One of the surprises of my first year of law school was learning that my real but still tentative faith-based opposition to the death penalty might prevent me from serving on a jury in a capital case. The idea of a death-qualified jury clashed with my notion of a jury of one's peers.
I've come to learn that an adherent to current Catholic teaching on the death penalty would not necessarily be excluded from a death-qualified jury. But I remain troubled about the idea of death-qualifying a jury.
[S]ome commentators have argued that Justice Ginsburg’s concurring opinion does not ground the third-party harms doctrine in the Establishment Clause. But they protest too much. Justice Ginsberg cites to her dissenting opinion in Hobby Lobby, which in turn relies explicitly upon Establishment Clause precedents inEstate of Thornton v. Caldor and Cutter. In applying the RFRA and RLUIPA balancing tests, an important reason why the state has a compelling interest in avoiding exemptions that cause substantial harms to third parties is because the Establishment Clause requires it to do so. That is the lesson of Cutter, and in Holt, Justice Ginsburg reminds us of its continuing significance.
Some points in response:
(1) The "third-party harms doctrine" is a term coined by these scholars, not one that Justice Ginsburg or anyone on the Court has used. It’s not the term I would prefer to use to describe the kind of analysis used by the Court in Caldor and Cutter. A more precise label would be something like the “no unyielding weight doctrine.” See Cutter (explaining that "[w]e held the law invalid under the Establishment Clause because it 'unyielding[ly] weigh[ted]' the interests of Sabbatarians 'over all other interests.'") (quoting Caldor). But whatever.
(2) Justice Ginsburg would have made the same type of third-party burdens argument in the application of RFRA and RLUIPA if there were no Establishment Clause and if neither Caldor nor Cutter had ever been decided. The argument would take the form it took in United States v. Lee(decided three years before Caldor) or in Justice Jackson’s opinion in Prince v. Massachusetts (decided before the Establishment Clause was incorporated). We know this because Justice Ginsburg already relies on these cases, and these cases do not rely on Caldoror Cutter. See alsopart I.B.1 of the scholars' own amicus brief ("The Court’s mandatory accommodation decisions under the Free Exercise Clause reflect the same aversion to cost-shifting exemptions as its Establishment Clause decisions.") (emphasis added).
(3) This reliance on non-Establishment Clause cases in Justice Ginsburg’s opinions was part of the argument I offered in my interpretation. These scholars did not address it. Instead, they supported their “protest too much” claim by pointing to a feature of Justice Ginsburg’s opinions that I already addressed--its citation of some Establishment Clause cases. But as Marc and Rickand others have argued, one need not and should not understand Caldorand Cutter as providing a basis for freestanding Establishment Clause objections to accommodations required by RFRA. Cutter held that RLUIPA does not, on its face, violate the Establishment Clause because it does not provide for the unyielding weighting of religious interests over non-religious interests (as the Supreme Court understood the uncostitutional statute in Caldor to have done). In this respect, RFRA is just like RLUIPA. Both statutes, on their face and therefore as properly applied, require courts to take account of other interests in the application of strict scrutiny. One such interest may be in avoiding harm to third parties.
(4) When courts, properly applying RFRA, account for potential harm to third parties, they do so in applying a feature of the statutory strict scrutiny test. This feature that they apply insulates RFRA from a Caldor claim, as Cutter holds. But to say that courts consider third-party harm as part of the compelling interest test because of the Establishment Clause is to confuse a statutory feature that defeats an Establishment Clause claim with a reason for applying a statutory requirement that needs no reason to be applied other than that it is in the law. (As Schragger, Schwartzman, and Tebbe know, moreover, the compelling interest test is in RFRA because it was in prior Free Exercise jurisprudence, not because of anything stemming from the Establishment Clause.) And when courts consider third-party harms in applying RFRA's compelling interest prong, the relevant compelling interest is not avoiding an Establishment Clause violation. (RFRA already does that by authorizing substantial burdens on the exercise of religion when strict scrutiny is satisfied.) The relevant compelling interests, instead, are whatever interests the the government claims to be advancing in the regulatory scheme from which the religious believer seeks an exemption.
(5) If ever a debate were “academic” (as some use the term pejoratively), this would be it. I posted about a narrow disagreement with Rick and Marc to stir the pot a little bit here at MOJ. Because it’s not healthy (and not interesting) for us always to agree on everything, it’s helpful to occasionally flag disagreements, especially on points that may be of interest to law nerds like me and are disputed by others. To be clear, though, a two-sentence concurrence on behalf of two Justices who dissented in Hobby Lobby is not a “significant statement.” (If Justice Ginsburg's concurrence is a "significant statement," is it significant that Justice Breyer and Justice Kagan did not join it (just like they did not join Justice Ginsburg's analysis of RFRA's alleged non-coverage of Hobby Lobby in Hobby Lobby)?) Nor does such an opinion necessarily imply that a particular "doctrine" is alive and well. (For example, Justice Thomas's understanding of Establishment Clause non-incorporation is not "alive and well" in Supreme Court doctrine even though it has appeared in the U.S. Reports.)
(6) For actual significance, consider instead the unanimous Court’s confirmation of the correct approach to substantial burden analysis and its application of “exceptionally demanding” strict scrutiny.
Now, I suppose, I actually do “protest too much.” I offer no defense, but instead plead guilty because charged.
On the smaller side of things, I learned a new word, "blatherskite." (The word's meaning reminds me of Marc's immediately preceding post, in which Dickens has a character observe about another that "the meaning or necessity of our words is a secondary consideration, if there be but a great parade of them.")
More to the point of my purpose for perusing, I came to appreciate how repitition of today's conventional academic wisdom about Lochner may unknowingly reflect the triumph of a claim advanced by Theodore Roosevelt in an underappreciated instance of popular constitutionalism. According to Nourse, "the great irony of Lochner is that an essentially political critique, [Theodore] Roosevelt’s strong-rights view, has become the 'doctrinal' understanding of the case."
From David Copperfield, Chapter LII ("I Assist at an Explosion"), in which Mr. Micawber is expatiating on the various villainies of Uriah Heep in his genially orotund way:
Again, Mr. Micawber had a relish in this formal piling up of words, which, however ludicrously displayed in his case, was, I must say, not at all peculiar to him. I have observed it, in the course of my life, in numbers of men. It seems to me to be a general rule. In the taking of legal oaths, for instance, deponents seem to enjoy themselves mightily when they come to several good words in succession, for the expression of one idea; as, that they utterly detest, abominate, and abjure, or so forth; and the old anathemas were made relishing on the same principle. We talk about the tyranny of words; we are fond of having a large superfluous establishment of words to wait upon us on great occasions; we think it looks important, and sounds well. As we are not particular about the meaning of our liveries on state occasions, if they be but fine and numerous enough, so the meaning or necessity of our words is a secondary consideration, if there be but a great parade of them. And as individuals get into trouble by making too great a show of liveries, or as slaves when they are too numerous rise against their masters, so I think I could mention a nation that has got into many great difficulties, and will get into many greater, from maintaining too large a retinue of words.
Noted not so much for the substance, with which I cannot quite agree. Our own difficulties have absolutely nothing to do with a little too much gusto in an unnecessarily expansive vocabulary. And there is some irony in Dickens offering this sentiment at the close of a book in excess of 800 pages. But though the substance of the criticism is common enough (indeed, all too common today--one hears something like this complaint about academic writing all the time), one rarely hears it expressed so well.
I know that the March for Life in Washington, D.C. was yesterday -- the reason I know this is not, of course, because the annual arrival of hundreds of thousands of enthusiastic and hopeful young people bearing witness to the dignity and equality of every person is a story that is given much notice by the leading media outlets -- but I'm pretty sure it's not too late to re-read this -- which Robby George has called "the greatest pro-life speech ever given" -- by the late Fr. Neuhaus: "We Shall Not Weary, We Shall Not Rest."
. . . That is the horizon of hope that, from generation to generation, sustains the great human rights cause of our time and all times—the cause of life. We contend, and we contend relentlessly, for the dignity of the human person, of every human person, created in the image and likeness of God, destined from eternity for eternity—every human person, no matter how weak or how strong, no matter how young or how old, no matter how productive or how burdensome, no matter how welcome or how inconvenient. Nobody is a nobody; nobody is unwanted. All are wanted by God, and therefore to be respected, protected, and cherished by us.
We shall not weary, we shall not rest, until every unborn child is protected in law and welcomed in life. We shall not weary, we shall not rest, until all the elderly who have run life’s course are protected against despair and abandonment, protected by the rule of law and the bonds of love. We shall not weary, we shall not rest, until every young woman is given the help she needs to recognize the problem of pregnancy as the gift of life. We shall not weary, we shall not rest, as we stand guard at the entrance gates and the exit gates of life, and at every step along way of life, bearing witness in word and deed to the dignity of the human person—of every human person. . . .
Important, sobering reading from Peter Stravinskas at First Things. In "The Future of Catholic Schools and the Future of America," he writes:
A case can be made that the story of Catholic education in the United States is the greatest educational success story not only in the history of the Catholic Church but in all of educational history. . . .
The maintenance and growth of Catholic schools is not merely a matter of internal Catholic interest. There is also societal payoff, however, especially as the government schools continue to struggle. Catholic schools will continue to provide the only serious national alternative to government schools. Which is to say, Catholic education is more necessary today than ever before in the history of the Church and of our nation.
At The Immanent Frame, Prof. Robert Yelle writes (in the course of a discussion about the Hobby Lobby case and related matters):
From a societal perspective, there are significant problems associated with granting such rights to corporations. The rise of the notion of an individual freedom of religion was complemented by a diminution of the Church’s corporate authority. At the beginning of the Reformation, William Tyndale translated the term ekklesia in the Greek New Testament as “congregation” rather than “church.” This was rightly perceived as an attack on the power of the Church, conceived as something distinct from a voluntary association of individuals. Thomas Hobbes followed Tyndale’s translation in an effort to demote the authority of the Church’s corpus mysticum, which would otherwise constitute a threat to the sovereignty of the king (or Leviathan). Churches became voluntary associations whose enforcement powers were limited largely to the power of excommunication. Already before the consolidation of the notion of religion as an individual right, the Peace of Westphalia attempted to remove the possibility that intermediary institutions would dispute, on religious grounds, the authority of the sovereign, by making the prince’s religion that of the land (cuius regio, eius religio). The freedoms that churches and certain religious associations have traditionally enjoyed under the law when acting as religious organizations are the result of a process of negotiation, under which the dangers represented—on the one hand, to individual rights, and on the other, to the sovereign authority of the state—have been sharply circumscribed, at least in America, by what Roger Williams and Thomas Jefferson called a “wall of separation.” The idea that we might be retreating from such settlements is, to say the least, unnerving.
More and more, I encounter the term "settlements" being used to describe the successes nation-states have enjoyed at shrinking, constraining, or dissolving the religious freedom appropriately enjoyed by religious communities, groups, institutions, and authorities (i.e., the Freedom of the Church). It's tempting to declare the status-quo a settlement when one approves of it, but I'm not sure why that label should carry much weight with those who do not. Is some movement away from Hobbes, or Lemon-style misunderstandings of church-state separation, or laicite "unnerving," to use Prof. Yelle's term? Maybe . . . maybe not.
This piece, by my friend and colleague Dan Philpott, at the Arc of the Universe blog (which is run by Notre Dame's Center for Civil and Human Rights) and the Cornerstone blog of the Berkley Center, is definitely worth a read. Among other things, the piece engages critically and carefully Joan Wallach Scott's book, The Politics of the Veil(2007). Here's a bit:
While Scott’s criticisms of France’s laïcité are on the mark, then, her post-modern democracy of difference fails to yield sustainable norms of religious inclusion. Is there a principle that both preserves the core values of liberal democracy and allows religious people to participate and practice their faith robustly within liberal democracy? Coming back to Europe’s Muslims, is there a basis for the principled inclusion of Muslim minorities in European democracies? A strong candidate for such a principle is religious freedom. Ensconced in the global human rights conventions as well as the European human rights architecture, religious freedom has a strong claim to universality. The beauty of this principle is that it both comports with the European heritage of liberal principles and allows Muslims wide latitude to express and practice their religion, including dressing consonantly with their religious beliefs. Religious freedom means the right of women to don a headscarf in France and to doff one in Iran. It also means that religious people may advocate political positions according to their convictions.
My colleague, Mark Movsesian, and I have recorded a podcast on this week's Supreme Court decision in Holt v. Hobbs. We discuss the facts, holding, and possible implications of the case in about 20 brisk minutes. Click on over and have a listen.
Nothing in the Constitution, even read loosely, requires states to recognize same-sex romantic or sexual partnerships as marriages. Here are two pieces on that point.
First, an important Case Western Reserve Law Review piece by my former student and coauthor Sherif Girgis (available here). As Sherif shows, opponents of a judicial redefinition of marriage needn't be originalists, or conservatives in any sense of the term. For if the justices invalidates state laws enshrining the concept of marriage as a conjugal union, they will be following in the footsteps of a case that conservative and liberal scholars alike decry with something close to unanimity: Lochner v. New York. There, as Justice Holmes showed in what became a famous dissent, the majority was imposing its conservative economic policy choices over perfectly reasonable alternatives, without Constitutional warrant. The justices would be doing just that--but in the cause of imposing liberal social principles--if they were to strike down state marriage laws. In particular, Sherif shows in careful detail, they would be choosing between competing views of what marriage is and of why it ought to be regulated--views about which the Constitution says nothing at all.
To put it simply, I haven't seen a more comprehensive treatment (and demolition) of the Equal Protection argument against state conjugal marriage laws.
The piece was written for a symposium on Windsor, but (bracketing a section on federalism) its argument applies to state laws. It addresses the increasingly fashionable (albeit, as Sherif shows, untenable) sex-discrimination argument. It offers historical proof that the conjugal view can't be attributed simply to animus or any particular religion. It shows that the Court would have to Lochnerize (to strike down state marriage laws) even if it adopted the more capacious equal-protection tests proposed by scholars like my friend Prof. Andy Koppelman and Prof. Jack Balkin. It addresses objections based on infertility, right-to-marry case law (Loving,Turner,Zablocki), and much more.
As the nation gears up for a decision, of course, all eyes will be on Justice Kennedy, widely regarded as the swing vote on marriage. Kennedy has famously expressed concern that state marriage laws might unconstitutionally infringe the dignitary interests of children reared by same-sex couples. But that argument fails, as Sherif and I show in a second piece, an amicus curiae brief submitted in the course of Utah's marriage litigation. The brief is available here:
Moral claims of equal dignity, a child’s entitlement to a mother and father, and democratic self-determination can be appropriately assessed and settled in the normal political process and have been here by the people of Utah.
The Tenth Circuit believes that Utah’s marriage laws harm the personal dignity of same-sex couples and of the children they rear. But no one disputes their equal dignity. The Tenth Circuit's conclusion misunderstands the social purpose of marriage law, which never has functioned—and could never function—as a mechanism for expressing individual dignity or social inclusion. Accepting this view would have absurd logical implications and harmful effects.
First, it would deprive the State of any limiting principle for its marriage law.
Second, by dissolving the links between marriage and any historic marital norm besides consent, it would harm the state’s material interest in providing children with stable ties to their own parents. It would undermine their right to be reared by their own parents wherever possible--a right affirmed by the United Nations Convention on the Rights of Children.
Third, it could also thereby spread the stigmatic harms that children and partners of broken homes often suffer. And fourth, by reducing marriage to a primary mark of social inclusion and equality, it would—ironically—spread the very social message it was intended to oppose: that those outside the institution of marriage matter less.
In these ways, finally, it would deprive the People and the State of Utah of their own right to settle the purposes and contours of family policy for themselves--a right they can exercise, and have exercised, while respecting the social equality, and personal and romantic freedoms, of same-sex couples in full.
