Religious Accommodations and the Civil Law
Professors Paul Horwitz and Rick Garnett have a nice discussion going about the place of institutional religious freedom in civil society, and, specifically, how institutional freedom relates to state regulation. Here is a snippet from Horwitz’s response to Garnett’s initial essay:
Our laws have always made accommodations and exemptions—not just out of respect for the individual conscience, but because we recognize the important independent role played by these institutions in civil society and wish to encourage and safeguard it. We may argue in particular cases about whether such accommodations are a matter of legislative discretion or of judicially enforceable constitutional command. But we should not—as some these days seem increasingly inclined to do—reject the value of accommodation altogether. There is room for more than one institution in our social infrastructure. The state should recognize and allow for that fact; and citizens who believe in the importance of pluralism should not forget it, either.
Perhaps the last sentence is most relevant for today’s debates about accommodations for religious institutions that may not share the particular aim of a general law. Horwitz suggests that pluralism seems to inherently tolerate different approaches to complex problems, and, by definition, allow room for those approaches to operate, especially considering that most religious institutions in the United States maintain values that are consonant with broader societal values. This contrasts with legal approaches that, in the name of pluralism, seek to neutralize certain spaces within civil society.
Chesterton and Law
This time last year I posted on what I call G.K. Chesterton’s “Gospel of Wonder.” At the moment, I’m reading some of Chesterton’s fiction, namely the Father Brown Stories. While reading these detective short stories, I’ve taken to deciphering Chesterton’s thoughts on law, particularly through his usage of Father Brown. For those of you who are unfamiliar with the premise of the stories, Fr. Brown is an unassuming, gentle, and fairly disheveled priest who is considered rather ordinary by his cosmopolitan contemporaries. In each story, some type of mysterious crime has occurred and the police, detectives, and other educated persons are having the hardest time solving it. It is usually the case that appearances deceive those tasked with solving the mystery, particularly because they focus too much on logic and science (and thus we see Chesterton’s commentary on the materialist age). Chesterton uses their inabilities as an avenue to introduce Fr. Brown as the only detective in touch with the human soul, which is the most significant skill when determining “who did it,” and, more importantly, why.
I’ve read six stories in the Innocence of Father Brown collection, which is the first installment of more than forty stories. One of my favorite exchanges with Fr. Brown comes after he catches the international, career criminal Flambeau, in The Queer Feet:
‘Did you catch this man?’ asked the colonel, frowning.
Father Brown looked him full in his frowning face. ‘Yes,’ he said. ‘I caught him, with an unseen hook and an invisible line which is long enough to let him wander to the ends of the world, and still to bring him back with a twitch upon the thread.’
In another story, The Flying Stars, the infamous Flambeau manages to execute jewelry theft while framing a police officer in a house play. Fr. Brown catches Flambeau before he can escape and gently explains to him how well he knows his soul. Flambeau, hanging in a tree at this point and unable to hide his shame, listens to Fr. Brown’s monologue, which ultimately convinces him to give up his criminal past:
‘I want you to give them [jewels] back, Flambeau, and I want you to give up this life. There is still youth and humour and honor in you; don’t fancy they will last in that trade.Men may keep a sort of level of good, but no man has ever been able to keep on one level of evil. That road goes down and down. The kind man drinks and turns cruel; the frank man kills and lies about it. Many a man I’ve known started like you to be an honest outlaw, a merry robber of the rich, and ended stamped into slime…. I know the woods look very free behind you, Flambeau; I know that in a flash you could melt into them like a monkey. But some day you will be an old grey monkey, Flambeau. You will sit up in your free forest cold at heart and close to death, and the tree-tops will be very bare.’
Fr. Brown ultimately converts Flambeau to the good side and he joins Fr. Brown as he attempts to solve future mysteries. What does Fr. Brown’s approach to Flambeau say about Chesterton’s approach to criminal justice?
Identity Politics and Judging
Justice Ginsburg recently gave an interview discussing a range of topics, including the Supreme Court’s recent decision in Hobby Lobby v. Burwell, which held that the Religious Freedom Restoration Act protected closely-held, for-profit corporations against the so-called “contraceptive mandate” that was issued by HHS as part of the President’s health care law. While Ginsburg opined on a variety of issues, it was disappointing to hear her words on how the male justices may have a “have a blind spot” when it comes to women.
This type of categorical statement should be subject to precisely the same standard by which it seems to judge. Does Justice Ginsburg truly believe that the male justices that voted with the majority in Hobby Lobby made their decision based on an aversion towards the interests of women as defined by Ginsburg and proponents of the mandate? Is that really the basis of the argument advanced by the majority? Couldn’t the same logic be applied to Ginsburg’s forceful dissent, which like the majority opinion, involves careful citation of precedent and line after line of legal reasoning? And how would Justice Ginsburg explain the numerous female judges, including one of her colleagues, that have issued injunctive relief on behalf of similarly situated plaintiffs, such as the Little Sisters of the Poor?
Ginsburg’s framing of the case as a constitutional matter also suggests an inability to view the case through the lens of the actual claim put before the Court by the plaintiffs, namely the right to religious freedom under a duly-enacted statute. This is especially troubling given that the case was primarily one of statutory interpretation, not public policy (whether that should be addressed by the Court is a matter for a separate discussion), or the scope of the Free Exercise Clause. Hobby Lobby is a statutory case–always has been and always will be. It makes no comment on whether the plaintiff’s claim would survive constitutional scrutiny should RFRA cease to exist.
Modest Commentary 