January 11, 2021

The framers would have seen the mob at the Capitol as traitors

[Cross-posted from The Washington Post]

By Carlton F.W. Larson

The scenes are nearly unbelievable: An armed mob storming the U.S. Capitol to disrupt the counting of the electoral votes. The rioters claimed to be patriots, some of them even waving the Revolutionary War flag “Don’t Tread on Me.” So what would our nation’s founders have thought about this conduct?

The answer is pretty clear — they would have denounced it as treason. Article III of the Constitution limits the crime to “levying war against the United States” or “adhering to their enemies, giving them aid and comfort.” Adhering to enemies addresses aid to foreign nations or groups with whom the United States is in a state of open war. By contrast, “levying war” primarily addresses internal concerns. The Constitution’s drafters understood the term “levying war” to include any armed insurrection to obstruct a law of the United States. When tax protesters in western Pennsylvania attempted to resist the collection of federal excise taxes during the Whiskey Rebellion, President George Washington formed an army to fight them; his administration later indicted a number of the rebels for treason. A few years later, when men in eastern Pennsylvania used force to prevent the collection of a federal property tax, the John Adams administration prosecuted the leaders for treason. Supreme Court justices presiding over these trials all agreed treason had been committed. In 1842, Justice Joseph Story summarized the law, concluding it was treason “by force to prevent the execution of any one or more general and public laws of the government, or to resist the exercise of any legitimate authority of the government in its sovereign capacity.”

An armed attack on the Capitol to obstruct the counting of the electoral votes easily qualifies as treason under the framers’ original understanding of the Treason Clause. Indeed, the case is even stronger than it was in the Whiskey Rebellion and Fries’s Rebellion cases, none of which involved a direct attack on the national capital.

But in a perverse irony, the MAGA mob may be protected from a treason prosecution because of an 1851 case arising out of the Fugitive Slave Act. The Millard Fillmore administration prosecuted men in Pennsylvania who fought the return of enslaved people to captivity (and in the process killed Edward Gorsuch, a distant relative of current Supreme Court Justice Neil M. Gorsuch). Presiding over the trial, which was held in the second floor of Independence Hall in Philadelphia, Supreme Court Justice Robert Grier held that resistance to one particular law was not enough — treason by levying war requires a design to overthrow the government itself.

That’s where things get tricky. Grier’s decision has never been formally accepted (or repudiated) by the Supreme Court, but it seems likely that a federal court would follow it. Did the MAGA mob attempt to the overthrow the government of the United States, or did they just seek to obstruct one particular law (the Electoral Count Act)? A prosecutor could certainly argue it was an attempt on the government itself: The Electoral Count Act is not just any law. It’s about the peaceful transfer of power. And an attempt to thwart the certification of President-elect Joe Biden’s lawful accession to power through force looks very much like an attempt to overthrow the government itself. I have repeatedly written about the importance of not tossing the term “treason” around lightly. But of all the events of the last four years, this comes the closest to the framers’ understanding of the crime.

On the other hand, if treason charges ever went to trial, lawyers for the defendants would push Grier’s opinion for all it’s worth, insisting there was no intent to overthrow the United States government as such; they were simply protesting what they viewed, however benightedly, as a stolen election. The Constitution as it was interpreted in 1851, not the original Constitution of 1787, might then come in to save them.

But there are ample other criminal charges that can more easily be brought. Seditious conspiracy is an obvious fit. This statute prohibits, among other things, “two or more people” from conspiring to “by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof.” Seditious conspiracy carries a maximum penalty of 20 years in prison; it was most notably used recently to prosecute the 1993 World Trade Center bombers. The MAGA mob’s actions on Wednesday fit this statute to a T. Other criminal statutes, ranging from simple trespass to firearms offenses, will also come into play. District of Columbia police had arrested at least 52 people by Wednesday evening, mostly for allegedly carrying illegal weapons or violating the city’s emergency curfew.

No matter what charges are forthcoming later, one thing should be crystal clear: No person storming the Capitol to overthrow an election has any business claiming to be an heir to our country’s founders. George Washington, who laid the foundation of the Capitol building, would have viewed the attack as treason, even if modern law might not necessarily agree.

January 4, 2021

Episode 48: 'The Final Days'

Episode 48 of “What Trump Can Teach Us Con Law,” “The Final Days,” explores President Donald Trump's failure to overturn the results of the presidential election and what the Constitution has to say about pardons. Listen to the episode

November 30, 2020

'Trump Con Law' episode 47: 'Lame Duck'

[Cross-posted from “What Trump Can Teach Us About Con Law”]

By Elizabeth Joh

As of late November, most states had certified the presidential election for Joe Biden and his running mate, Kamala Harris. But Donald Trump continues to deny the results of the election and insist (without a shred evidence) that he lost because of voter fraud.

Episode 47 of “What Trump Can Teach Us About Con Law,” “Lame Duck,” explores what the Constitution has to say about the transfer of power. What if Donald Trump fails to concede? What does the constitution say about the period of time after an incumbent loses but remains in power?

Listen to the episode

October 2, 2020

Why 'treason' usually isn't treason

[Cross-posted from Zócalo Public Square]

By Carlton F.W. Larson

The last four years have been a strange time to be a scholar of American treason law. The members of this tiny (and I mean really tiny) group used to live pretty quiet lives. We could happily toil away on historical matters, undisturbed by the din of the daily headlines.

Besides, who needed modern distractions when the history was so thrilling? The story of treason—attempts to overthrow the government or to aid our enemies—is nothing less than the story of America itself. Our country was forged in the American Revolution by people willing to commit treason against Great Britain, and the Confederate cause in the Civil War was the largest-scale act of mass treason in our history. The individual characters are riveting, from Benedict Arnold and his sordid betrayal of West Point to the poet Ezra Pound, prosecuted for treason for broadcasting fascist propaganda from Mussolini’s Italy. The accused persons represent every segment of society, from a former vice president (Aaron Burr) to the local leader of a miners’ union prosecuted for treason against West Virginia in the 1920s.

For many years, I worked on the book that would become The Trials of Allegiance: Treason, Juries, and the American Revolution. I could proceed at a glacial George R.R. Martin-agonizing-over-The Winds of Winter pace because there was no obvious connection to current events. In 2015, a Zócalo Public Square essayist confidently proclaimed that “We’re living in what has to be the nation’s golden age of loyalty.” The essay was headlined, “Is Treason now Just a Punch Line?”

And then that world was turned upside down with the political rise of Donald J. Trump. The first phone call from a reporter came in July 2016, after Trump publicly encouraged Russia to find Hillary Clinton’s emails. The question—which I would quickly become used to—was: “Is this treason?” And the answer (which I also quickly became used to, given the Constitution’s narrow definition of the crime), was no. But the calls kept coming, becoming a flood after Trump’s inauguration, as antennae perked up at further revelations about Michael Flynn, Russian interference in the election, the Mueller investigation, and the infamous meeting at Trump Tower.

Around this time, my literary agent asked me to write a second book about treason, one that would bring the story up to the present day, and that would lay out the byzantine law of treason in a manner accessible to interested citizens. I wasn’t sure I was ready to take on another book so quickly, but as misguided treason charges and countercharges swirled through our national debate, I came to realize that we were in a unique historical moment. If we were going to be arguing about American treason law so much, we should at least have a better understanding of what it is—and maybe even more importantly, what it is not.

All nations have treason laws to deal with the problem of disloyalty. But if those laws aren’t carefully circumscribed, they can easily become a tool of domestic oppression—a tendency the framers of the U.S. Constitution recognized all too well. In the tumultuous years prior to the adoption of the Declaration of Independence, British authorities had threatened to prosecute American tax protestors for high treason in England, far from the protections of a local jury. Prominent attorney James Wilson, who represented Pennsylvania at the Constitutional Convention, explained the problem this way at the Pennsylvania ratifying convention: “Crimes against the state! and against the officers of the state! History informs us that more wrong may be done on this subject than on any other whatsoever.” Wilson and the other framers of our Constitution accordingly chose to define the crime directly in the document itself—and to define it narrowly. Article III, Section 3 restricts the offense to “levying war against the United States” or “adhering to their enemies, giving them aid and comfort.” Although these phrases pose many interpretive difficulties, they clearly prevent treason prosecutions for offenses such as criticizing the government or organizing a political party.

There have been few actual treason prosecutions under the U.S. Constitution, and only one person, Hipolito Salazar, has been executed for treason under federal authority (a truly bizarre case from the Mexican-American War—Salazar was a Mexican citizen, tried and convicted on Mexican soil). A handful of American presidents have been traitors, though none during their time in office—and none were prosecuted. Our first five presidents all committed treason against Great Britain during the Revolutionary War, well before the adoption of the Constitution. During the Civil War, former president John Tyler committed treason when he served in the Confederate House of Representatives. His votes in favor of Confederate military expenditures constituted participation in levying war against the United States. Curiously, the older crime of treason against individual states was not definitively eliminated by the Constitution and states have occasionally brought charges, most notably the 1859 prosecution of John Brown bythe state of Virginia for leading the raid on Harpers Ferry.

Other than the distinctive case of the secessionists during the American Civil War, it’s rare for disloyalty to rise to the level of treason as defined in the Constitution. So why is it that treason—or “treason”—is now so regularly discussed? There are two simple reasons: what Donald Trump does, and what Donald Trump says.

First, for many people, Trump’s conduct raises considerable suspicions about his underlying loyalty. Trump consistently seems to place Russia’s interests ahead of America’s, whether by ignoring or condoning blatant Russian misbehavior or by kowtowing to Vladimir Putin. Indeed, Trump’s consistent failure to publicly criticize Putin is perhaps the most bewildering aspect of his presidency. Many Americans fear the worst, pointing to news reports suggesting that Trump’s tangled financial dealings involve significant debts to Russian sources. It is not irrational to suspect that Russia may have all kinds of personal or financial kompromat on him.

In a colloquial sense, Trump’s conduct—far beyond the bounds of normal presidential behavior—may have betrayed the country. But nothing Trump has done (or is alleged to have done) formally rises to the level of treason as a matter of criminal law. Foreign nations like Russia are “enemies” only if we are in a state of open war with them. Despite all the covert back and forth with Russia, we are simply not in a state of open war. For similar reasons, Americans who spied for the Soviet Union, like the Rosenbergs or Aldrich Ames, were prosecuted for espionage (which doesn’t require a state of open war), not treason.

Still: “it’s not technically treason” is a strange thing to have to say about an American president.

Second, unlike any of his predecessors, Trump uses his presidential podium to routinely accuse other Americans of treason, targeting congressional Democrats, anonymous critics, James Comey, Adam Schiff, and, perhaps most notoriously, his predecessor, President Barack Obama.  In a Tweet (naturally), Trump claimed that the “ObamaBiden Administration” had committed “treason” by spying on his 2016 presidential campaign. These accusations lack even the flimsiest basis in fact or law—but unfortunately many of Trump’s supporters take him at his word. They are convinced that actual traitors permeate the Democratic party and the federal government.

We have become so numb to the excesses of Trump’s rhetoric that it is easy to forget just how extraordinary this is. Treason is a capital offense and routinely described as the highest crime in American law, worse even than murder. Accusing a fellow American of treason is (or at least used to be) one of the most significant utterances a president could possibly make. But now it often doesn’t even make the news.

Since the current excitement over treason and disloyalty is so heavily tied to Trump’s distinctive behavior and rhetoric, it will likely dissipate significantly when someone else occupies the Oval Office. At the same time, even a defeated or termed-out Trump may continue making outrageous claims from the sidelines, thus risking continued pollution of our political rhetoric.

American treason law is a rich and rewarding field, one that is absolutely central to the larger story of America itself. On some level, I suppose I should be pleased that the subject into which I have invested so many years of research is now attracting a much wider audience. But, as fascinating and surreal as it is to be queried regularly by reporters about whether the president of the United States has committed treason, I’d much prefer to live in a world where that question doesn’t arise.

September 28, 2020

Episode 45: 'SCOTUS without RBG'

[Cross-posted from “What Trump Can Teach Us About Con Law”]

By Elizabeth Joh

On Sept. 18, Justice Ruth Bader Ginsburg died at age 87. She was a trailblazing jurist who fought for the equality of women before the law. But her legacy is in peril, as President Donald Trump and Senate Republicans prepare to push through a conservative successor. What can Democrats do to alter the course of the SCOTUS? And what does the Constitution tell us about so-called "judicial supremacy?" Listen to episode 45 of "What Trump Can Teach Us About Con Law"

September 20, 2020

Constitutional basic values and the religion clauses

[Cross-posted from Canopy Forum]

By Alan Brownstein

The meaning of the religion clauses in judicial opinions has changed dramatically over the past 150 years. Doctrine has shifted, sometimes precipitously. The case law has been convoluted and unpredictable. The Free Exercise Clause, for example, was initially interpreted to protect religious belief, but not religious practice.  Many decades later, the U.S. Supreme Court shifted direction and held that any law that substantially burdened religious practice would receive rigorous judicial review. In theory, the Court appeared to reject the minimal protection provided by the early case law and substituted maximum protection in its place. But that theory was rarely reflected in judicial decisions. Time and again religious liberty claims were rejected because the Court found some rationale for declining to apply strict scrutiny review.

Less than 30 years later, free exercise doctrine shifted yet again. In 1990, in Employment Division v. Smith, the Court held that only laws that targeted religion or a specific faith would receive close judicial scrutiny. All other formally neutral and general laws, no matter how seriously they interfered with religious practice, would be upheld under very deferential review. 

Establishment Clause doctrine has been similarly fluid and equally convoluted. Consider just one area of dispute, whether religious institutions, such as religious schools, should be equally eligible to receive state aid provided to nonreligious institutions, such as public schools or secular, private schools. For many years the Establishment Clause was interpreted to sharply restrict such subsidies. Although the case law was often muddled, funding religious institutions was usually recognized to be problematic and frequently struck down. Today, under recent Supreme Court decisions in Trinity Lutheran Church v. Comer and Espinoza v. Montana, not only is the state funding of religious institutions permissible, it is unconstitutional for a state to refuse to provide subsidies to religious institutions that are available to their secular counterparts. 

Notwithstanding  these continuing shifts in interpretation, the Court, often, but not always, managed to advance religious liberty and equality in our country. Frequently, however, it failed to connect key values and basic principles to the holdings of particular cases. The resulting case law seemed incoherent and difficult to justify.  

The Supreme Court today appears to be on the verge of reinterpreting the religion clauses once again. In doing so, it may create more consistent doctrine. The risk, however, is that this doctrinal coherence will come at the cost of the Court ignoring basic principles and values that need to be taken into account to protect religious liberty and equality in a religiously open and pluralistic society.  Going back to basics may not resolve all or even many disagreements about the meaning of the religion clauses.1 Church-state disputes are often complex and difficult to resolve. But at least it may provide us a better understanding of what is at stake and how much we have to lose if the Court fails to connect its decision-making to the basic values in play in religion clause decisions.

Constitutional Law and Democratic Self- Governance

The foundational issue underlying all constitutional questions is the relationship between constitutional law and democratic self-government. Constitutional law displaces political decision-making.  Thus, a basic question about the meaning of the religion clauses is whether there are persuasive reasons for assigning the resolution of church-state disputes to constitutional adjudication rather than political deliberation. Advocates of rigorous and expansive interpretations of the religion clauses must explain why the conventional default process of political decision-making by popular majorities should be superseded  by  judicial decisions when religion is at issue.

At a high level of generality, one answer to this question is that the political branches of government often do a bad job when dealing with religion. The state simply cannot be trusted to make  decisions involving religion. This is a power that will too often be abused. Minority faiths, in particular, will be vulnerable to insensitivity to their interests at best and far too often will be victimized by discrimination and oppression. The immense power and resources of government should not be used to influence religious choice, by regulation or proselytizing. Americans of different faiths and those who hold secular rather than religious beliefs should be treated with equal respect by their government. We don’t trust  political majorities and the branches of government they control to do that.2

Core Religion Clause Values

A corollary to this lack of trust is the conviction that religion is an inalienable interest in the most basic sense. It is inherently a matter of individual conviction and voluntary association, not state authority. This is not an area of decision-making that is vested in government or majorities. What constitutes religious truth on transcendent matters or spiritually meaningful modes of worship should not be debated in the halls of the legislature or determined at the ballot box. Government does not need the power to decide religious issues to do its job and religion does not need the government to thrive in a free society.

If we focus on specific values, we see that the religion clauses implicate three basic rights; personal liberty and institutional autonomy, group equality, and freedom of speech. Religious liberty and autonomy is essentially a dignitary interest. It is intrinsic to human dignity for individuals to be able to make personal choices that define their identity and form the foundation of much of their lives. Accepting and abiding by a religious faith is the kind of self-defining decision that belongs, as of right, to the individual, not to the state. his liberty interest also includes the decision to not adopt a religious faith. Accordingly, protecting the freedom to exercise religion cannot impose undue costs on those who do not adopt a religious faith.

Religious liberty also further instrumental goals. If religion can be kept sufficiently separate from government, it can operate as a monitor and moral check of government abuses of power. Many of the most important movements for social change in American history were based on religious ideas and promoted by religious associations.

Religious equality requires equality of treatment and equality of respect. The latter value, grounded in an equal protection perspective, is directed at status as well as material discrimination. There is no state hierarchy of faiths according to which the government promotes or proselytizes in favor of certain religious communities and disparages or disfavors others.

Concern for freedom of speech precludes government from distorting the marketplace of ideas through the exercise of regulatory power in favor of certain viewpoints and against others. Many aspects of religious exercise are expressive in nature: proselytizing, sermons, songs and hymns, books and pamphlets, and prayer. Religion is a major voice in our society. Protecting expressive religious exercise, but not the expressive activities of secular individuals and institutions, or vice versa, raises free speech concerns. 

How do these various independent but overlapping values relate to contemporary doctrinal disputes about the meaning of the Free Exercise Clause and the Establishment Clause? In this brief essay, I cannot come close to discussing all of the church-state issues being debated and litigated today. I hope, however,  to demonstrate the importance of connecting basic values to the development of doctrine by examining three categories of cases.

Regulations That Burden Religious Exercise

Obviously, laws directed at the suppression of a particular faith conflict with the most basic principles of religious liberty and equality and are presumptively unconstitutional, a clear violation of the Free Exercise Clause. There are no legitimate purposes served by singling out religious practice or a particular faith for discriminatory regulatory treatment. Thankfully, state action of this kind is relatively rare in the United States today, in part because it would immediately be challenged and in most cases struck down.  

A much more complex question involves neutral laws of general applicability. These laws incidentally require religious individuals to engage in activities that their religion prohibits or prohibit individuals from engaging in conduct that their religion requires. The effect of the law is deemed incidental because the regulation governs both religious practice and secular activity. It is not designed to burden religious exercise. 

These are the most common kinds of laws that are challenged on free exercise grounds. A law that prohibits the possession and use of peyote is a neutral law of general applicability which prevents Native American faiths from using this drug in their religious rituals. Similarly, civil rights laws that prohibit discrimination in places of public accommodation on the basis of sexual orientation have been challenged by wedding cake bakers and wedding photographers on the grounds that they are required to facilitate and celebrate same-sex weddings, making them complicit with conduct that their religion prohibits.

Clearly, these neutral laws of general applicability may conflict with religious liberty values. Imposing civil or criminal sanctions on religious practice, even incidentally, substantially burdens the ability of individuals to abide by the dictates of their faith. Religious groups may request, and the political branches of government have the discretion to grant, discretionary religious exemptions from these general laws in order to avoid burdening religious liberty.  If we accept the basic principle that government cannot be trusted on matters relating to religion, however, depending on the political system to provide adequate protection of religious liberty is unlikely to provide a fair or adequate response to these requests. Constitutional law is a necessary alternative for protecting religious liberty when the political branches of government fail to do so.

Courts recognize the impact of these neutral, general laws on religious liberty. The reason why they  have been reluctant to take on the responsibility of protecting religious exercise against such laws is because  of the perceived difficulty of adjudicating these cases. No constitutional right is absolute. Freedom of speech and association, the right to keep and bear arms, and freedom of religion are all subject to being overridden by sufficiently important or compelling state interests. Unlike laws designed to suppress religion, neutral laws of general applicability that incidentally burden religious practice typically further legitimate and sometimes extremely important state interests. When religious liberty and these governmental interests are in conflict, how exactly are courts to evaluate and balance the competing interests at issue in a particular dispute? The problem here is not so much about the basic values underlying the religion clauses. The primary concern is whether courts can engage in principled judicial decision-making in adjudicating these cases as opposed to engaging in the subjective and arbitrary balancing of interests, a task more appropriately assigned to the political branches of government than the courts.

The weighing and comparison of religious liberty and state interests in these cases can certainly be difficult. There are real risks that judges will be influenced by their own personal values in reaching their decisions. But these costs can be overstated. Courts engage in balancing in many areas of constitutional law. The risks created by their doing so typically do not require displacing judicial review and assigning fundamental rights disputes to the legislature for resolution.

Moreover, the difficulty courts experience in adjudicating  these cases to some degree is a self- inflicted wound. Religious belief and practice, like speech, is pervasive in our society. When the exercise of a right is so broad and extensive, it will necessarily conflict with state interests in myriad circumstances. To deal with these inevitable and varied disputes, courts must develop nuanced, multi-factor doctrine to inform judges as to the appropriate standard of review to apply in particular cases. The courts have created a sophisticated doctrinal framework to do this for free speech cases. In interpreting the Free Exercise Clause, however, they have resorted to a simplistic, inadequate framework that applies only one of two standards, either extremely rigorous review or highly deferential review. Until courts develop complex doctrinal guidelines for free exercise rights, as they have done for free speech rights, it is hardly surprising that they worry that the outcome of free exercise cases may be arbitrary and unpredictable.3

Putting concerns about courts exceeding the proper role of judges aside, basic values have a role to play in deciding some free exercise cases. Many religious practices provide little in the way of secular material benefit to the religious individuals obeying the dictates of their faith and impose no harm on third parties. Exemptions from laws to permit such religious exercise provide no special advantage to religious individuals.

Some religious convictions and practices, however, have substantial secular value entirely removed from their faith-based motivation, or they impose costs on third parties. Protecting the exercise of religion in these situations raises two basic value concerns. First, freeing individuals from costly regulatory burdens has the potential to influence religious choice by providing secular, material benefits to those who receive such exemptions. Second, and similarly, the exemption in question may shift a material burden from religious believers to third parties. From the perspective of the individuals who must now bear the shifted burden, they are being penalized because they do not adhere to the protected faith.

Two examples are sufficient to illustrate this concern. Individuals avoiding military service on religious grounds as conscientious objectors obviously receive an exemption of secular value. And equally obviously, someone else must serve in their place. Similarly, if less dramatically, if Sabbath observers are given precedence for a weekend day off over secular employees who want weekend days off to spend with their family, the accommodation of the religious individuals has secular value and imposes a cost on third parties. Recognizing that protecting religious liberty has these secular consequences does not determine how cases should be decided. It should influence their adjudication, however. 

Another example of a clash of basic values involves exemptions from regulations for religious institutions that are substantially, albeit not exclusively, expressive in nature. Religious schools would be one example. Houses of worship serve important expressive functions as well. If these religious institutions are exempt from costly regulations that secular expressive institutions must obey, religious liberty values conflict with free speech values. Here, religious institutional voices are relieved of burdens that limit competing secular voices. For example, religious schools, but not their secular counterparts, may be shielded from the federal Americans with Disabilities Act or from state and local zoning regulations. If avoiding distortions of the marketplace of ideas in favor or against religious expression is a basic value, then exempting only expressive religious institutions from costly burdens may further religious liberty values but at the price of sacrificing free speech values. Indeed, from a formal legal perspective this conflict could not be more stark. A long line of Supreme Court authority has characterized religion as a viewpoint of speech. Further, it is black letter law that viewpoint discriminatory laws must receive strict scrutiny, the most rigorous standard of review the courts apply. Surely, exempting secular expressive institutions from costly regulatory burdens that their religious counterparts had to obey would be challenged as viewpoint discrimination. Providing favorable treatment to expressive religious institutions but not expressive secular institutions should be equally problematic.

State Sponsored Religious Symbols and State Directed Prayer

The church-state issues in this category of cases involve two types of disputes. In one, the government is challenged for sponsoring, directing, or expressing prayers to, or on behalf, of the community.  In the other, the government funds, maintains, or otherwise sponsors physical displays communicating a religious message. 

The government expressing or directing prayer clashes sharply with numerous basic values. If the government asserts that it is offering a prayer on behalf of, essentially in the name of, the community, as it commonly does when an official or invited guest offers a prayer to begin a city council meeting or other public event, doing so conflicts directly with a basic principle. The government is not vested with the power to speak to G-d in the name of the people. Speaking personally, I choose the words I express to G-d in prayer. The government usurps my inalienable right to determine when and what I say in prayer by claiming the authority to pray as my representative. Similarly, when students are directed to recite a prayer in public school, the state in essence is asserting the authority to decide what children express as their own religious sentiments. Yet surely, the basic value of the inalienable right of religious liberty precludes substituting the religious instruction offered to children by their faith communities with state mandated prayer.

Also, state prayer obviously and blatantly is in conflict with the principle that government should not  directly influence religious belief or worship. By placing the imprimatur of state approval and support on specific religious messages and modes of worship, the state can hardly claim even the pretense of neutrality. State prayer always reflects religious favoritism. These prayers almost routinely express the beliefs of larger faiths and ignore the religious sentiments of religious minorities. Just as we do not trust government or the majority to protect the free exercise rights of minority faiths or those faiths out of step with secular orthodoxy, we cannot trust government or political majorities to protect the religious equality of minorities when the power and resources of the state are used to promote religious beliefs and identity. 

State prayer conflicts with the basic principle that people of all faiths are entitled to be treated with equal respect. Religious minorities are denied equal respect when the government acts as if they do not exist or are unworthy of recognition when it chooses prayers to express or promote. One of the consequences of such discrimination is status harms, a commonly recognized result of violations of equality values. Minorities are injured in their “hearts and minds” by decisions that demonstrate the state’s commitment to religious hierarchy through the favoring of faiths with the political power to command the state’s attention and the promotion of their beliefs. This harm is also described as treating religious minorities as outsiders, as individuals who are not fully recognized members of the community.

It is important to understand that no one is arguing that there is anything intrinsically alienating about exposure to the prayers of other faiths. Many of us attend religious life cycle events, such as a wedding or Bar Mitzvah, of friends and neighbors of different faiths and experience no lack of respect when we are asked to stand, for example, when prayers are offered during the ceremony. In these circumstances, we appreciate that we are outsiders, invited guests who respect the religious practice of our hosts. 

The crucial distinction, of course, is that we are not invited guests in the communities in which we live and work. We belong here as of right and expect to be treated by the government with the same recognition and respect as other members of the polity. The measure of equality in a diverse and pluralistic society is the understanding that the majority does not own the public life of the community —  to which minorities are only welcomed as invited guests, if they are welcomed at all.

State sponsored or directed prayer conflicts with religious liberty as well as religious equality values. This argument is grounded in the coercive nature of these events and the nature of that coercion varies depending on context. The most obvious and incontrovertible scenario is one in which individuals are subject to explicit state sanctions if they do not attend or join in government organized worship and prayer. These circumstances are relatively rare.

Much more pervasive are situations involving implied threats of sanction or the loss of benefits. Put simply, whenever a government official exercises considerable discretionary authority over the benefits to be received by private individuals or the burdens imposed on them, the relationship between the official and individual is intrinsically coercive in nature. If government officials invite people over whom they exercise authority to join them in prayer, the invitees will experience the officials’ request as coercive whether it is intended to be or not.

Numerous examples illustrate this kind of implied coercion. If a judge requests the attorneys and litigants appearing before her to join her in prayer before a trial begins, the directed prayer is coercive. Judges exercise far too much discretion in conducting trials for attorneys and litigants not to fear they risk alienating the person whose decisions control their destiny by rejecting such a request. Nor does the request to participate in prayer lose its coercive nature in a more political setting. Town residents  attempting to influence city council members about some issue of importance to their family or neighborhood will experience coercion if they are asked to stand and join in prayer before public comment to the council. Most contested matters before a city council involve considerable political discretion. Residents planning to petition their representatives during public comment will not want to alienate the very officials whose decision they are trying to influence by refusing a request to stand and join in an offered prayer. These directed prayers are intrinsically coercive even if residents accept the implicit risk of antagonizing the decision-makers they plan to address by refusing to participate in the religious exercise.4

Concerns about implicit coercion also provide one of the strongest foundations for striking down teacher or administrator directed prayer in public schools. State sponsored religious exercises are impermissible violations of the Establishment Clause in part because of the impressionability of young children. Coerced participation in religious exercise is equally invalid, however, whether the victim is likely to succumb to state pressure or has the fortitude to resist it. A stronger argument recognizes the very substantial discretionary power that school teachers and administrators can wield over their students. Students who challenge a teacher by refusing to stand and recite a prayer as they are directed to do may find themselves penalized in myriad ways because the scope of teacher discretion in grading, classroom discipline and other aspects of a student’s life is so broad. 

The least direct, but not inconsequential, form of coercion involves the unavoidable pressure to conform to beliefs and activities that the state promotes as deserving of public support. The Court in Engel v. Vitale, a case invalidating a state directed prayer to be recited by public school students as a violation of the Establishment Clause, made this point explicitly clear. “When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain.”5

State support of religious displays, such as a Ten Commandments monument, a Latin Cross, or a Nativity Scene, create many, but not all of,  of the same conflicts with basic values that render state prayer constitutionally problematic. Here, the state’s physical imprimatur of support for majoritarian religious messages is flatly inconsistent with the principle that the state should not be influencing religious belief or affiliation. Similarly, the state’s favoring of certain faiths but not others communicates a hierarchy of religious status  and a lack of respect for those whose beliefs are not deemed to be worthy of recognition. The same mistrust of political majorities that supports protecting religious liberty under the Free Exercise Clause supports protecting religious equality under the Establishment Clause.

True, there is no direct or implied coercion created by these passive displays. But the indirect coercion which the Court described in Engel v. Vitale remains a concern. Further, the duration and magnitude of religious displays and monuments may amplify the message of religious influence and favoritism much more than an isolated and situation specific state prayer.

Some religious displays acknowledge the religious diversity of America, avoid favoritism, and communicate the message that Americans of all faiths and those who hold no religious beliefs are worthy of equal respect. The Department of Veterans Affairs provides the families of eligible American military veterans who have died a headstone for the decedent and the choice of a belief symbol to be engraved on it. Currently, 74 symbols are available, representing myriad religious faiths and nonreligious beliefs as well.6 The message of this display system is clear. Americans who serve their country under arms hold a broad range of beliefs about religion. Each veteran is entitled to equal respect from the country he or she served. If we compare this tribute to religious diversity and equality to a war memorial exhibiting a single religious display such as a large Latin Cross, the dissonance between the two displays exemplifies the inconsistency of the later memorial with basic values of religious equality and neutrality.

State Funding of Religious Institutions Engaged in Programs of Secular Value

There are a range of church-state issues implicated by the state funding of religious institutions providing services of secular value, such as schools, hospitals, and various social welfare programs. Given space constraints, I will focus on two generic disputes. First, should the government subsidizing of these programs be sharply restricted by establishment clause doctrine as the Court frequently ruled in cases prior to the mid 1980’s? Second, should religious institutions be able to demand free exercise exemptions from conditions on government funds that limit the way these institutions operate government supported programs.

With regard to the first dispute, basic values can be asserted to support both sides of this issue. For example, families seeking to have their children receive a secular education in a religious environment argue that a denial of state support burdens their religious liberty. They pay substantial taxes for the secular education of their children and they lose the entire benefit of those payments if they send their children to religious schools that receive no support for the secular part of the curriculum these schools provide. Alternatively, the religious schools themselves may claim their religious liberty is burdened if they must isolate or eliminate the religious component of their programs in order to receive state funds.

Religious liberty values also support significant limits on state subsidies of religious institutions, however. Religious institutions may assert the right to engage in faith-based discrimination and deny access to publicly funded jobs or publicly funded benefits to individuals of different faiths or who are not religious. Prospective employees or applicants for benefits argue that their religious liberty is seriously burdened when they are excluded from jobs or benefits to which they would otherwise be eligible solely because they hold the “wrong” religious or nonreligious beliefs. Equally problematic for religious liberty purposes, religious institutions may require employees  in, and beneficiaries of, state funded programs to engage in organized prayer or other religious activities. 

There is also a structural religious liberty problem created by government subsidies. The distinctive instrumental justification for religious liberty is grounded in the independence of religion from government. It is this separation of church from state that allows religion to operate as a moral check on potential abuses of government power. If religious institutions receive substantial support from the state, they risk becoming dependent on government largess, a dependency which will undermine the authenticity and commitment of their critical voice to counter government wrongdoing.

In addition to dependency, government financial support often comes with conditions and strings attached to it. As the old adage recognizes. “He who pays the piper calls the tune.” What the government funds, the government will seek, not unreasonably, to control. These controls may impose serious constraints on the religious liberty of subsidy recipients. The government may, for example, prohibit discrimination on the basis of various characteristics including race, gender, and sexual orientation by institutions receiving state support. Some of these requirements may conflict with the tenets of various faiths.

These structural religious liberty concerns segue into the second religious liberty dispute: whether religious institutions should be able to demand free exercise exemptions from contract conditions and other regulatory requirements that limit the way they operate government funded programs. If the Constitution required rigorous review of conditions on government funds  provided to religious institutions, some of the concerns about religious liberty risks associated with government support would be reduced. Much would depend on how courts applied rigorous review to government conditions limiting the use of state funds by private entities which receive subsidies to further state purposes. For example, the government may assert a compelling state interest in enforcing anti-discrimination requirements in hiring employees or providing services to beneficiaries in government funded programs. Courts may conclude that while religious institutions merit protection from state interference with the use of their own resources, they cannot commandeer state resources intended to benefit the general public with discriminatory limitations required by their faith.

While protection against direct government control of subsidized programs will alleviate religious liberty concerns for religious institutions receiving state support, including institutions of minority faiths, it will, simultaneously, exacerbate the religious liberty interests of those individuals denied access to employment or benefits because of their beliefs. A job training program operated by a government agency or secular nongovernmental provider, for example, will not discriminate on the basis of religion, race, gender, and sexual orientation in its hiring decisions. The work force is integrated, including employees with all of these characteristics. The hiring practices of religious institutions permitted to impose faith-based restrictions on employees in state funded programs based on religion, gender, and sexual orientation, may result in starkly different consequences.

The burden on the religious liberty of employees denied jobs because of their beliefs is apparent. To the extent that we recognize as a basic value that there must be some limitations on the costs and harms that religious liberty exemptions can impose on third parties, the loss of government funded job opportunities because of a person’s gender or sexual orientation would implicate this concern as well. 

Religious equality principles are also relevant to disputes about government funding of religious institutions. Under current establishment clause doctrine, state funding can only be provided under formally neutral, secular criteria. It would be unconstitutional to offer subsidies to Christian, but not Muslim institutions. While this mandate resonates with equality values, it is far from sufficient to adequately protect minorities against discrimination. Any first year law student could draft formally neutral eligibility criteria that will predictably divert funds to larger faiths and away from minority institutions. Consider a private school funding scheme that restricts subsidies to only those schools with an enrollment of over 100 students that have been in existence for over 5 years. It is formally neutral, but minority faiths are far less likely to be able to satisfy this requirement than larger faith communities.

This brief essay is intended to be illustrative of the importance of evaluating religion clause doctrine through the prism of first principles and basic values. It certainly does not come close to being comprehensive. It does suggest that a great deal is at stake when the Court interprets the religion clauses to resolve church-state disputes. There is much to be lost if the Court’s decisions ignore the core foundations of the religion clauses and the liberty, equality, and speech values that should be considered in deciding Free Exercise and Establishment Clause cases.

August 29, 2020

Episode 44: 'The Hatch Act and the Election'

Episode 44: “The Hatch Act and the Election”

[Cross-posted from Trumpconlaw.com]

By Elizabeth Joh

Episode 44 of the “What Trump Can Teach Us About Con Law” podcast explores the legality of President Trump using the White House as a backdrop for the Republican National Convention under the Hatch Act, explains the Electoral College, and tackles the president’s recent comments casting doubt on mail-in voting. Listen to the episode

August 3, 2020

Episode 43: "The Trump SCOTUS term"


[Cross-posted from Trumpconlaw.com]

By Elizabeth Joh

Episode 43 of the “What Trump Can Teach Us About Con Law” podcast reviews some of the big cases of the past Supreme Court term and considers the constitutionality of the federal policing of the Portland protests. Listen to the podcast


July 27, 2020

Beyond the right to live in the world: A reflection on the ADA and disability law

[Cross-posted from the American Constitution Society Expert Forum]

By Jasmine E. Harris

Jacobus tenBroek penned one of the most formative law review articles in disability rights history, “The Right To Live In The World, in 1966, in which he argued, among other things, that law and society should move from a custodial approach to disability regulation that prioritized segregated residences to an integrationist approach that prioritized mainstream community living. The thirtieth anniversary of the Americans with Disabilities Act (ADA), the civil rights legislation for people with disabilities, underscores the importance of Dr. tenBroek’s legacy as well. His emphasis on integration as the theoretical underpinning of law reform directly influenced key disability rights including Sections 501, 503, and 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act. The idea that people with disabilities were entitled to equal opportunity in the same ways as other marginalized groups—such as people of color or women—was nothing short of radical at the time of his article. Dr. tenBroek framed equality for people with disabilities as “the right to live in the world” which, by extension, required physical access to make the right meaningful. While the ADA has undoubtedly transformed the built world by removing architectural barriers, legal scholars and advocates agree that the ADA has been less successful in combatting disability discrimination in other priority areas such as employment.

Three decades after President George H.W. Bush signed the ADA, a bi-partisan achievement, the existence of a “right” to live in the world has proven insufficient on its own to guarantee equal opportunities for people with disabilities. Case in point, Covid-19. The current pandemic has underscored what I call the “frailty of disability rights,” the instability of the rights of people with disabilities when they compete with those of other public interests. Two recent examples illustrate how antiquated social norms and attitudes about disability undermine how disability rights are exercised, interpreted, and enforced. First, consider the ease with which states and private actors dusted off healthcare rationing policies that blatantly discriminated on the basis of disability and age, and how easily such policies passed public muster. Alabama’s standards of care, for instance, classified people with intellectual and developmental disabilities as “poor candidates” for ventilators. If not for the swift legal response from disability advocates and a subsequent settlement, these standards of care would continue to inform medical treatment and rationing in Alabama and in other states. Second, consider how owners and operators of places of public accommodations wrestle with a growing anti-mask movement. Some anti-mask activists erroneously have claimed that the Americans with Disabilities Act exempts them from state and local mask requirements because of underlying health conditions. They have also argued that the ADA and privacy laws such as Health Insurance Portability and Accountability Act prevent business owners or service providers from asking any follow-up questions about disability. To be clear, there are certainly medical conditions that require business owners to provide reasonable modifications to allow individuals with disabilities to access their services; however, the analysis is not categorical. Such assessment would require an individualized examination of whether the person meets a threshold legal definition of disability, and follow explicit procedures enumerated in the ADA and corresponding regulations.

At least three factors continue to limit the remedial reach of disability laws. First, what I have called “the aesthetics of disability”—socially determined physical, sensory, and behavioral markers of disability—trigger affective processes that mitigate interactions with people with disabilities. The degree to which a person claiming disability manifests these limited aesthetic markers—usually assistive devices such as wheelchairs, white canes, prosthetics, or visible affliction and pain taken as proxies for incapacity—determines the legitimacy of their claim to disability identity and the perceived benefits that accompany such status. From parking lots and amusement parks to the courtroom, the aesthetics of disability have become evidentiary cornerstones of legitimate claims to disability. Consider the evidentiary role of Harvey Weinstein’s walker in his sexual assault trial in New York. Also, while upwards of 61 million people in the United States have one or more disabilities, only a small percentage of this number visibly manifest the aesthetics of disability. This can affect whether a person without them wishes to exercise legal rights and entitlements, in part, because these markers influence how factfinders will judge the persuasiveness of their claim to disability.

Second, and relatedly, disability laws have a complicated relationship with privacy. Congress intended the ADA to help address attitudinal barriers that limit access for people with disabilities which requires wrestling with deeply rooted biases against people with disabilities. The actual design of the ADA protects the employee from involuntary disclosures of disability information, including their identity as a person with a disability, in the employment context; however, if the employee voluntarily discloses to others in the workplace, they may lose the broader privacy protections. This means that an employee with a less visible disability, to protect their privacy rights overall, may choose not to disclose disability even when disclosure could benefit both the individual through the accommodations process and the broader normative mission of the ADA. This is part of the reason some anti-mask activists claiming disability exemptions have been so successful. Because people do not understand the nuances and realities of disability, they may be more inclined to be risk-averse without further inquiry when someone presents the possibility of ADA liability. This, in turn, breeds public mistrust about fraud and gaming that leads to public policing of disability rights. I argue in a forthcoming paper that the assumption that disability laws ought to value privacy as a default antidiscrimination tool requires interrogation, in part, because of the negative externalities it has produced—e.g., information deficits about disability, stigma, and the perpetuation of the aesthetics of disability in law. This is not to say that we should deregulate the disclosure of medical information or force people with less visible disabilities to disclose disability identity in service of meta-antidiscrimination goals; rather, in the design of legislation and regulation of disability, we must actively debate the stakes of nudging privacy over publicity.

Third, the ADA’s statutory focus on individual remedies over structural reforms has constrained its impact. The precarious balance between individual rights and systemic change is not unique to disability law. Perhaps, as Professor Jamal Greene argues in his forthcoming book, How Rights Went Wrong, the problem is the rights framework itself that sets up a zero-sum game (perceived or real) and breeds social discontent. This global explanation is certainly plausible and applicable to disability, but I would argue that disability law takes individualization a step further. The ADA emphasizes individual assessment to avoid categorical generalizations that treat all people with disabilities as incapable, frail, and pitiable. Key ADA legal tools such as reasonable accommodations and even the “direct threat” defense demand an individualized analysis to ensure that people with disabilities have access to work, places of public accommodations, and public programs and services. Congress focused on individualization because of the pervasiveness of stereotypes about particular disabilities, some that may be highly stigmatized such as HIV/AIDS or, perhaps, Covid-19.

How do we address the deficiencies of the ADA in creating a right to live in the world? To begin to answer this question, I return to Dr. Jacobus tenBroek. Dr. tenBroek was intimately tied to the civil rights movement for racial justice. Thurgood Marshall, at the time special counsel for the NAACP rearguing Brown v. Board of Educationwrote to Dr. tenBroek to discuss tenBroek’s abolitionist theories of constitutional interpretation of Section One of the Fourteenth Amendment. Dr. tenBroek’s work viewed segregation as antithetical to the constitutional guarantees of equal protection. This is the connection between his disability related work and his constitutional abolitionist work. Justice Thurgood Marshall would later go on to dissent in City of Cleburne v. Cleburne Living Center, Inc., reasoning, in part, that people with intellectual and developmental disabilities are a discrete, insular class of people who have been subjected to extraordinary discrimination, segregation, and neglect like other marginalized groups. This recognition of interdependence, historic subordination, and shared vulnerability is the future of disability justice in the United States. The coexistence of Covid-19 and Black Lives Matter in the public mind has created space to connect the dots.  From policing to Covid-19’s effect on prisons and nursing homes, people of color, are disproportionately affected. Yet modern disability rights movements have not yet fully grappled with internal racism and the potential for an antiracist and anti-ableist approach to social justice.

But what is the proper role of law in this? It is complicated and not my intent to resolve these issues here. However, public discourse around abolition versus reform offers an interesting entry point that resonates with disability advocates. Take prison abolition. The demise of large-scale, congregate residential institutions that served people with intellectual and developmental disabilities in the 1970s, for example, may offer insights into the broader decarceration movement. In many ways, modern abolitionists advance universal design thinking, that is, rather than retain a deeply flawed institution and make tweaks to accommodate individuals in this system, we ought to rethink the entire system, critique its goals, and address the socio-political and economic inequities that lead to incarceration in the first place. This could include revisiting the importance of constitutional law (both state and federal) to the advancement of disability equality. This moment feels different. Everyone is reimagining how and why institutions exist and operate as they do. Integration remains a critical governing principle in disability law, now more than ever. Dr. tenBroek’s legacy, however, demands that we move beyond the mere right to live in the world and ask not what we need to live in this world but what kind of world we want to live in.

July 10, 2020

Down with Confederate monuments, 'up with the stars'

[Cross-posted from The Hill]

By Alan E. Brownstein

During the national debate about American symbols and monuments, Donald Trump makes two claims: He argues it is an affront to our heritage to take down Confederate monuments and rename military bases honoring Confederate generals, and he also demands that everyone — including athletes and others protesting racial injustice in our society — must act in ways that are properly respectful of our flag.

The first argument makes little sense. The second is starkly inconsistent with the first.

Monuments memorialize individuals and events that deserve to be honored. They do more than describe the past. They assign value to it. To put it simply, all individuals who played a role in American history, every event of any magnitude, is part of American history. But it is absurd to suggest that all such aspects of our heritage deserve to be honored with monuments.

During the American Revolution, 15 percent to 20 percent of the colonists were loyalists who maintained their allegiance to the British Crown. They supported British forces. Thousands took up arms against the patriots fighting for our independence. These loyalists are part of our heritage. Should we memorialize and erect monuments to them?

During the early 1900s, millions of Americans were members of the Ku Klux Klan. They are part of our heritage too. Should we erect monuments to Klan leaders as well?

Playing a part in American history, standing alone, doesn’t justify erecting monuments to people or naming military bases after them. To deserve this kind of recognition, historical figures have to have done and stood for things worthy of our admiration over time. What did the leaders and generals fighting for the Confederacy do? What did they stand for?

First, they fought to dehumanize and enslave an entire race of people. That cause deserves our contempt. It should receive no badge of honor.

Second, they took up arms against our flag. If Donald Trump demands respect for and allegiance to the American flag, why in the world does he insist on protecting monuments to, and honors for, those who disgraced it?

Trump’s apparent commitment to the flag is so great that he wants flag burning criminalized. The Supreme Court held in Texas v. Johnson in 1986 that it violates the First Amendment to punish protestors who burn the American flag as symbolic speech. This was a 5-4 decision emotionally argued by the justices on both sides.

Then-Chief Justice William Rehnquist wrote a particularly passionate dissent. In it, he quoted in its entirety a poem titled “Barbara Frietchie” by John Greenleaf Whittier. Supreme Court justices do not typically recite poetry, much less entire poems, in their opinions. But Texas v. Johnson was a special case because the flag is a special symbol. The poem recounts an allegedly true story of how during the Civil War a Confederate army invaded the northern town of Frederick, Md. Seeing the American flag flying from the attic of Barbara Frietchie’s home, the rebel troops stopped and fired on it, and “rent the banner with seam and gash.” The elderly woman, Barbara Frietchie, took up the flag before it could fall and dared the soldiers below to shoot her, but to spare the flag.

Most law school case books do not include this poem when they publish the highly edited text of Texas v. Johnson. But for the many years I taught the First Amendment as a constitutional law professor, I always read the entire poem to my classes. I wanted my students to know not only the doctrine, but also the passion stirred by this case, and by the American flag.

I doubt Donald Trump has read either the Texas v. Johnson case or Whittier’s poem. If he did, he might think for a moment about who it was that fired on the American flag and “rent the banner with seam and gash.” It wasn’t Black athletes kneeling during the national anthem, calling for our country to live up to the ideals represented by our flag. It was the Confederates whom Trump wants to honor with monuments and the naming of military bases.

And this is the key point: If you demand respect for the flag, you cannot at the same time honor the Confederate leaders and generals who turned traitor against it. The flag was on only one side in the Civil War. It flew in the ranks of the Union troops under assault by Confederate rebels.

Loyal Americans rallied to the colors. In a popular song of the time, they marched to war singing:

Yes, We’ll rally round the flag, boys, rally once again,
Shouting the battle cry of freedom.
We will rally from the hillside, gather from the plain.
Shouting the battle cry of freedom.

The Union forever, hurrah boys, hurrah!
Down with the traitors and up with the stars;
While we rally round the flag, boys, rally once again
Shouting the battle cry of freedom.

We are springing to the call of our brothers gone before
Shouting the battle cry of freedom
And we'll fill the vacant ranks with a million free men more
Shouting the battle cry of freedom.

The Union forever, hurrah boys, hurrah!
Down with the traitors and up with the stars;
While we rally round the flag, boys, rally once again
Shouting the battle cry of freedom.

We will welcome to our numbers, the loyal, true and brave,
Shouting the battle cry of freedom,
And although they may be poor, not a man shall be a slave,
Shouting the battle cry of freedom.

The Union forever, hurrah boys, hurrah!
Down with the traitors and up with the stars;
While we rally round the flag, boys, rally once again
Shouting the battle cry of freedom.

For those who respect both our flag and our history, the issue of taking down monuments to Confederate leaders and generals and renaming military bases honoring them should be an easy one.

As Americans we should rally round the flag, shouting the battle cry of freedom.

Down with the traitors and up with the stars.

That means taking down the monuments and renaming the bases.

Down with the traitors and up with the stars.