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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.
Justice Scalia’s Commencement Address
Associate Justice Scalia of the U.S. Supreme Court recently gave the Commencement Address at William & Mary Law School. Choosing law school pedagogy as one of his themes, Justice Scalia challenged the currently popular notion of making law school a two-year endeavor. For Scalia, three years is more in tune with the idea that legal education prepares young lawyers to enter a profession, rather than simply a trade. On one level, more time to study more topics would seem, on the surface, to guarantee a profession that is generally more aware of “the law.” But is it possible that Scalia may have unfairly conflated extra time with additional opportunity? Could the same objectives that Scalia correctly points out (exposure to First Amendment, Constitutional, Antitrust, and other complex areas of the law) be accomplished if law school was two years without summer breaks (which arguably would address the “business” like recruitment that occurs at larger firms during this time, which seems to foster the “trade” mentality pervading the profession)? Could they be accomplished if law schools focused less on clinical education (during the current semester system) and bar admission resembled older era apprentice-like tasks? I agree with the Associate Justice that legal education should remain focused on entry into a profession, which is certainly different than a trade; I’m just not convinced that a blanket preference for three years (why not four? like doctors?) is devoid of any arbitrariness itself.
Is the Automobile Exception Sustainable in a Smartphone World?
The Supreme Court is set to decide whether police may conduct a warrantless search of cell phone technology, incident to an otherwise lawful arrest. In U.S. v. Wurie, the issue is whether the police may venture into the call log on a cell phone to uncover possible evidence of a crime. In Riley v. California, the question is slightly broader. In both, the Court must draw lines between permissible investigatory conduct by the police, post-arrest, and the privacy expectations that come with constantly developing cell phone technology.
Broadly speaking, the Court’s task is to decipher whether the information stored on smartphones, both willingly and unwittingly, implicates the protections of the Fourth Amendment. But on top of that, any doctrine that the Court announces must recognize the diminished expectations of privacy that have been found for property other than the home. The protection afforded to automobiles is one of those areas.
The well-known automobile exception, initially found by the Court in Carroll v. United States, permits warrantless searches of a vehicle when the occupant of the vehicle is arrested, provided there is probable cause to believe that the vehicle contains evidence of the crime. Two justifications originally served as the foundation of the rule: (1) diminished expectations of privacy in cars; and (2) the inherent exigency (stemming from mobility) that evidence could be lost and/or destroyed. The doctrine has now developed to the point where exigency is no longer essential to a finding of reasonableness after a warrantless search. The reduced expectation of privacy is now the foundation of the exception.
Why is this relevant to Riley and Wurie? If the Court determines that individuals have significant expectations of privacy in their phones, it would seem that the foundation of the automobile exception is weaker. Specifically, individuals store many different types of information in their vehicles and purposefully keep them from public view. On the contrary, cell phone technology, and the information stored, is at least accessible by data providers, companies, and, in some instances, the government. Is it plausible to suggest that someone has a stronger privacy interest in his or her phone, which is connected through various networks and forms of technology to other users, than his or her automobile, which for many, is an additional storage area that happens to be mobile (which is no longer relevant according to the Court)?
The HHS Mandate Question
A year and a half ago, I posted some preliminary thoughts on the viability of the HHS mandate that was the subject of oral argument at the Supreme Court this past Tuesday. Three months before the case will be decided by the Court, it’s fair to say that the same legal issues continue to swirl around and divergent views abound.
Having witnessed the arguments first hand, the following are my impressions on where the case is headed:
1. The Court seems skeptical of the government’s claim that for-profit corporations, by definition, cannot “exercise” religion.
As Solicitor General Verrilli conceded, there is nothing in the corporate form, per se, that inhibits the exercise of religion. After all, churches and other religious organizations, granted exemption or accommodation by the government, share the corporate form and undeniably “exercise” religion. The issue is whether for-profit status, i.e. entering the marketplace to earn money as entity, bar religious expression. Somewhat surprisingly given expectations pre-argument, Justice Breyer raised a few eyebrows when he asked Verrilli about the local, kosher deli that nearly everyone is familiar with in their neighborhood. The government had a hard time distinguishing why the deli manager who incorporates all of sudden loses free exercise rights that he or she would otherwise possess if he or she chose to not take advantage of corporate protections under state law. After all, isn’t it bizarre to suggest that availing one’s business of state law protection inhibits exercise of a federal right? Given that both Justice Breyer and Justice Kennedy seemed skeptical of the logic of the government’s position regarding for-profit corporations, and the common sense statutory arguments under the Religious Freedom Restoration Act (RFRA), it appears likely that the corporate petitioners will clear the first hurdle.
2. The suggestion that Hobby Lobby and Conestoga Wood could avoid the substantial burden by refraining from offering health care insurance misunderstands the Court’s jurisprudence regarding the definition of substantial burden.
The Court has made clear that courts should give broad latitude to plaintiffs claiming that they are substantially burdened by a law or government practice. Therefore, how the petitioners frame the burden is of utmost importance and should be given extensive deference. This is to avoid the so-called judicial entanglement problem when it comes to adjudicating religious liberty disputes. If the court probes too far into the legitimacy or credibility of the substantial burden, it may run the risk of engaging in theology, which is not its province. Because nobody questions the sincerity of the petitioners, this threshold is easier for the petitioners to meet than the staunchest supporters of the mandate would have others believe.
One other notable point regarding the substantial burden portion of strict scrutiny is the focus on making the burden “cost-neutral.” Even if Justice Kennedy was correct and the decision to offer insurance or pay the penalty was a “wash” (which it is not), the Court must still consider and account for the moral burden put forth by the plaintiff. And because courts are required to give deference to this aspect of the calculation, this question of whether a substantial burden exists is likely to be answered in the affirmative.
3. The government faces an uphill battle when it comes to arguing for a compelling interest and that the regulation is the least restrictive means for pursuing that interest.
a. Compelling Interest
1. As Justice Kennedy suggested when asking about the amount of delegation given to HHS, if the compelling interest was so strong, why would Congress leave the details to an agency to define who is exempt?
2. As Justice Alito suggested, HHS considers itself capable of granting for-profit corporations exemption from the regulation. How can the interest be compelling if the agency considers how to pursue it an open-ended question?
3. The third-party burdens argument is tautological because, after all, the case is about whether the free exercise clause and RFRA require reallocation of burdens. In other words, the government cannot say that the third-party burdens felt by employees supports the idea that the regulation promotes a compelling interest. Otherwise the government would always win under strict scrutiny because strict scrutiny asks whether third party burdens must be felt given other constitutional commitments. Further, the Court is tasked with answering this precise question: whether statutory rights can amount to a compelling interest in this context. The mere existence of those statutory rights, as granted by the agency, cannot itself answer that question. Finally, this certainly would not be the first context in which third parties feel the weight of burdens given other constitutional commitments.
4. The HHS regulations at issue allowed for delayed compliance with the contraceptive mandate. How compelling could the interest be if time was not of essence?
5. The government’s position regarding how the corporations could avoid the substantial burden, i.e. dropping coverage and paying the fine, undermines its very argument that the interest is compelling. Why would the government say it is ok to not comply with the law if the law is really that important? Isn’t the government’s goal to truly make the services available to the employees through their employers?
b. Least Restrictive Means
If the government’s goal is not as specific as described in number five above, and is instead availability of the contraceptive methods by any way possible, why did it force employers to provide the services through existing employer health insurance? There are other ways that the government could have achieved its goal: direct subsidies to the employees, tax credits, or stipends. In other words, the government arguably could have achieved its stated goal in much easier fashion: by paying for it itself.
4. The decision will be 6-3 or 5-4, depending on how Justice Breyer votes.
I foresee a narrow decision that strikes down the mandate because it fails strict scrutiny, as outlined by RFRA. The Court will not answer the question of whether the Free Exercise Clause covers for-profit corporations and instead will decide the case under RFRA, and hint to Congress that it must clearly define the meaning of “person” if it wishes to narrow the decision of the Court. Any distinction between closely-held and publicly-held corporations will be saved for another day or act of Congress. The decision also will hint that its rule does not extend beyond the facts before the Court given the outstanding issues. Finally, this will not be the last case regarding this issue that comes before the Court.
The Changing Meaning of Religious Liberty?
R. R. Reno on the content of religious liberty
This is a thought-provoking op-ed on the current state of religious liberty in the United States and how the social consensus on what the content of that liberty is seems to be changing.
The Often Forgotten Part of the Analysis…
The legal debates surrounding the controversial HHS mandate have been given ample press recently, with many commentators attempting to break down the competing arguments. Unsurprisingly, there has been some confusion over the appropriate legal standard. Supporters of the mandate often focus on the public policy underlying the regulations at issue in order to emphasize that the compelling interest portion of the RFRA test is met (i.e, the Administration’s noted goal of pursuing “women’s health”). Opponents of the mandate tend to highlight the significance of the burden felt by the plaintiffs (i.e., the hefty fines faced by employers who do not choose to comply).
The tendency to try to neatly divide the debate in this fashion unfortunately has led one of the most important aspects of the legal analysis to be forgotten in the popular mindset (emphasis on “legal”). If the corporate plaintiffs pass the initial question of personhood under RFRA, the case transitions to the second inquiry regarding whether a compelling interest exists or not. But even if the Court answers that question in the affirmative, the case is not over. Rather, the outcome is likely to hinge on the third inquiry under RFRA, namely whether the regulation (law) pursues the stated, acknowledged, (or assumed for the sake of the analysis) compelling interest through the least restrictive means. In other words, does the law pursue the compelling interest in a way that burdens the religious liberty of the employer in the smallest way possible?
This is where the rubber will likely meet the proverbial road. Making this argument is a taller task for the government because the law exempts millions of other non-religious entities from the mandate. In this sense, the law could be characterized as grossly under-inclusive, which means it does not burden enough individuals in order to adequately pursue the law’s stated objective. Further, there are other ways that the government could seemingly accomplish its objectives, such as direct provision of the services, reimbursement to the provider, and other tax/credit solutions to those seeking the services.
Youngstown Sheet & Tube Co. v. Sawyer and the Syrian Crisis
Over sixty years ago, the Supreme Court decided one of the most significant cases in American history regarding presidential power. Commonly known as the Steel Seizure Case, the Court denied President Truman’s attempt to seize private property, without congressional authority, for executive-defined “national security” purposes. The rebuff of executive authority was remarkable in its own right; but its lasting legacy was the complete inability of several justices of the Court to draw clear lines for future cases, thereby foreshadowing future interaction between the branches. Sixty years later, with a president seeking Congress’ blessing for military action in a sectarian conflict on the other side of the world, the different opinions are more relevant than ever.
Unlike President Obama, President Truman did not ask for Congress’ authorization prior to acting. Instead, he asked them after the fact, immediately after the seizure, which occurred in the middle of the Korean War.
The Court said no and stated that Truman needed authorization from Congress. Justice Black wrote a formalistic majority opinion that focused on the absence of congressional action ahead of time. He pointed to past congressional actions that seemed to deny the president the exact type of authority that Truman sought. Most importantly though, he argued that the power claimed by Truman did not inhere in Article II of the Constitution. The implicit powers that come with being Commander-in-Chief do not provide the president with a blank check, especially because Article I locates war-making and lawmaking authority with Congress. He also denied the power of precedent when it came to unilateral presidential action; past presidents may have acted beyond their constitutional authority, but that did not change the meaning of the Constitution.
Each concurring opinion was unique in its own right. Justice Frankfurter expressed skepticism about clearly defining presidential power in the context of this case. He also pointed to post facto congressional authorization as a legitimate practice, but emphasized how Congress did not act even after Truman seized the mills.
Justice Douglas’ opinion may be the most relevant in a post-9/11 world, where the limits of the War on Terror remain unknown and civil wars in the smallest countries may tangentially affect national security in some way. Douglas warned that emergency does not create power and that necessity does not place power in the hands of the president rather than Congress. Bullish on the separation of powers, Justice Douglas emphasized how the separate branches protect against arbitrary exercises of power, which are most prevalent when the nation may be under duress. The Constitution cannot change for the purposes of political convenience born from emergency situations.
The most famous opinion came from Justice Jackson. He divided presidential power, as it relates to congressional action, into three categories, with the most presidential power existing in the first situation. The categories were when: (1) the president acts pursuant to express or implied congressional authorization; (2) the president acts when Congress is silent; (3) the president acts in defiance of Congress’ will. In the first scenario, the president acts according to inherent executive authority in Article II and Congress’ blessing. In the second situation, the president acts based on Article II powers alone, which few have been able to define clearly given the textual ambiguity in Article II itself. The last situation requires the most scrutiny because the president’s action is only legitimate if the goal of the action is beyond Congress’ authority (and impliedly within Article II).
Running through Jackson’s framework is the idea that the president, while Commander-in-Chief of the military, does not, because of that title, become military commander of the entire country to the point that the president can ignore the existing legal framework. In other words, representative government still reigns sovereign because the president’s military authority is not extra-legal. Interestingly, however, Jackson does state that presidential power is broader when turned outward rather than inward (domestic) because Congress has significant authority, as enumerated in Article I, in the latter situation. Thus, even in Jackson’s eyes, there is wiggle room when foreign affairs of the highest order are involved.
What does all of this mean for the present debate occurring about action in Syria? While the facts are significantly different considering Truman’s situation involved a unilateral action on American soil related to a war effort abroad, it suggests that should Congress decide not to authorize military action, the president may be fighting a battle over legal legitimacy as well as a battle over public opinion. The risk of Congressional rejection would put the president in Justice Jackson’s third category, especially considering that Article II is silent about humanitarian missions and because Congress will be tasked with funding whatever mission takes place. From a legal standpoint, one could argue that the president would have been on sounder legal footing if he acted in Jackson’s second category, because the ambiguity inherent in Article II allows for more creative legal arguments. On the other hand, the president’s decision to seek congressional authorization comports with the spirit running through Jackson’s opinion regarding norms of representative government.
At the very least, the conversation between these Justices provides a window through which to view the interaction between Congress and the President in the coming weeks.
Who Decides?
Tracing the history of the Free Exercise Clause, and particularly what is known amongst legal scholars as “exemptions analysis,” is like riding a roller coaster. When the law started to run up against unorthodox practices with greater frequency, starting with Reynolds v. United States, the Court opted for the approach that it later took in Employment Division v. Smith. In Reynolds, the Court prioritized generally applicable laws over religiously motivated conduct in direct contravention of the law (in that case, a criminal prohibition against bigamy). The Reynolds Court made clear its concern over the idea that religious belief will relieve citizens of civil obligations that are linked to the social order.
Fast forward nearly a century and the Court makes an about face. Instead of deferring to legislative judgments, the Court decided to create a system of individualized assessment for each individual claim. The Court ushered in an era of “strict scrutiny” of laws that burden religiously inspired conduct. Absent a compelling interest, the state could not substantially burden a religious believer. This is how and why Amish parents were victorious when they challenged a Wisconsin law compelling attendance of their adolescent children at the local public high school. After Wisconsin v. Yoder, the action regarding religious exemptions from the law took place in the courts.
Nearly twenty years later, the Smith decision became the law (and still is to this day). Smith stands for the principle that neutral and generally applicable laws are presumptively constitutional even if they incidentally burden religiously motivated conduct. This rule applies across the board unless the law in question targets a specific religious belief (Church of Lukumi v. Hialeah) or the case involves another constitutionally protected interest, such as parental due process rights (how Justice Scalia distinguishes Yoder). It also does not apply if the law in question contains a system of individualized assessments, especially for secular claimants (how Justice Scalia managed to not overrule Sherbert v. Verner). A keen observer will notice that the exceptions to the rule imply that the law in question was not neutral and generally applicable in the first place. Regardless, the majority opinion in Smith prefers the work of legislatures when it comes to protecting religious freedom.
Interestingly, Justice O’Connor, while agreeing with the result in Smith, did not advocate the rule announced by the majority. Instead, she preferred strict scrutiny as the best method for preserving religious liberty to the fullest, which she labels a preeminent constitutional norm. For O’Connor, the Free Exercise Clause took the regulation of religious liberty out of the hands of the legislature for the precise reason that serves as the underlying premise of the majority’s opinion: namely that incidental burdens on religion are not in fact “prohibiting” free exercise. Somewhat obviously, Justice O’Connor points out that the Free Exercise Clause does not distinguish between indirect and direct burdens. And courts are more likely to protect religious liberty, especially for the unorthodox.
While this roller coaster of precedent could take another turn in the future, especially given the numerous conflicts between religious liberty and general regulations, as well as new marriage laws in various states, it is interesting to note that the debate between each side centers around choosing between the legislature and the courts. But nowadays, many legal challenges in the religious liberty context center around problematic regulations promulgated by an agency in the executive branch, which most likely received its authority from the legislature (federal or state). The knock against leaving these questions in the hands of the legislature is that religious freedom should not be subject to the whim of the majority; conversely, critics of judicial adjudication argue that judges are unelected, unaccountable, and not capable of drawing clear lines.
Notably, one could object to leaving these issues in the hands of executive regulators on both of these grounds. Regulations that are the product of executive bureaucratic decision-making are only indirectly and remotely democratic, and regulators are at least arguably only as accountable as judges, if not less so given insulation from the public eye.
One can only wonder whether Justice Scalia would be as deferential to the legislature now that experience has demonstrated that the legislature is significantly unlikely to actually write the law that leads to litigation. Given his general frustration with legislative delegation, perhaps he will modify Smith should the issue present itself in the future.
Modest Commentary 