Thanks to Rick for his post on Emily Bazelon's article about Alito's Religion Clause opinions. The article also misfires in stating that Alito's opinions on free exercise of religion don't show a "libertarian" streak or a sensitivity to minority rights, but are mere "mechanistic applications of precedent."
The major claim for Alito as a strong free exercise proponent rests on two opinions he wrote, one holding that a Muslim police officer in Newark should be able to wear a beard notwithstanding a departmental grooming policy against facial hair (Fraternal Order of Police v. Newark, 170 F.3d 359), and another holding that a Native American holy man (Dennis Blackhawk) was unconstitutionally burdened by a $200 license fee he was charged for keeping a bear that he used in religious rituals (Blackhawk v. PA, 381 F.3d 202). Both decisions mandated an exemption from the laws in question under the Free Exercise Clause, notwithstanding the Supreme Court's ruling in Employment Division v. Smith that such exemptions are not required when the law is "neutral and generally applicable."
Bazelon thinks that these opinions don't reveal much about Alito's commitment to free exercise:
Alito simply followed the Supreme Court, which has said (even in Smith) that the state doesn't get a free pass when it offers an exemption to a law to people who ask for special treatment based on a secular rationale but denies the same exemption to other people who ask for special treatment for a religious reason. Pennsylvania exempted circuses and zoos, among others, from paying licensing fees for their wild animals. Newark let police officers keep their beards if they asked to because of a medical condition. So, why couldn't Dennis Blackhawk keep his bear and the Muslim cops keep their beards? Pennsylvania and Newark lost because they didn't have a good enough answer. Alito didn't stick his neck out to promote religious liberty by finding in favor of Blackhawk and the Muslims, argues Cardozo law professor Marci A. Hamilton, author of the recent book God vs. the Gavel. In light of Supreme Court precedent, he didn't have to.
It's true that in basing a religious-liberty exemption in these cases on the presence of secular exceptions in the law, Alito did not challenge the Smith ruling that exemptions are not required when a law is generally applicable (as a court of appeals judge, he of course couldn't make such a challenge). Rather, he ruled that the presence of other exemptions made the law not generally applicable and therefore triggered strict constitutional scrutiny.
But it is a real overstatement to call these two religious-liberty decisions mere "mechanistic applications of [Supreme Court] precedent." The Alito decisions hold that one comparable exemption for secular interests is enough to render a law not generally applicable, and therefore to require an exemption for religious-liberty interests unless there is a compelling reason to deny it. This is not the only reading of the Smith "general applicability" rule that is out there. For example, another prominent conservative judge, Diarmuid O'Scannlain of the Ninth Circuit, wrote in a 1999 case (Thomas v. Anchorage, 165 F.3d 692) that a law does not trigger strict review under the Smith approach unless it has a lot of exceptions, that is, unless its "underinclusiveness" -- the amount of secular conduct it leaves unregulated -- is very "substantial":
Underinclusiveness is not in and of itself a talisman of constitutional infirmity; rather, it is significant only insofar as it indicates something more sinister. In [the key previous case,] the [Supreme] Court considered considered the ordinances' lack of neutrality and generally applicability as a proxy of the [l]awmakers' illicit intention to single out the [particular] religion for unfavorable treatment.
The O'Scannlain decision says that when a law has "only a single exception," it is still generally applicable and the "permissive Smith standard" still applies. There must be so many exceptions that they show an intent to "single out" or "target" religion.
There is a big difference between the Alito and O'Scannlain approaches. Many laws have one or a few exceptions but not so many that they go to the point of "singling out" religious conduct. Thus the Alito approach would protect free exercise in many more cases, often involving minority religions such as the Muslims and Native Americans in the cases in which Alito sat. The approach has already been used in other cases, in Alito's circuit and elsewhere, to protect Native Americans and Orthodox Jews.
I think that the Alito approach is the better reading of the Free Exercise Clause and the purposes underlying it: when the state exempts secular interest but not comparable religious ones, it sends a message that religious freedom is less important, a message inconsistent with its status as a constitutional right. Alito's approach, requiring exemptions in such cases, salvages a good deal of protection for free exercise even in the face of the Smith decision. But even though I'm a strong proponent of this approach, I cannot claim that it is a mere "mechanistic application" of Smith. Rather, Alito's approach shows that, in an instance where (even as a lower court judge) he could have opted for minimal free-exercise rights or significant rights, he chose the latter. More than any other judge in the country, he is responsible for this approach finding its way into the law. It says a good deal about his attitude toward free exercise.
I must say, though, that I'm happy to have Marci Hamilton -- probably the nation's leading opponent of broad protection for free exercise of religion -- on record as saying that the Alito protective approach is essentially compelled by Smith!
Tom
The ZENIT news organization reports that, during a recent visit to the Pontifical Academies of Sciences and of Social Sciences, Pope Benedict XVI said that (in ZENIT's words) an "aim of Christianity is to put the person at the center of the social order[.]" Quoting the Pope:
"According to God's design, persons cannot be separated from the physical, psychological or spiritual dimensions of human nature," the Pope said in his address today . . ..
The Holy Father focused on a theme on which the Pontifical Academy of Social Sciences is reflecting, "The Concept of the Person in the Social Sciences."
"Even though cultures change over time, to suppress or ignore the nature that they claim to 'cultivate' can have serious consequences," Benedict XVI said. "The concept of person continues to bring about a profound understanding of the unique character and social dimension of every human being.
"This is especially true in legal and social institutions, where the notion of 'person' is fundamental. Sometimes, however, even when this is recognized in international declarations and legal statutes, certain cultures, especially when not deeply touched by the Gospel, remain strongly influenced by group-centered ideologies or by an individualistic and secularist view of society."
The Holy Father continued: "The social doctrine of the Catholic Church, which places the human person at the heart and source of social order, can offer much to the contemporary consideration of social themes."
Emily Bazelon has an essay up at Slate.com called "God Help Him: Alito Gets Religion." Bazelon is an excellent writer, and very helpful on law- and Court-related matters. But she misses the boat here, I think:
Sam Alito, Champion of the Religiously Downtrodden—it has a certain ring. Alas, it also largely falls apart upon closer examination. . . .
Alito's religious-liberty opinions are mechanistic applications of precedent. They reveal little about the stance he'd take toward religious liberty as a justice of the Supreme Court. Meanwhile, his church-state opinions are consistently, predictably, conservative. When his rulings on religion are taken as a whole, their most noteworthy aspect isn't Alito's independence. Rather, it's his fealty to the view—fervently espoused on the current court by Antonin Scalia—that the government must give religious groups the same access to public benefits that it gives secular ones. As in, if the Boy Scouts or the town fire department can meet in a public-school classroom, then so can the local Bible-study group.
For starters, I'm not sure what it means to say that Alito's religious-freedom opinions are "mechanistic applications of precedent." I mean, it is true that -- to his credit -- Alito "appli[es] . . . precedent" in his religious-freedom opinions, but the cases being cited by Alito's supporters as evidence for his sensitivity to religious-freedom concerns hardly decided themselves. Nor am I sure what it means to say that the church-state opinions discussed in the essay are "consistently, predictably conservative" -- except that, perhaps, they reach results on equal-treatment and neutrality grounds that are consistent with the published views of a majority of our allegedly "conservative" Supreme Court. Finally, Bazelon's effort to link Alito's approach to the bogeyman of Justice Scalia is quite misleading: She knows full well that Justices O'Connor and Kennedy, no less than Scalia, have consistently endorsed the view that view that "the government must give religious groups the same access to public benefits that it gives secular ones." Is the idea that to point out Alito's agreement here (as in nearly every other context) with Justice O'Connor would not do enough to scare Slate's readers?
So reports George Weigel:
Princeton's vibrant Catholic community is, today, at the center of the enterprise to which John Witherspoon dedicated his life: the dialogue of faith and reason in the service of democracy and human freedom. If you're a student looking for an intellectually challenging education and a Catholic community whole-heartedly committed to the new evangelization, or if you're a parent looking for such a school for your son or daughter, you could do far worse than look at Princeton. Indeed, you'd be far better off with Princeton than with several high-priced institutions whose Catholicism is vestigial at best.
The Princeton Catholic renaissance is nothing short of amazing – and heartening. It's currently led by a marvelous chaplain, Father Tom Mullelly, who believes in leading by forming leaders. Three Sunday Masses, a well-attended daily Mass, and adoration of the Blessed sacrament keep Princeton's Catholics eucharistically centered. The RCIA program brings new Princetonian Catholics into the Church every Holy Week – during which outdoor stations of the cross give a powerful witness to the central story of western civilization. Numerous Bible studies, "Catholic principles" studies, and similar discussion groups maintain a lively conversation about Catholic truth and its application in the world. The campus ministry organizes an annual spring pilgrimage (Rome and Spain were recent destinations). Distinguished Catholic speakers are regularly invited to campus; a Gregorian chant choir offers an introduction to classic Catholic music; and Princeton's Catholics pray Vespers every Tuesday evening with Princeton's Episcopalians and Lutherans.
This is very good news. That said, I did have to laugh -- just a little -- at Weigel's allowing that a parent "could do far worse than look at Princeton." If only "taking a look" were enough to get one's kid admitted . . . to (probably) the best undergraduate institution in America!
A few weeks ago, in Washington, D.C., Judge Ray Randolph delivered the Federalist Society's annual Barbara Olson lecture. (Thanks to Orin Kerr for the link). He opened with this:
It is well-known that Henry J. Friendly was one of the greatest judges in our nation’s history. Along with Holmes and Brandeis and Learned Hand, he was certainly one of the most brilliant. What is not known is that in 1970, three years before Roe v. Wade, Judge Friendly wrote an opinion in the first abortion-rights case ever filed in a federal court. No one knows this because his opinion was never published. I have a copy of the opinion and his papers are now at the Harvard Law School, awaiting indexing.
The lecture is not long, though it is too long to excerpt helpfully here. This passage, though -- taken from Judge Friendly's draft -- caught my eye:
"An undertone of plaintiffs’ argument is that legislative reform is hopeless, because of the determined opposition of one of the country’s great religious faiths. Experience elsewhere, notably Hawaii’s recent repeal of its abortion law, would argue otherwise. But even if plaintiffs’ premise were correct, the conclusion would not follow. The contest on this, as on other issues where there is determined opposition, must be fought out through the democratic process, not by utilizing the courts as a way of overcoming the opposition . . . clearing the decks, [and] thereby enabling legislators to evade their proper responsibilities. Judicial assumption of any such role, however popular at the moment with many high-minded people, would ultimately bring the courts into the deserved disfavor to which they came dangerously near in the 1920's and 1930's. However we might feel as legislators, we simply cannot find in the vague contours of the Fourteenth Amendment anything to prohibit New York from doing what it has done here.
Store this away in your file of crazy "What if we treated the unborn as persons?" hypotheticals. From the East Valley Tribune in Arizona (via Andrew Sullivan):
A pregnant woman ticketed for driving in the carpool lane will have her day in court next month to argue that her unborn child counts as a second person in the car.
"I understand the reasoning for the HOV Lane," said Candace Dickinson, 23. "But whether my son is in a car seat versus my stomach, I don't get it. It's the same thing."
|
|
|
Friday, November 25, 2005
In the current issue of Mother Jones -- dedicated, for the most part, to breathless and superficial speculation about "where the religious right is taking us" -- there is this article, "Death Row Conversion", the central claim of which is this: "Traditional opponents of capital punishment have gained powerful and unlikely allies: American Catholics, many of them conservatives defending a 'culture of life.'"
Sigh. I know this is a bit snarky, but this business of scare-quotes around the culture of life, and the suggestion that there is something "unlikely" about Catholics dedicated to the dignity of the human person working to abolish capital punishment is tiresome. One might just as well comment on the "unlikely" alliance of Catholics committed to the dignity of the human person with secularists on the left, whose appreciation for that dignity is not always and has not always been clearly revealed. In any event, it's a good article, and it makes good use of Richard Dieter, a real stand-up guy:
“Not so long ago you couldn’t get anyone to express doubts about the death penalty,” says Richard Dieter, director of the Death Penalty Information Center and himself a Catholic. “Then you have this Catholic voice coming in, and coming in loudly, and saying, ‘This is our issue, too, and we are firmly against it.’ It sounds like something you might hear from the left wing, but Pope John Paul was hardly a radical. [RG: Actually, he was.] And so the debate changes. It becomes about the merits of the issue rather than some fringe idea.”
Death-penalty abolitionists seem willing to accept the rightward tilt of these potential adherents. “The church brings a strong moral voice to the issue,” says Diann Rust-Tierney, executive director of the National Coalition to Abolish the Death Penalty. “It is welcome and it is timely. This is the time to push.”
. . . Death by increments is the way that the death penalty is most likely to meet its demise, says the Pew Forum’s Green. “It would be very difficult to abolish the death penalty in one fell swoop,” he says. “Public opinion isn’t there. I do think that the emphasis the Catholic hierarchy has placed on this issue is likely to inspire a lot more activism, which presents real opportunities for change.” Richard Dieter concurs: “The death penalty is not going to end because of a moral revolution,” he says. “People aren’t going to swing over to the Catholic side. Most Americans don’t think that way. But there’s an openness to consider it now, which the Catholic Church has made possible. I’m not morally weak for opposing the death penalty. I’m morally strong. That is a big change.”
This column in the Boston Globe -- "House doors closed again" -- gets it wrong, and should be cause for alarm:
What happens when the Outsiders become the Insiders on Beacon Hill?
That's the question after Representative Byron Rushing of Boston maneuvered behind the scenes last week to derail a vote on a bill that would require all churches in Massachusetts to open their books to the public.
On the last day of the formal legislative session for the year, the South End Democrat shepherded the Episcopal bishop of Massachusetts and representatives of other Protestant denominations into the office of House Speaker Salvatore F. DiMasi to charge that their churches were being swept up unfairly in an effort to impose accountability on the embattled Roman Catholic Archdiocese of Boston.
DiMasi, who two days earlier had predicted the bill's passage, pulled it from the calendar.
What is so striking about the successful 11th-hour lobbying is that the man behind it has spent much of his 22-year legislative career bemoaning the closed-door meetings and back-room dealings that have long characterized House operations, especially under former House speaker Thomas M. Finneran. Becoming part of leadership -- Rushing is the second assistant majority leader -- appears to have changed his perspective.
Just so we are clear, the proposal in question is not merely a sunshine law aiming to "require all churches in Massachusetts to open their books to the public." It reflects (see here and here for more) an effort by some Catholics in Massachusetts to enlist the power of the government in their effort to bring about what they regard as much needed "reform" in the Church. A meaningful separation of church and state has -- as Justice Souter once put it, in another context -- "no more certain antithesis."
What the reporter laments as "back room" dealings are better regarded as much-needed and welcome efforts to derail a misguided and intrusive proposal, which is itself the product of an inflamed majority. Here is more:
Walsh does not deny that the upheaval was the catalyst for the bill requiring churches to submit to the same financial disclosure laws that govern every other charity in Massachusetts, but ''every church would benefit," she said. ''When you operate in the dark you are not operating in the public interest." [RG: Memo to Sen. Walsh . . . please spare the churches your efforts to 'benefit' them by subjecting their decisions and internal operations to government supervision.]
She compared the opposition of religious leaders to the objections of club owners when Massachusetts tightened fire safety regulations in the wake of the Station nightclub fire. ''We had clubs saying, 'We haven't had a fire. Why are you dragging us into this?' " Walsh recalled. ''Yes, it happened there, but we all knew it could have happened here." [RG: This is bizarre. The non-Catholic religious leaders who are rallying -- to their credit -- to stave off this intrusive bill are to be compared to night-club owners trying to avoid safety regulations?]
Churches became exempt only in 1954 from the reporting requirements that govern tax-exempt, charitable organizations in the state. The sex abuse scandal illuminated the folly of such secrecy. Critics are being disingenuous when they argue that disclosure would be an infringement on religious freedom. This is not about theology; it is about money. [RG: Actually, no. It is about theology, and not really about money.]
Forget the Ten Commandments displays and the Pledge of Allegiance, folks -- This is the religious-freedom fight worth caring about.
