Mirror of Justice

Last week, the University of St. Thomas School of Law was delighted to host Professor Nicole and Richard Garnett of Notre Dame (indeed their whole family of five joined us in Minneapolis) for a two-day visit and to hear from each of them at two faculty scholarship workshops. Although neither of their works-in-progress are yet in general circulation, I wanted to preview each of them for our Mirror of Justice audience so that we can keep an eye out for them as they come to publication in the coming months.

Nicole Garnett’s paper, “Relocating Disorder,” addresses the growing practice in metropolitan communities of relocating governmental, nonprofit, and religious organizations that serve disadvantaged communities, such as the homeless, to a concentrated area. The stated goal is to be coordinate and serve the needs of the population without providers being dispersed around the city. However, as Nicole Garnett explains, the cities also plainly hope to “relocate disorder,” that is, move the homeless away from downtown areas that are targeted for renewal. As her paper puts it, “[homeless campuses, exclusion zones and regulatory sweeps all seek to relocate urban disorder from one place (where it is perceived to be harmful) to another (where policymakers hope it will be more benign).” As local officials fear civil rights lawsuits challenging policing measures designed to control disorder, they are turning to land use policies – such as homeless campus concentrations – to acheive the same purpose while taking advantage of deferential standards of judicial review for land use planning. Nicole Garnett suggests, however, that these land use approaches may impose costs as significant as the order-maintenance policing schemes that have gone before. While it is impossible to summarize the entire comprehensive piece in a few words, her conclusion is that disorder-relocation land use policies raise serious concerns about economic and racial justice and, moreover, are not likely to be efficacious in terms of providing governmental human services. The risk, in her view, is that land use regulations may codify the very racial and economic injustices that have motivated opposition by civil libertarians and criminal procedure scholars to order maintenance policing. At the same time, Nicole Garnett also offers a caution to the other side of the debate as well. Legal advocates who have challenged police order maintenance policies may wish to consider the consequence of such lawsuits in pushing local government officials to turn to land use planning as a less-than-ideal alternative.

Rick Garnett presented a paper titled, “Religion, Division, and the First Amendment.” Nearly thirty-five years ago, in Lemon v. Kurtzman, Chief Justice Burger announced that state programs or policies could “excessive[ly]” – and, therefore, unconstitutionally – “entangle” government and religion, not only by requiring or allowing intrusive public monitoring of religious institutions, activities, and believers, but also through what he called their “divisive political potential.” His point was not simply that government actions burdened with such “potential” pose a “threat to the normal political process”and “divert attention from the myriad issues and problems that confront every level of government.” More fundamentally, the Chief Justice contended, “political division along religious lines was one of the principal evils against which the First Amendment was intended to protect.” Chief Justice Burger's claim, as Rick Garnett clarifies it, was that the Constitution authorizes those charged with its interpretation to protect our “normal political process” from a particular kind of strife and to purge a particular kind of disagreement from our conversations about how best to achieve the common good. Rick Garnett’s paper provides a close and critical examination of the argument that observations, claims, or predictions about “political division along religious lines” should inform the Religion Clause’s interpretation, application, or enforcement. His examination is timely, because of the stark polarization that is widely said to characterize contemporary politics, and should also be helpful in understanding important developments in First Amendment law and theory more generally.

Greg Sisk