Packingham v. North Carolina (2017)

Biden v. Knight First Amendment Institute (2021) (Thomas, J., concurring)

Lee C. Bollinger & Geoffrey R. Stone, eds., Social Media, Freedom of Speech, and the Future of our Democracy (2022) (selection)

Adam J. White, “Google.gov,” The New Atlantis (2018)

Kate Klonick, “The Terrifying Power of Internet Censors,” N.Y. Times (2017)

Ken Klippenstein, Lee Fang, “Truth Cops: Leaked Documents Demonstrate DHS’s Plans to Police Disinformation,” The Intercept (2022)

Thomas Fazi, “The Human Cost of Twitter’s Censorship,” Compact (2022)

 

FINAL PAPERS DUE FRIDAY, MAY 18, BY 5:00 PM

Saturday, December 31, 2022

Caritas in Veritate, paragraph 73

By Marc DeGirolami

One more reflection from Benedict XVI from me today, this one from perhaps my own favorite of his writings, Caritas in Veritate. This is from the section on the challenges of technology:

Linked to technological development is the increasingly pervasive presence of the means of social communications. It is almost impossible today to imagine the life of the human family without them. For better or for worse, they are so integral a part of life today that it seems quite absurd to maintain that they are neutral — and hence unaffected by any moral considerations concerning people. Often such views, stressing the strictly technical nature of the media, effectively support their subordination to economic interests intent on dominating the market and, not least, to attempts to impose cultural models that serve ideological and political agendas. Given the media's fundamental importance in engineering changes in attitude towards reality and the human person, we must reflect carefully on their influence, especially in regard to the ethical-cultural dimension of globalization and the development of peoples in solidarity. Mirroring what is required for an ethical approach to globalization and development, so too the meaning and purpose of the media must be sought within an anthropological perspective. This means that they can have a civilizing effect not only when, thanks to technological development, they increase the possibilities of communicating information, but above all when they are geared towards a vision of the person and the common good that reflects truly universal values. Just because social communications increase the possibilities of interconnection and the dissemination of ideas, it does not follow that they promote freedom or internationalize development and democracy for all. To achieve goals of this kind, they need to focus on promoting the dignity of persons and peoples, they need to be clearly inspired by charity and placed at the service of truth, of the good, and of natural and supernatural fraternity. In fact, human freedom is intrinsically linked with these higher values. The media can make an important contribution towards the growth in communion of the human family and the ethos of society when they are used to promote universal participation in the common search for what is just.

From the conclusion of Pope Benedict XVI's 2006 Regensburg Address

By Marc DeGirolami

To mark the occasion of his passing, and to remember this wonderful address. May he rest in peace. 

In the Western world it is widely held that only positivistic reason and the forms of philosophy based on it are universally valid. Yet the world's profoundly religious cultures see this exclusion of the divine from the universality of reason as an attack on their most profound convictions. A reason which is deaf to the divine and which relegates religion into the realm of subcultures is incapable of entering into the dialogue of cultures. At the same time, as I have attempted to show, modern scientific reason with its intrinsically Platonic element bears within itself a question which points beyond itself and beyond the possibilities of its methodology. Modern scientific reason quite simply has to accept the rational structure of matter and the correspondence between our spirit and the prevailing rational structures of nature as a given, on which its methodology has to be based. Yet the question why this has to be so is a real question, and one which has to be remanded by the natural sciences to other modes and planes of thought - to philosophy and theology. For philosophy and, albeit in a different way, for theology, listening to the great experiences and insights of the religious traditions of humanity, and those of the Christian faith in particular, is a source of knowledge, and to ignore it would be an unacceptable restriction of our listening and responding. Here I am reminded of something Socrates said to Phaedo. In their earlier conversations, many false philosophical opinions had been raised, and so Socrates says: "It would be easily understandable if someone became so annoyed at all these false notions that for the rest of his life he despised and mocked all talk about being - but in this way he would be deprived of the truth of existence and would suffer a great loss". The West has long been endangered by this aversion to the questions which underlie its rationality, and can only suffer great harm thereby. The courage to engage the whole breadth of reason, and not the denial of its grandeur - this is the programme with which a theology grounded in Biblical faith enters into the debates of our time. "Not to act reasonably, not to act with logos, is contrary to the nature of God", said Manuel II, according to his Christian understanding of God, in response to his Persian interlocutor. It is to this great logos, to this breadth of reason, that we invite our partners in the dialogue of cultures. To rediscover it constantly is the great task of the university.

Sunday, December 25, 2022

Merry Christmas! T.S. Eliot's "Animula," First Part

By Marc DeGirolami

Merry Christmas, MOJ family! Here's the beginning of T.S. Eliot's "Animula" (little soul), about the child's life of wonder as it comes into and makes its early way in the world.

'Issues from the hand of God, the simple soul'
To a flat world of changing lights and noise,
To light, dark, dry or damp, chilly or warm;
Moving between the legs of tables and of chairs,
Rising or falling, grasping at kisses and toys,
Advancing boldly, sudden to take alarm,
Retreating to the corner of arm and knee,
Eager to be reassured, taking pleasure
In the fragrant brilliance of the Christmas tree,
Pleasure in the wind, the sunlight and the sea;
Studies the sunlit pattern on the floor
And running stags around a silver tray;
Confounds the actual and the fanciful,
Content with playing-cards and kings and queens,
What the fairies do and what the servants say.

Friday, December 23, 2022

Podcast on New Year's Day, New York Blue Laws, and the Establishment Clause

By Marc DeGirolami

And speaking of culture warriors, usually around this time of year one sees the standard, angry Establishment Clause challenge to a Christmas tree or nativity scene positioned in the wrong place, or a Stabat Mater sung in the wrong school concert. I'm sure those are also being pursued, according to the culture warrior tradition.

But this year, there is a different kind of Establishment Clause complaint in New York. The wasted remnant of an old blue law, which has been dismembered bit by bit over the years, is not making bar owners' spirits bright. Eris Evolution, a hipster bar in Brooklyn whose name recalls the Greek goddess of misery and discord, would like to serve alcohol from 4-8AM on January 1. But it happens to be a Sunday this year. 

Mark and I chat about an EDNY district court opinion in the case denying an injunction to the bar, now up on appeal, in our last Legal Spirits podcast of the year. 

Tuesday, December 6, 2022

"Mysterizing Religion"

By Marc DeGirolami

A draft of a short paper for a recent symposium at Notre Dame Law School. Here's the abstract:

A mystery of faith is a truth of religion that escapes human understanding. The mysteries of religion are not truths that human beings happen not to know, or truths that they could know with sufficient study and application, but instead truths that they cannot know in the nature of things. Religious mysteries tend to designate the unfathomable matters of religion, those that the merely human mind cannot grasp.

In this short paper, I suggest that “mysterizing” religion may change the stakes in some of the most controversial conflicts in law and religion. To mysterize (not a neologism, but an archaism) is to cultivate mystery about a subject, in the sense described above—to press the view that a certain subject or phenomenon is not merely unknown, but unknowable by human beings. That is what I propose to do for religion in American law, and what may well alter the landscape of the conflicts between advocates of religious liberty and the forces opposing it. Fortunately, I have had some help. The mysterization of religion seems already to be well under way in American constitutional law. It is a central feature of the Supreme Court’s current conception of religion.

The specific context I consider concerns the question whether the government may make public funds available to private religious schools—either directly or through mechanisms of independent, private choice—on condition that the schools accept and implement nondiscrimination rules regarding the sexual identity or conduct of their students and faculty. The mysterization of religion probably alters the legal landscape by rendering the claim that conditions concerning the admission or hiring of LGBTQ persons interfere with religious free exercise stronger than it otherwise would be. And the argument for mysterization itself derives strength from the Supreme Court’s own conception of religion as ineffable, unintelligible, and unevaluable, as well as from the Court’s recent ministerial exception cases.

I conclude by briefly reflecting on what the mysterization of religion may mean more generally for law and religion. It is not all good news for religion. In fact, upon closer inspection, it turns out that mystery in traditional religions, conceptualized as a partial, incomplete, or imperfect apprehension of the transcendent, is quite different than mystery in the contemporary legal understanding of religion as psychological, interior, personal unfathomability. Almost its opposite.

Sunday, December 4, 2022

"As the Eyes of Bats Are to the Blaze of Day": Aristotle on Tradition's Contribution to Knowledge

By Marc DeGirolami

From Book II.1 of the Metaphysics:

"The investigation of the truth is in one way hard, in another easy. An indication of this is found in the fact that no one is able to attain the truth adequately, while, on the other hand, we do not collectively fail, but every one says something true about the nature of things, and while individually we contribute little or nothing to the truth, by the union of all a considerable amount is amassed. Therefore, since the truth seems to be like the proverbial door, which no one can fail to hit, in this respect it must be easy, but the fact that we can have a whole truth and not the particular part we aim at shows the difficulty of it.

Perhaps, too, as difficulties are of two kinds, the cause of the present difficulty is not in the facts but in us. For as the eyes of bats are to the blaze of day, so is the reason in our soul to the things which are by nature most evident of all.

It is just that we should be grateful, not only to those with whose views we may agree, but also to those who have expressed more superficial views; for these also contributed something, by developing before us the powers of thought. It is true that if there had been no Timotheus we should have been without much of our lyric poetry; but if there had been no Phrynis there would have been no Timotheus. The same holds good of those who have expressed views about the truth; for from some thinkers we have inherited certain opinions, while the others have been responsible for the appearance of the former."

Tuesday, October 18, 2022

Notre Dame Law Review/Religious Liberty Initiative Symposium Monday on Unconstitutional Conditions and Religious Liberty

By Marc DeGirolami

I'm looking forward to participating in this symposium on "Unconstitutional Conditions and Religious Liberty" next Monday, where I'll present an early draft of a new paper, "Mysterizing Religion." Fellow MOJers Tom Berg and Michael Moreland will join me, together with many other insightful scholars.

More soon on the paper. If any of our readers are in town, please do say hello!

Thursday, September 22, 2022

Smith on the case for and against regulation of hate speech in liberal regimes

By Marc DeGirolami

Here is the last of our summer conference pieces on "Liberalism's Limits," this one by Professor Steven Smith. Steve's reflections on the shifting role of individual identity in liberal polities suggest that while there has always been a strong case against regulating hate speech in such regimes, there is now a strong case for it. A bit:

In a different way, though, liberalism may strengthen the case for regulating hate speech. To see how, let us notice the importance of something that is typically taken for granted but that modernity and liberalism, in particular, can render fragile–namely, personal identity.

Think of it this way: public policy decisions are typically debated by reference to people’s “interests”–in health, prosperity, etc. But “interests” presuppose persons who are the bearers of those interests: no persons, no interests. And to be a person, one must be biologically alive and possessed of the DNA of homo sapiens, of course, but one must also have an identity: otherwise, we would be only a blob of tissue and psychic activity, not a person. Hence, a threat to persons’ identity is more fundamental than a threat merely to their “interests.”

In most situations, identity may seem to be simply given. But identity can become problematic. Individuals may become perplexed and paralyzed by the question: “Who am I?” And such identity crises can proliferate to become a societal problem. Indeed, “the question Who am I? is now one of the most fraught of our time,” Mary Eberstadt reports.

Moreover, liberalism seems to aggravate this problem, in at least two interconnected ways. First, liberalism can subvert the grounds or sources of identity. Simplifying, we can say that in most times and places in Western history, people’s identity has typically been grounded in two main sources: their religion, and their family or social relations. You were James, Roman Catholic, son of Geoffrey and Alice–or Bonnie, Protestant, daughter of William and Anne. But the liberal project has been, if not exactly to undermine church and social structures, at least to liberate the sovereign individual from dependency on these institutions so that she can “be herself,” or “be who she really is.”

That is because a core commitment of liberalism is to the individual as the locus of “dignity” and meaning, and hence to individual autonomy as the central normative value. This individualist commitment pervades liberalism–in its conception of liberty and rights, in its emphasis on equality (equality of individuals), and in its commitment to authenticity and the individual conscience. And on these individualistic assumptions, it is demeaning to suggest that someone’s identity depends on a relation to a church or parent or spouse. You are “your own person,” not just someone’s son or daughter or spouse.

But if a person can no longer define who he is by reference to church or family or social position, how is he supposed to understand his identity?...

In these ways, liberalism contributes to the fragility of personal identity that is widely perceived in the Western world. The desperate quest for and obsession with identity–with questions of Who am I really? and How can I be who I really am?–is discernible in various contemporary phenomena: in the proliferating tribalism and identity politics, in the transgender movement, in the effort by millions of people to discover their biological parents or ancestors...

In this context, the question of hate speech takes on a different character. It may now seem misguided and insensitive to describe the injury caused by hate speech as mere “hurt feelings.” Something more basic may seem to be at stake. Thus, suppose that having been freed from the traditional dependence on church or family as the moorings for my identity, I have come to answer the Who am I? question by reference to my race, or my sex, or my sexual orientation. I am standardly classified–and so I come to conceive of myself, perhaps–as a “heterosexual white male.” Now, if someone seems to be denigrating my race, or my sex, or my sexual orientation, they are not merely injuring my interests or hurting my feelings. Rather they are attacking the very bases of my identity.

True, the utterer of hate speech may not inflict any bodily injury on me. And yet, in undermining my identity, he is nonetheless threatening me–is threatening my very existence as the person I am–just as surely as if he were physically assaulting me. Or at least so I might perceive the matter, and so many people today seemingly do perceive the matter.

In this respect, by undermining the bases of identity, a liberal society may be indirectly creating a case for regulation of hate speech that is more urgent than would be true in a non-liberal society in which the traditional bases of identity remain intact and unthreatened, so that the injury caused by hate speech could be passed off as mere offense.

Monday, September 12, 2022

Barclay on Religious Exemptions and Democratic Self-Governance

By Marc DeGirolami

Here is Professor Stephanie Barclay's interesting essay on a few issues concerning judicially mandated religious exemptions, for our conference on "Liberalism's Limits." And here is something from the conclusion of Stephanie's piece to give readers a sense of her claims:

Let us next consider religious exemptions offered by judicial bodies in counter-majoritarian ways—meaning judicial actions that might decline to apply duly enacted democratic laws to religious objectors. Can that sort of action ever be consistent with the consent proposition, and with a self-governing free people?...

It turns out that counter-majoritarian judicial actions can manifest in a variety of ways, and some are more consistent with self-governance than others...

The third category through which the judiciary can provide religious exemptions is essentially an evidentiary one. This role rests on the premise that, at the very least, the government may not interfere with religious exercise simply because it views that societal good as unimportant. This type of devaluing of religion can manifest as bemused indifference at best and as open hostility at worst. When a religious objector is thus seeking a religious exemption from a specific application of the law, the judiciary would ensure that the government has demonstrated (with evidence and not mere say so) a need to interfere with religious exercise. Doctrinally, this could operate as a rebuttable presumption of an entitlement to a religious exemption that the government can rebut by doing essentially two things. The government must first show that it does, in fact, have a policy objective other than devaluing religion, and second, that interfering with the voluntary religious exercise is necessary to advance that policy objective.

In many respects, this is how modern strict scrutiny is now applied by the U.S. Supreme Court. To be sure, strict scrutiny speaks in terms of “compelling government interest.” But the judiciary rarely decides cases by weighing the importance of the government interest compared to the importance of the relevant religious exercise. Instead, courts often assume without deciding that the government’s stated objective is compelling. Courts then turn to analyzing whether the stated interest is, in fact, the real interest that motivated the government, and whether the government has demonstrated that it cannot advance that interest without interfering with religious exercise...

When it comes to deciding whether the government actually needed to interfere with the religious exercise to advance its interest, the court often looks to whether the government is being even-handed in the enforcement of its stated policy interest. For example, the U.S. Supreme Court ruled in Roman Catholic Diocese of Brooklyn v. Cuomo that New York’s new and heightened COVID-19 restrictions were not justified in overriding requests for religious exemptions. In so ruling, the Court emphasized that New York had not acted in an even-handed way because the new regulations “single[d] out houses of worship for especially harsh treatment.”[20] In a concurring opinion, Justice Neil Gorsuch stressed that “there is no world in which the U.S. Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques.”[21]

Later news reports give some credence to the Supreme Court’s skepticism of New York’s evidentiary claims that its policy was necessary to advance health and safety objectives. A February 2021 article in the New York Times indicated that Governor Cuomo’s heightened COVID-19 orders for many houses of worship were not designated by public health officials, but were instead driven by political considerations and implemented by the Governor’s staff. The article reported, “[S]tate health officials said they often found out about major changes in pandemic policy only after [Governor] Cuomo announced them at news conferences—and then asked them to match their health guidance to the announcements.”  Indeed, “the State Health Department was not deeply involved in final decisions” regarding the policy implementing heightened COVID-19 restrictions.[22]

When the government is not being even-handed, it suggests that the government either has other ways of accomplishing its goal without interfering with religious exercise, and/or that the government is devaluing religion relative to other social goods that it is willing to protect even when such goods undermine the government’s stated interest.

This broader, evidentiary-based role for the judiciary is only one of multiple tools that pertain when it comes to the legitimate scope of judicially-provided religious exemptions. But it is one that provides for thicker protection of this right, and thus greater amounts of liberty, while still remaining consistent with a consent-based model of self-government where the judiciary is simply applying democratically elected policies about the relative importance of religion and not making that determination itself. Critics of strict scrutiny or proportionality should perhaps consider whether an evidentiary-focused rather than balancing-focused method of providing religious exemptions warrants support rather than criticisms if ensuring robust religious liberty protections within a self-governing legal regime is the goal.

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