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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.

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.

President Washington’s Letter to Catholics

On the eve of President’s Day, this letter from President Washington is an interesting bit of American history:

Letter to the Roman Catholics

George Washington

March 15, 1790


While I now receive with much satisfaction your congratulations on my being called, by an unanimous vote, to the first station in my country; I cannot but duly notice your politeness in offering an apology for the unavoidable delay. As that delay has given you an opportunity of realizing, instead of anticipating, the benefits of the general government, you will do me the justice to believe, that your testimony of the increase of the public prosperity, enhances the pleasure which I should otherwise have experienced from your affectionate address.

I feel that my conduct, in war and in peace, has met with more general approbation than could reasonably have been expected and I find myself disposed to consider that fortunate circumstance, in a great degree, resulting from the able support and extraordinary candour of my fellow-citizens of all denominations.

The prospect of national prosperity now before us is truly animating, and ought to excite the exertions of all good men to establish and secure the happiness of their country, in the permanent duration of its freedom and independence. America, under the smiles of a Divine Providence, the protection of a good government, and the cultivation of manners, morals, and piety, cannot fail of attaining an uncommon degree of eminence, in literature, commerce, agriculture, improvements at home and respectability abroad.

As mankind become more liberal they will be more apt to allow that all those who conduct themselves as worthy members of the community are equally entitled to the protection of civil government. I hope ever to see America among the foremost nations in examples of justice and liberality. And I presume that your fellow-citizens will not forget the patriotic part which you took in the accomplishment of their Revolution, and the establishment of their government; or the important assistance which they received from a nation in which the Roman Catholic faith is professed.

I thank you, gentlemen, for your kind concern for me. While my life and my health shall continue, in whatever situation I may be, it shall be my constant endeavour to justify the favourable sentiments which you are pleased to express of my conduct. And may the members of your society in America, animated alone by the pure spirit of Christianity, and still conducting themselves as the faithful subjects of our free government, enjoy every temporal and spiritual felicity.

G. Washington

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.

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.



Religious Exemptions and Same-Sex Marriage

Religious Exemptions and Same-Sex Marriage

This is one of the better stories I’ve seen in the mainstream media that summarizes the debate amongst scholars, lawyers, and other players concerning maintaining religious liberty in light of the legalization of same-sex marriage in different states.  Lots of viewpoints are represented and the author does a good job of articulating the premises that motivate each side.

New Elements of America’s Civil Religion?

Robert Bellah’s Civil Religion in America essay from nearly fifty years ago was a groundbreaking work that described how the American experience has fostered a religion within the political sphere that is not formally state-sponsored or enshrined in law, at least directly.  Bellah traced this [civil] religion throughout American history, beginning with the Promised Land themes that prevailed at the time of the American Founding, to the sacrifice and rebirth that Lincoln eloquently described at Gettysburg during the Civil War.  Bellah frames the essay by reflecting on how JFK, the country’s first and only Catholic president, referenced God in his inauguration address.  He wanted to know why the president did this, and what it meant to Americans.

This short essay caused me to reflect on whether any new elements have been added to the civil religion that Bellah describes.  The article appeared in 1966, which was the midpoint of the civil rights movement that captured the nation’s attention.  Certainly, Martin Luther King Jr.’s “Dream Speech,” which occurred fifty years ago this month, added to the catechism of this religion.  Dr. King’s message revived Promised Land themes at a time of national crisis, but expanded those themes to include the power of personal conscience and Christ’s call to “do unto others as you would have them do unto you.”


Tomb of the Unknown Revolutionary War Soldier, Washington Square Park, Philadelphia

Have any other elements been added after the civil rights movement?  That movement sets the bar high for becoming part of the canon, especially when one considers the most visible aspects of the civil rights movement happened over the course of two decades, if not longer.  Arguably, one could make the case that faith in technological advancement, science, and human ingenuity, ranging from the mapping of the human genome to the personal computer (or handheld device), now holds a special place as part of the religion.  The Internet is now accepted as the prime way to express freedom and autonomy and to self-define and mold the world as one sees fit; if faith in the Internet is not a core element of the civil religion, it may be, at the very least, a temple in which to practice it.

Another possible modification is the definition of God that prevails in today’s civil religion.  The “God” of the Founders was a judge, the locus of absolute authority, and actively involved in world affairs.  The Founders also believed that God’s providence looked favorably on America’s plans.  This definition paralleled many of the institutional religions in existence at the time, even if the “God” of the civil religion did not belong to any one of them specifically.  Notably, the decline in institutional affiliation amongst Americans who self-define as religious is one of the major trends of the 21st century and is unlike any other period of America’s religious history.  Some scholars have suggested that “God” no longer resembles the figure that was present in the traditional religions at the time of the Founding.  Perhaps this is why it seems like fewer Americans tolerate references to “God” in public affairs, because if “God” is not involved in the nation’s affairs, and only relates to individuals on a private level, then it would seem to follow that the same “God” does not need to be included in any sort of national conversation.

In hindsight, Bellah’s essay was perceptive, and he even acknowledges that he could not understand why the subject had not received more attention amongst scholars.  Perhaps it is time to study how the civil religion has changed in the past fifty years.