As Rick noted, last week was the 5th Annual Law and Religion Roundtable, hosted this year at Washington University in St. Louis. (I join the chorus of gratitude to John Inazu and his colleagues for their gracious hospitality.)
One of the worthy purposes of the gathering is to foster a community among law and religion scholars, including (especially) among those who disagree about fraught and divisive subjects (abortion, same-sex marriage, legislative prayer, RFRA, the role of the state, and the reasonableness of religious belief, to name a few offhand). Still, I do think--as Rick already indicated--that some fault lines are developing and coming into sharper focus among those working in the area, even if such gatherings still hold the promise of civil discourse and disagreement.
The meeting last week was amid the quiet before the storm of the decision in Hobby Lobby on Monday. As Paul Horwitz notes in his NY Times essay today, the consensus in favor of religious accommodations is collapsing. I don't think we should sidestep making the obvious point that this is on account of arguments about sex (Paul highlights the debate over same-sex marriage in particular). Consider the underlying issues in much of the prior history of religious exemptions and accommodations: military service (Seeger and Welsh), mandatory school attendance (Yoder), drug use (Smith and O Centro), and sabbath observance (Sherbert). With the possible exception of the first, none rose to the level of public debate that now surround abortion, the contraceptive mandate (even if there is little public debate about the morality of contraception as such), and same-sex marriage. It was easy to talk about religious freedom and pluralism when that meant Quaker exemptions from the draft or small religious communities using hallucinogenic substances. Now that the argument over religious exemptions has moved to much more contested issues, can a consensus that values pluralism hold? Does the Rawlsian liberal embrace of pluralism, freedom of conscience, and an overlapping consensus of reasonable views depend (philosophically or historically, as a contingent matter) on a range of acceptable views that those who, say, oppose abortion, the HHS mandate, or same-sex marriage are now outside?
Another pervasive argument in "law and religion" is what one makes of the "religion" part. The "religion is not special" view has been gathering force for several years, with arguments from Schwartzman, Leiter, and Eisgruber/Sager (among others). Another way to approach the religion is not special argument is to frame it as an internal/external distinction. For some of us, we think (I dare to say “reason”) about religion from an internal view, within a specific religious tradition and set of commitments (which does not entail, I hope, an inability to engage those from outside that tradition). And some are sympathetic to religious claims even if not adherents themselves, just as one can be sympathetic to claims for free speech by those with whom one disagrees. The alternative “external” view proceeds, by definition, outside of (unsympathetically toward) a tradition and regards religion as another commitment people happen to have (for the kind of people into that sort of thing), albeit one that is irrational, socially disruptive, and historically a source of bloodshed and oppression. As John Finnis puts it in this passage:
If religion is...just one among the deep passions and commitments that move people, it does not deserve constitutional mention on account of any special dignity or value, and if its mention in constitutions is defensible at all, the defense must be back-handed: religious people have been so beastly to each other that historical constitution-makers have not necessarily been unreasonable in treating the religious as specially vulnerable to discrimination. But the hypothesis – that religion is just one deep and passionate commitment amongst others – is, of course, lethal to religion. It is an absolutely external view, which treats religious propositions as if they were inherently incapable of conveying any understanding of or rational response to any feature of reality. They treat religion in the way that Ronald Dworkin regularly treats views of legislators or “majorities” with which he is unsympathetic, that is, not as propositions about rights, or common good, or as any other proposition or premise justifying a normative conclusion, but instead as mere expressions of distaste or disapproval, accompanied by an appeal to the power of those who hold these views – their power as a majority to give effect to their attitude, their passionate commitment. John Finnis, "Why Religious Liberty is a Special, Important and Limited Right" (2008).
Exploring “mere expressions of distaste or disapproval accompanied by an appeal to the power of those [such as justices on the Supreme Court] who hold these views” would be a jejune research agenda for any academic field to embrace. I hope future gatherings of law and religion scholars can continue to think anew about ways of contributing to the field (and shaping the legal culture and civil society) without avoiding difficult conversations about our differences.
Justice Ginsburg’s Hobby Lobby dissent criticizes the majority for failing to distinguish between a community of believers of the same religion and other forms of communities: “The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention. One can only wonder why the Court shuts this key difference from sight.”
But, as my friend and fellow prawf John Inazu, observes, one could level a similar critique of the majority opinion in Christian Legal Society v. Martinez. In that opinion, Justice Ginsburg rejected the distinctive claims of the Christian group -- that is, the group's claim that leadership in the group should be limited to those who embrace the group's views and commitments -- in favor of an “all-comers” policy that required all student groups -- including communities made up of believers in the same religion -- to accept any student who wanted to join, regardless of that student’s beliefs or practices. Isn't it fair to say that groups that want to maintain their distinctive faith-commitments (or philosophical or ideological commitments) and practices are different than those that do not? In Martinez, it seemed to some of us that the "Court shut this key difference from sight."
For more on Justice Ginsburg's CLS opinion (including a response to the argument that it was a "subsidy" case), check out this article by Inazu.
I wonder if the legal impact of these two religion-related cases will prove to be less significant than the political impact. For example, the striking exaggerations and even misrepresentations from many commentators and activists about the reasoning, holding, and implications of the Hobby Lobby case have already prompted calls to repeal or gut RFRA. These calls, as I see it, are striking in part because they depart so dramatically from the bipartisan consensus of just a few decades ago about the value of accommodating religious liberty and also because they fail to appreciate that the vast majority of those who benefit from RFRA and RFRA-type laws are not "corporations" but are members of vulnerable and unpopular religious minorities.
I continue to think that the Town of Greece case is best seen as a "preserve the status quo" case. The Second Circuit had proposed a departure from the Court's longstanding approach to legislative prayer, set out in the Marsh decision. The justices overwhelmingly -- even the dissenters -- insisted that Marsh remains the standard, even as they disagreed about its application. The denial of cert in the Seventh Circuit graduation-in-a-church case suggests that the Court was not looking to remake its religious-symbols doctrines or explicitly jettison the battered "endorsement test."
The Hobby Lobby ruling, assuming its reasoning is taken seriously in the lower courts, confirms what was said several years ago (unanimously) in O Centro: RFRA is to be taken seriously. That is, Congress meant what it said when it declared it to be the national policy that substantial burdens on religious belief and practice need to be well justified, under a demanding standard. If the federal government can accommodate religion, the Act says, then it should. The fact that accommodation involves some costs and inconvenience, and some departures from uniformity, is not an excuse for not accommodating. This is an important principle, and Hobby Lobby's primary significance is that it affirms it. But, again . . . the Court had already said this. What Hobby Lobby does that could be "new" is that it does so in a more charged, "culture wars" context ("War on Women" rhetoric means anti-Citizens United passions) and so prompts (as O Centro did not) calls to embrace the "same rules for everyone no matter what" standard that was, to so many on the left, offensive when proposed by Justice Scalia in Smith.
The "parade of horribles" being suggested by some commentators, and by the dissent, is very unlikely to come to pass. We will not see courts allowing for-profit businesses to ignore nondiscrimination laws, or health-and-safety rules, or general tax obligations. Hobby Lobby is an unusual case, in part because Hobby Lobby is an unusual company and in part because the contraception mandate is an unusual rule (one that, it's worth remembering, was not imposed by Congress itself). Those who claim that this ruling means that big companies will start discriminating on the basis of race or trying to avoid paying minimum wage know better. RFRA has been on the books for more than 20 years. If there was a lot of interest in bringing these kinds of cases, we would have seen some.
Amidst instant opinion analyses and surrounded by Supreme Court surveys, it might be helpful to step back even further and consider more enduring questions. To that end, I've collected below links to the John Courtney Murray Chair Lectures delivered by MOJ's Fr. Robert Araujo, S.J. at Loyola University Chicago School of Law.
As an invitation to enter into Fr. Araujo's Murray-grounded explorations of some of the perennial problems of law, morality, and their grounding in reason, consider Fr. Araujo's answer to the question of how Murray addressed the challenging era in which he lived. The opening paragraphs of Fr. Araujo's inaugural lecture:
Charles Dickens began his Tale of Two Cities with the memorable line, “It was the best of times; it was the worst of times.” Dickens’ great saga takes us back and forth between two very different worlds, one in England and the other in France, during the bloody turmoil of the French Revolution. The juxtaposition of such diverse places existing in parallel fashion suggests something about the times in which Fr. John Courtney Murray lived—in a world of depression, of two global wars, and of a new kind of tension called the Cold War. And how did he address the challenging era in which he lived? It may have been Murray’s training as a theologian that made him understand the best and worst of his times; it may have been the fact that he was a lawyer’s son who understood the importance of the rule of law in governing a society of ordered liberty; it may have been his priesthood which helped him put all of the tumult of his life and times into context. But he was largely a man of hope who was fortified jointly by reason and faith. Perhaps he took to heart Saint Augustine and realized that he was a citizen of—a participant in—two cities: the City of God and the City of Man.
In essence, the dual citizenship concept suggests that Murray was both a contributing member to the public square and an ardent American citizen. But he was also a faithful Catholic and obedient son of the Church. For some individuals, it is hard to imagine that such a person could exist, yet this is how he served the common good and the public interest during his relatively brief life. But because of his formation as an American and a Catholic, Murray demonstrated that American Catholics can simultaneously be faithful members of the Church and contributing members of the American republican democracy. Indeed, their greatest contribution to our democracy may be in recalling America to the understanding of the human person and human institutions that animated the founding of the country—an understanding whose greatest expositors include Fr. Murray, John Paul II, and Benedict XVI.
Collected links:
Robert John Araujo, S.J., John Courtney Murray, S.J.: A Citizen of Two Cities, 42 Loyola U. Chi. L.J. i (2010).
Robert John Araujo, S.J., John Courtney Murray, S.J.: A Model of Engagement, 43 Loyola U. Chi. L.J. i (2011).
Robert John Araujo, S.J., John Courtney Murray, S.J.: The Meaning of Social Justice in Catholic Thought, 44 Loyola U. Chi. L.J. 331 (2012).
Robert John Araujo, S.J., The Nature of Law and the Role of Citizenship, 45 Loyola U. Chi. L.J. 287 (2013).
Robert John Araujo, S.J., The Law as a Moral Enterprise, 46 Loyola U. Chi. L.J. ___ (forthcoming 2014).
Here's the headline of an article in the Huffington Post:
The Uncomfortable Question: Should We Have Six Catholic Justices on the Supreme Court ?
The headline brings back memories of Paul Blanshard's influential anti-Catholic book: American Freedom and Catholic Power. To see how really vile the article is, though, you must read the whole thing. Then think of what it tells you about the Huffington Post as its publisher and the larger intellectual/political culture of which the HP is an expression.
http://www.huffingtonpost.com/ronald-a-lindsay/supreme-court-catholic-justices_b_5545055.html?utm_hp_ref=politics
Tuesday, July 1, 2014
Yep. You guessed it. It was little old me. Or so says paranoid left-wing commentator Frank Schaeffer in an article at Patheos spinning out the most bizarre conspiracy theory to appear since William F. Buckley excommunicated the Birchers and Lyndon LaRouche shuttled off to, well, wherever Lyndon LaRouche shuttled off to. How did I (allegedly) do it? Easy. First I cleverly brought the U.S. Catholic bishops, the Mormon leadership, and the major Evangelical leaders under my influence. Then I worked through my "followers," Antonin Scalia and Samuel Alito.
You think I'm kidding? Here's Schaeffer:
"[Robert] George is the de facto father of the twinned war against gays and war against women. Scalia is his follower and close friend. And George has the support of the U.S. Roman Catholic bishops, the Mormon leadership and the most conservative of the evangelical leaders. Charles Colson was George’s close confident [sic]. Together they hatched the plan that in the end (and after Colson died) became the Hobby Lobby case."
You can read the whole preposterous fantasy here:
http://www.patheos.com/blogs/frankschaeffer/2014/07/hobby-lobby-verdict-is-a-victory-for-ultra-right-roman-catholic-co-conspirators-with-chuck-colsons-ghost/
But please, don't tell Justice Scalia. He doesn't know he's my "follower." Let's leave him in blissful ignorance.
In my contribution to the SCOTUSBlog symposium on Hobby Lobby, I address the Court's "substantial burden" reasoning and pick out a few footnotes of interest. Some more general thoughts also, including this:
For analytic purposes, it is convenient to break down the Hobby Lobby decision on RFRA into three parts: (1) Who can bring a claim under RFRA? (2) How does the “substantial burden” inquiry proceed? (3) How strict is strict scrutiny under RFRA? In each of these three areas, Justice Alito’s opinion for the Court sets forth an answer and analysis that should ensure greater solicitude for religious liberty in the administrative state. Federal government lawyers advising agencies on the regulatory implementation of statutory schemes that hold the potential to impinge on religious freedom should take three clear lessons from Hobby Lobby: (1) The Supreme Court will enforce RFRA’s comprehensive coverage as broadly as its capacious text reaches; (2) the “substantial burden” trigger for RFRA’s protections should be understood from the point of view of the sincere religious believer asserting a burden, with no “attenuation” escape hatch allowing legal recharacterization of these beliefs by government lawyers or federal courts; and (3) strict scrutiny under RFRA really is strict.
