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.

Tuesday, June 5, 2012

The Eighth Circuit on "Substantial Burden"

By Marc DeGirolami

The Eighth Circuit has held that a defendant with religious objections may have the right under the Religious Freedom Restoration Act to refuse to rise when a judge enters the courtroom.  The defendant in a prosecution for conspiracy and providing material support to terrorist organizations refused on several occasions to stand up when the court convened, citing Muslim beliefs.  After explaining that the First Amendment did not give the defendant a right not to rise, the judge found the defendant in contempt of court twenty times for refusing to stand up.  On remand, the Eighth Circuit has instructed the District Court to determine whether standing in court is the “least restrictive means” of achieving the concededly compelling interest of “maintaining order in the courtroom.”  The Eighth Circuit also indicates, at the end of the decision, that it will accord considerable deference to the District Court on this score. 

Because there has been a bit of discussion lately in the context of the HHS Mandate about what constitutes a “substantial burden” for RFRA purposes, I thought to highlight that portion of the Eighth Circuit’s discussion.  The District Court had evaluated the issue of substantial burden by comparing the behavior of other Muslims, noting that they had no problem with standing up.  That comparison was rejected by the Court as improper: “such considerations are irrelevant in the RFRA context so long as Ali’s objection to the pretrial order was rooted in her own sincerely held religious beliefs.”

Also important is the issue of “inconsistency.”  Apparently the defendant stood up for the jury and in other contexts, but did not stand up for the judge.  The District Court found this to be evidence of “inconsistent” adherence to her religious belief (even though the defendant explained the difference as being one about outward shows of respect).  The Eighth Circuit again rejected inconsistency as a gauge to measure substantial burden: 

[F]ocusing on Ali’s “inconsistent” application of her belief in refusing to rise to honor the court but standing so that prospective jurors could see her is not appropriate in the RFRA context . . . . [T]he court erred by evaluating the orthodoxy and sophistication of Ali’s belief, instead of simply evaluating whether her practice was rooted in her sincerely held religious beliefs. 

This is relevant language, because one sometimes hears supporters of the mandate say that a burden really cannot be that substantial if either (a) some, or even many, Catholic organizations have provided funding for contraceptives in various other contexts; or (b) the particular Catholic organization in question has inconsistently adhered to its belief that providing funding for contraceptives is wrong.  But if the Eighth Circuit is right, then these sorts of arguments are going to be viewed skeptically by courts assessing the question of substantial burden under RFRA.

The case is United States v. Ali, 2012 WL 1970776 (8th Cir. June 4, 2012).

Monday, June 4, 2012

Establishment Clause Cross-Winds

By Marc DeGirolami

This is a news report about a hearing before Judge Loretta Preska (SDNY) on the Bronx Household of Faith case, discussed previously here and here.  The story may be behind a wall, so I will summarize some of it.  Bronx Household of Faith obtained a preliminary injunction and is now seeking a permanent injunction against New York City, which would stop the City from excluding Bronx Household and any other religious organization from equal access to public school facilities. 

The City's ground for excluding Bronx Household was that it was engaging in "worship" while other groups using public facilities were not.  This rationale was accepted by the majority of a Second Circuit panel (Judge Walker dissented) as not constituting viewpoint discrimination, even though it was bound by the Supreme Court's holding in Good News Club v. Milford Central School that the City could not exclude religious expression.  The panel further held that the City had an anti-establishment interest in avoiding the appearance of an endorsement which justified the policy of exclusion of "worship." 

The case is now before Judge Preska on free exercise and establishment grounds.  Judge Preska seems skeptical in the news report that the City can determine what constitutes "worship" and what doesn't without running into entanglement problems. Traditionally in constitutional law, excessive entanglement has been the third part of the Court's Lemon Test -- a still-viable though much criticized Establishment Clause test.  The entanglement prong has always seemed to me to be one of the more important parts of the test but it has faded from significance over the years (though one might argue that a concern about excessive entanglement is what grounds the Establishment Clause component of the Hosanna-Tabor decision).

But Judge Preska's reported questioning suggests that excessive entanglement is where she may mean to focus her decision.  If that is how the decision comes down, it will result in the following interesting situation:

  • The Second Circuit holds that the (appearance of violating the) Establishment Clause justifies the City in excluding "worship."
  • The District Court holds that the Establishment Clause prevents the City from deciding what "worship" is.

This seems somewhat unstable.

Thursday, May 31, 2012

McGinnis on Berman

By Marc DeGirolami

Have a look at John McGinnis's short introductory post on a planned multi-part series on the work of the late great Harold Berman.  I had not known that Professor Berman was an expert in the law of the former Soviet Union.  Professor McGinnis connects that expertise to Berman's larger historical project.   

Monday, May 28, 2012

A Poor Editorial

By Marc DeGirolami

This is a silly and uninformed editorial.  There are, of course, differences of opinion about the political wisdom of the HHS mandate and resistance to it.  But this editorial is about the legal challenge to the mandate.  And it calls that challenge "built on air."  Actually, it is built on the Constitution and a federal statute, and we'll soon see whether those foundations remain solid enough to support it.

The editorial does mention the Constitution and the federal statute.  But what it says misrepresents both.  It also fails to mention that the original mandate -- and not the putative change in plans alluded to by the President in February -- is at present the law.  The editorial uses Employment Division v. Smith as an argument that the government ought not to accommodate dissenting religious conscience.  And it makes the following colossally stupid statement about RFRA: "In 1993, Congress required government actions that “substantially burden a person's exercise of religion” to advance a compelling interest by the least restrictive means. The new contraceptive policy does that by promoting women’s health and autonomy."  Can anybody figure out how the second sentence follows from the first?  Did anyone at the Times think to check with a lawyer before writing this?  How about a law student?

There are arguments to be made in defense of the mandate.  Surely the government will make them in court.  But this editorial neither makes nor even references any of them.  What an embarrassment.

Friday, May 25, 2012

How Law is Like a Settling House

By Marc DeGirolami

Paul Horwitz has a very nice post in response to Rick's discussion of Employment Division v. Smith.  Paul recognizes that there are ways to reconcile Smith and Hosanna-Tabor, but he puts together a nifty argument that there are some deeper tensions between the two decisions as well as interesting questions about the relationship of institutional and individual free exercise.

For years before we moved to New York, my wife and I lived in a lovely old nineteenth century townhouse in Boston.  We lived there for about 5 years, and in those years, we noticed gradual shifts in the house's structure, particularly the higher up you went.  The joints between walls would move, overlap -- settle, settle, settle.  The floor would slowly develop a ridge or a depression.  The stairs would gradually slant left, except at the bottom where they straightened out.  An unexpected feature of this process was that settlements in one direction could also slow down, or even reverse course.  Guests who visited only once in a while would not notice these micro-shifts.  Appreciating these changes required the perspective of time.     

In a recent talk that Mike McConnell gave over at St. John's, he said something along these lines: when there is an instability in the law, the likeliest outcome is that over time -- sometimes over a very long time, depending on the quality of the tension -- the law will resolve the instability in one or another direction.  Those shifts are signs of the law settling, and the process of that settling continues without ending point, sometimes changing directions.  Maybe the instability that Paul recognizes will give rise to doctrine over the next 50-100 years that shifts, settles, reshifts, and resettles.  

Monday, May 21, 2012

The Lamp of Memory

By Marc DeGirolami

The sad pictures of destruction in areas surrounding the hometown of my mother, Bologna, are only somewhat softened by the welcome news that it appears relatively few people were killed or seriously injured by the earthquake.

But the images of destroyed churches and other ancient public edifices reminded me of Ruskin's verdict that architecture is the most political of the arts.  So I went back in search of his elegant polemic (it is possible to be both) The Seven Lamps of Architecture -- my favorite of which is "The Lamp of Memory."  Here's a bit:

Every human action gains in honour, in grace, in all true magnificence, by its regard to things that are to come. It is the far sight, the quiet and confident patience, that, above all other attributes, separate man from man, and near him to his Maker; and there is no action nor art, whose majesty we may not measure by this test. Therefore, when we build, let us think that we build for ever. Let it not be for present delight, nor for present use alone; let it be such work as our descendants will thank us for, and let us think, as we lay stone on stone, that a time is to come when those stones will be held sacred because our hands have touched them, and that men will say as they look upon the labour and wrought substance of them, "See! this our fathers did for us." For, indeed, the greatest glory of a building is not in its stones, nor in its gold. Its glory is in its Age, and in that deep sense of voicefulness, of stern watching, of mysterious sympathy, nay, even of approval or condemnation, which we feel in walls that have long been washed by the passing waves of humanity. It is in their lasting witness against men, in their quiet contrast with the transitional character of all things, in the strength which, through the lapse of seasons and times, and the decline and birth of dynasties, and the changing of the face of the earth, and of the limits of the sea, maintains its sculptured shapeliness for a time insuperable, connects forgotten and following ages with each other, and half constitutes the identity, as it concentrates the sympathy, of nations: it is in that golden stain of time, that we are to look for the real light, and colour, and preciousness of architecture; and it is not until a building has assumed this character, till it has been entrusted with the fame, and hallowed by the deeds of men, till its walls have been witnesses of suffering, and its pillars rise out of the shadows of death, that its existence, more lasting as it is than that of the natural objects of the world around it, can be gifted with even so much as these possess, of language and of life. 

Wednesday, May 16, 2012

Conference: The Changing Faces of Religion and Secularity

By Marc DeGirolami

A quick announcement for a wonderful looking conference to be held at Harvard Law School on June 7-8, The Changing Faces of Religion and Secularity, organized by the Universidad de Navarra in Spain.  The program is international in scope and includes some terrific speakers -- Mary Ann Glendon, Jean Bethke Elshtain, and Russell Hittinger, among many others.  My Center for Law and Religion colleague Mark Movsesian will be presenting his paper, Crosses and Culture: State-Sponsored Religious Displays in the United States and Europe.

Bloating the Establishment Clause

By Marc DeGirolami

The following style of argument has on occasion found favor with courts.  The state has an interest in appearing not to violate the Establishment Clause, even if it actually is not violating the Establishment Clause.  And it appears to violate the Establishment Clause when it accommodates a religious group or organization -- whether on equal terms with non-religious groups or not.  For example, in the Second Circuit's Bronx Household of Faith case (whose fate is still working itself out in the Southern District of New York), the Court said this: "In order to determine whether the content restriction for this purpose is reasonable and thus permissible, we need not decide whether use of the school for worship services would in fact violate the Establishment Clause, a question as to which reasonable arguments could be made either way, and on which no determinative ruling exists.  It is sufficient if the Board has a strong basis for concern that permitting use of a public school for the conduct of religious worship services would violate the Establishment Clause."  Not only endorsement, but a "strong basis" for "concern" that there is endorsement -- that is, the appearance of an endorsement -- is constitutionally relevant.  I have not been able to locate the phrase, "appearance of endorsement" in Justice O'Connor's statements of her test, though I did find that precise language in Justice Souter's concurrence in Capitol Square Review and Advisory Bd. v. Pinette.

I think the argument is utterly bogus.  But I feel that way about many Establishment Clause standards and arguments.  What makes this one particularly -- uniquely -- wrongheaded is its backhanded puffing up of the reach of the Establishment Clause without actually bothering so to rule.  

Who is assessing appearances?  From what vantage point?  The same person who is assessing reality?  May not appearances be deceiving?  If something appears to violate the Establishment Clause, does that imply that it actually does not violate the Establishment Clause?  And if something does not violate the Establishment Clause, why in Heaven's name should we care at all -- from a constitutional point of view, as opposed to a political one -- that it appears to do so?  Or is the appearance of violating the Establishment Clause a suggestion that something may violate the Establishment Clause, but we are unprepared to say so?  When would we be prepared to say so?  When it actually does violate the Establishment Clause?  But shouldn't we only say so then?

But ridiculous as all of that is, it's not really what I find supremely irritating about the argument from appearances.  What really rubs me wrong is that by using the language of appearances or reasonable "concern," courts are able to give constitutional weight to practices that have nothing to do with the Establishment Clause.  They can tacitly expand the reach of the Establishment Clause without actually so ruling.  They can say, for example: "Accommodating a religious group may or may not be constitutional under the Establishment Clause; we're not saying. But whether or not such an accommodation is constitutional, the state's failure to grant an accommodation vindicates a non-establishment value -- to wit: avoiding the appearance of an establishment."  Instead of saying honestly that the Establishment Clause says absolutely nothing about the refusal to accommodate X, that refusal is itself constitutionalized through the back door of the Establishment Clause.  You may be too weak politically to get yourself an accommodation -- you may not know the right people or your claims just may not have traction in the political climate of the day -- but it adds needless insult to injury to be told by a court that the political rejection of your accommodation actually has a basis in the Constitution.  It doesn't.  And saying that it does bloats the Establishment Clause; it expands its waistline with the empty calories of what "appears" to be unconstitutional but really isn't.  That is no way to interpret the Constitution.

There is a final reason that I think the appearances argument is obnoxious: it rewards the government that declines to accommodate religious objectors by sanctioning its action as a constitutional matter, and in so doing it insidiously suggests that it is part of our constitutional tradition to be intolerant of religious difference.  We here at MOJ see the holding of Employment Division v. Smith in different ways: some think it wise, while others do not.  But most people agree that Smith was not intended to discourage legislatures from accommodating religious objectors.  It was intended to place primary responsibility for such accommodations in legislative hands -- to de-constitutionalize the issue of exemptions from neutral and generally applicable laws.

The Establishment Clause appearances argument alters that framework.  It re-constitutionalizes the exemption issue.  Failures to accommodate are no longer purely political matters.  They are supported by constitutional reasons.  In combination with Smith, the EC argument from appearances suggests that it's a very good thing, constitutionally, when legislatures are intolerant of religious difference, because accommodating people for religious reasons gives the appearance of violating the Constitution, even if -- in reality -- it does nothing of the kind.

Tuesday, May 15, 2012

Bacon's "Of Judicature"

By Marc DeGirolami

Here's a wonderful passage by Francis Bacon from his neat essay, "Of Judicature," which on the surface purports to take some swipes at the Catholic Church, but appears to me to be much more about the role and character of judging.

Judges ought to remember that their office is jus dicere, and not jus dare; to interpret law, and not to make law, or give law.  Else will it be like the authority claimed by the church of Rome, which under pretext of exposition of Scripture doth not stick to add and alter; and to pronounce that which they do not find; and by shew of antiquity to introduce novelty.  Judges ought to be more learned than witty, more reverend than plausible, and more advised than confident.  Above all things, integrity is their portion and proper virtue.  Cursed (saith the law) is he that removeth the landmark.  The mislayer of a mere-stone is to blame.  But it is the unjust judge that is the capital remover of landmarks, when he defineth amiss of lands and property.  One foul sentence doth more hurt than many foul examples.  For these do but corrupt the stream, the other corrupteth the fountain.  So saith Solomon, Fons turbatus, et vena corrupta, est justus cadens in causa sua coram adversario [MOD rough translation: "A righteous man falling down before the wicked is as a troubled fountain or a corrupted spring."]  The office of judges may have reference unto the parties that sue, unto the advocates that plead, unto the clerks and ministers of justice underneath them, and to the sovereign or state above them . . . .

[F]or that which may concern the sovereign and estate.  Judges ought above all to remember the conclusion of the Roman Twelve Tables; Salus populi suprema lex ["The supreme law is the health of the people."]; and to know that laws, except they be in order to that end, are but things captious, and oracles not well inspired.  Therefore it is an happy thing in a state when kings and states do often consult with judges; and again when judges do often consult with the king and state: the one, when there is matter of law intervenient in business of state; the other, when there is some consideration of state intervenient in matter of law . . . . Let judges also remember, that Solomon's throne was supported by lions on both sides: let them be lions, but yet lions under the throne; being circumspect that they do not check or oppose any points of sovereignty.  Let not judges also be so ignorant of their own right, as to think there is not left to them, as a principal part of their office, a wise use and application of the laws.  For they may remember what the apostle saith of a greater law than theirs; Nos scimus quia lex bona est, modo quis ea utatur legitime ["We know that the law is good, provided that it is used lawfully."]

Friday, May 4, 2012

On Being "Compromised"

By Marc DeGirolami

Below, Lisa Schiltz offers a brief recap of the Religiously Affiliated Law Schools conference that began yesterday and is continuing today.  Though I did not attend the conference, and so did not hear the exchange that she describes, this statement about a claim by Professor Michael Broyde caught my eye:

Michael Broyde from the Center for the Study of Law and Religion at Emory sparked some friendly fireworks with his provocative claim that law and religion institutes at religiously-affiliated schools are necessarily compromised in their ability to engage in an intellectually honest pursuit of truth[.]

The idea of a scholar, or a scholarly center, being "compromised" because of the religious affiliation of the home institution is an interesting one and I want to explore it here.  Because I did not hear Professor Broyde myself, I will rely on Lisa's report of his remarks -- more to think through some of these issues than to attack anything he said specifically. 

I can think of three ways in which an academic institution or the scholar working in it may be "compromised" in the "intellectually honest pursuit of truth" by a religious affiliation.  Let's take them one at a time. 

First, an academic institution may put explicit pressure on scholars to pursue or not to pursue certain avenues of intellectual inquiry, or to reach (or not to reach) certain preordained conclusions.  The institution could stifle and suppress certain kinds of research, or demand others.  And in this way, it would "compromise" its scholars, and the scholars would "compromise" themselves by acquiescing in its demands.  In the past, this sort of "compromise" may have occurred with respect to law and religion scholarship at various secular legal institutions, for example, in which work in the field was expressly discouraged and disdained.  That obviously is not the case at Emory, where the superb Center for the Study of Law and Religion directed by John Witte is flourishing.  I would be very surprised if Professor Broyde meant this first sort of "compromise" when he made his remarks.  If he did, I certainly can see how that would be a troubling phenomenon, but he and I must attend and participate in very different sorts of conferences.  I do not believe that I have ever attended a conference in which this sort of "compromise" was in evidence.

Second, one might think that a religiously affiliated institution is "compromised" and somehow less than fully "intellectually honest" because it has a general interest in a particular field of inquiry.  Sometimes one sees this referred to as part of the school's "mission" but it could also be described in different and milder terms as simply an important subject for the school -- part of the school's institutional identity, so to speak.  This second meaning of "compromised" seems to me to rob it of its pejorative connotation, as well as to dissociate it from an inability to pursue "truth" in an "intellectually honest" fashion.  Some schools have particular methodological interests -- in law and economics, for example, or empirical methods.  Some are committed to various socially ameliorative causes.  Some focus especially and have developed particular expertise in an individual subject -- environmental law, for example, or international law.  And some are committed to inquiry about and engagement with religious traditions of various sorts.  The sociologist Talcott Parsons (about whom no one would allege any pejorative intellectual compromise) had this to say about the freedom of academic institutions to speak out about matters of special interest to themselves and their educational identity: "Corporate positions are justified . . . where the interests of the educational institution, the academic system, or relevant sectors of them are at stake . . . ." (See his very interesting 1968 piece, "The Academic System: A Sociologist's View").  Care must be taken to distinguish the first and second meaning of "compromise" so that the second does not shade into the first, of course.  But as a general matter, a scholar or an institute within a larger academic institution with a religious affiliation and/or commitment is not pejoratively "compromised" simply in virtue of the religious association.

The third possible meaning of "compromised" in this context is the most interesting, and also the most confused.  The idea here is that religious affiliation as to the individual scholar is itself "compromising" -- itself an impediment to intellectual honesty -- but only, or especially, when that scholar works at a religiously affiliated institution.  The position assumes that there is some collection of properties which conduces to intellectual honesty, and institutional religious affiliation is not one of these properties.  A deeply felt religious commitment is in itself a complicated affair when it comes to individual scholarly inquiry, but when it exists within an institution which also has a religious affiliation, it becomes more probable that the commitment will become "compromising."

It is true that all of us are influenced in our scholarship by our commitments, our "prejudices," in Burkean terms.  And that's as true for those of us, and of our institutions, with religious affiliations as for those without them.  Yet it would be odd, and unfair, to claim that those without such affiliations and commitments are "compromised" or somehow intellectually disabled or incapable of "honest" scholarly work.  I daresay one would never hear such a claim today, and rightly so.  Worthwhile and interesting scholarly work comes in many guises, but it never stands above or somehow outside of prejudice, partial influence, and commitment.  The most interesting scholarly work is neck-deep in it.  In this third sense, the "intellectually honest pursuit of truth" is not hampered by "compromise."  It depends on "compromise" -- the compromise that comes from unique individual and institutional perspective as we do our best to find our way.     

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