Here, thanks to the good people at SCOTUSblog, are some thoughts of mine about the upcoming Trinity Lutheran case -- another one that, I cannot help thinking, will turn out differently than in would have otherwise as a result of Justice Scalia's death.
I end with this:
Will any of the Justices examine or embrace the claim, advanced in the amicusbrief filed by the Lambda Legal Defense and Education Fund that the Constitution should be read to disallow government from cooperating, even through neutral programs, with religious organizations that “discriminate on the basis of religion and other grounds”? I have argued in academicwriting that it is a mistaken oversimplification to equate invidious and irrational “discrimination” by governments with religious organizations’ efforts to operate in keeping with their religious teachings, character, and mission. The government, of course, may and should not discriminate on the basis of religion. However, there is not (or, at least, there should not be) anything objectionable about a religious school or social-welfare agency hiring for mission. Nor does the latter become objectionable, let alone unconstitutional, simply because the religious actor is cooperating with the government to do good works like feeding the hungry, caring for the sick, or educating the young. Unfortunately, some seem determined to wage an aggressive culture-war campaign that conflates religious commitments with “bigotry.” Will the Court resist, or enlist in, this effort?
“Separation of church and state” is an important idea. Correctly understood and reasonably implemented, it is a limit on government that protects religious freedom by preventing the government from corrupting religion or interfering in religious groups’ affairs. It does not require, though, and the Constitution’s neutrality principle should not permit, the pointless discrimination at issue in Trinity Lutheran Church.
Professor Sandy Levinson has an enjoyable and highly critical take on my essay about law and tradition. It's a pleasure and an honor to be in conversation with him. I'm already at work on my reply. Last up next week will be Professor Jim Stoner. A bit from the beginning of Professor Levinson's essay:
Professor DeGirolami has written an interesting Liberty Forum essay in behalf of paying respectful attention to tradition as a major aspect of our legal order. However, I think there are two major problems with it. The first is theoretical, particularly in relation to the American political and legal experience. The second has to do with actual practices or examples. The essay, albeit interesting, is written from a lofty perspective; there are too few concrete examples that truly allow the reader to ascertain the implications of his argument. Almost always, when it comes to politics or law, the devil (or saving grace) is in the details, and Professor DeGirolami needs to put more real flesh on his otherwise skeletal argument....
Professor DeGirolami tellingly quotes both Khloe Kardashian and Oliver Wendell Holmes. One is hesitant to embrace Kardashian as a normative exemplar of American culture, and Holmes, of course, has become a central target of those who view “Progressivism” as a defining moment in the decline of that culture and Holmes as a central figure in that decline. So let me offer two other sources that call into question another notion that there was an Edenic period in America when tradition, however defined, reigned before the Fall instantiated in figures like Holmes and Woodrow Wilson.
Consider one of the ur-texts of American political thought, The Federalist. Needless to say, any series of 85 essays, written by three authors in a remarkably short period, will have its share of contradictions. That being said, my own favorite paragraph among the 85 is the conclusion of Federalist 14, which is, among other things, about the virtues of the “extended republic,” in contrast with what might be said to be traditional notions of republican political thought that emphasized the importance of relatively small and homogeneous societies as a prerequisite for republican governance. Publius dismissed such arguments:
Hearken not to the voice which petulantly tells you that the form of government recommended for your adoption is a novelty in the political world; that it has never yet had a place in the theories of the wildest projectors; that it rashly attempts what it is impossible to accomplish. . . . Is it not the glory of the people of America, that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience? . . . They accomplished a revolution which has no parallel in the annals of human society. They reared the fabrics of governments which have no model on the face of the globe. (emphasis added)
Wow, what a week it has been with the Americans and the Olympics. In addition to all the victories, there have been such wonderful stories about determination, grit, overcoming obstacles…all the stuff of a great Olympics.
Interwoven among all these stories have been many stories about faith. Whether it is the coverage of American fencer Ibtihaj Muhammad being the first American athlete to wear the hijab, the ecumenical prayer service at the statue of Christ the Redeemer, or the presence of "an 'interreligious center' in full operation at the Olympic and Paralympic Village that will offer up spiritual and religious support for athletes of every faith and religion" – religion and faith seem to have a presence at the games.
Is it coincidence that the greatest gymnast in history and the greatest female swimmer in the world also share a commitment to their Catholic faith? I will not go so far as some and suggest that Catholicism specifically or religion in general gives one an athletic edge. However, as young people continue to look to these athletes as role models, it is encouraging that so many of them - even the best in the world such as Biles and Ledecky - proudly incorporate into that role an unabashed celebration of their Catholic faith. Whether it is Ledecky's Hail Mary before every race, or Biles' prayer to St. Sebastian (patron saint of athletes), these athletes offer a counter narrative to the domestic violence, doping, and corruption scandals that so often plague sport.
Among the many, many downsides of the 2016 presidential election, one potential upside is the overdue demise of the candidate scorecard that has been popular in Christian circles since at least the early 1990s when Pat Robertson's Christian Coalition promoted them heavily. The 2016 election brings their flaws into stark relief:
1) It is impossible to distill a candidate's character into a scorecard format. Both candidates this year present character questions that are central to voters' evaluation of their candidacies to a degree that we have not seen in recent elections. To imply, as the Family Research Council scorecard does, for example, that a Christian's choice should boil down to a list of questions such as, "Do you support or oppose the federal funding of embryo-destructive stem cell research?" misses the elephant in the room.
2) Even when it comes to the issues themselves, a scorecard is often unhelpfully simplistic. Both Bill Clinton (1992) and Hillary Clinton (2016) support a constitutional right to abortion, but are there meaningful differences between the two on this issue that should matter to Christians? How much should Donald Trump's support of religious liberty matter if he understands the primary threat today as the inability of pastors to endorse candidates? Should a Christian ever be content to know whether a candidate "supports or opposes the repeal of Obamacare" without knowing what the candidate would offer in its place?
3) Scorecards do not capture the depth of commitment reflected in a candidate's past statements and actions. It's easy to check a box. It's much harder to expend the political capital necessary to push change on an issue, as we've seen with candidates on both sides of the aisle regarding issues that matter to Christians.
4) The scorecard approach prioritizes stand-alone issues over coherent governance. Support deficit reduction? Great. Support increased infrastructure spending? Super. Support protection for Social Security? Fine. Now tell me how you're going to make all of it work together. Being the President is complicated, requiring difficult trade-offs. Christians have been too focused on a candidate's stance on particular issues, as opposed to more comprehensive (and admittedly messier) questions of how the pieces will fit together.
5) The lineup of "Christian" issues that has populated scorecards since their introduction is increasingly narrow and short-sighted relative to the worldviews represented by the candidates and their platforms. If this election represents a realignment, Christian voters are not being well served by the premise of scorecards -- that we can simply tally up the checked boxes on a few issues that we have cared about over many election cycles.
Issues matter (and I wish they mattered more in the current campaign) but they need to be analyzed in the context of the candidate's character, worldview, and track record. We need more nuance, not less, and scorecards feed our culture's seemingly limitless appetite for easy, quick and categorical judgment. When the 2016 election is mercifully behind us, I hope that scorecards are too.
Very interesting interview by my colleague, Mark, about Rusty Reno's new book. Have a look. A bit from the q&a:
You call for “a national culture not dominated by Christians but leavened by them.” Could you say a little more about this? Isn’t there a danger that, in a Christian society, the voices of non-Christians would be excluded and their communities disvalued? Is a Christian society consistent with pluralism?
Reno: One of the great promises of secular progressivism is “inclusion.” The notion of diversity gets a great deal of play. But in actual fact our society today is far more policed than it has ever been, not just in the literal sense of cops on the street, but through groupthink and political correctness. So it seems that secular progressivism preaches pluralism but practices a kind of mono-cultural approach to public life.
The reason for the paradox is simple, I think. Without a transcendent orientation, secular progressivism makes a god of politics. Christianity, by contrast, recognizes that politics, while important, is not ultimate. Jesus said, “My kingdom is not of this world.” St. Augustine distinguished between the City of God and the city of man. For this reason, a Christian society can accommodate pluralism in a way that a supposedly neutral secularism can’t. The social consensus in a Christian society need not be final, as it were. It can be penultimate, and thus more open. Compare that with our current climate. The Obama administration seems unable to countenance any dissent from the sexual revolution. Everybody must participate in gay weddings! Everybody must participate in the contraceptive culture!
Finally, I’d like to say a word about Judaism, Islam, and other religions in contemporary America. For the last century the biggest threat to a Jewish parent trying to pass down his religion to his children has not been Christianity. It has been secularism. For every Jew who has been converted to Christianity there have been thousands upon thousands who have assimilated into our secular, materialist culture. For any believing Jew, the danger is conversion to the pagan religion of health, wealth, and pleasure, not Christianity. Reflective Jews and Muslims recognize this. Rabbi Jonathan Sacks has been quite explicit: a renewal of Christianity in the West would go a long way toward helping Jews sustain their own religious communities against the pagan idolatry of our time.
At The Atlantic, Conor Friedersdorf argues that one can't trust Trump-appointed judges even on religious-liberty questions. Responding to Rod Dreher's argument that Trump would be only indifferent to religious liberty while Clinton would be actively hostile, Friedersdorf writes:
The glaring flaw in this logic is that Trump is not, in fact, ambivalent about protecting the liberty of religious Americans, he is openly antagonistic to it––it’s just that he has singled out Muslim Americans rather than Catholics or Jews or Mormons.
Dreher is blind to the degree to which their respective fates are tied.
If Trump and the judges he appoints help local communities to prevent the construction of mosques, other zoning bodies will use the same precedents to rein in churches; an effort to ban headscarves could have implications for Sikhs and Jews; whether a Muslim cab driver is able to refuse passage to someone ferrying alcohol will bear on whether a Christian can decline to bake a cake for a gay marriage. It’s hard to anticipate exactly what controversies will arise in future years, or how the precedents set will be applied still farther in the future, but suffice it to say that any legal attack on one faith’s religious liberties threatens every faith.
I'm very sympathetic to the argument that religious-liberty claims stand and fall together. That's partly for the precedent-based reasons Friederdorf cites. And it's partly because I think judges and the public--at least those in the reachable middle, who in my view are always the key audience--will tend to be more sympathetic to any given religious-liberty claim in an atmosphere where all such claims are treated with respect, and conversely less sympathetic when religious-liberty claims are seen as special pleading for one's underlying views. I just gave a talk at BYU on why our current atmosphere of reaching for labels of "Muslims terrorists" and "Christian bigots" is unhealthy for religious liberty. In my view, Trump's inclinations are a part of that miasma.
At the same time, I have to be honest and say I don't think I'm persuaded by Friedersdorf if he is arguing that as a matter of pragmatic self-interest, conservative Christians should fear Trump just as much as Clinton. I don't want this to be a "Clinton vs. Trump" post (although I suppose it unavoidably has that element); I'm more interested in considerations about the dynamics of judicial protection of religious freedom. So here's why I think Friedersdorf's argument, while good in principle and in the long term, is not likely to convince religious conservatives in real-world terms now [ADDED FROM HERE]--if you start from the premise that Clinton judges will be unsympathetic to conservative Christian religious-liberty claims involving gay rights, abortion, etc.
First, Friedersdorf seems to assume that Trump-appointed judges will share Trump's personal authoritarian and anti-Muslim positions, [ADDED] which will then lead them to devalue religious liberty. But if his appointees are principled conservative judges, as are many on the recently released "short list," then they seem more likely to give consistent weight to religious-liberty claims, including those of Muslims. The stronger warning against Trump's likely pattern of appointments, it seems to me, is that there's no strong reason to assume he will be constrained by the short list, because he's shown so little inclination to be constrained by anything.
Second, the sequence Friedersdorf describes--"Trump judges first rule against Muslim claims, and then those rulings affect a case that comes along about about traditionalist sexual morality"--seems relatively unlikely. The likely order seems the opposite. For example, among the cases about objections to facilitation of allegedly-sinful behavior, there are many more disputes about wedding vendors and Catholic or evangelical colleges or social services than there are about Muslim cab drivers objecting to passengers with alcohol or checkout clerks objecting to ringing up pork. That's unsurprising given the relative number of Christian traditionalists and Muslims. The Christian-traditionalist cases seem more likely to come first.
Finally, although I definitely think that religious liberty is strengthened for each claim by treating it as a powerful right for everyone, this effect is not conclusive: it's also true that there are factual differences in cases that allow judges to distinguish claims if they're strongly inclined to do so. If we assume that Trump appointees will want to target Muslims (which is questionable, see point #1 above, but let's assume it), they can likely find ways to distinguish the primary cases affecting traditionalist Christians. For example, more Muslim cases may involve government claims of national-security needs, as opposed to claims in the Christian-traditionalist cases about the need to combat discrimination.
In sum, while I think Friedersdorf's argument against Trump on religious liberty is right in principle, I'm unconvinced that he can make the case to religious traditionalists purely in terms of their own self-interest.
Professor David Bernstein (George Mason) has a thoughtful response to my essay on law and tradition. Here is a bit:
When it comes to American constitutional law, by the late 19th century there was widespread agreement on two principles: that when interpreting the Fourteenth Amendment, the Supreme Court’s role was to protect those natural rights that had been crucial to the development of Anglo-American liberty; and that the United States had an unwritten Constitution based on traditional principles, much like Great Britain’s, that informed constitutional analysis.[3]
For the most part, the Supreme Court justices of the pre-New Deal period did not engage in a jurisprudence of originalism that would be recognizable to modern advocates of originalism. Rather than focusing on the original public meaning of discrete portions of the text, they instead interpreted the Constitution in light of the classical liberal values they believed were embedded in America’s written and unwritten constitutions. They sought to protect those liberties that underpinned the development of Anglo-American liberty. Their Progressive critics recognized this as a form of originalism, and accused them of allowing the dead hand of the past to rule the present. The critics instead advocated a “living Constitution” that would privilege social science and the perceived needs of modernity over the protection of traditional American liberties.[4]
The old Court permitted the government to impinge on recognized liberties when the government was acting within the contours of the so-called police power. Importantly, that power included not simply the protection of public health and safety, but also the protection of public morals, as defined by Anglo-American tradition. For example, despite the Court’s endorsement of liberty of contract, it had no difficulty unanimously upholding a law that restricted work on Sundays.[5]
The Supreme Court’s concern for protecting natural rights as understood in the context of Anglo-American history did not survive the New Deal and the triumph of legal progressivism. That triumph was so complete that for a long time the only significant debate in American constitutionalism was in effect between old Progressives who wanted to severely limit judicial review, and new Progressives who agreed that judicial review should generally be limited, but who sought to carve out certain preferred freedoms for special judicial protection. These freedoms were not defined by reference to tradition or history, but by the need to ensure that the modern special-interest state had democratic legitimacy. As the American state-building project continued, it was considered crucial to ensure that freedom of speech allowed for public debate and input, that criminal suspects received federal procedural protections, and that minorities such as African Americans did not become a permanent underclass, with their status imposed by government.
I've posted, at SSRN, a very short piece I did for the American Journal of Jurisprudence about my former colleague, Bob Rodes (R.I.P.) And, if you want to learn more about Rodes's law-and-religion work (as I hope you do!), here's an essay of mine from about ten years ago, called "Pluralism, Dialogue, and Freedom: Professor Robert Rodes and the Church-State Nexus."
As this story reports, a federal district court refused to dismiss an employment-discrimination lawsuit that was brought by the "director of worship" of a Chicago-area Catholic church. The claimant was fired after he became engaged to legally marry his same-sex partner. Notwithstanding the unanimous ruling in Hosanna-Tabor, the court said that "title alone doesn't determine whether a church employee should be defined as a minister" and that "further legal arguments would be needed to determine whether the ministerial exception applies[.]"
Here is the District Court's order. In my view, some of the news coverage makes it sound as though the court determined that the case could proceed because the claimant is not a minister, the opinion is actually pretty careful to insist that the question is open, because of factual disputes about the claimant's actual duties and role. And, the court also goes out of its way to reject some of the claimant's more extravagant claims, such as the allegation that “the Catholic Church has deprived [him] of his constitutional fundamental right to marry[.]"
