One of the more interesting things about the directions in which Employment Division v. Smith has been interpreted by subsequent judges is the possible implication for textualism as a theory of constitutional interpretation. The primary virtue of textualism is sometimes said to be its fixity: words mean something -- and that something can be fixed and understood by later interpreters to mean exactly what it meant at the time of the words' authorship. And yet it seems to me that the interpretation of the Smith decision -- and particularly the expansion of the exceptions which Smith itself mentions (including by the Court itself in Hosanna-Tabor) -- may suggest something like the opposite view. Textualism is in some ways a theory of interpretive change, in a way that intentionalism could never be.
Here's why. We know that Justice Scalia was the author of Smith. And we know that his Smith opinion for the majority was joined by 4 other Justices (Justice O'Connor wrote a special concurrence which did not adopt the Smith framework). And we also know that Smith itself seems to carve out really three categories of exception -- for hybrid rights, regulatory schemes with individual assessments, and the issue of church autonomy.
What we don't know is what either Justice Scalia or any of the other Justices who signed on to the opinion intended by making the exceptions to Smith's general rule. Perhaps they really intended to create major exceptions which would put in doubt the central holding of the case. Or perhaps they needed to make these exceptions simply in order to circumvent existing precedent, never intending (or desiring) that those exceptions would see the light of day again in future cases. Or maybe there was a combination of motivations -- some exceptions were really intended to have doctrinal consequences, while others were just attempts to get around some inconvenient decisions of the past. We could ask Justice Scalia or any of the other Justices signing the majority opinion what they intended 22 years ago, but we are not likely to get a reliable answer. It's hard to remember what one intended by doing something in the past, let alone in a single case among hundreds some decades long past, and now lost to the sands of time.
But it gets fun when one reflects on what happened next. In the wake of Smith, lower courts had to make sense of its language. They had to interpret the language -- including, and especially, the exceptions to the central rule -- in a way that made sense to them in light of the specific concerns reflected in their own cases. It was the text, rather than the intentions motivating it, which served as their guide and governed the texts that they in turn produced. And by interpreting the text in this way, lower court judges moved Free Exercise law in directions possibly (probably...almost certainly) not intended by the Justices who joined Smith. It is entirely possible (perhaps even likely) that the exception for individualized assessments made in Smith was never remotely intended to ground a subsequent doctrinal evolution in which that exception was interpreted, expounded, and expanded upon by lower courts. But that is exactly what has happened: in fact, it has happened many times over, as different judges have interpreted it in very different ways. The Justices may have intended one thing, but the words of Smith do not belong to them, and it is for later courts to interpret them in new ways -- ways which take text in unexpected and likely unforeseen directions. This phenomenon occurred in Hosanna-Tabor too. If you had asked Justice Scalia at the time he wrote Smith whether he thought that the ministerial exception lay outside of Smith's general rule, he may well have given you a very different answer than what he gave in signing on to CJ Roberts's decision this past January.
My own view is that the evolutionary quality of textualism might please Justice Scalia, himself (along with Justice Black) a primary exponent of its virtues. The text does not belong to its author. It belongs to the interpreters that follow -- to those others that come after. It is in this way that textualism may be a theory of both fixity and gradual change.
Unlike some, I find much to praise in the recent statement by the USCCB Ad Hoc Committee for Religious Liberty, which Michael noted here. This being a legal blog, however, I want to respond specifically to a claim being advanced on some blogs about the state of constitutional free exercise in this country. It's one that I've encountered many times before, but the response to it needs much more ventilation, as the media in various sorts of fora are just not getting it. The misunderstanding leads commentators to make grossly incomplete, and unintentionally misleading, statements about whether the Free Exercise Clause may be invoked for infringements of religious liberty. I'll focus some of these comments on the HHS mandate, though I do not think the point is limited to that context. The bottom line, in my view, is that it is very unclear whether the Free Exercise Clause is a viable legal possibility. If I were a betting man in the mandate context, I'd put the odds somewhere around 60-40 for upholding the mandate as constitutional (RFRA is another matter entirely).
The part that people do seem to get is the basic rule of Employment Division v. Smith -- the announcement that a facially neutral law which applies generally is constitutional under the FEC, even if its effects may substantially burden a religious claimant.
But that's just the beginning of the analysis. I repeat: that is just the beginning of the analysis. The tricky part is that Smith carves out a number of "exceptions" to the core holding. One of these has, in part, grounded the Court's decision in the Hosanna-Tabor case (disagree as one may with the Court's distinction of Smith).
Another "exception" -- the key exception for our purposes -- involves regulatory schemes which conduct individualized assessments for deciding whether they will grant exemptions. The Court in Smith discussed this "exception" in order to make its way around the unemployment compensation cases (like Sherbert v. Verner). But I put quotes around "exception" because it really isn't an exception at all. It's part of the very rule that Smith announces -- the part dealing with general applicability. Laws which make lots of exceptions are not generally applicable. And a law which is not generally applicable is lifted out of the Smith framework and (ostensibly) receives strict scrutiny (I bracket the issue of whether the sort of scrutiny that FEC claims received pre-Smith really was, in the event, strict).
The question for courts interpreting this exception is what precisely its contours ought to be. Should it be limited to regulations with textual exceptions built right into the statute? Should it apply whenever there is a practice of conducting individualized assessments, and granting individualized exemptions, whether or not the text so specifies? Should it apply when there has been a history of exemptions granted on secular grounds, but not (never?) on religious grounds? How many exemptions are enough to trigger the exception? One? If so, the exception seems to swallow the rule, so that can't be right. Should there be some sort of balancing approach to deciding when the exception kicks in and when not? Should it be subject-specific -- i.e., limited to the unemployment compensation context? (Deeply unpersuasive, in my view, but some courts have said so.) All of these issues are unresolved as a matter of fixed doctrine. Courts have resolved them in a wide variety of ways. They remain to be litigated, and the results are uncertain. There is at least one member of the Supreme Court -- Justice Alito -- who has looked favorably on this exception in a couple of cases when he was a Third Circuit judge. How the rest of the Court might react, should the issue ever reach it, is anybody's guess.
I should emphasize that it still seems to me, in the end, that an FEC claim by Catholic organizations will face a problem with the existing doctrine. But...enough already with intoning the basic rule of Smith, as if this obviously resolves the question decisively, without so much as mentioning, let alone getting into, the doctrinal weeds of the exception. That sort of curt analysis represents a gross misunderstanding of the state of free exercise. The HHS mandate contains many, many exceptions: exceptions for grandfathered organizations; hardship exceptions of various kinds (I believe, but am not certain); exceptions based on the number of employees the organization has; and perhaps others. There is a quite plausible claim to be made (it has been made already, several times, in pending litigation) that these exceptions can ground a claim that the government has violated the Constitution. That doesn't mean the claim will succeed. The results are uncertain, and are likely to vary (at least for the foreseeable future) from court to court.
In my opinion, that is just as it should be. Let the issue rattle around the lower courts for a decade or two. Let judges apply themselves to these problems in light of the particular circumstances and factual specifics facing them. Let's see what shakes out with time and that peculiar variety of judicial wisdom which results from keeping your eyes fixed narrowly on the specific case or controversy right in front of you.
UPDATE: My friend Prof. Cathy Kaveny criticizes some of what I have to say here (Mike Moreland and I have some comments to Cathy in response). I want to make clear that my post was not a response to hers; I've been beating this drum repeatedly here at MOJ before, and I'll be beating it again here and there. Mostly I think that this area of the law is going to see an explosion in the coming years -- it has the potential to have a huge effect in FEC law, but what is most likely (I think) is that it will see some successes and some failures in the lower courts over time.
The Center for Law and Religion is pleased to announce that Professor Ayelet Shachar (Toronto) will visit us at St. John’s Law School next Monday, April 16, at 4:15 pm. Hers is the sixth and final session in our ongoing seminar, Colloquium in Law: Law and Religion. Professor Shachar will discuss her ongoing work involving the legal status of religious tribunals as well as more general problems of religious pluralism. Among the papers for consideration will be her thoughtful chapter on state, religion, and the family in this book.
Academics in the New York area and beyond are welcome to attend. Please let me know.
The New Republic will from time to time reprint old essays on various subjects. Here is a 1923 piece by the formalist art critic Clive Bell, whose ideas about the nature of aesthetic experience have always seemed to me nearly universally wrong. That notwithstanding, I found his discussion in this piece of the connection between impressionism and paganism to be illuminating — one of the most concise explanations for why I have always disliked impressionism with such great intensity. A bit:
The cultivated rich seem at last to have discovered in the impressionists what the impressionists themselves rediscovered half by accident. They rediscovered paganism—real paganism I mean—something real enough to be the inspiration and content of supreme works of art. Paganism, I take it, is the acceptance of life as something good and satisfying in itself. To enjoy life the pagan need not make himself believe that it is a means to something else—to a better life in another world for instance, or a juster organization of society, or complete self-development: he does not regard it as a brief span or portion in which to do something for his own soul, or for his fellow creatures, or for the future. He takes the world as it is and enjoys to the utmost what he finds in it: also, he is no disconsolate archaeologist spending his own age thinking how much more happily he could have lived in another and what a pagan he would have been on the banks of the Ilissus. No, paganism does not consist in a proper respect for the pagan past, but in a passionate enjoyment of the present; and Poussin, though he painted bacchanals galore, would have been quite out of place in the world of Theocritus. Your true pagan neither regrets nor idealizes: and while Swinburne was yearning nostalgicly for “the breasts of the nymph in the brake,” Renoir was finding inspiration for a glorious work of art in the petticoats of the shop-girls at the Moulin de la Galette.
Some poetry for this Wednesday before Easter. Many may be familiar with the end, but perhaps will have forgotten the more memorable lines preceding it.
Is this the Region, this the Soil, the Clime,
Said then the lost Arch-Angel, this the seat
That we must change for Heav’n, this mournful gloom
For that celestial light? Be it so, since he
Who is now Sovran can dispose and bid
What shall be right: fardest from him is best
Whom reason hath equall’d, force hath made supreme
The Center for Law and Religion is pleased to announce that Justice Antonin Scalia will visit us at St. John's Law School next Monday, April 2, at 4:15 pm. His is the fifth session in our ongoing seminar, Colloquium in Law: Law and Religion. Justice Scalia will discuss his opinions in several of the Court's religion clause cases, focusing especially on Employment Division v. Smith;Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah;Lee v. Weisman;Bd. of Education of Kiryas Joel Village Sch. Dist. v. Grumet;Lamb's Chapel v. Center Moriches Union Free Sch. Dist.;Capitol Square Review and Advisory Bd. v. Pinette; and McCreary County v. ACLU.
Academics in the New York area and beyond are welcome to attend, but for this visit, an RSVP to me is essential.
There were two cases argued yesterday before the Supreme Court dealing with the constitutionality of a sentence of life without the possibility of parole imposed on 14 year old defendants who have committed the crime of murder. The cases are structured to build on the 'death is not really different' jurisprudence which seemed to emerge in Graham v. Florida, where the Court held that the imposition of LWOP on a juvenile for a non-homicidal offense violates the 8th Amendment. The cases are Miller v. Alabama and Jackson v. Hobbs. 39 jurisdictions at present permit the punishment.
I think the more difficult of the cases is Miller v. Alabama, and the reason is that Miller participated quite personally in the horrifyingly brutal killing of his victim (do read the opinion of the Alabama Court of Criminal Appeals), while Jackson did not (he was convicted of felony murder as an accomplice, with the predicate felony being robbery). Justice Sotomayor seems to agree with me ("I do see a world of difference between the Miller killing and the Jackson killing . . . ."). Because he was 14, Miller was (under Alabama law) transferred out of the juvenile system to the adult system, given the quality of the crime. 14 is the lowest age at which Alabama permits this transfer to occur.
The leitmotiv of the argument seems to show various Justices searching for some sort of compromise view; it does not seem that a majority of the Court is prepared to say that imposition of LWOP on minors who have committed murder is categorically a violation of the 8th Amendment, as it did say (notwithstanding what was to my mind a sensible concurrence by CJ Roberts) in Graham v. Florida that the 8th Amendment categorically forbids imposition of LWOP on minors for non-homicide offenses. Justice Kennedy (the author of Graham) talked about a holding that mandatory sentences of LWOP for juveniles convicted of a homicide would violate the 8th Amendment. Justice Kennedy also mentioned rehabilitation specifically several times in the argument. Justice Scalia was less interested in rehabilitation ("Let's assume I don't believe in rehabilitation, as I think sentencing authorities nowadays do not"...he might enjoy Meghan Ryan's new piece!), but pointed out quite reasonably the many line-drawing difficulties that the Court confronts -- now that it has moved away from its death-is-different position.
Justice Sotomayor seemed to suggest something like a bifurcated theory: an absolute bar on LWOP for offenders 14 and under and guilty of homicide, and a bar on mandatory LWOP for homicide offenders 15-18, but she was curious about how to work around the Court's holding in Harmelin v. Michigan, which dealt with the imposition of LWOP on a first-time offender for possession of cocaine. The Harmelin Court engaged in a proportionality analysis, but the opinion was highly fractured. Justice Kennedy argued for a contextual review in non-death penalty cases (setting out a multi-factor test): unless the sentence was grossly disproportionate to the offense, the Court would uphold it in a non-death penalty context. Justice Sotomayor's question seems to be -- if the Court engages in a kind of contextual proportionality analysis when it is dealing with an adult who committed a non-homicide offense, why should it engage in a categorical no-LWOP-ever approach when it is dealing with a 17 year old who committed murder? It is a good question.
Sasha Volokh has been writing a series of deeply interesting and thoughtful articles on the phenomenon of the faith-based prison, focusing especially on the effectiveness of faith-based prisons in reducing recidivism and in other ways. Readers interested in the subject will find much to admire in Sasha's careful and provocative work: see here and here. For criticism of Sasha's views, see this short reply by Giovanna Shay.
For my own take on faith-based prisons -- which focuses neither on empirical nor constitutional questions, but instead on the conceptual position, historical and contemporary, of (religious) penance in punishment theory -- see this piece.
I remember once reading that Michael Moore attacked rehabilitation as not even a real theory of punishment at all -- as without philosophical bona fides. And for the past few decades, rehabilitation has gone largely silent in punishment theory (with honorable exceptions, to be sure).
So those who are interested in punishment theory will want to check out Meghan Ryan's (SMU) extremely interesting new piece, Breakthrough Science and the New Rehabilitation. Here's a bit from deep into the piece.
This New Rehabilitation that is emerging in the wake of these pharmacological, genetic, and neuroscientific revolutions differs in great respect from the old rehabilitation that prevailed in the 1960s and early 1970s. Instead of focusing on changing the character of offenders, or in extreme cases a crude mutilation of an offender’s anatomy, this New Rehabilitation instead focuses on changing the biochemical composition of an offender . . . .
These differences in the New Rehabilitation require us to reevaluate whether this new version of the age-old penological goal poses different ethical concerns. While new scientific advances may increase the effectiveness of rehabilitative efforts, and while the concern that "nothing works" dominated the movement against rehabilitation in the 1970s, there were other concerns about rehabilitation that contributed to the demise of this theory of punishment.
Ryan goes on to explore several similarities and differences between the older and newer varieties of rehabilitation.
To make liberal education sanitary for students. Dante’s Divine Comedy appears to be on the chopping block, even at universities. From the story:
The classic work should be removed from school curricula, according to Gherush 92, a human rights organisation which acts as a consultant to UN bodies on racism and discrimination.
Dante’s epic is “offensive and discriminatory” and has no place in a modern classroom, said Valentina Sereni, the group’s president . . . .
It represents Islam as a heresy and Mohammed as a schismatic and refers to Jews as greedy, scheming moneylenders and traitors, Miss Sereni told the Adnkronos news agency.
“The Prophet Mohammed was subjected to a horrific punishment – his body was split from end to end so that his entrails dangled out, an image that offends Islamic culture,” she said.
Homosexuals are damned by the work as being “against nature” and condemned to an eternal rain of fire in Hell.
“We do not advocate censorship or the burning of books, but we would like it acknowledged, clearly and unambiguously, that in the Divine Comedy there is racist, Islamophobic and anti-Semitic content. Art cannot be above criticism,” Miss Sereni said.
The concession about not burning books is truly magnanimous. Maybe Ms. Sereni may have missed the exquisite pain previewed for Popes Clement V and Boniface VIII in the Eighth Circle. It's the only explanation for the lack of anti-Catholicism outrage. But Boniface probably deserved a bit of hell, given his pretensions to temporal power. Perhaps Dante and Ms. Sereni agree on the issue of simony. Or the separation of church and state?
No matter –Dante was banished in his own time, so it is fitting that some right-thinking folks wish to banish him today. Still, if I could offer a little legal advice to Messrs. Chaucer, Boccaccio, Cervantes, and Shakespeare -- keep your heads down.
