Professor Helen Alvaré testified in March before the Kansas Senate Judiciary Committee in connection with a proposed Kansas Religious Freedom Preservation Act. The written version of her testimony, worth reading in full, touches on an underappreciated feature of Windsor and post-Windsor cases finding a constitutional right to same-sex marriage. Whether explicitly or implicitly, these cases develop and deploy a federal-law-based definition of marriage. A federal-law-based definition of marriage was not necessarily to resolve Windsor, which on its surface only invalidated but did not establish a federal definition of marriage, but such a federal-law-based definition of marriage is necessarily present in the post-Windsor cases extending the decision to invalidate state definitions of marriage that require one man and one woman for marriage.
Alvaré writes:
[A]fter paying lips service to federalism, [Windsor] substituted a new, federal definition of the meaning of marriage--an extraordinary and adult-centric meaning--for the meaning adopted by the vast majority of states, and every one of the relevant, prior Supreme Court opinions treating marriage. To summarize a great deal of material, the Supreme Court defined marriage as: the way people define themselves, as persons committed in a special emotional and sexual way to another person; as an acknowledgment of an intimate relationship between two people; as a protection of a person's "personhood and dignity"; and as a means for same-sex couples to "enhance their own liberty" and equality with opposited-sexed married couples.
Another interesting aspect of Professor Alvaré's testimony was a discussion of the limits of RFRA-style laws in protecting the religious freedom of individuals and businesses "who wish to live freely and conduct their businesses in [a state] with faithful integrity to their deepest beliefs, should legal recognition of same-sex marriage be imposed upon [that state] by a federal court." (Although it is not yet available online, Professor Alvaré's testimony as delivered also included a list of detriments conscientiously objecting individuals or businesses could suffer if same-sex marriage were imposed on a particular state. I will post or link to this list if it becomes available online.)
The Hobby Lobby and Conestoga Wood cases being argued this morning are important. But in my view they are not "extraordinary cases," which is Richard Fallon's term for those cases in which "no existing doctrine resolves the issues before the Court" or "a majority of the Justices believes that existing doctrinal structures must be reassessed in light of more fundamental concerns." (Fallon, Implementing the Constitution at 134-35.) At the risk of appearing unappreciative of legal complexity or difficulty, I'll share my boring bottom-line assessment of the likely outcome and reasoning in Hobby Lobby and Conestoga Woods: These cases will be doctrinally uninteresting losses for the government.
In order to rule for the challengers, which is how I expect a majority of the Justices will rule, the Justices will need to decide three issues:
(1) Can either the companies or their owners assert a claim under RFRA?
(2) Is the threat of massive fines for the companies' offering of health coverage that excludes certain drugs and devices for reasons of religious conscience a substantial burden on the companies' or their owners' exercise of religion?
(3) Has the government satisfied strict scrutiny?
If a majority of the Justices gets to issue (3), it is hard to see how the government can win. The government did not even try to take into account the religious beliefs of challengers like these in their regulatory implementation of the statutory preventive services mandate. There are a variety of ways for thinking about the right way to answer (1) and (2), some of which would require the Supreme Court to address novel questions. But there are also simple ways of resolving these issues in the challengers' favor.
With respect to who can assert a claim here, the Court could straightforwardly reason that "person" in RFRA includes a corporate person, and that there is no limitation on which kinds of corporate person may assert a claim, as long as that person may engage in the exercise of religion. And in this context, "exercise of religion" means nothing more than a religiously based act or refusal to act. With respect to substantial burden, there seems little difficulty finding this present in the threat of massive penalties for these companies' religion-based decision to offer non-compliant health coverage that excludes no-additional-cost coverage of various drugs and devices.
Given all the commentary generated by these cases already, with much of it focusing on novel or difficult issues, my assessment in this post is admittedly contrarian. Am I confident that a majority of Justices will follow the relatively uninteresting path through the issues in these cases? That is probably too strong a word. But while the Supreme Court retains the ability to surprise and confound, sometimes the legal path of least resistance is the path a majority is most likely to follow.
Thanks to Rick for the link to David Goldman's book review of Joseph Bottum's An Anxious Age: The Post-Protestant Ethic and the Spirit of America. A question prompted by the review: How would Bottum explain Justice Kennedy? More precisely, how would Bottum explain Kennedy's opinions in cases like Casey, Lawrence, and Windsor? I ask because these opinions appear to exhibit the features of the post-Protestant secular religion that Bottum discusses, but Kennedy seems more post-Catholic than post-Protestant.
In their rhetoric at least, Kennedy's opinions in Casey, Lawrence, and Windsor exhibit "a sense of the sacred, but one that seeks the security of personal salvation through assuming the right stance on social and political issues." They exude "a self-perpetuating spiritual aura," and they reflect "social and political ideas elevated to the status of strange divinities . . . born of the ancient religious hunger to perceive more in the world than just the give and take of ordinary human beings, but adapted to an age that piously congratulates itself on its escape from many of the strictures of ancient religion." These opinions of Justice Kennedy's are recognizable for "the glory and the annoyingness of their moral confidence and spiritual certainty."
These are all features of the secular religion that Bottum attributes to the "perpetuation of Protestant attitudes in secular form." But there is something genealogically Catholic in at least some of the rhetoric of these Kennedy opinions. (For a pre-Windsor discussion of rhetorical similarities among Casey, Lawrence, Dignitatis Humanae, and various other documents of Catholic social teaching, see Frank Colucci, Justice Kennedy's Jurisprudence: The Full and Necessary Meaning of Liberty.) How might Bottum explain these aspects of Justice Kennedy's judicial output? How should we? Might there be consonance between Bottum's understanding and Christopher Ferrara's?
Rick's recent post about Big Mountain Jesus for some reason brought to mind one of my favorite old MOJ posts (from 2010, about a bumper sticker). I didn't quite realize how the two were connected until rereading Rick's old post after finding it to link here. As it turns out, that earlier post includes the statement that "Jake is the buddy who calls to cajole you into skipping work for a powder-day." Now, it seems, Jake's cajoling has brought Rick to believe that his earlier observation about the relationship between a day of work and a day of skiing on fresh powder identified only an apparent conflict.
On cross-examination of an economist testifying on behalf of the state, the plaintiffs' attorney asked: " "Is it accurate that you believe the consequence of engaging in homosexual acts is a separation from God and eternal damnation? In other words, they're going to hell?"
The admission of improper testimony in a bench trial does not matter much in itself, but is this really how the cross-examination of an economist should have been allowed to proceed? I have no special expertise in the law of evidence, but this question about the economist's religious beliefs does not seem relevant, even with respect to trying to prove bias of the sort that one can question expert witnesses about, and the prejudicial value of the testimony in any event would seem to substantially outweigh whatever probative value it might have.
(For whatever it might be worth to note, this was the same trial in which Sherif Girgis was not permitted to testify as an expert witness.)
Tom's comparison of judicial pragmatism and judicial restraint with Niehbuhrian Christian realism shows how it can help to understand each of these as appropriate dispositions when engaging in various forms of practical reasoning. Tom contends that Niebuhrian realism disposes religious and political activists "to combine vigorous advocacy with deep humility." He observes that good dispositions are virtues, and that such virtues "may be more powerful and determinative than the precise logic of analysis." And he concludes by asking about the value of judicial pragmatism and judicial restraint as providing an appropriate disposition toward the activity of judging.
Tom's comments and question helpfully bring to the surface an issue that Marc and I do not resolve in the paper. We speak of Posner and Wilkinson as advocating for particular judicial dispositions as features of judicial excellence. This terminology leads toward understanding the qualities of good judging in virtue-based terms. But we do not explicitly endorse a virtue-based account as against some other type of account. At other times in the paper, we speak in terms of judicial office or judicial role or judicial duty. We do this less to contrast a virtue approach with a deontological approach than to capture an aspect of judging that both pragmatism and restraint rub up against in various ways--the obligation of law. If the law requires something, the judge should neither be pragmatic nor restrained to the exclusion of the requirements of the law. Neither Posner nor Wilkinson claims otherwise. But too strong an emphasis on sensibility or disposition tends in that direction. One can see this in various ways in the cases that we describe in the second part of our paper.
While an emphasis on appropriate judicial dispositions toward constitutional adjudication stands in some tension with an emphasis on the right way to figure out what the law requires, it is nonetheless helpful to recognize the two as distinct. This enables analysts to discuss the contribution and the limits of each type of guide for judges. And when figuring out the right dispositions for judges in constitutional adjudication, it matters that the particular form of practical reasoning at issue is judicial legal reasoning. Appropriate dispositions toward the kind of practical reasoning engaged in by political and religious activists are not the same as appropriate dispositions toward judicial legal reasoning in constitutional cases.
Many insights seem so obvious once you have them that you wonder whether they are insights at all. And some may be so obvious to others that putting them down on paper for oneself or others may be a waste of time. But it seems like many people share a similar confusion to one that Marc and I experienced when we began writing about Judge Posner's judicial pragmatism and Judge Wilkinson's judicial restraint. So we decided to use Part III of our investigation of their writings about (and while engaged in) constitutional adjudication to develop what seemed like an insight to us. This is the claim that judicial pragmatism and judicial restraint are not best understood as constitutional theories to replace something like originalism or Dworkinian moralism, but are instead better understood as dispositions toward constitutional adjudication.
We think it's helpful to make this claim explicitly because both Posner and Wilkinson have pitched their approaches as substitutes for other constitutional theories on offer, and academic critics have responded in kind. But this leads to the judges talking past the scholars, and vice versa. Once one understands judicial pragmatism and judicial restraint as dispositional accounts of the judicial office and judicial excellence in constitutional adjudication, one can offer criticisms that focus directly on the adequacy and depth of their accounts of good judging. Such criticisms are not a replacement for criticisms grounded in constitutional theory; those remain important. But the kinds of criticisms that we make are of a different sort. We argue, for example, that Judge Posner misapprehends Chief Justice Marshall's greatness as a judge when he adopts Holmes's understanding of Marshall as a "loose constructionist." And we contend that Judge Wilkinson is mistaken when he describes the quasi-Thayerian judicial restraint he advocates as representing "mundane and humdrum truths" or a distillation of the values of traditional adjudication. In fact, we contend that Thayerian judicial restraint is the first "cosmic constitutional theory" of the kind that Wilkinson criticizes. Although we do not put it quite this way in the paper (which does not mention Walker Percy), Thayerian restraint was a response to judges having become "Lost in the Cosmos."
In the New York Times, Ross Douthat has an op-ed titled "The Terms of Our Surrender." Douthat sees in the "mendacious and hysterical" coverage of Arizona SB 1062 the ascendancy of the equation of opposition to same-sex marriage with opposition to inter-racial marriage.
The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman. And those who need to be told would not understand it anyway. A sensitiveness to fair play and sportsmanship is perhaps the best protection against the abuse of power, and the citizen's safety lies in the prosecutor who tempers zeal with human kindness, who seeks truth and not victims, who serves the law and not factional purposes, and who approaches his task with humility.
As this excerpt reveals, humility is but one of the character traits that a prosecutor must possess. And more generally, it is impossible to read Jackson's speech or to think about the problems examined in Cecelia's post without coming away with the sense that, to paraphrase The American President, "Being [a prosecutor in] this country is entirely about character."
Caitlin Flannagan's article at The Atlantic, "The Dark Power of Fraternities," is necessary reading for anyone connected with higher education--whether as a parent, a student, a teacher, an administrator, an alumnus, or any combination of these or other connections. The article should be of interest to MOJ readers for many reasons, including its discussion of the morally ambiguous roles of lawyers. It is not a "hit piece," but it does hit fraternities and universities hard, even while acknowledging that fraternities serve many good purposes.
