Here's an interesting selection from David Dorsen's recent superb biography of renowned Second Circuit Judge Henry Friendly. The passage deals with the Establishment Clause, with particular reference to the issue of "shared time" remedial education by public school teachers in religious schools and the Supreme Court's decision Aguilar v. Felton. The passage is neat because it shows the fashion in which an intermediate appellate judge managed hierarchical constraint and substantive preference in crafting a decision. I'll have some more on this general issue soon, but here's Dorsen (at 162-63):
[I]n 1984, a time of doctrinal uncertainty and confusing precedents [ed.: when has this not been true?], Friendly wrote the Second Circuit's opinion in Felton v. Secretary, Dept. of Education, where, when other programs had proven ineffectual, New York City sent public school teachers into nonpublic schools, including religious schools, to provide remedial instruction to educationally deprived children. State law prohibited public school teachers and their supervisors, who were entirely in charge of the program, from involving themselves in religious activities or content. In a suit by taxpayers Friendly said that while he accepted the good faith of the city and the value of the program, the program was unconstitutional: "[T]he Establishment Clause, as it has been interpreted by the Supreme Court, constitutes an insurmountable barrier to the use of federal funds to send public school teachers and other professionals into religious schools to carry on instruction, remedial or otherwise, or to provide clinical and guidance services of the sort at issue here." His analysis of the Court's cases
leads inescapably to the conclusion that public funds can be used to afford remedial instruction or related counseling services to students in religious elementary and secondary schools only if such instruction or services are afforded at a neutral site off the premises of the religious school....To be sufficiently certain that public employees, in a program like the present one, will maintain strict religious neutrality, they and the institutions in which they work must be subjected to 'comprehensive, discriminating and continuing state surveillance.' This itself is a constitutionally excessive entanglement of church and state.
Precedent did not require a search of the record to find entanglement; the mere possibility was sufficient to reject the program.
Dorsen goes on to note that Friendly's separationist view of the Establishment Clause ("The Establishment Clause was the most notable constitutional-law area in which Friendly sided with the Supreme Court's liberal wing") coincided nicely with what was then the Supreme Court's prevailing view, so that he could claim plausibly that he was "just following the Supreme Court." "Nevertheless," Dorsen writes,
Friendly structured the opinion in a manner that increased the likelihood that the Supreme Court would affirm him. He placed heavy reliance on Meek v. Pittenger, virtually the same as Felton, including on the problem of entanglement, which held unconstitutional a secular textbook program for private schools. He later explained that in writing the opinion as he did his object "was to make the [Supreme] Court face up to the fact that it could not sustain the New York program without overruling, in contrast to distinguishing, Meek v. Pittenger. I thought that this, as well as some of the other considerations developed in the opinion, might give a little pause to Blackmun and Powell about the erosion of the establishment clause."
If you read through Justice Brennan's opinion for the Court in Aguilar v. Felton, you'll see that he relies heavily on Meek too. And, as Friendly half-predicted, Justice Powell's concurrence goes on at length not only about Meek, but it also specifically relies on and emphasizes Judge Friendly's reading of Meek.
It's also interesting that none of the dissenting opinions in Aguilar distinguished Meek--another very strong point in support of Judge Friendly's craftsmanship. Justice O'Connor instead wrote that "experience has demonstrated that the analysis in Part V of the Meek opinion is flawed. At the time Meek was decided, thoughtful dissents pointed out the absence of any record support for the notion that public school teachers would attempt to inculcate religion simply because they temporarily occupied a parochial school classroom....[I]t is time to acknowledge that the risk identified in Meek was greatly exaggerated." Justice Rehnquist's dissent does not mention Meek at all, presumably because he continued to dissent from it. And Chief Justice Burger explicitly states that he dissents in Aguilar for the same reasons as he dissented in Meek.
Of course, Agostini v. Felton, decided in 1997, overruled Aguilar and Justice O'Connor's opinion carried the day (5-4): "We have abandoned the presumption in Meek and [School Dist. of Grand Rapids v.] Ball that the placement of public employees on parochial school grounds inevitably results in the impermissible effect of state-sponsored indoctrination or constitutes a symbolic union between government and religion." But that course reversal only highlights the importance of seeing how a master like Judge Friendly went about his work.
Have a look at Will Baude's very interesting response to Glenn Cohen's post on the sorts of reforms to higher education that seem most and least promising in light of technological and other challenges (or advances). Here's a bit from Will's post:
I'm much more skeptical of a refrain that Glenn employs a couple of times in his post-- the idea that it's helpful for us to imagine that we were "creating the first universities for our day and age," and use those imagined ideal first universities to evaluate whether and how our actual universities ought to change. Maybe it's my inner Hayek, but I'm not sure how good our imaginations really are, and I'm not sure how relevant the product of those imaginations ought to be.
I mean, for starters, once we are in the imagining business, why universities? If we were creating the first system of higher education for our day and age, is there any reason to believe we would do it via university, rather than some much more unbundled combination of written and oral materials? Would we have general rather than specialized certifications? And if we did decide to invent universities, what ought they be like? Despite having thought about this for a while, I honestly have no idea, and I'm skeptical of most of those who do have a confident idea.
I come at this problem quite differently. One of the defining characteristics of American universities is the way that they've become embedded in our society over time, and the set of social norms in and around them. You don't have to be Tyler Cowen to think that two of the main reasons people learn things by going to universities are the effects of socialization and the higher social status obtained by going. We can tell stories about the superiority of interactive class discussion over the internet and the library, but surely those embedded social effects are a huge part of any such superiority. And many of those social norms are bottom-up, not top-down. Imagining new from-scratch universities pushes us to dissociate the university from some of its most important virtues.
Baude and Cohen appear to be discussing the best way to approach the reform of higher education. But I wonder if the fundamental difference between them isn't really so much about higher education specifically, but about the general nature of institutional change. One other quick thought: whether one believes that the university's existing educational virtues are worth preserving may depend at least in part on the extent to which one also believes that those virtues continue to be maximally conducive to the university's educational mission. But I take part of Will's point to be that it is difficult to think well about that sort of issue in vacuo.
Via Walter Russell Mead, I learn that the New York City Council passed a resolution on Wednesday calling for the granting of equal access to churches and houses of worship to public school property (it calls for new legislation to amend the New York State Education Law in this respect). Over at CLR Forum, I have on variousoccasions discussed the "serpentine path" of litigation in the Bronx Household of Faith case, and it appears from Mead's report that several Council members who opposed the resolution (as well as schools Chancellor Dennis Walcott) made a public statement citing the concerns of the Board of Education that by granting access, the school might be "appearing to endorse religion." The Council's resolution may have been spurred by the events in the Southern District of New York, though it will be interesting to see what the Second Circuit does with the case (again).
I have argued before that it is an intrinsic feature of the endorsement test that it leads to Establishment Clause bloat, in which endorsement is replaced by the "appearance" of endorsement in a kind of infinite regress of subjectivity which enables courts to bloat the Establishment Clause without going to the trouble of ruling that a particular activity actually violates the Establishment Clause. Here, though, I only want to note that Mead's view that "the Founders did not intend the First Amendment to deny churches the right to pay money to rent public school properties" is, in my view, correct. The best work on the subject that I know of indicates that as a historical matter, while state use of religious buildings was problematic on Establishment Clause grounds, religious use of public buildings was not. I discuss some of this work in chapter 10 of The Tragedy of Religious Freedom. Of course, depending on one's views, that is not necessarily conclusive on the question whether the Constitution forbids such use today.
The Supreme Court has granted cert. in Town of Greece v. Galloway, a case out of New York in which the Second Circuit held in an opinion by Judge Guido Calabresi that the town's practice of allowing volunteer private citizens to open town board meetings with a prayer violated the Establishment Clause. The last Supreme Court decision to address this precise issue was Marsh v. Chambers (1983), where the Court in a majority decision by Chief Justice Burger upheld the particular practice at issue in Nebraska. Courts of appeals have taken different approaches to the issue post-Marsh, even within the same circuit (see, e.g., the Fourth Circuit's very different approaches in Joyner v. Forsyth County, Wynne v. Town of Great Falls, and Simpson v. Chesterfield County) so I suppose it was on the Court's radar. But one never knows exactly why the Court decides to take up an issue.
For some discussion of the Second Circuit decision, see this post.
This may be obvious to readers of this blog, but perhaps it's worth noting anyway in light of the somewhat loose way in which news outlets sometimes speak of "constitutional violations." Several places are reporting that non-profit organizations with religious affiliations are complaining that they were dealt with improperly by the Internal Revenue Service.
I want first to emphasize that I do not know whether the allegations are true. I strongly suspect that nobody who is likely to comment on my post will know that information. For purposes of this post, I will only assume that they are true, in order to inquire about whether groups with these complaints, under such circumstances (and again, if true), would have a cause of action under the Free Exercise Clause (I am leaving RFRA to the side).
Most readers are familiar with Employment Division v. Smith, which held that neutral laws of general application do not violate the Free Exercise Clause even if their impact especially burdens a religious person or group. A subsequent case, Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, involved a particular religious group's plans to create a new house of worship where they would engage in ritualistic animal sacrifice. In response to these plans, the City enacted various ordinances prohibiting animal sacrifice, but exempting pest control measures, hunting, kosher slaughtering, and private slaughtering of hogs and cattle. The ordinance outlawing "sacrificing" an animal defined sacrifice as "to unnecessarily kill, torment, torture, or mutilate in a public or private ritual or ceremony not for the primary purpose of food consumption." The Court struck down these ordinances as violations of the Free Exercise Clause.
How might these cases apply here? Suppose that the government's explanation for delaying and/or denying a particular group's application for tax-exempt status was that the group "is not educational" or "is political" or "does not present all views." As to religion, this sounds like a facially neutral rule under Smith. The government could in theory apply a prima facie rule that says, "No groups will receive tax-exempt status unless they are educational, a-political, and representative of all views" without violating the Free Exercise Clause as interpreted by Smith (of course, it may be violating other provisions of the Constitution, but I am focusing specifically on free exercise).
Things don't end there, though. One might think that the problem is not one of facial neutrality, but instead of discriminatory motivation. The complaint would be that the rule isn't really neutral at all because the motivations of the government were to target particular religious beliefs. But though it is often thought that Lukumi rested on the ground of discriminatory motivation or "targeting," it did not. Only two Justices--Kennedy (writing for the majority) and Stevens (who joined him on this point)--relied on the history of the adoption of the ordinances to reach the conclusion that they were motivated by the City's desire to suppress or stamp out religious groups that it disliked. The real ground of decision did not have to do with discriminatory motivation, but with unequal application of the law. The question here would be--given the admittedly religion-neutral purposes of the law (education, a-political qualities, viewpoint inclusion), is the law being applied in a way which disvalues or is unfair to religious beliefs? A law which is applied selectively against religious groups cannot be "narrowly tailored" to the government's aims, and the failure of that narrow tailoring in turn suggests that the government's interest in the laws is not compelling. Subjective motivations are not relevant in this sort of inquiry; only the record of the law's aims and application is.
One might wonder whether this difference is important. A law that is motivated by the desire to "target" religious groups will generally fail to be narrowly tailored to achieve a compelling state interest. But not always. A law might "target" religious conduct on the ground that the religious conduct presents special dangers. Suppose a religious group has a ritual in which it tests its members with a "leap of faith" off a fourth-floor balcony. After five people have died, the town enacts a law which forbids people from jumping off of buildings. That law might be motivated by the wish to "target" this religious conduct, and the law likely would be valid even if nobody but members of the religious group engaged in the conduct. But a different question arises if the law proscribes certain dangerous conduct that is religiously motivated but continues to allow equally dangerous activity that is not motivated by religious belief (tightrope walking across two skyscrapers, for example). Take away the "dangerous" (to humans, that is) and this is what was happening in Lukumi. The difference does not, at least according to Lukumi, have to do with the subjective motivations of the "targeting" legislators, but with the extent to which unequal application of the law evinces a devaluation of religion.
In like fashion, it seems to me that with respect to the IRS situation, the issue for purposes of a Free Exercise Clause claim would turn not on evidence of the government's subjective intention to "target" particular religious groups, but on the ways in which a putatively neutral law or rule was applied to religious and non-religious applicants for tax-exempt status alike.
I am greatly looking forward to participating toward the end of the month in a workshop on the thought of Sir Thomas More, to be held at the University of St. Thomas under the auspices of the excellent Murphy Center. The workshop's conveners (who include our own Lisa Schiltz) have generously provided us with various material to prepare, which I am now digesting (I don't know as much about this stuff as Moreland, after all). But I wanted to point readers to a very worthwhile extended review by Louis W. Karlin (another conference convener) of Travis Curtwright's recently published The One Thomas More (2012). Because I am scheduled to teach Professional Responsibility in spring 2014 and am fixing to reconstitute the course substantially, I found the following in the review especially interesting. One issue I've always wanted to learn more about--and have thought might be rightly considered in a legal ethics course--is the relationship of equity to law and specifically the question whether equity may be understood as within law or instead as sitting outside it.
A particularly important aspect of Curtright’s study is his focus on More as a lawyer and jurist, demonstrating how More integrated his formative humanistic studies in classical literature with his professional career. Contemporary legal practitioners and scholars will find much to ponder in Curtright’s extended analysis of the organic connection between rhetoric and jurisprudence in More’s thought, as it is developed in readings of Richard III and Utopia. More believed that an education in the liberal arts, especially when combined with the study of law, informed and strengthened the practical judgment.
Curtright detects in More’s Utopia the foundations of a unique humanist jurisprudence. By cultivating one’s practical judgment through careful study of poetry, history and law, a would be lawyer or legislator can discern the highest ideals for human flourishing, while simultaneously recognizing the inherent limitations in human nature that militate against radical reform. More’s humanist jurisprudence reached its fruition in the expansion of equity jurisdiction that he championed and applied as a judge in the Chancery and Star Chamber courts to ameliorate the unfairness arising from strict application of legal rules under common law. For More, equity, as the application of practical reason according to conscience, did not give a judge license to ignore the law in favor or his own understanding of justice. Rather, equity provided a moderating, ameliorative function to be exercised to better the law’s intent.
The notion that a young humanist champion of utopian reform gave way to a conservative statesman is to mistake the voice of Utopia’s Raphael Hythloday for the author’s. As Curtright persuasively argues, the “real” More’s voice heard in The Life of Pico and Utopia is distrustful of “[s]ystematic answers to political problems,” advocating instead “engagement and accommodation applied toward modest goals” (86). Thus, in his jurisprudence, it is the “rigor of the law, not the law itself, that should be reformed.” As a judge and statesman, More distrusted radical reform in the manner of “sweeping Utopian legislation because More’s ideas of reform, such as they were, deal with the application of equity through conscience” (99). This did not reflect “‘an Augustinian belief in the total and helpless depravity of fallen man,’” as Elton thought (7). Rather, it follows from the same realization that inspired Dr. Johnson’s compassionate conservatism: “The Cure for the greatest part of human Miseries is not radical, but palliative.” (The Rambler, No. 32, July 7, 1750.)
I'm pleased to announce that my new book, The Tragedy of Religious Freedom, is now available
for purchase from Amazon (official publication date is June 1). Here is Harvard University Press's page for it. The book is specifically about the First Amendment religion clauses but it also involves more general questions about the relationship of legal theory and legal practice, and the tasks that legal scholars set for themselves. I hope that it will appeal to folks interested in those rangier questions as well as to readers with particular interests in religious freedom and conflicts among civil rights.
Here are the blurbs on the jacket:
“The Tragedy of Religious Freedom is a first-rate contribution to the law-and-religion conversation. This conversation—how to think about, and how to effectively protect in law, religious freedom in a constitutional democracy—is a lively and timely one, and DeGirolami is an impressive participant.”—Richard W. Garnett, Notre Dame Law School
“A sophisticated and thoughtful book, which offers fresh insights on a central question of religious liberty.”—Philip Hamburger, author of Separation of Church and State
It's a wonderful time of ferment and new thought in law and religion scholarship. I'm delighted (and lucky) to be able to participate in this work. Thanks, also, to my fellow MOJ posters, many of them seasoned authors, for generously indulging frequent posts from the overexcited, less distinguished new guy who never wrote a book before.
Michael reports below on a very interesting exchange about Cathy Kaveny's new book with the eminent value pluralist William Galston. The transcript to which Michael links has the complete discussion, including this reply by Galston to Michael:
[T]homas following Aristotle believes in the unity of the virtues and the unity of the good, not the incompatibility of different pieces of the good. So, from the standpoint of that more harmonious Catholic, morally harmonious Catholic teaching, Berlinian pluralism which is based on the idea ultimately of a conflictual universe, finds a very uncomfortable place. Does that make you a Catholic heretic?
The question was addressed to Cathy (whose book I haven't yet read), but I found myself replying to it.
That is because my book, The Tragedy of Religious Freedom, adopts just such a view of the "conflictual universe." It takes a Berlinian position (which is not identical to Berlin's own position) on the nature of the conflicts of religious liberty. It criticizes much of contemporary legal theory--and particularly the legal theory of religious liberty--for adhering to a value monist methodology. And it further describes that value monist methodology as evincing "comic" commitments traceable in one form or another to Dworkinian beliefs underlying his own claims about the unity of value and the fundamental purposes of legal theory.
I put it this way in the introduction: "A comedy moves from sorrow to joy. Its aim is to take an existing chaos and to order it through and through--to give it a satisfying and intimately worked-out architecture. In a comedy, everything falls into its proper, collision-less place--a place in which a problem that at first seemed intractable has been fully worked out, completely resolved, with the result that the human condition has progressed and been improved." A tragedy, by contrast, "proceeds not from joy to sorrow, but from struggle to unresolved struggle . . . . Tragedy is a study in opposition, comedy in consilience . . . . Tragedy arises when, as in law, there is partial order and partial disorder. And one feels tragedy's sting in the effort to make a single and perfectly harmonious whole--a comedy--of ineluctably clashing ideals."
Yet I very much appreciate Mike's question, and his doubt, about the compatibility of such a view with Catholic thought. It's a question that, several years ago, I remember Patrick Brennan gently putting to me at a conference. That question is not directly addressed in the book (it is not its subject), and I still have not worked out my own answers.
But my tentative conclusion is that the tragic view of our time in this world and of our experiences in this life is distinctively Catholic at least in this way. It expresses something true about the difference between this life and the next. It reflects better the conflicts of human aspirations and the limits of human reason in attaining them than can a comic view. It marks better the difference and the distance between humanity's conflictual universe and God's harmonious universe. And it accounts better for the reasons for valuing the plurality of human institutions and attachments that Catholics, with good reason, hold dear than can a comic approach.
I hope to write more about this issue in the coming days. But that's quite enough heresy for now.
Have a look at our friend John Inazu's insightful new piece, Freedom of the Church (New Revised Standard Version). A methodological theme in John's writing is the importance of excavating the theological assumptions which lie below many of our current legal doctrines and theories, particularly (though not exclusively) in the law and religion context. This piece pursues the Inazian (I would have said Inatian, but that's perhaps too close to Ignatian) theme with respect to Catholic and Protestant ideas about ecclesiastical liberty. Here is the abstract:
Significant discussion about the “freedom of church” has recently emerged at the intersection of law and religion scholarship and political theology. That discussion gained additional traction with the Supreme Court’s ruling in Hosanna-Tabor v. E.E.O.C., which recognized the First Amendment’s “special solicitude” for religious organizations. But the freedom of the church is at its core a theological concept, and its potential integration into our constitutional discourse requires a process of translation. The efficacy of any background political concept as legal doctrine will ultimately stand or fall on something akin to what Frederick Schauer has called “constitutional salience.”
The existing debate over the freedom of the church obscures these insights in two ways. First, its back-and-forth nature suggests that translation succeeds or fails on the level of individual arguments. Second, its current focus on a mostly Catholic argument neglects other theological voices. The kind of cultural views that affect constitutional doctrine are less linear and more textured than the existing debates suggest. This paper adds to the discussion a Protestant account of the freedom of the church: the New Revised Standard Version. Part I briefly sketches the process of translation that any theological concept encounters in the path to constitutional doctrine. Part II summarizes the current debate in legal scholarship about the freedom of the church. Part III introduces the New Revised Standard Version through three prominent twentieth-century theologians: Karl Barth, Dietrich Bonhoeffer, and Stanley Hauerwas. Part IV assesses the possibility of translation, and Part V warns of the theological limits to translating certain theological concepts. The New Revised Standard Version reinforces some of the normative claims underlying the Catholic story, but it does so through a Protestant lens that is somewhat more familiar to American political thought. It also differs from the Catholic account in two important ways: (1) by characterizing the church as a witnessing body rather than as a separate sovereign; and (2) by highlighting the church’s freedom in a post-Christian polity.
Readers may be interested in Professor Dan Crane's three part series on the under-representation of Evangelical Christians in the legal elite. Part I presents the core claim. Part II offers several explanations. Part III reflects on whether it matters, and concludes with this:
Finally, if I’m not convinced that evangelicals would systematically display traditionally Protestant approaches to texts, authority, and tradition, I do think that a greater evangelical presence among the legal elite might have an important effect on the development of law in another way. The defining element of modern American evangelicalism is its individualistic experientialism, its insistence on a personal born-again experience, its adherence to what religion critic Harold Bloom defines as the key trait of any genuinely American religion—walking alone with Jesus in the wilderness. To be an evangelical means to know Jesus in the heart.
It is not hard to see the misfit between evangelicalism’s experiential epistemology and law as a rationalistic, deductive system. But to a pointy-headed legal academic like me, the portrayal of law as rationalistic and deductive seems so nineteenth century. In the post-realist, post-modern world, law is increasingly understood as personal, subjective, and even experiential. To take just one small example, the whole “expressivist” strand of contemporary legal scholarship is about how law is received, understood, internalized, and experienced.
Although evangelicals may not understand this well, modern legal thought may be very much up their alley. It would be a shame if evangelicals continued to stand on the sidelines while the legal academy, the courts, and other legal institutions worked through the implications of law in the post-modern world—something about which evangelicals should have lots to say.
