Thursday, December 5, 2013
I am glad to see that in the wake of the cert. grants for Hobby Lobby and Conestoga Wood, there has been a frothing up of interest in the issues presented by these cases, issues that we here have been discussing for quite some time. In this post, I want to address one such new claim.
Professors Nelson Tebbe and Micah Schwartzman (T&S) recently argued that an exemption from the contraception mandate under RFRA for employers like Hobby Lobby or Conestoga Wood would violate the Establishment Clause. They elaborate on their claim here and here. Many of the arguments are derived from this paper by Professor Fred Gedicks and Rebecca Van Tassell. The core of the argument is that granting an exemption from the mandate would privilege or favor religion inasmuch as it would shift the burden of purchasing contraception to third parties--i.e., the employees of the exempted corporations. The key to understanding the argument is their reliance on a Burger Court case, Estate of Thornton v. Caldor, which involved an exemption for employees from working on their Sabbath day. A Presbyterian who wished not to work on Sunday sued Caldor after the company dismissed him from a management position because he would not work Sunday. Because the law took absolutely no account of the secular interests of third parties (the employers), the law was found to violate the Establishment Clause. The "unyielding weighting in favor of Sabbath observers" resulted in a major burden on employers. T&S rely especially on this quote of Judge Learned Hand cited in Thornton: "The First Amendment … gives no one the right to insist that, in pursuit of their own interests, others must conform their conduct to his own religious necessities." T&S (as well as Gedicks and Van Tassell) note that the principle of Thornton was restated in dicta in a more recent case, Cutter v. Wilkinson, which involved the application of RLUIPA. Justice Ginsburg, in dicta, said that in applying RLUIPA, “courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.”
I think the argument is interesting, but mistaken. In truth, I have never understood Thornton very well at all and find it to be a difficult case. So I'll start with a few basic points about exemptions and RFRA.
First, any exemption in this context will be directed toward benefiting some religious practice, and by being so directed, it will necessarily not benefit all others--i.e., "third parties." If all choices to protect a specific form of religious exercise violate the Establishment Clause, then all exemptions for religion are Establishment Clause violations. The only thing that would be left for legislators is a law like RFRA, which accommodates religious exercise generally. Could it really be the case that the only thing the Establishment Clause permits is all or nothing? I don't think so, and the Court has never said so. Professor Schwartzman, in other contexts, has questioned whether religion is a special category at all. If that argument were accepted and given constitutional force, then even laws like RFRA would be unconstitutional, because if the choice to protect religious exercise over non-religious ethical belief advances religion, then both specific and general accommodations are unconstitutional. The Court has not adopted that view. As Corporation of the Presiding Bishop of Church of Jesus Christ of Latter Day Saints v. Amos (1987) put it, "This Court has long recognized that the government may (and sometimes must) accommodate religious practices, and that it may do so without violating the Establishment Clause."
Second, all exemptions burden third parties in one way or another. An exemption from laws proscribing peyote smoking imposes social costs of various kinds on third parties. An exemption from compulsory school attendance laws does so as well. An exemption for prisoners from wearing prison uniforms will burden prison officials and guards, and ultimately, everyone who is invested in a uniform system of penal justice. Indeed, one could go much further: all rights have costs that fall on third parties (you pick the context--the speech clause, Miranda rights, etc.). Thornton does not say that any time there is any shifting of burdens, the Establishment Clause is violated. Chief Justice Burger's opinion was much, much narrower than that. It left open the possibility that a more carefully crafted Sabbath exemption law would be constitutional. That is more or less the upshot of Sherbert v. Verner (which was treated as good law by Thornton), where the Court held that a Seventh-day Adventist could not be denied unemployment compensation benefits because she refused to work on the Sabbath. In affirming that case, the Thornton Court is also affirming that it is perfectly constitutional for a state to exempt employees from Sabbath work on religious grounds, thereby imposing the costs of that exemption on third parties. All that Thornton is saying is that a law which imposes extremely severe burdens on secular interests through an "unyielding weighting of" religious interests over those other interests, and which takes no account of the secular interests at all, is constitutionally problematic. Consider an example. Under the Connecticut law at issue in Thornton, a school that is open only 5 days a week would have to provide Sabbath day exemptions to any teacher that asked for it. The burden on the school might be so severe as to impede its ability to function--compelling it even to close. The Thornton Court said that it had to "take pains not to compel people to act in the name of any religion." (emphasis mine). It's that kind of extreme burden on secular interests that rendered this law unconstitutional. Another obvious example might be an accommodation that interfered with a third party's religious freedom--compelling the third party to engage in religious activities. Yet while the Court has said that "[a]t some point, accommodation may devolve into 'an unlawful fostering of religion,'" Amos, only an extreme and absolute imposition on third party interests would justify that conclusion.
Third, both Thornton and a case like Texas Monthly v. Bullock seem to suggest that the burden imposed on secular interests must be state-imposed. Here the question is somewhat complicated inasmuch as the "burden" on employees is said to result from the combination of private claims and state power. Nevertheless, what these cases concerned is the alleviation of burdens on religious or secular beliefs imposed by the state.
Fourth, T&S wonder why nobody has made much of the Establishment Clause claim. But I think there is a good reason. RFRA incorporates certain limits to accommodation. That is, it would be a very rare RFRA (or RLUIPA) accommodation indeed which was constitutionally problematic under Thornton, because all RFRA (and RLUIPA) accommodations need to satisfy the substantial burden, compelling interest, least-restrictive-means threshold. The law at issue in Thornton, according to the Court required an accommodation "no matter what burden or inconvenience this imposes" on third parties. But the standard for RFRA accommodations is not, "you must grant the accommodation no matter what burden or inconvenience this imposes." Accommodations must pass the government compelling interest threshold. If they do, they seem very much not to be violations of the Establishment Clause rule laid out in Thornton. In fact, many of the arguments about third party harms that T&S make have already been briefed by mandate advocates as part of the RFRA calculus. So they haven't been ignored. They just haven't been analyzed under the Thornton Establishment Clause framework, because Congress already saw to that in the statutes.
But let's consider the Establishment Clause precedents on their own.
Continue
reading
I have a short piece in the LA Times today about the Hobby Lobby / Conestoga Wood cases the Court has taken up. (As usual, the headline is not the essay-writer's fault.) Here's a bit:
The Religious Freedom Restoration Act reaffirmed an idea that is deeply rooted in America's history and traditions — namely, that politics and policy should respect and, whenever possible, make room for religious commitments and conscientious objections. True, religious liberty is not absolute, and, in a pluralistic society like ours, not all requests for exemptions and accommodations can, or should, be granted. Some religious liberty lawsuits will, and should, fail, but not simply because they involve what happens at work on Monday and not what happens in services on the Sabbath.
Wednesday, December 4, 2013
The HHS cases being brought by for-profit businesses do not present the Court with philosophical or ontological questions, but rather statutory ones. Still, for many observers and activists, the temptation to re-work these questions as partisan/political ones is hard to resist, and Dahlia Lithwick's latest Slate essay is a perfect example.
Lithwick likes abortion rights, and doesn't like Citizens United, and so in the essay she works to connect Hobby Lobby's RFRA arguments with the reasoning in Citizens United and efforts in some states to provide greater legal protection to unborn children. She ends with this:
We can protect animals and unborn babies and corporations without also embodying them with a humanity they don’t possess. Turning everything and anything into a “person” ultimately also serves to turn persons into things.
The first sentence asserts that "unborn babies" do not "possess" "humanity," which is a strange assertion. There is no serious question about the "humanity" of unborn children; the debate is about the implications of their vulnerability, dependence, and developmental progress on their moral status. It also assumes that Citizens United or the Hobby Lobby RFRA challenge involve claims that "corporations" "possess" "humanity", which is not the claim. To say that X is a "person" for legal purposes is not to say that X is a human being. The second sentence, though, makes a point that has always made me very reluctant to embrace even the Christian cases for animal rights.
James Stoner's work on common law constitutionalism has been deeply influential on my own thinking about the interpretation of the religion clauses, as well as on more general questions of constitutional interpretation. My own approach in fact adopts something like Professor Stoner's common law constitutional method (though its motivation for adopting that method is different than Stoner's), distinguishing it from other common law constitutionalist methodologies (e.g., the approach of David Strauss). Here is an interesting post that Professor Stoner has just written on the disposition of the common law (in part it responds to the arguments of Professor John McGinnis). A longish bit:
To the authors of the Constitution, the Bill of Rights, and the Civil War Amendments, common law meant nothing like “judge-made law,” and the use of the modern supposition to untether constitutional law from the Constitution is unwarranted. Moreover, the original understanding of common law—as the unwritten customary law of England, registered in decisions of the courts, and carried over to the American colonies as an inheritance and adjusted to their circumstances—seems to me essential to the interpretation of the Constitution itself, which includes common-law language and takes for granted that the judicial power it established would largely operate by common-law forms: following precedent, recording judicial opinions, drawing the bench from the bar, employing trial by jury, and adhering to due process in myriad other ways . . . .
Originalism and textualism, for example, derive from maxims you can find in Blackstone’s account of how to interpret statutes, and I think they make sense not as free-standing theories of interpretation but in the context of all Blackstone’s adages, including, for example, that one begin by discerning whether the text declares the common law in writing or remedies some mischief, that one interpret criminal statutes strictly and statutes against frauds liberally, and the like. True, constitutions are not exactly statutes, only similar to them: Like statutes, they are put in writing; unlike statutes, they are made by a constituent authority and cannot be easily changed. Are the powers of government granted in constitutions to be interpreted strictly or liberally? What about rights that are reserved?
These questions fell to judges to decide, reasoning according to “the nature and the reason of the thing,” to borrow Hamilton’s words in The Federalist, and this was something common-law judges were trained to do, bound on the one hand by “strict rules and precedents” (Hamilton’s words again) and accustomed on the other to settling new cases through reasoning by analogy, as Edward Levi nicely explains in his Introduction to Legal Reasoning (Chicago, 1949). Understanding the common-law meaning of “judicial power” in the Constitution resolves what would otherwise be the paradox of judicial review, an unwritten power to enforce a written Constitution. And it makes perfect sense of constitutional passages like the Due Process Clause or the reference to “other rights” in the Ninth Amendment. These are not blank checks given to judges, but indication that there is a rich texture of established though unwritten law that they are charged to remember. Hamilton, again, indicates as much when he writes approvingly of the ability of judges “to mitigat[e] the severity and confin[e] the operation” of “unjust and partial laws.” . . . .
Leaving the Constitution to be interpreted in court by judges trained in common law meant it was in the hands of men who habitually looked to find the law applicable to the case before them, not who set out to replace it. When called to interpret the Constitution, the presumption in favor of the authority of the text and its original intent might be heightened, given its sovereign source, but precisely because the Constitution was meant to endure, its meaning had to be adapted to novel circumstances. One can’t avoid asking what comprises a constitutional search in an age of electronic communications, or what is “commerce with foreign nations, and among the states” when the manufacturing process from design through production is fully globalized and you can complete the purchase of almost any item from across the ocean at any time of day without leaving your home.
By focusing on the individual case, allowing the appeal to reason, settling the meaning of law to make property secure and the application of government coercion predictable, and including rules and maxims that leave individuals free to take initiative while holding them responsible for the consequences of their deeds, the common law was held by its advocates to be a great friend and promoter of human liberty. It had its critics, too, who complained that unwritten law was obscure, too much the preserve of the lawyers’ guild, and its favor for private property and individual liberty were inappropriate in a collectivist age. The abandonment of common-law rules and perhaps above all of the common-law spirit by many in the guild of lawyers over the course of the twentieth century no doubt contributed to the eclipse of common law—Professor McGinnis has valuable insights on this score—but probably more fundamental was the culture’s growing historicism: its skepticism toward any permanent standards of right and wrong, its consequent indifference toward tradition as a repository of wisdom, its expectation, not to say, encouragement of intractable partisan division given the supposition that questions of value cannot be rationally settled. Actually, common law really claimed to be common, to articulate a social consensus, more than it claimed to be unchanging; jury verdicts at common law have to be unanimous, and judges on the losing side of cases decisively settled typically feel constrained thereafter to accept the precedent and direct their argument to new issues, where they hope to limit a bad precedent’s future reach.
Tuesday, December 3, 2013
I was very pleased to learn that, on Monday morning, the University of Notre Dame re-filed its challenge to the contraception-coverage mandate. Michael Sean Winters has more details and analysis (with which I largely agree -- especially the discussion of "the freedom of the church") here. And, the story in our local paper is here. And, a short piece by me, in Notre Dame Magazine, about the University's challenge is here.
The University's President, Fr. John Jenkins, issued what I thought was an excellent statement regarding the University's decision to re-file, notwithstanding the so-called "accommodation." (I have not yet been able to find a link to the statement.) Instead of limiting his discussion to sometimes-technical issues of "material" and "formal" cooperation, he talks in terms of mission, character, integrity, and pluralism:
Our abiding concern in both the original filing of May 21, 2012 and this re-filing has been Notre
Dame’s freedom—and indeed the freedom of many religious organizations in this
country—to live out a religious mission. . . .
As I said regarding our original filing, because at its core this filing is about the freedom of a religious organization to live its mission, its significance goes well beyond any debate about contraceptive services. For if we concede that the Government can decide which religious organizations are sufficiently religious to be awarded the freedom to follow the principles that define their mission, then we have begun to walk down a path that ultimately will undermine those institutions. For if one Presidential Administration can override our religious purpose and use religious organizations to advance policies that undercut our values, then surely another Administration will do the same for another very different set of policies, each time invoking some concept of popular will or the public good, with the result that these religious organizations become mere tools for the exercise of government power, morally subservient to the state, and not free from its infringements. If that happens, it will be the end of genuinely religious organizations in all but name.
This, it seems to me, is really what is at stake -- not only Notre Dame's legal right not to be compelled to do wrong, but its legal right to be Notre Dame.
Perry Dane has a very interesting post over at CLR Forum on legislative prayer and Town of Greece v. Galloway. Perry was Justice Brennan's law clerk at the time the Court decided Marsh v. Chambers and Justice Brennan authored a dissent. I see things a little differently than Perry on this issue, but that hardly matters. His analysis is well worth reading, particularly on the question of what ought to happen if the Court follows the majority view in Marsh. Here's a bit:
At that point [if the Court adheres to Marsh], it seems to me, the principle that prayer is serious business would require us to let (most of) the chips fall where they may. For the reasons Justice Brennan stated, courts should not demand that legislative prayer be “nonsectarian.” There is, with respect to prayer, no such thing. Bland prayers, and prayers to an unnamed deity, are — if taken seriously as religious acts — just as “sectarian” as more apparently meaty prayers. Certainly, judges should not try to monitor or censor individual prayers to strip them of religious particularity. Nor should they even even try, as the Court of Appeals for the Second Circuit panel did, to decide whether a whole pattern of prayer over several years is somehow disproportionate by being, for example, too Christian.
I wouldn’t rule out all constitutional limits on the particulars of legislative prayer. Since legislative prayers are, for better or worse, said in a civic context, the Constitution might at least demand that they be civil, in the sense of not disparaging other faiths. More to the point, maybe, the Establishment Clause might bar processes for selecting chaplains, guest chaplains, or the like that by their terms manifestly exclude certain faiths, or for that matter even all faiths other than the preferred one.
To be sure, the distinction between exclusion and inclusion is shaky, and applying it in particular cases even more so. But it might be the closest we can get to a fair rule while still treating prayer as serious business.
