May 3, 2021

Exploring the Meaning of and Problems With the Supreme Court’s (Apparent) Adoption of a “Most Favored Nation” Approach to Protecting Religious Liberty Under the Free Exercise Clause: Part One in a Series

[Cross-posted from Justia]


By Alan E. Brownstein and Vikram David Amar

About three weeks ago, in a per curiam (that is, unsigned) opinion in a case that was not fully briefed and argued at the Supreme Court, a majority of Justices (Justices Thomas, Alito, Gorsuch, Kavanaugh and Barrett) announced a potentially game-changing approach to processing claims brought under the Free Exercise Clause of the First Amendment. Since 1990, and the decision in Employment Division v. Smith, the Court has read that Clause not to require accommodation of religious activity via exemptions from religion-neutral and generally applicable laws and regulations, but it does mandate that government not target or discriminate against religion. The Court’s decision earlier this month in Tandon v. Newsom provides some powerful evidence about what constitutes impermissible discrimination against religion in the eyes of the new Court majority.

In Tandon, religious individuals challenged California’s COVID-inspired rule that limits all gatherings in homes to no more than three households. The challengers argued that since in other places, such as hair salons, retail stores, movie theaters, private suites at sporting events and concerts, and indoor restaurants, more than three households were allowed to come together at a time, in-home religious gatherings were being treated in an inferior and discriminatory manner. Accordingly, they argued, California’s rule could survive only if the inferior treatment of in-home religious gatherings were narrowly tailored to further a compelling government interest. In validating this challenge, a five-person majority ruled that “government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise” (emphasis in original). For purposes of our analysis here, we call the Court’s major innovation in Tandon “Most Favored Nation” (MFN) reasoning, drawing from international trade lingo, in which some nations are entitled to be treated at least as well as any other nation is being treated, and borrowing from the work of other scholars who have suggested this language and advocated for an MFN approach in free exercise cases.

As Justice Kagan’s powerful dissent (for herself and Justices Breyer and Sotomayor — Chief Justice Roberts dissented without opinion) pointed out, an MFN-style analysis always requires deciding what the relevant “comparators” are — just like in traditional MFN arenas we always need to understand how other entities are being treated for trade purposes in particular, and whether those entities are indeed nations. For Justice Kagan, the case for upholding California’s rule was strong and clear: “California limits religious gatherings in homes to three households [but if] the State also limits all secular gatherings in homes to three households, it has complied with the First Amendment. And the State does exactly that: It has adopted a blanket restriction on at home gatherings of all kinds, religious and secular alike. California need not, as the per curiam insists, treat at-home religious gatherings the same as hardware stores and hair salons—and thus unlike at-home secular gatherings, the obvious comparator here.” Justice Kagan went on to point out (as the lower courts had) that commercial gatherings are qualitatively different from in-home gathering in several respects, including the length of time people sit or stand near each other talking, the size and ventilation of the buildings, and the ease of enforcing social-distancing and mask requirements. At a minimum, the problem Justice Kagan identifies about deciding whether another activity is a fair comparator for determining whether religion is less favored is challenging (something we take up at various points in this series of essays.)

Given the practical and doctrinal difficulty courts implementing an MFN approach will encounter, we first need ask from where in prior cases this MFN notion might have emerged and what is behind it.

One possible explanation is that MFN reasoning is a plausible extension and extrapolation of Justice Scalia’s majority opinion in Employment Division v. Smith, the 1990 case we adverted to earlier, in which the Court first held that under the Free Exercise Clause, government is generally not required to grant religious accommodations to neutral laws of general applicability. But the notion that MFN reasoning is simply an explication of what Justice Scalia’s majority opinion had in mind as to the meaning of “neutral” and “generally applicable” is unpersuasive. The primary rationale the Smith majority offered to support its holding was that alternative approaches to free exercise were, as a practical and doctrinal matter, untenable. If courts applied strict scrutiny with full rigor to all laws that substantially burdened religious exercise and conferred accommodations whenever judges honestly concluded this rigorous test was not satisfied, society would devolve into anarchy as religious individuals could avoid complying with any law that allegedly interfered with their beliefs or practices. And if strict scrutiny was applied more leniently, judges would have to engage in a subjective, indeterminate balancing of interests; a task for which the judiciary is ill suited (and which lies outside its proper institutional role) and which, accordingly, is better assigned to the political branches of government.

But an MFN approach creates, indeed exacerbates, the very problems that Scalia and the four other Justices joining his opinion in Smith were trying to avoid. Interpreted and applied broadly, MFN reasoning requires rigorous strict scrutiny review of any law that includes at least one secular exemption. Under this analysis, the scope of rigorous review required by an MFN test is at least as broad as existed in the pre-Smith free exercise doctrine—the very problem the Court was trying to remedy in making the major doctrinal shift it did in Smith. And If an MFN approach is applied narrowly by aggressively limiting the scope of relevant secular comparators, courts will be engaged in the kind of subjective indeterminate quagmire Scalia wanted so much to avoid.

Whatever one thinks about merits of the Smith decision, and one of us has been harshly critical of its holding for 30 years, it is inconceivable that the majority in that case intended that the concept of general laws of neutral applicability be interpreted in a way that completely undercut the goals that the Court was trying to achieve.

Perhaps a more likely doctrinal predecessor of Tanden is not found within Supreme Court case law, but instead in a Third Circuit opinion Justice Alito authored when he sat on that court prior to being elevated. In Fraternal Order of Police v. City of Newark, about two decades ago, then-judge Alito wrote for a Third Circuit panel applying heightened scrutiny and requiring the Newark Police Department to grant an accommodation from its no-facial-hair grooming policy for police officers to an individual officer who wanted to maintain a beard for religious purposes. The fact that the Department granted exemptions to officers for whom facial hair was medically beneficial (i.e., for whom regular shaving created skin or other health problems) meant, to the Third Circuit, that religious requests for exemptions also had to be granted. Religious claims for exemption could not be treated less favorably than secular claims for exemption, when both claims interfered with the goals of the Department’s grooming standards — in this case uniformity of appearance — unless the Department could satisfy a heightened-scrutiny standard of review. More on this case a bit later.

Moving beyond case law foundations, what theoretical arguments are there to support an MFN approach? The substantive justification offered by some jurists and scholars supporting an MFN analysis is that the MFN principle is grounded on the notion that government cannot devalue religion by treating any secular interest, including public health and access to medical care, more favorably than an allegedly comparable religious belief or practice. This idea that for a right to be taken seriously its exercise can never be devalued in a relative sense—that is, can never be afforded less value than some other activity — is not generally recognized, partly for commonsense reasons. Applied to free exercise of religion in an energetic way, MFN analysis can often seem counterintuitive in the extreme. Assume a court upholds a city ordinance requiring private parades traveling through city streets to obey traffic rules and stop at stop signs and red traffic lights. Assume also that the court has recognized that ambulances driving patients to the hospital are not subject to these limitations. Certainly the Free Speech Clause would not require that a caravan of car protestors receive the same favored traffic-law treatment provided to ambulances. Yet under a MFN approach, if the caravan consisted of religious worshippers—say, on the way to a funeral—would we conclude that unless the hearse and other mourners were allowed to speed through red lights that their religious liberty would be constitutionally disrespected and impermissibly demeaned on account of the relatively superior treatment of emergency medical vehicles?

It’s easy to imagine one’s own parade (no pun intended) of horribles. But the problem with the MFN principle extends far beyond counterintuitive examples of its application. The MFN analysis in many ways fundamentally misunderstands and mischaracterizes the very nature of constitutional religious liberty. There are, to be sure, some fundamental rights that we protect because we value the social utility of the exercise of the right. Voting is an obvious example. But it is far less clear that the free exercise of religion fits securely within this category of protection on account of clear social utility. Instead, we protect the free exercise of religion because we do not want the state, and that includes judges, to interfere with religious choice and the voluntary association—the autonomy, if you will—of religious individuals. As a constitutional matter, we protect religious exercise because we do not trust the state to make judgments about religion. The reason that religious exercise receives constitutional recognition and protection is not because the Constitution assigns some heightened value to religious belief and practices over and above the wide range and majority of secular interests the state may deem worthy of protection.

This key distinction becomes particularly clear when we try to account for why religious majorities commit themselves to constitutional doctrine that protects minority beliefs the majority considers false and even dangerous. As one of us has explained this phenomenon in academic writings:

Religious individuals who support religious liberty for adherents of faiths they believe to be false do not do so because they believe that the faith communities receiving protection are moral or correct. The justification for protecting false faiths does not depend on the accuracy or value of what is believed. At its core, religious liberty recognizes the deeply felt need of individuals to determine religious truth for themselves and the right to live one’s life authentically in accordance with one’s religious identity.

The difference between protecting religion because of the value the state assigns to its exercise and protecting religious liberty to prevent the state from having any meaningful say in what religion requires or the importance of religiously grounded beliefs and practices is further demonstrated by the way courts define and identify religion for constitutional purposes. If we protect religion because of its relative and high value, one would think courts would carefully define what religion is so that they would be only protecting those interests that deserve special constitutional attention and protection. But that is not the case. There is no working operational definition of religion in free exercise jurisprudence. The lack of a definition reflects the courts’ concern that by attempting to identify and distinguish religion from non-religion, judges would get impermissibly caught up in involving themselves with the nature, value, and meaning of religion. That this is forbidden territory reinforces the idea that we protect religion by keeping it free from state involvement, not by assigning relative value to its exercise.

Even if one were to support the idea that we protect the free exercise of religion because the Constitution requires government to value religion at least as much it not more than secular interests the state deems worthy of protection, the lack of a working definition of religion, indeed the intrinsic fluidity of religious belief in a pluralistic society, makes the kind of comparison envisioned by MFN jurists and scholars particularly challenging. Exemptions from legal requirements may be extremely desirable because they free claimants from burdens they would find to be especially disturbing or because in obtaining the exemption the claimant receives something of secular material value. Consider, for example, that being exempted from the military draft might enable someone to avoid a crisis of religious conscience, but it also confers a material benefit—freedom from the risk of getting killed in a war zone—that many would desire. Or consider that the entitlement to be free from work on the Sabbath (either Saturday or Sunday) permits more than the freedom to go to religious services in the morning; it also allows someone the latitude to spend more time with their family and to engage in whatever non-vocational activities their faith permits. These secular-benefit externalities also figured prominently in the decision made by the Court in Smith, and they could easily bedevil courts seeking to undertake an MFN approach.

One reason for this has to do with how, as a matter of evidentiary sincerity, claims for religious accommodations are asserted. Claims for secular exemptions can often be grounded on objectively verifiable evidence. Medical issues experienced by people receiving vaccines or complying with facial shaving requirements or seeking 4F exemptions from conscription can be clinically evaluated. The evaluation of religious claims for exemption have no such basis for objective evaluation and depend on a subjective determination of the claimant’s sincerity. This means that there are risks of sham claims when religious claims of secular value are asserted, a concern that the state may not need to be as worried about when secular exemptions are granted.

It is not clear how the potential for sham claims should be taken into account in engaging in an MFN analysis. What should happen when the state explains that it grants a secular exemption but not a religious exemption because there is much less risk of false assertions for medical exemptions than for religious ones? The problem here is not simply the difficulty of drawing comparisons, a problem that confuses and undermines MFN analysis as a general matter. When constitutionally mandated religious exemptions result in secular benefits being made available to virtually all religious claimants, and only a few secular claimants are equally eligible for such benefits, the MFN framework can be challenged as unfairly privileging religion.

There is a deeper concern here that also must be addressed. When the courts require the granting of religious exemptions that also have secular value, they not only might be thought to improperly privilege religion, they create an incentive for individuals to affiliate with a faith and to use that as a basis for asserting the right to an exemption. The creation of such incentives is anathema to the constitutional mandate that religion should be a matter of voluntary choice without state action promoting individual beliefs and practices. Unless MFN analysis can respond to this concern, it raises problems that deserve serious attention.

We see no evidence that MFN is up to the task. In the Fraternal Order of Police case described earlier, for example, what would prevent a police officer who thought he was much better looking with facial hair to assert a sham religious liberty claim grounded on the exemption provided to officers who suffered medical consequences if they complied with the Police Department’s grooming standards?

We want to be clear here. The possibility of free exercise claimants asserting sham claims should not preclude the development of free exercise jurisprudence recognizing the legitimacy of free exercise exemptions in appropriate circumstances. But the risks of sham claims are not immaterial.  And if the MFN framework has legs in the eyes of a majority of Justices, this framework would need to innovate doctrinal tools for evaluating them.

One final example involving secular externalities and fluid religious commitments further illustrates the complexity involved here. If conscription was reinitiated, individuals who were otherwise eligible to be drafted might be granted a secular deferment because of medical limitations that interfered with their ability to participate effectively in combat, a status historically called 4F. Under accepted law, religious pacifists whose beliefs would interfere with their ability to participate effectively in combat would also be granted conscientious objector (CO) status. It has long been recognized, however, that the beneficiaries of CO status can be required to perform alternative service. This requirement operates as a check on sham claims for exemption and it places some civic obligation on claimants who avoid the serious burden of military service.

If we now add MFN analysis to the mix, does it become unconstitutional to impose alternative service on CO beneficiaries if we require no comparable civic obligation from individuals receiving medical deferments? Obviously, the CO beneficiaries (who are required to perform alternative service) are receiving exemptions of lesser value than individuals receiving medical deferments (who are not). Does that constitute the devaluing of religion? Or is it simply the state’s recognition that religious exemptions and medical exemptions are sufficiently different (in terms of proof of validity and necessity) for constitutional and public policy purposes that they do not need to be treated the same way — even if that seems inconsistent with MFN analysis.

In our next installment, we continue to try to locate an MFN approach in the larger constitutional context to permit careful analysis.


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.

February 17, 2017

Op-Eds on the Trump Administration by King Hall's Constitutional Law Faculty

King Hall faculty continue to make many media appearances and write opinion articles following the election of Donald Trump as President. Hot topics range from immigration and the environment to human rights and treason.

Here are recent op-eds by two of our Constitutional Law faculty.

"Congressional Caution Is Needed" by Alan Brownstein in U.S. News & World Report

Brownstein writes about President Trump's call to repeal the Johnson Amendment, a tax code provision prohibiting tax exempt nonprofit organizations from engaging in political campaigns for electoral candidates: ""Americans are more than political antagonists. We can see each other as people and families with far more in common with each other than the political disagreements that divide us.  To do that, we heed to have neutral spaces where we can leave partisan divisions behind us.  Charities should be places where our common humanity and the American virtues we share of generosity and service come to the fore. Houses of worship should be places where we are neither Democrats nor Republicans, but rather people joined in humanity and humility in spiritual fellowship and worship."

"Five Myths about Treason" by Carlton Larson in The Washington Post (This piece was posted online today and will appear in Sunday's print edition.)

An excerpt: "The Trump administration promised to do things differently, but the resignation of a national security adviser under a cloud of suspicion of treason was novel even by Trump standards. The political landscape is now littered with accusations of treason, not just against Trump officials but against all kinds of other political actors as well -- Hillary Clinton, Mitch McConnell, even the state of California. Treason is an ancient concept shrouded in misconceptions. Here are a few."

May 4, 2016

Zubik v. Burwell: Women and Religion in the Market

Cross-posted from JURIST.

The US Supreme Court heard oral arguments in Zubik v. Burwell on March 23, 2016, six years to the day the Affordable Care Act (ACA) became law. The petitioners, a group of religious organizations, have challenged the ACA's contraceptive coverage requirement. The challenge is a free exercise claim under the Religious Freedom Restoration Act (RFRA) [PDF], a federal statute. The court has now heard four challenges to the ACA.

The contraceptive coverage requirement is part of a broader provision that requires coverage for preventive health care without cost-sharing. This provision serves the ACA goals of improving health care access and reducing health care disparities among populations. Even small co-pays create barriers to health care. The ACA emphasizes the importance of preventive health care by removing that barrier.

Cost-sharing mechanisms like co-pays reflect the fact that health care services are delivered in a commercial market. The ACA coverage requirement applies to FDA-approved contraceptives. Prices for drugs and devices in the US are among the highest in the world. Contraceptives are distributed within that market. Recent stories about the role of profit-motive in pharmaceutical pricing highlight new cancer drugs and Hepatitis C drugs that cost several hundred thousand dollars a year. Plain old oral contraception, the most widely used contraceptive, can cost close to $1,000 per year for those without insurance coverage. Intrauterine devices, a type of long-acting reversible contraception, typically cost $500 to $1,000. Those amounts are less than 1 percent of the highlighted examples, but they are a great deal more than many can afford. Because most FDA-approved methods are available on a prescription-only basis, obtaining contraception also requires the time and cost of visiting a doctor. Oregon and California have enacted law making some contraceptives (the pill, the ring and the patch) available over-the-counter, with a pharmacist prescription. Those laws make the doctor's visit, and the accompanying costs, unnecessary for most. People without coverage, however, will still face out-of-pocket costs for the contraceptives.

The contraceptive coverage requirement applies to employers who provide health insurance as a benefit. The Zubik petitioners are religious organizations who hire employees and run colleges. Their employees and students rely on petitioners for health insurance access, but do not all share the petitioners' religious objections to contraceptive use. The ACA provides accommodation for religious employers, which removes petitioners from the responsibility of paying for coverage and yet makes coverage available to employees and students. Petitioners, however, claim that submitting the one-page form to obtain the accommodation makes them complicit in providing contraceptives.

The arguments were fascinating. You can listen to or read [PDF] them. RFRA requires that petitioners show the contraceptive coverage requirement imposes a substantial burden on free exercise of religion. If petitioners can do that, the government must justify the burden by showing that the contraceptive coverage requirement is based on a compelling state interest and that there is no less restrictive means of achieving that interest. The justices and lawyers spent much of oral argument addressing the substantial burden requirement. In an exchange with Justice Kagan, Paul Clement, representing petitioners, distinguished between an authorization form and an opt-out form. Clement seemed to suggest that an opt-out form would not make petitioners complicit, while an authorization form would, and thus, substantially burden free exercise. Much of the substantial burden argument turned into a battle of analogies. Noel Francisco, also representing petitioners, characterized the coverage requirement as "seizing control." The most bandied-about analogy was "hijacking"-as in, by requiring contraceptive coverage, the government is hijacking the religious employers' benefit plans. Chief Justice Roberts fully embraced the hijacking analogy. In the meantime, Justices Sotomayor and Kagan challenged Clement on petitioners' analogy to military objectors during war. Clement agreed that laws penalizing conscientious objectors substantially burdened objectors' free exercise, but asserted the objectors had to affirmatively object, while petitioners should not have to in order to obtain accommodation.

Donald Verrilli represented the US government in arguments. (Because he is the US Solicitor General, the justices call him "General Verrilli.") He argued that the procedure for obtaining an accommodation would not substantially burden petitioners' free exercise of religion. He and Justice Alito spent some time in the weeds about the fact that employers with self-insured plans must submit not one, but two pieces of paper. The existing accommodation exempts religious employers from paying for contraceptives regardless of whether the plan is fully insured or self-insured. So the only difference is, in fact, the extra piece of paper.

Verrilli marshaled his time to address petitioners' proposed alternatives to the existing accommodation. Petitioners' briefs proposed that rather than obtaining contraceptive coverage through employer-sponsored or student insurance, employees and students could use Medicare, Medicaid, Title X, contraception-only insurance policies or individual policies purchased in the insurance marketplaces. Some of these proposals do not exist. For example, insurers do not offer contraception-only policies. Even if available, a separate policy might very well offer a different provider network than a petitioner's plan. All of the proposals, including individual policies, would raise barriers to access and undermine the purpose of requiring preventive care coverage without cost-sharing. None, as Verrilli pointed out, are available under existing law. Access to Medicare, Medicaid, Title X and the marketplaces would require significant amendment of eligibility laws.

Near the end of Verrilli's allotted time for argument, Sotomayor returned to the conscientious objector analogy. She distinguished conscientious objectors in wartime from the Zubik petitioners' challenge to the accommodation. In Sotomayor's view, conscientious objectors do not trigger regulatory power over third parties, but the effects of Zubik petitioners' request would rebound on petitioners' employees and students. Sotomayor's distinction points to the origins of the RFRA. Congress enacted RFRA in response to a 1989 Supreme Court decision called Employment Division v. Smith. The late Justice Scalia wrote the majority opinion, in which the court stated that the Constitution's Free Exercise Clause did not excuse an individual from complying with a generally applicable law. In other words, the Constitution does not require accommodation for those whose religious beliefs place them in conflict with the law. Scalia's opinion listed examples-laws requiring military service, payment of taxes and vaccination. RFRA passed with bi-partisan support. Many supporters worried that the Supreme Court had peeled back protection for members of minority religions whose beliefs are more likely to differ from majoritarian norms underlying law. In Smith, for example, the court rejected free exercise claims by two Native Americans who were fired and denied unemployment benefits after using peyote in a religious ceremony. Before Smith, the court had recognized free exercise claims by a member of the Seventh-day Adventist Church who was fired for refusing to work on Saturday, the Adventist Sabbath. In those two cases, exempting the religious claimants from state unemployment compensation laws did not interfere with others' rights. Exemption may have inconvenienced the state unemployment office, but it did not produce interference with third party rights.

With Scalia's death, it seems very likely the eight justices may split. Questions and statements in oral argument, as well as prior votes, indicate that Roberts, Alito, Thomas and perhaps Kennedy will hold that the existing accommodation violates petitioners' statutory rights under RFRA. Ginsburg, Breyer, Kagan and Sotomayor, on the other hand, seem likely to find no violation.

In the meantime, the court has taken an unusual step. On March 29, the court issued an order [PDF] directing the parties to file additional briefs. The briefs are to address "whether and how contraceptive coverage may be obtained by petitioners' employees through petitioners' insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees." The Order includes an example for the parties to consider. What if petitioners contracted with an insurer and informed the insurer that they did not want to include contraceptive coverage and the insurer notified employees that it would "provide cost-free contraceptive coverage and that such coverage is not paid for by petitioners and is not provided through petitioners' health plan." The example echoes a hypothetical that Clement and Francisco used in arguments. They posited an "uber-insurance policy" that provides contraceptive coverage to all women in the US, as a counterpoint to the alleged hijacked plans offered by petitioners to employees and students. In essence, they described a private single-payer plan for contraception. Both the court's example and the uber-policy scenario rely on the fictional existence of contraceptive-only plans. Even if petitioners and five justices will this type of plan into existence, it would require significant government intervention in the market, as well as two forms of insurance and the possibility of two different provider networks for petitioners' employees and students.

The order and the question it poses signals what the vote will hinge on. More specifically, it indicates Kennedy's attentiveness to the complicity concerns and the fact that RFRA does not permit religious claimants to hijack the government's administrative and regulatory systems to implement an accommodation. The court may split along other lines, as well. Ginsburg asked whether religious organizations should necessarily receive the same protection under RFRA as a church. Kennedy asked whether a church organization should be treated the same as a university. As noted, petitioners consist of both church-affiliated organizations and religious universities. The questions suggest that universities may be less likely to receive accommodations that impose burdens on third parties. On the other hand, Ginsburg and Kennedy's questions may just have been aimed at Francisco's sweeping assertions about the RFRA's scope of protection for free exercise.

What should be notable is that because the parties to the case are religious employers and the federal government, people who use contraceptives-mostly women, are positioned as third parties. Yet, the so-called third parties have a significant stake in this case: health, autonomy and equality. When you set aside the analogies and hypotheticals, the case positions women between the privatization of health care and the religious beliefs of others.

December 10, 2015

How the Right and the Left Are Getting San Bernardino Wrong

This article originally appeared on The Huffington Post on December 7, 2016.

14 people are dead. 21 are injured.

A young couple armed for battle attacked a Christmas party full of the husband's colleagues. In the face of this nightmare -- both the 355th mass shooting in 336 days in the United States, and one that came less than three weeks after the Paris attacks -- right and left alike are sticking to their scripts rather than grappling with the complex reality. If we are to successfully prevent future massacres, that has to change.

First and foremost, we have to think of the victims and their families.

And then we have to declare all-out war on the political ideology of Islamism that motivated Syed Farook and Tafsheen Malik, while simultaneously standing firm against all attempts to discriminate against Muslims generally. We have to disarm all potential terrorists by toughening up gun control laws and by discrediting the foul ideas that motivate them. (And we have to name those ideas without fear of being labelled politically incorrect. ) The right and the left, more worried about their fight with each other than the fight against terrorism, have made this an either/or choice when it is both/and. We cannot succeed by only doing one of these things or the other.

The right rushed in almost immediately. Twitter was full of smears of all Muslims, President Obama, immigrants, etc. Ann Coulter tweeted: "it's been a 50 year invasion." "Where," shrieked Pamela Geller, "are the programs in mosques and madrassas teaching against jihad? NONE." Are there enough such programs and are they succeeding? No. But, as someone who has spent years traveling the world talking to Muslims, including clergy, who are challenging extremism, I know that this is simply a lie. As the icing on the cake, Marco Rubio now denies that there is any discrimination against Muslims in America.

The left meanwhile, as exemplified by the tepid statements of Democratic candidates -- has only been willing to talk about gun control and has mostly refused to name a key part of the problem in this case -- Muslim fundamentalism or Islamism, a virulent political ideology (which represents the far right of the Muslim political spectrum). That ideology today poses a global threat and is one that many (but not enough) people of Muslim heritage themselves have been fighting against all around the world for years. Hilary Clinton deems it insulting to say "radical Islam." Not saying it, when it represents a reality, is much worse.

The double standards have been stunning. On the right, people who denounced anyone who dared make a connection between the Colorado Planned Parenthood shooter and its own extreme anti-choice discourse were instantly linking the San Bernardino bloodbath to "Islamic" terrorism before there was any evidence other than that the first suspect had a foreign sounding name. On the left, the same people who had instantly (and correctly) recognized the politics of the Planned Parenthood shooting were reticent to admit any connection to terrorism here or to discuss the possible political motivation, even as thousands of rounds of ammunition were being found in the "IED factory" Farook and Malik had in their garage.

The soundtrack to all of this has been a diatribe from the Far Right in the West increasingly suggesting that all Muslims are members of one big sleeper cell and that there is something inherently wrong with this religion, and this religion only. Such views contravene basic tenets of humanism and decency. They also give a powerful weapon both to actual fundamentalists and those who apologize for them by suggesting that the extremists are just fighting an oppressive, imperialist West and defending Muslim interests. Making Muslims into victims, or making them feel like they are, plays into the hands of the fundamentalists who know just how to play that card.

While the Western Right sometimes advocates bigotry and international crimes -- like killing the families of terrorists as Donald Trump appallingly suggests -- in response to Muslim fundamentalist violence, the Western Left often refuses to recognize the reality of that violence and the actual danger posed by its underlying ideology.

They should listen to progressives of Muslim heritage whose words also belie the claims of the Gellers of the world. For example, Algerian anti-extremist activist Cherifa Kheddar, whose own brother and sister were killed by the Armed Islamic Group in 1996, clearly explains that you cannot end jihadist violence without "prioritizing the fight against fundamentalism which makes the bed of jihadism."

A similar point was made by a petition authored by Muslim journalist Mohamed Sifaoui and published last summer in the leftwing and secular French magazine Marianne that was signed by some 2000 people, mostly people of North African, Muslim heritage. "Islamism imposes a war on us and its principle weapon is terrorism, but Islamism also imposes on us a great ideological battle that we must face up to collectively."

In facing up to this very battle, President Obama got some things right in his Oval Office speech though he mainly pledged -- somewhat incongruously -- to continue the same strategy against a threat which has evolved, and emphasized what he would not do. However, he rightly reminded us that Muslim Americans are an integral part of the community. Discrimination is an unacceptable response to terror. Allowing terror suspects to arm themselves inside our borders is not a good idea. And at the same time he insisted that Muslims must confront extremism which is a grave threat and one that has, in fact, taken root in certain quarters, including here in the U.S..

What we need to do now -- rather than giving a forum to self-appointed spokespeople like CAIR who have not led the fight against extremism -- is listen to those who have actually been taking on this very struggle the President referenced. One of those brave people, Ani Zonneveld, the Malaysian American head of Muslims for Progressive Values based in Southern California, wrote to me the day after the San Bernardino slaughter. "You cannot be religious and go out and kill in Islam, and yet again we are witnessing murder in the name of our faith. The fact that guns are easily accessible and there have been more than 355 mass shootings in America to date should be irrelevant to our internal conversation. Our conversation should be why and what is it in our theology that has been so bastardized to give people permission to kill? Until we honestly root this out, we will by default be blamed."

To enable the "rooting out" Ani calls for, the right and the left need to focus on the actual problem and not on each other. They all need to carefully distinguish between Muslims, people of Muslim heritage and immigrants on the one hand, and Islamist extremists on the other. They must be tolerant toward the former who are key allies, and unwaveringly intolerant of the latter. As a necessary first step, they must speak the name of the problem: "Muslim fundamentalism."

The memory of the victims of San Bernardino, and of so many other recent terror attacks around the world, demands nothing less from us today.

December 8, 2015

Muslims are to Trump as the Chinese were to President Arthur in 1882

A political cartoon from 1882, showing a Chinese man being barred entry to the "Golden Gate of Liberty". The caption reads, "We must draw the line somewhere, you know."  Courtesy of Wikipedia

Yanan Wang in the Washington Post draws parallels between Donald Trump's call for the prohibition of Muslims from entering the United States and the sordid history of Chinese exclusion.  I was jarred (pleasantly) by her reference in the conclusion to one of my law review articles from 1998:

Trump's call for a "total and complete" ban on Muslims entering the U.S. has received widespread criticism in part because it evokes a history widely considered shameful now, not just in its application to the Chinese but to a succession of ethnic and religious groups lumped together for exclusion at one point or the other: Irish Catholics, Jews, South Asians, Turks and Pacific Islanders, among others.  Enacting such a proposal would mean going back 72 years in U.S. history, to before the Chinese Exclusion Act was repealed by President Franklin Roosevelt in 1943.

In his paper "Race, the Immigration Laws, and Domestic Race Relations: A 'Magic Mirror' into the Heart of Darkness," University of California Davis law school dean Kevin Johnson contended that exclusionary immigration laws are in part reflections of prevailing opinions about racial minorities already settled in the U.S.

"For better or worse," Johnson wrote, "the history of national origin and racial exclusion in U.S. immigration laws serves as a lens into this nation's soul...This phenomenon is not limited to racial minorities, but applies with equal force to other groups who have been excluded from our shores under the immigration laws."

June 5, 2015

Takeaways From the Facebook Threat and Title VII Head Scarf Cases Handed Down by the Court This Week

Cross-posted from Justia's Verdict.

On Monday, the Supreme Court handed down two cases, Elonis v. United States and EEOC v. Abercrombie & Fitch, that had received a lot of press in earlier stages of the litigations and that, judging from the briefs, posed important civil rights issues concerning freedom of speech and freedom of religion, respectively. Although the Court ended up resolving the two matters on relatively narrow grounds-disappointing some of the Justices as well as analysts-it is important to understand precisely what the Court did (and did not) hold in these two rulings, both of whose outcomes were decided by 8-1 votes. In the space below, I briefly discuss the two decisions individually and then side-by-side.

Elonis v. United States

Based on statements he posted on Facebook directed at, among others, his ex-wife, federal law enforcement officials, and school children, Anthony Elonis was convicted of violating federal criminal statutes that prohibit the interstate transmission of communications containing threats to injure other persons. For example, in referring to FBI officials (who had visited his home to interview him about his activities), Elonis wrote online (seemingly in rap-style cadence):

[T]he next time you know, you best be serving a warrant
And bring yo' SWAT an explosives expert while you're at it
Cause little did y'all know, I was strapped wit' a bomb . . .
I was jus' waitin' for y'all to handcuff me and pat me down.
Touch the detonator in my pocket and we're all goin' BOOM!

In another posting, Elonis offered:

That's it. I've had about enough.
I'm checking out and making a name for myself.
Enough elementary schools in a ten mile radius to initiate the most heinous shooting ever imagined. . .
The only question is. . . which one?

In entries about his wife, Elonis wrote: "There's one way to love you but a thousand ways to kill you. I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, bitch . . . " And so forth.

At Elonis's criminal trial, the federal district judge instructed the jury that, for purposes of whether Elonis had issued threats prohibited by the statute, "[a] statement is a true threat [subject to prosecution] when a defendant intentionally makes a statement in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily injury or take the life of an individual." Elonis argued under both the First Amendment and also under the federal criminal statute he was charged with violating that, before a person can be punished for expressing a threat, the government must allege and prove that the defendant subjectively intended to threaten his victim. In other words, Elonis argued that the government needed to prove that he had some subjective state of mind with respect to the effect that his words would have on the individuals to whom they were directed, and not simply that he voluntarily uttered the words and should have known the effect those words would create.

The U.S. Court of Appeals for Third Circuit (along with a large number of other circuits) have rejected the idea that the First Amendment requires the government to prove any subjective state of mind in order to punish threats consistent with the First Amendment. Instead, the Third Circuit held that statements that are reasonably construed as threats by listeners can lawfully be punished. In contrast, the Ninth Circuit (and a number of state high courts) has read the First Amendment as requiring the proof of a subjective intent to threaten as a predicate to a prosecution for threatening speech.

When the Supreme Court granted review, most commentators expected it to weigh in on and resolve this divergence in the lower courts over what the First Amendment requires. But in its ruling three days ago, the Justices decided the case purely on the basis of the federal statute under which Elonis was prosecuted; the Court explicitly deferred any analysis or interpretation of First Amendment requirements. And under the federal statute at issue, the Court said, Elonis is correct that some subjective intent by the person uttering the alleged threat is required; negligence by the person issuing the threat (in the sense that he reasonably should have foreseen that his words would be interpreted as threatening) was not enough. Although Chief Justice Roberts's majority opinion conceded that there is no intent standard written into the text of the federal statute, the Court nonetheless found one based on the way similar statutes had been construed. The Court did not specify precisely what level of intent the federal government must prove-and explicitly left open the question whether recklessness (a conscious disregard of a known risk that words could cause fear) is enough for the government to prove, or instead whether a higher form of intent such as actual knowledge is needed-but reversed Elonis's conviction and sent the case back to the lower courts because negligence on his part was not adequate to support a conviction under the statute.

EEOC v. Abercrombie & Fitch

Samantha Elauf is a practicing Muslim who regularly wears a headscarf for religious reasons. When she applied for a job at an Abercrombie & Fitch (A&F) retail store, the A&F managers evaluating her candidacy declined to hire her because the wearing of head scarves violates an appearance (or "Look") policy A&F has; employees in retail positions are prohibited from wearing caps and other headwear. Prior to their decision not to hire Ms. Elauf, the A&F managers had internal discussions about her in which one of the managers who had some acquaintance with Ms. Elauf expressed the belief that Ms. Elauf wore headscarves because of her faith.

The Equal Employment Opportunity Commission sued A&F on Ms. Elauf's behalf, alleging that A&F had violated Title VII, which prohibits an employer from deciding not to hire an individual because of the individual's religious observance or practice, unless the accommodating the observance or practice would create an undue hardship for the employer. A&F argued, and the Court of Appeals for the Tenth Circuit agreed, that A&F should not be liable because "ordinarily an employer cannot be liable under Title VII for failing to accommodate a religious practice until the applicant . . . provides the employer with actual knowledge of his need for an accommodation."

The Supreme Court reversed. Justice Scalia, calling this a "really easy" case when he delivered the decision from the bench, authored the majority opinion which said a Title VII plaintiff need not show "actual knowledge [by the employer] of a conflict between an applicant's religious practice and a work rule," because requiring such actual knowledge would involve the Court "add[ing] words to the law to produce what is thought to be a desirable result [. . . , which] is Congress's province." He went on: "We construe Title VII's silence [as to the requirement of actual knowledge] as exactly that: silence."

But Justice Scalia did say that a Title VII plaintiff like Ms. Elauf had to show the employer's adverse action against the applicant was based at least in significant measure on a motive to avoid the religious accommodation. But how can an employer be acting based on a motive to avoid accommodating an applicant's religion practice-"because of" an applicant's religious observances, in the language of Title VII-if the employer doesn't know that the applicant's conduct requiring an accommodation is itself religiously based? Justice Scalia acknowledged, in an important footnote, that it "is arguable that the motive requirement itself is not met unless the employer at least suspects that the practice in question is a religious practice," but that issue need not be decided in the A&F case because it has not been briefed by either side and because A&F "knew or at least suspected that the scarf was worn for religious purposes." Oddly enough, then, the majority opinion technically holds open the possibility that an employer who had no clue that a prospective employee's likely non-compliance with a work rule was religiously motivated could be held liable under Title VII, a result that Justice Alito in his separate concurrence rightly calls "very strange" and "surely wrong."

The Two Cases Taken Together

What can we say about these cases when we look at them in tandem? First, it is interesting that Justice Clarence Thomas is the lone dissenter in both decisions, and that he parted company with Justices Scalia and Alito (with whom he is often aligned as to result) on the interpretation of the federal threats statute and Title VII. Also, Justice Alito wrote separately for himself in both cases, decrying the minimalist nature of the majority's holdings. So, in both Elonis and Abercrombie & Fitch, Justice Scalia, Justice Thomas, and Justice Alito each had a different take from one another.

Second, both majority opinions conclude that Congress had not fleshed out in the text of the statute in question a requirement as to the defendant's subjective knowledge, but the Court reacted to that absence differently in the two cases. In Elonis, the Court said that because the statute is a criminal one, a wrongful state of mind on the part of the defendant should be found in the statute even when Congress was silent. But in Abercrombie & Fitch, Justice Scalia's majority opinion insists (to the extent that one can separate motive from knowledge) that Congress's silence as to the level of knowledge required of employers before they can be held liable is not something to be fixed by courts. The more ambitious attitude by the Court in the context of a criminal statute makes sense; there are special rules of statutory construction that apply particularly to laws that impose criminal sanctions.

But, and this is a third point, the criminal nature of the statute in Elonis might have properly led the Court to want to provide more notice to lower courts and potential defendants about precisely what level of subjective knowledge concerning the fear-inducing nature of words is required; the criminal law setting usually calls for clearer notice to be given to potential offenders. In particular, the disinclination by the Elonis majority to weigh in on whether recklessness by a defendant-e.g., a defendant who fleetingly wonders whether his proposed speech might cause fear in others but who never forms a view on the likelihood fear will in fact ensue-is sufficient under the statute, while perhaps understandable given absence of explicit lower court consideration of this matter, is sub-optimal. And, of course, because many statutes that criminalize threats are state statutes instead of federal laws, the question of whether and how the First Amendment requires government to prove any particular mental state of a defendant before criminal punishment may be imposed remains one on which the Supreme Court will need to give guidance. Indeed, in an earlier column I wrote previewing Elonis, I noted that it may not have been a good case in which to grant review precisely because the statutory ground could complicate the ability of the Court to give needed constitutional guidance. If this happened (as it did), I observed, the Court "would still need to rule in a later case on whether the First Amendment requires subjective intent (in the context of a federal or state statute that clearly does not require it.)"

The absence of guidance to lower courts and litigants in Abercrombie & Fitch is also quite frustrating, even though criminal liability was not at issue. On the facts of the Abercrombie & Fitch case, the employer "knew-or at least suspected-that the scarf was worn for religious purposes." But the tougher situation arises when the employer doesn't actually know but perhaps should be encouraged to find out, prior to declining to hire someone. For example, what if the A&F managers had no personal knowledge of Ms. Elauf during the interview process, but noted that she wore a head scarf and said to themselves, "Gee, I wonder if that is a style statement or a religious practice?" (In some respects, that could be thought of as "recklessness" but not knowledge on the part of the employer.)

Would the fact that the possibility of religious motivation even occurred to the employer be enough to trigger a requirement that the employer investigate the basis of the practice? Or would imposing such a duty on employers cause them to invade the religious privacy of employees and job applicants? (Courts in other countries that take religious liberty seriously often focus on religious privacy more than do American courts.) I do not know the answer to this, but I would observe that minority religious practices are often less well-known to many employers, a fact which might argue in favor of requiring employers to do some diligence once the possibility of a religiously inspired practice occurs to an employer. As for respecting privacy, there may be sensible ways to avoid making applicants feel uncomfortable. For example, all prospective employees could be given a list of all the employer's work rules and then asked, as a matter of course, whether religious practices would require accommodations with respect to any such rules. But this precisely the kind of detail the majority in Abercrombie & Fitch did not want to wade into. The reason it was a "really easy" case for the Court is that the Justices shied away from the difficult matters that actually needed some clarification.

May 8, 2015

The (Limited) Utility of State Religious Freedom Restoration Acts (RFRAs): Part Two in a Two-Part Series of Columns

Cross-posted from Justia’s Verdict. Co-authored with Professor Alan Brownstein.

As we noted in a column for this site two weeks ago, state religious freedom restoration acts, or RFRAs, such as the recently amended Indiana religious liberty statute, have been criticized on the ground that they are intended to permit discrimination against gays, lesbians, and same-sex couples in the provision of goods and services. Given the intensity of this national controversy, we think it would be useful to take a step back-indeed, to take several steps back-and look at the historical background and evolution of the RFRA device. In this column, we focus not on any particular state statute but rather on three general topics: (1) the purpose of the earliest state RFRA laws and how that purpose relates to the goals of the more recently enacted and proposed legislation; (2) the virtues (and drawbacks) of enacting a general religious liberty statute as opposed to adopting religion specific accommodations on a case-by-case basis; and (3) the best way, in light of the current controversy about the conflict between state RFRA laws and anti-discrimination principles, to move forward when state legislatures consider these laws.

The Purpose of Early State RFRAs and What It Tells Us About the Recent Legislative Efforts

As we discussed in Part One, the Supreme Court, in 1990, decided the case of Employment Division v. Smith, a dispute involving the right of Native Americans to use the proscribed substance of peyote in their religious rituals. The Court ruled that neutral laws of general applicability are not subject to any rigorous scrutiny even when these laws have the effect of burdening religious practices. Unless the state targets religion-think of a law prohibiting Catholics from attending Mass-the Free Exercise Clause of the First Amendment simply does not require the state to explain or justify a law that has the effect of prohibiting religiously mandated practices or requiring the performance of religiously prohibited conduct.

The Smith decision came as a surprise to many, perhaps most, constitutional scholars. Based on prior cases, the parties to Smith had assumed that the Free Exercise Clause required, even in the context of neutral laws of general applicability, the government had to justify burdens on religious practice by showing that laws creating such burdens were narrowly tailored to accomplish compelling governmental interests. It is true that the Supreme Court, in applying this "strict scrutiny" narrow tailoring/compelling interest test had very rarely actually ruled in favor of a plaintiff asserting a free exercise claim against a general law. But it had often reached its conclusion by nuanced application of strict scrutiny, rather than rejection of the need for meaningful governmental justification altogether. Prior to Smith, lower courts could not summarily dismiss free exercise claims. After Smith, the door to the federal courts was, in effect, locked tight against free exercise claimants.

The Smith decision drew fire both from legal scholars and advocacy groups. In 1993, Congress enacted the federal Religious Freedom Restoration Act (RFRA), essentially to reinstate, as a matter of federal statute, the strict scrutiny religious liberty rights regime that individuals and institutions had previously understood to emanate from the Constitution itself. But in 1997, in City of Boerne v. Flores, the Supreme Court held that Congress exceed its enumerated powers in enacting RFRA insofar as RFRA applied to and regulated state and local governments. After Boerne, RFRA could be constitutionally applied only to burdens on religion created by the federal government.

This was the legal and political background against which several states considered the enactment of the first wave of state RFRA laws. It is important to recognize three conditions that characterize the consideration of state RFRA laws during this initial period in the late 1990s. First, support for or opposition to these laws did not correlate tightly to party affiliation. There was no doubt concern by some liberals about the application of state RFRAs to civil rights laws, but this concern was only part of the debate and did not cause legislators to be divided along party lines in their ultimate views on state RFRAs. In California, for example, in 1998, a state RFRA law passed both houses of the Democratic legislature, only to be vetoed by Republican Governor Pete Wilson.

Second, general concerns about the correctness of the Smith holding fueled the movement toward state RFRAs. Religious liberty proponents continued to believe and argue that free exercise rights should count for something if they were substantially burdened even by a neutral law of general applicability.

Third, the arguments in favor of state RFRAs were not grounded just in abstractions; they were nested in actual cases and real-world narratives. A pair of real-life settings received particular attention. One was land-use regulation. Religious congregations, it was argued, often found it extremely difficult to develop land to construct new houses of worship because of restrictive state and local zoning laws. Many towns didn't seem to want new venues of worship in residential areas, or commercial districts, or even in agricultural zones. And minority faiths seemed to bear the brunt of these regulatory restrictions. The other narrative involved the religious freedom of prison inmates. It was widely believed that state prison authorities imposed relatively arbitrary burdens on the ability of inmates to engage in worship or other religious activities.

The first and third of these conditions no longer exist today. As to the first, religious liberty legislation is far too often a partisan political issue at this moment, with Republicans favoring state RFRAs and Democrats opposing them.

And, importantly, as to the third, the pair of persuasive narratives for adopting a state RFRA-the burdens created by state and local land use regulations on congregations trying to develop land for a new house of worship and the difficulties state prison inmates experienced in engaging in religious worship and exercise-were effectively dealt with by federal legislation. In 2000, Congress enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA). RLUIPA requires state and local governments to justify under rigorous review land use regulations or decisions that substantially burden the use of land for religious purposes and prison regulations and decisions that substantially interfere with the ability of inmates to engage in religious worship or otherwise follow the dictates of their faith. Because RLUIPA invokes Congress's Spending Clause power to attach conditions to federal funding-and because virtually all state and local governments and prisons depend on federal funding-RLUIPA has been upheld and applied by countless lower federal courts and (in the context of the prison provisions) the Supreme Court.

Recent state RFRA laws and proposals can still be justified by the second backdrop condition animating the first generation of state RFRAs-the abstract idea that Smith created a gap in the protection of religious liberty, and that religious activity deserves to be protected to some extent against even neutral laws of general applicability. But because, other than the land-use and prison settings, there are no easily described categories of state regulatory activity that burden religion in ways most people find problematic, a modern state RFRA might seem like a solution in search of a problem. Indeed, the only unifying narrative that describes a general problem, as opposed to isolated cases, to which modern RFRAs might be directed is the narrative grounded in religious objections to same-sex marriage and the claims for exemptions from civil rights regulations that prohibit discrimination on the basis of sexual orientation.

This is the crux of the problem. Legislators and governors who argue that they support a state RFRA law today for reasons that have nothing to do with discrimination related to same-sex marriage have a difficult time persuading anyone of their position because there are no religious liberty narratives involving significant real-world areas of concern other than civil rights laws. The original, principled basis for enacting state RFRA laws still exists, and state RFRAs certainly may be of value to religious individuals or institutions in occasional varied circumstances-religious burdens do arise outside of land-use and prison contexts as we demonstrated with some hypothetical examples at the end of Part One of this series-but there is no well-organized storyline here that can be easily understood and valued. In other words, because, after RLUIPA, the contexts in which state RFRAs might provide needed protection do not fall into any easy-to-define or easy-to-predict categories of regulation, avoiding antidiscrimination laws is the primary narrative that is still left standing. It is the one that most people see. And, to be frank, it certainly appears to be the primary motivation for the introduction of new RFRA bills in state legislatures these days.

A General Religious Liberty Statute Versus Religion-Specific Accommodations on a Case-by-Case Basis

Assuming that some exemptions for religious activity outside of the land-use and prison arenas may be worthwhile, the question becomes whether a state statute (e.g., a RFRA) is the best way to facilitate them. Another way of framing the issue is, given that some religious exemptions will be recognized by government, whether we are better off determining when exemptions should be granted by having the more political branches of government evaluate practice- or sect-specific requests for accommodation, or whether it would be preferable to enact a general religious liberty statute, like a state RFRA, and shift the task of determining when an exemption is appropriate to the judiciary. We think general religious liberty statutes have some important virtues over religious practice- or sect-specific accommodations.

First, the general religious liberty statute is, by definition, general. It seeks formally to apply the same standard to all faiths. Thus, a religious person's ability to obtain an exemption will not, in theory at least, depend on his or her ability to influence the political branches of government. It is true that judges, like legislators, may also be unfamiliar with or unsympathetic to religious minorities. Still, under a general religious liberty statute, a minority faith with insufficient muscle to achieve an accommodation through political channels has an additional forum where its claims can be heard-a court of law.

Second, the business of obtaining sect- or practice-specific accommodations has other serious drawbacks. Restricting religious exemptions to the political branches of government politicizes religion. The freedom to practice one's faith becomes a benefit controlled by the government. Accordingly, religious groups have to organize politically as religious groups to obtain the exemptions their faith requires.

Third, and related, a system in which all accommodations are political actions requires religious individuals and groups to spend their political capital on freedoms that should be theirs as of right. This system operates like a political tax on religion.

Fourth, if the ability to practice one's faith depends on a religious group's political power in a jurisdiction, we create an incentive for religious people to live in communities where there are a sufficiently large number of co-religionists to influence the government. A legal regime that promotes the segregation of communities along religious lines is problematic and much less desirable than a regime that facilitates the religious integration of our communities.

Of course, there are problems with general religious liberty statutes as well. The standard of review to be applied by courts in these laws is intrinsically subjective, value-laden and unpredictable. No one can really be sure how a given court will interpret and apply the law to the facts of any given case. Accordingly, the protection provided to religious liberty may turn out to be much narrower or much broader than the community anticipated when it enacted the law. In theory these statutes can be amended to cure wrongly decided cases, but there is no guarantee that the political branches of government will be capable of effectively monitoring and responding to errant RFRA decisions by courts.

Moreover, the indeterminacy inherent in these laws means that, at least initially and in all cases of first impression, they will provide little guidance either to potential defendants or to plaintiffs. In the context of anti-discrimination laws, uncertainty imposes serious burdens on all the relevant parties. Service providers do not know if they are permitted to deny services for same-sex weddings, for example, because of their religious objections to such ceremonies. And same-sex couples lack the security of knowing that they cannot be denied the services they seek when they attempt to patronize a provider of wedding services.

While we recognize that reasonable people can disagree on this point, we think on balance there are legitimate reasons for a state to consider enacting a state RFRA law. But that does not mean that we think the RFRA law should operate to provide exemptions in all cases in which religious exercise is substantially burdened by law.

What is the Best Way for State Legislatures to Balance State RFRAs and Anti-Discrimination Principles?

Church-state scholars generally agree that most RFRA challenges to civil rights laws governing for-profit economic activity will and should be unsuccessful. The state has a compelling state interest in protecting members of particular classes against discrimination in the workplace and in places of public accommodation. And conventional civil rights laws are the least restrictive means available to accomplish this egalitarian goal. Still, no one is certain that all RFRA claims against regulations prohibiting discrimination will fail. Nor is there agreement as to which claims, if any, deserve to succeed.

Because RFRA laws are unlikely to provide any kind of expansive protection to discrimination in employment or public accommodations based on religious beliefs, an obvious solution to the controversy surrounding these laws would be to enact a civil rights carve-out that limits the scope of the RFRA legislation. Indiana amended its RFRA law to provide explicitly that the law does not authorize, or establish a defense for, discrimination in employment or places of public accommodation. Such a civil rights carve-out would make the RFRA law available to protect religious liberty in in various idiosyncratic circumstances in which general laws unnecessarily burden religious practice, but would preclude any possibility that the law would undermine the enforcement of anti-discrimination regulations.

The argument against a civil rights carve-out is that it could carve out too many RFRA claims. Many proponents of state RFRAs argue that there are at least a limited number of situations in which religious exemptions to some civil rights laws are justified, and yet these claims would be excluded from protection under a general civil rights carve-out. These arguments often focus on caterers, bakers, florists and photographers who provide goods and services for wedding ceremonies and receptions, but the arguments are not limited to these commercial activities.

We think the appropriate response to these concerns is straightforward. In addition to adopting a broad civil rights carve-out from the state RFRA, the state could negotiate explicit exemptions-exceptions to the carve-out, if you will-to cover the limited number of situations in which faith-based discrimination might deserve to be protected against civil rights laws. From a policy perspective, this approach would have several advantages. It would provide more clarity than a generic state RFRA. It would guarantee religious exemptions to civil rights laws in specific circumstances where they were thought to be particularly justified. It would avoid any concern that the law would be interpreted too broadly to protect discrimination in inappropriate circumstances. And it would allow a state RFRA to be adopted to protect religious liberty in all of the situations that do not involve discrimination in violation of civil rights laws.

Our suggested course of action may be challenged, however, by the argument that such negotiations in the legislature about the particular exceptions to a civil rights carve-out would be futile. The two sides debating religious liberty and gay rights issues are so polarized that they would never agree on explicit limited exemptions. We are unconvinced that this will always be the case-particularly if states that currently do not protect gays and lesbians or same-sex couples from discrimination bring legislation prohibiting discrimination based on sexual orientation and identity to the bargaining table. Working out what the specific exemptions for religion-based discrimination will undoubtedly be hard political work. But that is no reason not to engage in the attempt.

August 5, 2014

How to Read Justice Kennedy’s Crucial Concurring Opinion in Hobby Lobby: Part II in a Series

Cross-posted from Justia's Verdict.

In my last column, Part I of this Two-Part series, I argued that lower courts are justified in paying (indeed perhaps required to pay) close attention to Justice Kennedy's concurring opinion in this summer's blockbuster Burwell v. Hobby Lobby ruling, even though the "Opinion of the Court" in that case had the support of five Justices. Because Justice Kennedy was one of the five in the majority in this 5-4 case, his understanding of the majority opinion-on which he based his decision to join and which is explained in his concurring opinion-essentially represents the narrowest common grounds on which a majority of Justices agreed.

In the space below, I suggest a number of significant ways in which Justice Kennedy's take on the majority opinion, which he says are among the "reasons . . . [he] join[ed] it[,]" counsels in favor of a narrow reading of what the Court decided. To see why this is so we must directly compare Justice Alito's majority opinion (and the language and tone it used) with Justice Kennedy's writing.

The Basic Structure of Justice Alito's Opinion of the Court

Justice Alito's opinion can be broken down into two big questions: (1) Does the Hobby Lobby corporation partake of protection under the federal Religious Freedom Restoration Act (RFRA)?; and (2) Is the contraception mandate in the Affordable Care Act (ACA) regulations the "least restrictive means" to accomplish the "compelling" government interest-that female employees receive contraceptive service insurance at no cost-as required under RFRA?

On the first question, Justice Alito reasons quite broadly, and rests statutory protection for Hobby Lobby on the ground that a for-profit closely held corporation is itself a "person" capable of the "exercise of religion" under RFRA (rather than resting protection on the idea that the persons whom RFRA protects are the owners of a corporation, and the fact that Hobby Lobby's owners are operating through the corporate form should not strip them of the statutory protection they have as individual human beings to practice religion). Because of this broad reasoning, and because Justice Kennedy did not say anything in his concurrence on this question, the Court (and lower courts) may find it difficult to deny RFRA coverage to publicly traded corporations whose managements try to assert claims for religious exemptions in the future.

But on the second question-concerning what RFRA protection means once RFRA applies-the breadth of the Court's ruling is more open to debate, because Justice Kennedy did say things that might diverge from what Justice Alito said. I mention four such possible divergences here.

Some Ways in Which Justice Kennedy's Understanding of the What the Majority Held Might Be a Narrow One

First, and perhaps least significant doctrinally but potentially important optically, while Justice Alito characterizes the test the government must meet to justify denying an exemption under RFRA as "exceptionally demanding," Justice Kennedy is content to call it "stringent" (citing his own opinion in a prior case). This subtle language difference may send slightly different messages to lower courts about how tough to be in evaluating arguments put forth by the federal government in future cases.

Second, on the question whether the government has a "compelling" interest (the kind of interest it needs under RFRA) "in ensuring that all women have access to all FDA-approved contraceptives without cost sharing," Justice Alito spends a great deal of space explaining why it is "arguable" that the government should lose on this question. In particular, he discusses how the exceptions the Affordable Care Act creates for existing health plans to be "grandfathered"-and thus not required to provide contraceptive coverage-undermine the notion that the government's interest is compelling. Justice Alito ultimately finds it "unnecessary to adjudicate this issue [because] [w]e will assume that the interest in guaranteeing cost-free access . . . is compelling."

Justice Kennedy on this question writes in a way that suggests a much stronger likelihood that he would, if push came to shove, find (as the four dissenters did) the government's interest to be compelling, notwithstanding the grandfather exceptions. He says that is "it is important to confirm that a premise of the Court's opinion is its assumption that the . . . regulation here furthers a legitimate and compelling interest in the health of the female employees." It is true that he uses the word "assumption"-which reminds us that the Court assumed but did not decide the government's interest was compelling. But one wonders why it is important to "confirm" an "assumption" unless the assumption is likely to be correct. Also, Justice Kennedy starts this part of his discussion by saying that the federal government "makes the case that the mandate serves . . . [a] compelling interest" (emphasis added). "Makes the case" is a term that can be read to mean simply "argues" or "contends," but more often it is used to mean "provides good reasons to think."

If Justice Kennedy is, in fact, sending a signal here that government-granted grandfather exceptions based on convenience and ease of transition do not undermine the compelling nature of a government interest, and if that is how lower courts read his tone here, then such a signal could have important consequences for the range of other government interests that are asserted in subsequent RFRA cases, and other cases in which the government needs to establish a compelling interest. Government often needs to grant exceptions to facilitate enactment of big new regulatory schemes, and if the inclusion of such exceptions jeopardizes the idea that the government has compelling interests on which it is acting, a great deal more government regulation would be vulnerable.

The Key Questions of What the Less Restrictive Alternative in Hobby Lobby Was and How Competing Interests Should Be Weighed

 Third, on the important question whether the Government should lose because it could pay for the contraceptive coverage itself (rather than requiring employers to provide it), and government payment is a "less restrictive means" to accomplish the government's (compelling) objective, Justice Alito seems to try to have his cake and eat it too. He says ultimately that "we need not rely" on this possible accommodation as a basis for Hobby Lobby's victory because the federal government could also simply tell insurance companies (rather than employers) to provide the coverage (as the government does for non-profit corporations), but this language comes only after Justice Alito had already spent a lot of ink explaining why the government-payment option seems to be required under RFRA. Indeed, Justice Alito observes that it is "hard to understand" the Government's argument to the contrary. Moreover, even though Justice Alito writes that the Court "need not rely" on this accommodation, he doesn't say whether he means simply that there are two possible accommodations that explain Hobby Lobby's victory (in which case neither of them is one that must be relied on), or instead that the second accommodation (having the insurance companies provide the coverage) is the statutorily required accommodation in this case, such that the Court doesn't decide whether, in the absence of such an option, the government would have to pay itself. Note that, unlike the language concerning whether there is a compelling interest, Justice Alito does not say the Court declines "to adjudicate" this issue.

Justice Kennedy, by contrast, does not equivocate here, and makes clear that, as he reads the majority opinion he is joining, the Court is not deciding the question whether the Government would have to pay itself if the insurance-company-accommodation were not available: "In discussing th[e] [government-payment] alternative, the Court does not address whether the proper response to a legitimate claim for freedom in the health care arena is for the Government to create an additional program [, because] [i]n these cases, it is the Court's understanding that an accommodation may be made to the employers without imposition of a whole new program or burden on the Government." For this reason, he says, the "Court does not resolve" the question whether creating a new government spending program could be required.

Fourth, and more generally, on the question of how much cost the government must be willing to bear to accommodate religious exercise, Justice Kennedy notes: "[T]his existing model [i.e., having the insurance company bear whatever cost may be involved], designed precisely for this problem, might well suffice to distinguish the instant cases from many others in which it is more difficult and expensive to accommodate a governmental program to countless religious claims based on an alleged statutory right of free exercise" (emphasis added).

And, importantly, he also says, apparently in response to concerns that federal sex discrimination workplace protection will go by the boards-a prospect that Justice Alito's opinion pointedly did not deny-that religious exercise, while important, cannot "unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling." Justice Alito does acknowledge that courts must take "adequate account of the burden a requested accommodation imposes on non-beneficiaries," but he makes this concession in a footnote that literally marginalizes the concerns of third parties.

Justice Kennedy's language makes clear that he will, in deciding when an exemption under RFRA is warranted, surely consider costs, both to the government and to third persons, as a counterbalance to any assertion of religious liberty. Indeed, in some ways, Justice Kennedy's opinion is eerily similar in substance to Justice Blackmun's writing in National League of Cities that I discussed in Part I of this series; Justice Kennedy recognized the right to an exemption in the case before him, but he indicated more directly than did Justice Alito that in future RFRA cases some kind of balance-rather than an absolute or near-absolute entitlement to exemption-is called for.

If this is so, and if (as I think they can and should) lower courts take their cue from the writing of this fifth Justice in the majority in Hobby Lobby, then Justice Kennedy's writing may go a fair ways in determining exactly how many companies can successfully use Hobby Lobby to obtain exemptions by suing under RFRA.

July 18, 2014

A Potential Guide to the Meaning of Hobby Lobby: Why Justice Kennedy’s Concurring Opinion May Be Key, Part I

Blog entry cross-posted from Justia's Verdict.

Legal and political commentators have already spent thousands of hours on how best to understand Justice Alito's majority opinion in Burwell v. Hobby Lobby, and whether Justice Ginsburg's dissent was accurate in saying the decision was of "startling breadth."

But to understand the scope of the majority opinion construing the federal Religious Freedom Restoration Act (RFRA), we may need to focus on the separate concurring opinion of Justice Kennedy, an opinion that seems to be getting little ink. Two important and complex questions need to be asked about this concurrence: (1) Why should we care what it says? and (2) What does it really say? In the space below, and in my next column in two weeks, respectively, I take up those each of those questions.

When There Are Five Votes for a Majority Opinion, Do (or Should) Concurring Opinions Matter?

The first question-why we should pay any attention to the content of Justice Kennedy's opinion-is fair to ask, and complicated to answer. After all, Justice Alito's opinion was an Opinion of the Court, which means an opinion for a majority of the voting Justices and not just for a "plurality" of them. In most circumstances, when there is an Opinion of the Court, lower courts (where battles over the scope of RFRA are going to be most meaningfully fought, at least until the Supreme Court decides another RFRA case) must look for meaning and guidance in that Opinion, without necessarily consulting the one or more additional concurring opinions that may have been filed. But, crucially, in Hobby Lobby, Justice Kennedy's was the fifth vote in a 5-4 case; without Justice Kennedy's joinder, Justice Alito's opinion would have lacked a majority. So to the extent that Justice Kennedy's separate opinion represents a narrowing gloss on Justice Alito's writing (and in Part Two of this series I will take up whether Justice Kennedy's opinion is indeed narrower), there is a plausible argument to be made that lower courts (and perhaps also future Supreme Courts) should view Justice Kennedy's opinion as the guiding or controlling one.

Certainly that would have been true had Justice Kennedy not joined (some or all of) Justice Alito's opinion, but instead had concurred only in Justice Alito's bottom-line judgment that Hobby Lobby should win, and written a separate opinion laying out his narrower reasoning. In that instance, everyone would agree there would be no Opinion of the Court (for the parts Justice Kennedy did not join), and Justice Alito's opinion would be for a plurality only. And in situations like these, the Supreme Court has held, in a somewhat well-known 1977 case, Marks v. United States, that lower courts should look for and be guided by the "position taken by those Members [of the Court] who concurred in the judgments on the narrowest grounds" (emphasis added).

Which Matters More, a Justice's Vote (to Join a Majority Opinion) or His (Concurring) Voice?

Is the situation really so different if a Justice joins an Opinion of the Court (to make a fifth vote) but then writes separately to make clear the (narrow) understanding of the majority opinion on which he based his decision to join? There are first-rate legal minds (including, perhaps, some of my Justia ConLaw professor colleagues) who may say "yes"-formalities matter, and the act of being the fifth vote to join a majority opinion is all-important. There are no constitutional provisions, statutes, or judicial regulations that speak to this question; it seems to be a matter left to and determined by judicial practice. I am not aware that the Supreme Court itself has ever offered detailed views on how a situation like this should be handled, but I find it hard to see a big difference-in the context of a case whose result is determined by a 5-4 vote-between "concurring in the Judgment" and writing a separate opinion, on the one hand, and joining a majority opinion while writing the very same kind of separate opinion, on the other.

Because the writing of a separate opinion laying out a narrower view than that which might have been laid out by the majority opinion is a more specific and more fully explained act than is the general decision to join the majority opinion, I think attaching weight to the narrowing, specific concurrence makes good sense, especially if the concurring Justice is still on the Court (such that his separate writing bears on any prediction of how the Court would rule if another case were brought to it today.) I say this in part because a decision to join with other Justices to make an Opinion of the Court may have been made in part to keep peace at the Court or to avoid the direct insult of a colleague, and does not mean that there might not be important substantive differences among all those who join the Opinion.

The case for crediting the narrow understandings reflected in concurring opinions in this setting is especially strong when the majority opinion may itself be fuzzy (or silent) on the legal question at issue. In these circumstances, a fifth Justice who sincerely believes the majority opinion embraces the narrow reasoning that is on his mind does would not want to refuse to join (and concur only in the judgment) because of the fuzziness. Collegiality and harmony are better served by permitting him to join but to make clear (in a way that will be respected by lower courts) the expectations on which his joinder is based. If his separate concurrence is not given controlling weight in these circumstances, he will be encouraged in future instances not to join the majority opinion (but instead to concur in the judgment only), and this might create needless division and intra-Court friction if in fact the majority opinion embraced the (narrow) holding he thought it did but about which he was not completely sure.

Even when the majority opinion (which has five votes) is clear on the legal proposition in question and a concurring Justice's "understanding" of the majority opinion, on which his joinder is premised, is objectively unreasonable, there is still a forceful argument to place weight, in a 5-4 case, on a separate concurrence by a Justice within the majority. To the extent that a concurring Justice makes clear by his writing that he disagrees with this part of the Opinion of the Court, his narrower understanding of the law should control, regardless of whether he joined the majority opinion or simply concurred in its judgment.

In effect, we should read his actions/writing together to mean that he really didn't join with the part of the Court opinion with which he (apparently) disagrees, but he just decided (perhaps because he misread the majority opinion) not to formally opt out of any important sentences or paragraphs in the majority opinion that dealt with the legal proposition in question. It also bears mention that majority opinions often (usually?) fail to break up analysis of each legal question into a separate Section or Part. For this reason, Justices who agree with the bulk of an opinion's analysis, but who may disagree with a few key sentences, or even words, cannot easily register their nuanced mix of agreement/potential disagreement simply by declining to join whole subdivisions of the opinion.

A few hypothetical variants may help make my point. As I suggested earlier, everyone seems to agree that if a fifth Justice joins most of an opinion, but expressly declines to join a Part or Section of the opinion that included legal proposition X, we would say the Court has not embraced X. If, instead, the fifth Justice writes to say that he "join[s] all parts of Opinion of the Court, except to the extent that the Opinion says X," again there would be no Opinion of the Court as to the legal proposition X. Now imagine the fifth Justice writes separately to say: "I join the Opinion of the Court because it does not say X." Should that explicit statement be treated any differently? And, finally, how about: "I join the Opinion of the Court on the understanding that it does not say X"? To me, it would be formalistic without justification to treat the last two of these situations (regardless of the reasonableness of the concurring Justice's reading of the majority opinion) differently from the first two.

I do think the fact that a Justice joins a majority opinion should not be completely irrelevant in these kinds of situations. So, for example, if there is ambiguity in the meaning of the concurring Justice's separate writing, that ambiguity should be resolved in favor of harmonizing it with the majority opinion that she chose to join. But to the extent that the concurring opinion clearly disagrees with, or offers more details in narrowing, legal propositions asserted in the majority opinion, the concurring Justice's voice should control over her vote (to join the majority).

Perhaps the best counterargument, that is, the best argument in favor of not attaching controlling weight to the concurring opinion, is that the Marks-style analysis is often difficult to undertake, and sometimes lower courts make mistakes in trying to figure out what the narrowest common grounds are between multiple opinions. Deciding what is "common" between opinions, and discerning the "narrowest grounds" can be challenging. In the Marks setting, we have no choice but to undertake this tricky analysis because without comparing multiple opinions (no one of which had five votes) we lack any holding at all to guide future cases. By contrast, in the situation I describe in this column, there is an Opinion of the Court (that got five votes), and so telling lower courts to follow it only, and not to complicate matters by trying to incorporate the concurrence into the analysis, does not deprive the system of a holding to guide lower courts.

In the end, I find this counterargument unconvincing for three reasons. First, the Marks-style analysis may sometimes be difficult, but courts do perform this task regularly, and in some cases it may actually be easier to focus on clear limiting language in a concurring opinion than to resolve ambiguities within the majority opinion alone. (I should note that some appellate courts-including the U.S. Supreme Court during its early history-do not issue "Opinions of the Court," but rather issue individual opinions seriatim, leaving lower courts to figure out the rule(s) of law that were adopted.) Second, we employ Marks analysis not just because we want to generate a holding (we could to that by flipping a coin as between all the opinions that supported the judgment), but because it makes normative sense to seek to identify true common analytic ground between five or more Justices. If that is true in Marks, it is true here as well. Finally, as I noted earlier, if we don't attach controlling weight to a concurring opinion in the situation I posit here, then a Justice who makes the fifth vote in a future case will, instead of joining the Opinion of the Court, simply concur in the judgment and write a separate opinion anyway, and so we will be right back in the realm of Marks. If a Justice cares enough about an issue to write separately, she probably will do what it takes to make sure the concurring viewpoint is given as much weight as possible in future cases.

Historical Examples

I am not aware of a huge number of prominent instances in which a Justice provided a fifth vote for an Opinion of the Court and then also wrote separately to distance himself in a discernible way from at least some broad propositions in the majority's approach. But in well-known cases in this category that do come to mind, lower courts have tended to place controlling weight on the concurring views of a fifth Justice even though he also joined the majority. Maybe the most famous illustration of this is Youngstown Sheet and Tube v. Sawyer, where Justice Jackson's concurring opinion has held tremendous sway in lower court (and also later Supreme Court) rulings, even though he also joined Justice Black's Opinion of the Court in this 5-4 case. Another significant decision is the 5-4 ruling in United States v. Verdugo-Urquidez, where Justice Kennedy joined Chief Justice Rehnquist's majority opinion (giving it a fifth vote), but also wrote separately to express views that were narrower than those expressed in the Chief's writing. And a Third Circuit case, at least (with then-Judge Alito part of the unanimous panel), found that Justice Kennedy's views controlled.

Perhaps the case most similar to Hobby Lobby in this respect is National League of Cities v. Usery. There, as in Hobby Lobby, powerful entities-States rather than corporations-sought exemptions from federal workplace regulations. And, similar to Hobby Lobby, a five-Justice majority opinion (authored in that case by Chief Justice Rehnquist) held that States were immune from the minimum wage regulations at issue there, laying out what on its face seemed like a rather broad principle of state immunity from federal regulation in areas of "integral" or "traditional" government functions. Justice Blackmun joined the majority opinion, but also wrote separately to make clear his narrow understanding of state immunity and what the majority opinion should stand for; in Justice Blackmun's view, state exemptions depended on the application of a balancing test in which federal interests were weighed against state autonomy.

In the wake of National League of Cities, at least some influential lower courts found Justice Blackmun's balancing test to be required by the Court, even though it was not mentioned explicitly in Chief Justice Rehnquist's majority opinion. Indeed, even though there was an Opinion of the Court in National League (because Justice Blackmun did join the Chief's writing, giving it five votes), the U.S. Court of Appeals for the District of Columbia characterized the Chief's opinion as a "plurality" view, and focused instead on how best to read Justice Blackmun's separate writing. And when the Supreme Court itself was called upon to apply National League of Cities five years later in Hodel v. Virginia Surface Mining, it observed that National League of Cities stood for some kind of balancing test, citing Blackmun's concurring opinion.

There may be (and probably are) counterexamples, but these high-profile cases, especially National League of Cities, suggest that there is at least a significant likelihood that lower courts will (justifiably) feel controlled by Justice Kennedy's Hobby Lobby writing and thus will parse it to see if his views narrow the scope of Justice Alito's opinion. So I will turn to that parsing in Part Two of this series.