Author archives: Travis Weber

Satire upon Satire upon Galloway

by Travis Weber

May 7, 2014

At the New Yorker, satirist Andy Borowitz provided his comments on the Town of Greece v. Galloway case. At first, I thought he was satirizing the dissent and its idea that the public square could be “religious free.” Then I caught myself and realized he was satirizing the majority opinion. Borowitz writes:

In what legal experts are calling a landmark decision, on Monday the United States Supreme Court struck down what many believe to be the main reason the country was started.

By a five-to-four vote, the Court eliminated what grade-school children have traditionally been taught was one of the key rationales for founding the United States in the first place.

The separation of church and state has been a cornerstone of American democracy for over two hundred years,” said Justice Samuel Alito, writing for the majority. “Getting rid of it was long overdue.”

Calling the decision “historic,” Justice Antonin Scalia was guarded in predicting what the Court might accomplish next.

Last year, we gutted the Voting Rights Act, and today we did the First Amendment,” he said. “We’ll just have to see what’s left.”

The reason for my initial (mistaken) impression in identifying the target of his satire, however, is that it SO eloquently describes Justice Kagan’s dissent in Galloway. Borowitz could have written (about the main dissent):

In what legal experts are calling a landmark decision, on Monday the United States Supreme Court struck down what many believe to be the main reason the country was started—[religious freedom].”

By a five-to-four vote, the Court eliminated what grade-school children have traditionally been taught was one of the key rationales for founding the United States in the first place—[freedom from government interference with their religious practices].”

The separation of church and state [Religious freedom] has been a cornerstone of American democracy for over two hundred years,” said Justice [Elena Kagan] Samuel Alito, writing for the majority. “Getting rid of it was long overdue.”

Calling the decision “historic,” Justice [Stephen Breyer] Antonin Scalia was guarded in predicting what the Court might accomplish next.

Last year, we gutted the [Defense of Marriage Act] Voting Rights Act, and today we did the First Amendment,” he said. “We’ll just have to see what’s left.”

[People have had the ability to pray according to their conscience for far too long,” Kagan continued. “It’s about time religious freedom is sidelined so the government can once again edit prayers for nonsectarian compliance, in accord with the proud Establishment traditions of the Old World].”

Borowitz might be disheartened (or perhaps heartened) to know his satire is actually (unwittingly) poking fun at the liberty-opposing dissent in Galloway. Nevertheless, it does. Indeed, it was Justice Kagan and her fellow dissenters who would have the government in the business of editing prayers for compliance with nonsectarian principles established by the government. Such government interference with religion was the very tyranny the Founders fled from. It was unconstitutional then, and is equally unconstitutional today.

Town of Greece v. Galloway

by Travis Weber

May 6, 2014

Yesterday, in a 5-4 decision in Town of Greece v. Galloway, the Supreme Court ruled in favor of the Town of Greece in a challenge to its legislative prayer practice. This is a major win for religious liberty, and for the free expression of religion in public spaces.

So what happened?

The Town of Greece, New York, had for years maintained a practice of permitting local ministers from the area to offer a brief prayer before town board meetings. The town opened these meetings to all ministers who would respond, and never exercised control over, edited, or censored the content of prayers. Even though the town opened the opportunity to ministers of all faiths, the town was overwhelmingly Christian, so the responding ministers happened to be Christian. Town of Greece v. Galloway, 572 U.S. ____ (2014) (slip op., at 1-3). After Susan Galloway and Linda Stephens complained, the town invited Jewish, Baha’i, and even a Wiccan priestess to give prayers. Id. at 3-4. Galloway and Linda Stephens still sued, claiming the town “preferred” Christianity — as a remedy, the plaintiffs asked the town to limit prayers to “inclusive and ecumenical” prayers referencing a “generic God” not associating the government with one belief. Id. at 4.

What did the Supreme Court say?

The Court began its analysis by relying on Marsh v. Chambers, 463 U.S. 783 (1983), in which it held that there was no Establishment Clause violation when a state legislature opened session with a prayer by a chaplain paid by state funds. Galloway, slip op., at 6. None of the Establishment Clause “tests” apply in this context, the Court continued, for “history support[s] the conclusion that legislative invocations are compatible with the Establishment Clause.” Id. at 7. “[I]t is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted.” Id. at 8. Setting the groundwork for future cases, the Court continued: “Any test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change.” Id. at 8. “A test that would sweep away what has so long been settled” — such as legislative prayer — “would create new controversy and begin anew the very divisions along religious lines that the Establishment Clause seeks to prevent.” Id. at 8.

After these preliminary remarks, the Court restated the question before it: to determine “whether the prayer practice in the town of Greece fits within the tradition long followed in Congress and the state legislatures.” Id. at 9. In doing so, it addressed the opponents’ two main arguments.

Opponents’ first argument: Any prayer must be nonsectarian, or not identifiable with any one religion (in this case the prayers “use[d] overtly Christian terms” or “invoke specifics of Christian theology”).

The Court’s response: The Court responded that “[a]n insistence on nonsectarian or ecumenical prayer as a single, fixed standard is not consistent with the tradition of legislative prayer” in the Court’s jurisprudence. The Court found the prayers in Marsh consistent with the First Amendment not because they espoused only a generic theism but because our history and tradition have shown that prayer in this limited context could ‘coexis[t] with the principles of disestablishment and religious freedom.’” Id. at 10. The Court noted that specific Christian references during legislative prayers have been made throughout the history of our country, and Congress has also permitted Jewish, Buddhist, and Muslim prayers. Id. at 10-11. “[T]he contention that legislative prayer must be generic or nonsectarian” is “irreconcilable” with a proper reading of precedent, for “Marsh nowhere suggested that the constitutionality of legislative prayer turns on the neutrality of its content.” Id. at 11-12. In Marsh, and in its present ruling, “the Court instructed that the ‘content of the prayer is not of concern to judges,’ provided ‘there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.’” Id. at 12.

The Court drilled in on the precise issue: “To hold that invocations must be nonsectarian would force the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech, a rule that would involve government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing or approving prayers in advance nor criticizing their content after the fact.” Id. at 12-13. Government-mandated prayer language would not be much different from legislatures requiring “chaplains to redact the religious content from their message in order to make it acceptable for the public sphere.” Id. at 13. “Government may not mandate a civic religion that stifles any but the most generic reference to the sacred any more than it may prescribe a religious orthodoxy” — this is a “contradiction that cannot be accepted.” Id. at 13 (quoting Lee v. Weisman, 505 U.S. 577, 590 (1992).

Indeed, it would be quite ironic for the government to “establish” its version of nonsectarian prayers in an effort to avoid violating the Establishment Clause. As the Court noted, such “‘untutored devotion to the concept of neutrality’ must not lead to ‘a brooding and pervasive devotion to the secular.’” Id. at 13 (quoting School Dist. of Abington Township v. Schempp, 374 U.S. 203, 306 (1963) (Goldberg, J., concurring)).

Ironically, while the opponents of the prayers in this case are upset that only “majority” religions will have their prayers recited, they violate their own principle of upholding minority religious interests in desiring to craft “non-sectarian” prayers acceptable to…..well, a majority of those present. The Court repudiated such thinking with the following reminder: “The First Amendment is not a majority rule, and government may not seek to define permissible categories of religious speech. Once it invites prayer into the public sphere, government must permit a prayer giver to address his or her own God or gods as conscience dictates, unfettered by what an administrator or judge considers to be nonsectarian,” so long as the prayer does not “denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion. Id. at 14-15. Indeed, the Court’s opinion upholding the “all comers” policy actually protects minority interest.

Finally, the Court noted, the town’s policy (which was open to prayers of all faiths) was not unconstitutional merely because nearly all the congregations in the town were Christian. As long as the town does not discriminate (which it did not), it is not required to search for some type of unattainable “religious balancing.” Id. at 17-18.

Opponents’ second argument: The opponents of the prayer also argued that the town’s prayer practice “coerces participation by nonadherents” because “the setting and conduct of the town board meetings created social pressures that force non adherents to remain in the room or even feign participation in order to avoid offending the representatives who sponsor the prayer and will vote on matters citizens bring before the board.” Id. at 18.

The Court’s response: The town of Greece, “through the act of offering a brief, solemn, and respectful prayer to open its monthly meetings,” did not “compel[] its citizens to engage in a religious observance.” Id. at 19. The Court acknowledged that “[t]he analysis would be different if town board members directed the public to participate in the prayers, singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person’s acquiescence in the prayer opportunity,” yet “[n]o such thing occurred in the town of Greece.” Id. at 20. The opponents may have felt “offended,” but as the Court pointed out, “[o]ffense … does not equate to coercion. Adults often encounter speech they find disagreeable; and an Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views in a legislative forum, especially where, as here, any member of the public is welcome in turn to offer an invocation reflecting his or her own convictions.” Id. at 21. “[L]egislative bodies do not engage in impermissible coercion merely by exposing constituents to prayer they would rather not hear and in which they need not participate.” Id. at 22.

It was heartening to see Justice Kennedy observe that “since this Nation was founded and until the present day, many Americans deem that their own existence must be understood by precepts far beyond the authority of government to alter or define and that willing participation in civic affairs can be consistent with a brief acknowledgment of their belief in a higher power, always with due respect for those who adhere to other beliefs,” and thus, the prayer policy of the Town of Greece “is not an unconstitutional establishment of religion.” Id. at 23. The Court concluded: “The town of Greece does not violate the First Amendment by opening its meetings with prayer that comports with our tradition and does not coerce participation by nonadherents.” Id. at 24.

Concurring opinions:

Justice Alito was joined by Justice Scalia in his concurring opinion, where he responded to the dissent’s charges that the town should have required nonsectarian prayers and brought in representatives from different religions. Obviously, one of the concerns of adopting a policy of general nonsectarian prayers is facing the question of who screens such prayers and decides exactly what level of “nonsectarian” quality is required before permitting the prayer. Galloway, slip op., at 5 (Alito, J., concurring). Justice Alito also reiterated that requiring local governments to compile a list of potential prayer-givers in a certain way would only confuse already confusing Establishment Clause jurisprudence. Id. at 7.

Justice Thomas wrote a concurring opinion (joined by Justice Scalia) in which he argued the Establishment Clause was not meant to be incorporated as to the states, but even if it was, the prayer policy here does not violate it. Galloway, slip op., at 1-5 (Thomas, J., concurring). Justice Thomas argued that in accordance with the Founders’ positions on this issue, only legal coercion regarding a certain religious belief would violate the Establishment Clause. Id. at 7.

Dissenting opinions:

Justice Breyer dissented and ultimately concluded — albeit based on his “legal judgment” as opposed to any standard or legal test — that because the prayers were almost all Christian, the Town of Greece did “too little to reflect the religious diversity of its citi­zens.” Galloway, slip op., at 5-6 (Breyer, J., dissenting).

Justice Kagan also dissented for similar reasons, and was joined by Justices Ginsburg, Breyer, and Sotomayor in her dissent. She believed the Town of Greece violated the “norm of religious equality” conferred by the First Amendment, Galloway, slip op., at 1 (Kagan, J., dissenting), by not doing enough to ensure diverse prayers of various faiths were presented. According to Justice Kagan, the town could have also presented more nonsectarian prayers, which in her view, it did not. Justice Kagan argued that the Town of Greece, in permitting explicitly Christian prayers, caused citizens who came before the town to conduct business to feel compelled to participate in order to not interfere with their government business. Id. at 2-8. She believed the prayers here were “addressed directly to the Town’s citizenry,” as opposed to being addressed to the legislators like in Marsh, and “were more sectarian, and less inclusive, than anything this Court sustained in Marsh.” Id. at 9. In essence, like Justice Breyer, Justice Kagan believed the town did not do enough to promote religious diversity, and thus its prayer policy was unconstitutional.

What do I say?

The main dispute between the majority and the dissenters in this case was over whether the Town of Greece was required to take active steps to ensure more religious diversity in the prayers offered before meetings. None of the justices could dispute the prayer policy permitted all comers — it clearly permitted those of all faiths to come and offer prayers in accordance with their beliefs. For the majority such a policy was constitutional. Justice Kagan and her fellow dissenters, however, would have required the policy to be more highly publicized to representatives of all faiths to ensure they knew they could come and pray, and would have liked the town to take additional steps to ensure more faiths were represented. For the justices in the majority, a policy of nondiscrimination between religions was enough (thus permitting the town to remain passive and out of religious determinations), while the dissenters are promoting active government interference in religion by requiring the town to determine what efforts are sufficiently “inclusive.”

Here’s my problem with the dissenters’ view — it would have required the town to (1) either mandate a sufficiently nonsectarian prayer (thus requiring the town to be the active arbiter of what is sufficiently nonsectarian) or (2) take steps to ensure more diversity (thus actively involving the town in deciding how and what religious views are solicited). In either case, town is taking proactive steps as regards religion.

If a town is drafting a “nonsectarian” prayer, who decides what is sufficiently nonsectarian? Who decides what words are included, and what phrases are used? There is obvious opportunity for abuse and unnecessary interference with religion by the government in such a scenario, which, thankfully, the majority recognized when it stated, “[t]o hold that invocations must be nonsectarian would force the legislatures … to act as supervisors and censors of religious speech, a rule that would involve government in religious matters to a far greater degree … .” Galloway, slip op., at 12-13. Moreover, the problem with nonsectarian prayers is in seeking to associate the government with all beliefs, you water them down, and associate the government with nothing but muzzled incoherency.

If mandating more religious inclusivity, who decides what steps are needed? What methods are used? Should a town conduct a search within a fifty mile radius for ministers of different faiths? Is a phone call notifying those ministers sufficient? Or must the ministers be incentivized to come and pray? How many different faiths are required — four or five? Ten or eleven? Should ministers be invited in accordance with the percentage of the local population adhering to that religion? As is obvious, such questions are not only ridiculous, but involve the government in religious decision making, and all the opportunity for abuse that entails. In addition, Justice Kagan’s requirement of more religious inclusivity is open-ended, and would leave local governments guessing at what is required of them. The dissent’s position would open the door for more lawsuits regarding exactly what proactive steps are required.

In either scenario, the dissenters promote active government involvement in religious decision making, and thus interference with religion, the very things they claim to be against. Justice Kagan’s position would not do away with the problem of the government “align[ing] itself with, and plac[ing] its imprimatur on, a particular religious creed,” Galloway, slip op., at 5 (Kagan, J., dissenting), but would merely shift the legal battleground into how much government promotion of religious diversity is required.

Free from moral authority?

by Travis Weber

April 25, 2014

In a recent blog post explaining his refusal to support a statement pertaining to free expression and political positions on marriage, Professor Ilya Somin claims there’s a limit to the rule that people should be free from stigmatization for holding certain views. His own view is that people should not be stigmatized for opposing same-sex marriage, but should be for supporting the KKK:

Indeed, there has never been a society, no matter how liberal, that did not regard at least some ideas as “beyond the pale.”

… .

In an ideal world where everyone carefully weighs opposing arguments strictly on the basis of logic and evidence, stigmatization would be both ineffective and unnecessary. In the real world, unfortunately, it can be a necessary evil, albeit only in extreme cases.”

In so holding, Professor Somin is making a moral judgment. But what is it based on? I’m not opposing his rule here, but only pointing out that it begs the question: to what moral code or ethical authority does he look in determining what views should and should not be stigmatized?

Schuette, Marriage, and Democratic Rights

by Travis Weber

April 25, 2014

What do all these things have to do with one another? On April 22, 2014, in Schuette v. BAMN, the Supreme Court ruled on a constitutional challenge to a Michigan ballot measure providing that its state government, along with universities and schools, “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin… .” Opponents claimed that such a measure violated the Equal Protection Clause of the Fourteenth Amendment on the grounds that it prevented race-based preferences which were needed to achieve equality. Proponents claimed a measure mandating equal protection under the law regardless of race could not possibly violate the Equal Protection Clause. Without deciding the issue of whether race-based preferences themselves were constitutional, in an opinion authored by Justice Kennedy, the Court distinguished this case from others in which a law was enacted to address a specific history of discrimination, and sided with the proponents in holding that this law mandating equal treatment did not violate the Equal Protection Clause. But how did the Court really get there?

While the case carried with it much emotion, and dragged around a legal thicket of cases dealing with race-based preferences in education, Justice Kennedy’s decision was remarkable in weighing heavily in favor of permitting voters to decide how their states will handle difficult and sensitive public policy issues. It is true, as the Court reminded us, that constitutional rights must be respected and cannot be overridden by the voters. But “[t]here was recognition that our federal structure “‘permits innovation and experimentation’ and ‘enables greater citizen involvement in democratic processes.’”Scheutte v. BAMN, 572 U.S.___ (2014) (slip op., at 4-5) (quoting Bond v. United States, 564 U.S.__ (2011) (slip op., at 9)).

Consider the following reasoning by Justice Kennedy, which could just as well be applied to a challenge to a state marriage law:

  • ‘[T]he States may perform their role as laboratories for experimentation to devise various solutions… .’” Schuette, slip op., at 4 (quoting United States v. Lopez, 514 U.S. 549, 581 (1995) (Kennedy, J., concurring)).
  • [Windsor] Grutter acknowledged the significance of a dialogue regarding this contested and complex policy question among and within States.” Schuette, slip op., at 4.
  • While this case arises in Michigan, the decision by the State’s voters reflects in part the national dialogue regarding the wisdom and practicality of [legalizing same-sex marriage] race-conscious admissions policies in higher education.” Schuette, slip op., at 5.
  • Perhaps, when enacting policies as an exercise of democratic self-government, voters will determine that [a preference for natural marriage] race-based preferences should be adopted… . The holding in the instant case is simply that the courts may not disempower the voters from choosing which path to follow. In the realm of policy discussions the regular give-and-take of debate ought to be a context in which rancor or discord based on race are avoided, not invited. And if these factors are to be interjected, surely it ought not to be at the invitation or insistence of the courts.” Schuette, slip op., at 13.
  • The Court, by affirming the judgment now before it, in essence would announce a finding that the past 15 years of state public debate on this issue have been improper.”
  • By approving Proposal 2 and thereby adding §26 to their State Constitution, the Michigan voters exercised their privilege to enact laws as a basic exercise of their democratic power. In the federal system States respond, through the enactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times. Michigan voters used the initiative system to bypass public officials who were deemed not responsive to the concerns of a majority of the voters with respect to a policy of [how to define marriage for their own state] granting race-based preferences that raises difficult and delicate issues.” Schuette, slip op., at 15 (internal citation and quotation marks omitted).
  • Yet freedom does not stop with individual rights. Our constitutional system embraces, too, the right of citizens to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times and the course of a nation that must strive always to make freedom ever greater and more secure. Here Michigan voters acted in concert and statewide to seek consensus and adopt a policy on a difficult subject [touching upon how states will define the foundational institution of marriage] against a historical background of race in America that has been a source of tragedy and persisting injustice. That history demands that we continue to learn, to listen, and to remain open to new approaches if we are to aspire always to a constitutional order in which all persons are treated with fairness and equal dignity. Were the Court to rule that the question addressed by Michigan voters is too sensitive or complex to be within the grasp of the electorate; or that the policies at issue remain too delicate to be resolved save by university officials or faculties, acting at some remove from immediate public scrutiny and control; or that these matters are so arcane that the electorate’s power must be limited because the people cannot prudently exercise that power even after a full debate, that holding would be an unprecedented restriction on the exercise of a fundamental right held not just by one person but by all in common. It is the right to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process.” Schuette, slip op., at 15-16.
  • The respondents in this case insist that a difficult question of public policy must be taken from the reach of the voters, and thus removed from the realm of public discussion, dialogue, and debate in an election campaign. Quite in addition to the serious First Amendment implications of that position with respect to any particular election, it is inconsistent with the underlying premises of a responsible, functioning democracy. One of those premises is that a democracy has the capacity—and the duty—to learn from its past mistakes; to discover and confront persisting biases; and by respectful, rationale deliberation to rise above those flaws and injustices. That process is impeded, not advanced, by court decrees based on the proposition that the public cannot have the requisite repose to discuss certain issues. It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds. The process of public discourse and political debate should not be foreclosed even if there is a risk that during a public campaign there will be those, on both sides, who seek to use [sexual] racial division and discord to their own political advantage. An informed public can, and must, rise above this. The idea of democracy is that it can, and must, mature. Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people. These First Amendment dynamics would be disserved if this Court were to say that the question here at issue is beyond the capacity of the voters to debate and then to determine.” Schuette, slip op., at 16-17.
  • The electorate’s instruction to governmental entities not to embark upon the course of race defined and race-based preferences was adopted, we must assume, because the voters deemed preference system to be unwise, on account of what voters may deem its latent potential to become itself a source of the very resentments and hostilities based on race that this Nation seeks to put behind it.” Schuette, slip op., at 18.
  • This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it. There is no authority in the Constitution of the United States or in this Court’s precedents for the Judiciary to set aside Michigan laws that commit this policy determination to the voters.” Schuette, slip op., at 18.
  • Deliberative debate on sensitive issues such as racial preferences all too often may shade into rancor. But that does not justify removing certain court-determined issues from the voters’ reach. Democracy does not presume that some subjects are either too divisive or too profound for public debate.” Schuette, slip op., at 18.

This is strong language from the Court justifying its decision to leave sensitive public policy issues for the voters of each state to decide. The Court should apply the same reasoning to any challenge to a state marriage law. Apart from the lack of support for a federal constitutional right to same-sex marriage, this is a sensitive issue touching on how communities within America choose to live and organize themselves. The Court shows wisdom in staying out of such issues in Scheutte, and it should stay out of such issues in the context of state marriage laws.

Justice Kennedy’s justifications for declining to involve the Court in classifying racial groups according to their interests is also of some relevance to marriage. If courts should not determine the interest of groups as regards race because such a “venture not only would [] be undertaken with no clear legal standards or accepted sources to guide judicial decision but also it would result in, or at least impose a high risk of, inquiries and categories dependent upon demeaning stereotypes, classifications of questionable constitutionality on their own terms,” Schuette, slip op., at 12, why should the court not also avoid perpetuating “classifications of questionable constitutionality” in the same-sex marriage context?

Consider the following:

  • The Court properly refused to review under strict scrutiny “[a]ny state action with a ‘[marriage] racial focus’ that makes it ‘more difficult for certain [marriage] racial minorities than for other groups’ to ‘achieve legislation that is in their interest.’”
  • In essence, according to the broad reading of [Windsor] Seattle, any state action with a “[sexual] racial focus” that makes it “more difficult for certain [sexual] racial minorities than for other groups” to “achieve legislation that is in their interest” is subject to strict scrutiny. It is this reading of [Windsor] Seattlethat the [district courts] Court of Appeals found to be controlling here. And that reading must be rejected.”

If providing minority groups with the advantage of constitutional strict scrutiny in order to achieve legislation “that is in their interest” would not be considered constitutionally required, Schuette, slip op., at 11, it must be asked: why bless with strict scrutiny the almost identical claims of same-sex marriage groups, though they be in the minority, are “legislatively disadvantaged,” and certainly have had difficulty in achieving their “interests” legislatively?

Indeed, it is precisely because they’ve had only limited success in state legislatures that proponents of same-sex marriage have sought constitutional rulings in order to ensure these “matters [are] foreclosed from voter review or participation.” Schuette, slip op., at 13. “Including” a right to same-sex marriage in the Constitution will ensure that no states’ rights are protected, voters will grow disenfranchised at being shut out of the political process, and states will be denied their place as “laboratories” according to the design of the federal constitutional structure.

Despite lower courts’ attempts to twist their way out of the law, well-settled Supreme Court jurisprudence has always mandated the result that the Constitution does not provide a right to same-sex marriage. No such right is enumerated, and cannot now be invented at this time. Washington v. Glucksberg, 521 U.S. 702 (1997). The Court should decline to dictate a federal constitutional right to same sex marriage and should leave this determination to the states. The reasoning in Schuette v. BAMN makes this result more hopeful.

War on the Pledge: new tactics, but the same tired thinking

by Travis Weber

April 23, 2014

The American Humanist Association (AHA) recently filed suit against the Monmouth County (New Jersey) Matawan-Aberdeen Regional School District. The offending action? The school district is following a state law providing that students recite the Pledge of Allegiance each day. The thinking behind this and other suits is the same tired thinking that any such mention of God in a public body violates constitutional protections. Usually some alleged violation of the Establishment Clause is claimed.

Yet here, the AHA and its plaintiffs (who remain anonymous) have alleged that this recitation of the Pledge violates Equal Protection provisions contained in the New Jersey Constitution. No doubt this is an attempt to test a legal pathway for success in knocking the Pledge out of public life. This would be a win for the AHA, which likely cares very little for legal integrity but very much in achieving its goal. Yet the idea that the Pledge discriminates against some students is ridiculous. Students already have the right to refrain from reciting the Pledge. The AHA and its “plaintiffs” in this case want to force everyone else to stop saying it too.

While the AHA identifies itself, the offended student and parents remain unidentified. While reasons for anonymity in litigation vary from case to case, here it is likely they are afraid of the pushback they would receive should they be known as the plaintiffs in this suit. Yet pushback would be understandable, especially when one is the catalyst for a meddling organization to come in from out of state and tell local students and their parents how to live their lives day to day.

Yet the philosophy underlying this and similar claims begs a larger discussion. As courts have interpreted the Establishment Clause to eliminate even relatively minor indicia of religious expression from public life on the grounds that such mention is state “endorsement” of religion, public bodies are left to operate in a philosophical vacuum. Courts have permitted public schools to “endorse” secularism and humanist principles. The result is an “establishment” of a “state philosophy” and orthodoxy of secularism, with the full force of the government and power of law promoting these beliefs.

As a result, the courts have bought into a lie that scrubbing God from public life to “comply” with the Establishment Clause will lead to the ideal result – an even playing field in which no one view is promoted. Yet a philosophical vacuum cannot exist for long. And since indicia of religion are being eliminated from public schools, indicia of alternative belief systems (secularism and humanism) have rushed in to fill the void. The result is that we are indeed left with a state established religion – the “religion” of humanism.

Summary of Oral Arguments in Sebelius v. Hobby Lobby and Conestoga Wood Specialties Corporation v. Sebelius

by Travis Weber

March 27, 2014

The post-oral-argument predictions in the Hobby Lobby case will continue to pour out as various entities (more or less interested in the outcome) make guesses about which way the Supreme Court will rule now that the justices have had a chance to quiz the attorneys for each side. The truth is, no one knows what will happen. Nevertheless, several things were noteworthy and other things not noteworthy, about this morning’s arguments. My review of the arguments (with emphasis on noteworthy sections) is below (page numbers are those listed on the Supreme Court’s official transcript).

Arguments began with Paul Clement, the attorney for Hobby Lobby and Conestoga, presenting his clients’ case first. After some initial questions about whether Congress meant to include corporations within the Religious Freedom Restoration Act’s (RFRA) protections (pp. 4-9), the justices’ opposition to Hobby Lobby’s position predictably centered on what other claims corporations might bring should the Court rule for the Green family and against the government. Justices wondered whether a ruling for Hobby Lobby would lead to corporations objecting on religious grounds to providing vaccinations, blood transfusions, and the like. Hobby Lobby’s attorney Paul Clement disputed this implication, pointing out that the Court could be trusted to wade through these issues under RFRA. Furthermore, if the “parade of horribles” was likely to occur, where was it? RFRA has been around since 1993. Clement pointed that none of the claims over which the justices expressed concern had been brought (or they were brought but didn’t succeed) “notwithstanding the fact that the government concedes that sole proprietorships and partnerships and nonprofit corporations are all protected by RFRA” (pp. 14-15).

Clement was then questioned about how a corporation could exercise religion (pp. 17-21), but the argument drifted off into a discussion of what costs Hobby Lobby would incur if it refused to cover the contraceptives (pp. 17-29). A discussion subsequently ensued about grandfathered health plans, and then moved to the concept of burden shifting between the objecting employer and its employees (pp. 29-38). Clement noted that exemptions are allowed in the conscience law context — if a doctor objects to providing an abortion, the woman is not prevented from obtaining the procedure, but she must go to another provider (p. 38). Clement also pointed out that the government has available to it a less restrictive alternative than the current HHS mandate — allowing employees of objecting corporations to go on the exchanges and subsidizing them like it does for employees at companies with fewer than 50 workers (p. 40).

At this point, the government’s attorney, Solicitor General Donald Verrilli, took over and opened by arguing that the requested accommodation’s impact on third parties must be examined (pp. 43-46). He was then pressed by the justices on why the government insisted on hampering for-profit corporate religious exercise but not other religious exercise (pp. 46-49). When Verrilli said the Court had never ruled that corporations had a right to exercise religion, Justice Alito asked if “there’s something about the corporate form per se that is inconsistent with [a] free exercise claim” (p. 46). He followed: “Do you agree … that for­profit corporations must do nothing but maximize profits, they cannot have other aims … including religious aims?” (p. 47) Verrilli said no, but the point was made.

Verrilli then argued that ruling for Hobby Lobby would permit other problematic claims (pp. 52-53). He was pressed about the ability of corporations to have a racial identity (which courts have held), but said such a scenario was different from this case, which involves “exercise of religion — something the courts have never recognized corporations can do (p. 54). However, neither have the courts said corporations can’t engage in religious exercise. He was then pressed by Justice Kennedy about exemptions being given by the government apart from RFRA concerns (pp. 56-58). Verrilli explained that churches were exempt (as they have always been considered special under the law), but argued that the other companies and groups that do not have to pay were not actually subject to “exemptions” but were just categorized differently under the law (pp. 58-59). He was then pressed to explain when the grandfathered plans would end (pp. 59-60) — such continual “grandfathering” with slow and piecemeal implementation demonstrates the lack of a compelling government interest in enforcing the HHS mandate.

Justice Breyer then questioned Verrilli and asked him to explain how the government might meet the contraceptive needs of women less restrictively than enforcing the HHS mandate (pp. 64-69). Justice Kennedy quizzed Verrilli and said that according to the government’s logic, it seemed that a for-profit corporation could be forced to pay for abortions. Verrilli had to admit his logic allowed such a result, but he attempted to minimize the implication by noting there was no such law mandating abortions on the books at this time (p. 75). He followed by pointing out that the federal and state laws regarding abortion don’t consider the “particular forms of contraception” at issue in this case to cause abortions (pp. 75-77).

Verrilli had trouble batting away hypotheticals from Justices Alito and Breyer showing the problems corporations may face in bringing religious exercise claims (should the government win in this case) challenging laws banning kosher or halal slaughter methods (pp. 78-81). He concluded by pointing out that companies were going into the public sphere, and this would be the first time a company could be permitted to override statutory benefits under a Free Exercise or RFRA claim (p. 81). At the last moment, Verrilli was questioned by Justice Scalia about the government’s claim that it was not drawing a distinction between for-profits and non-profits (p. 82). Justice Scalia quite rightly noticed differences with how the government was treating the two groups (p. 82).

Paul Clement then had the last word. During his few minutes of rebuttal argument, Clement pointed out that Congress has applied the abortion conscience laws to all providers, including for-profit providers. But if Congress changed those laws, the government (according to its argument today) would take the position that RFRA does not apply to protect providers objecting on conscience grounds (p. 83). Clement also reminded the Court that if the government is going to burden religious exercise, its regulation has to do so in the least restrictive way. In this regard, Title X already provides for contraception coverage, so the government could provide contraceptive coverage through Title X (pp. 83-86). He also reminded the Court of one point Hobby Lobby already made in its brief — the government could simply pay for the contraceptives (p. 86). Clement concluded by noting that Congress has already spoken in an abundantly clear manner on the issue of religious freedom when it passed RFRA, but “[h]ere the agency has decided that it’s going to accommodate a subset of the persons protected by RFRA. In a choice between what Congress has provided and what the agency has done, the answer is clear” (p. 87).

With that, the arguments were concluded. A written decision in the case is expected in June 2014.

Corporate Social Responsibility, Race-Based Companies, and Hobby Lobby

by Travis Weber

March 21, 2014

In recent years, Corporate Social Responsibility (“CSR”) has sprung up as an area of interest to a variety of business forums — they promote it, talk about it, tout their CSR “compliance” on their websites, and brag about it to whoever will listen. Many corporations have entire CSR departments. They release yearly reports documenting their CSR compliance. Law firms have even established CSR practice areas. Corporations may seek to ensure they are advancing “sustainable” practices were possible, that they are treating indigenous populations equitably, and that their suppliers are not committing human rights abuses. “Green” corporations may enact policies above and beyond regulatory requirements in order to further their goal of caring for the environment. While laws related to CSR have been enacted in various jurisdictions, much CSR corporate compliance is still voluntary. So why have companies moved toward and embraced CSR? While they would likely provide a variety of reasons, the fact remains that the driving force behind these businesses — the people who run them — think it is a good thing.

By and large, no one critiques corporate interest in CSR. Many say it is a good development. No one claims that “corporations” cannot engage in CSR-related advocacy. And most of the large corporations with CSR departments are for-profit companies.

How, then, do we arrive at the curious and odd criticism of Hobby Lobby for relying on religious beliefs in its operation? There is no good answer to this. Hobby Lobby’s religious positions are the result of the same driving force producing CSR program at other companies — its owners and operators. It is ironic that the company being criticized for its challenge to the HHS mandate has voluntarily implemented generous CSR type programs, like starting its new employees at 90% above the minimum wage. Yet Hobby

Those claiming a corporation cannot have a religious identity look to be on increasingly weak ground, however, as the U.S. Court of Appeals for the Fourth Circuit recently ruled in Carnell Construction Corportation v. Danville Redevelopment and Housing Authority, No. 13-1143 (4th Cir. Mar. 6, 2014) that a corporation can have a racial identity under federal law. If the issue is whether a corporation can have an “identity” that drives its goals and priorities, what’s the difference between a “religious” and “racial” identity?

As Matt Bowman, an attorney for Conestoga Wood Specialties Corporation (which is facing the same issue as Hobby Lobby at the Supreme Court), points out: “[a] gaggle of special interest groups supporting Obamacare’s coercion is outraged at this suggestion. They profess to be shocked — shocked! — that anyone would say a family business has religious freedom. But these same groups apparently favor a legal regime that says for-profit corporations can be racial minorities and can exercise the most intimate and private constitutional “rights” to contraception and abortion. Their outrage is withheld until families in business claim to be religious.”

Hobby Lobby’s opponents know for-profit businesses are an influential social force. Scared of the prospect of not being able to smother all of society with their pro-contraceptive and pro-abortion views, Hobby Lobby’s opponents must find some distinction upon which to rest their hat — in this case it just happens to be seeking a profit. Lacking a legitimate reason to deny American small business owners the right to exercise their faith, opponents find an easier time inferring such businesses are “bad” and entitled to less protection because they seek to make money. This claim looks increasingly desperate, however, in face of the fact that the businesses promoting the CSR practices discussed above are almost all very large, for-profit corporations. And no one takes issue with that.

Few have a problem with corporations being able to provide shoes for children, supply water for those who need it, provide special attention to their environment, and ensure their suppliers are not committing human rights abuses. Neither should there be any issue with a business being run according to the faith of its owners.

Why you should care about Elane Photography

by Travis Weber

March 19, 2014

Sometime in the next few weeks, the U.S. Supreme Court is expected to decide whether it will hear the case of Elane Photography v. Willock. The owners of Elane Photography are Christians, and their views and beliefs are reflected in how they run their business. Yet the New Mexico Supreme Court ruled that Elane Photography violated New Mexico’s anti-discrimination law provisions regarding sexual orientation when its owners refused to agree to photograph a same-sex commitment ceremony. Elane Photography’s owners are merely asking the government to not compel them to participate in actions which violate their religious beliefs. Consequently, when the government forces them to participate in the same-sex ceremony by photographing it (with the threat of a fine if they refuse), the government is forcing and compelling Elane’s owners to speak a certain message in violation of the First Amendment.

Even supporters of same-sex marriage see the danger of the government’s position and its use of anti-discrimination law in this case. Writing in the Wall Street Journal, Eugene Volokh (professor at UCLA law school) and Ilya Shapiro (with the Cato Institute) point out that a ruling against Elane Photography here sets a dangerous precedent that allows the government to compel speech in the cause of furthering equality through powerful and broad anti-discrimination laws. The next victim may be someone quite unlike Elane’s owners. It could be “a freelance writer who declines to write a press release for a religious organization with which he disagrees.” According to the New Mexico Supreme Court’s reasoning in Elane Photography, this writer has violated anti-discrimination law because his refusal to write such a press release is discrimination based on religion, just like Elane Photography’s refusal to photograph the commitment ceremony is being viewed by the government as discrimination. Yet a photographer, writer, speaker, publisher, or other artist “must have the First Amendment right to choose which speech he creates, notwithstanding any state law to the contrary.”

As Volokh and Shapiro state, “a couple that is told by a photographer that she does not want to photograph their commitment ceremony may understandably be offended. But avoiding offense is not a valid reason for restricting or compelling speech… . The First Amendment secures an important right to which all speakers are entitled — whether religious or secular, liberal or conservative, pro- or anti-gay-marriage. A commitment to legal equality can’t justify the restriction of that right.”

Elane Photography highlights an important point — individuals with different views regarding the definition of marriage can still agree that free speech must trump “forced equality.” Indeed, the freedom from such “compelled speech” is protected by the First Amendment to the U.S. Constitution. When speech motivated by religious beliefs is forced to pass muster with the government’s censors and Americans are forced to speak a certain message under the threat of fines and force of law, all who love individual liberty and free speech (regardless of personal views) must stand up and pay attention.

On the Free Exercise of Government…

by Travis Weber

March 10, 2014

Legal scholar and novelist Garrett Epps opens his recent piece in The Atlantic with the following statement: “If the conservative justices uses [sic] the same logic they have in the past, Hobby Lobby’s case against the contraceptive mandate doesn’t stand a chance.”

Mr. Epps conveniently finds praise for Supreme Court precedent, a position often either used or discarded as best serves the cultural assault on Christian ethics. Indeed, one can scarcely find lamentations about discarded precedent as district courts currently invent a federal constitutional right to same sex marriage. Here, however, Mr. Epps simply distracts from the free exercise issues in the Hobby Lobby case.

Hobby Lobby’s case centers on a free exercise claim brought under the Religious Freedom Restoration Act (RFRA). But Mr. Epps relies almost entirely on Establishment Clause cases as he attempts to argue that Hobby Lobby has no right to refuse to pay for certain contraceptives.

After laying out his arguments, he appears to receive the following special revelation: “But that’s the rub… When government directly funds religion, the Establishment Clause is violated; but when government gives benefits to individuals, and the individuals pass on the benefit to religion, no dissenter is injured, so there’s no violation.” After discussing how taxpayers should not be forced to provide money directly to churches, he asks: “Why is Hobby Lobby injured if the taxpayers in the Establishment Clause cases are not?”

I would have thought the answer is rather clear: the taxpayers are not seeking to exercise any right based on a religious objection to action compelled by the government. Exactly what “rub” Mr. Epps is talking about remains unclear. Hobby Lobby’s case is about whether the “exercise of religion” is substantially burdened under RFRA. It is not about the Establishment Clause or individuals being forced to support religion at the direction of the government.

Nevertheless, Mr. Epps continues: “[T]o assert a right to control employees’ private choice will be to hold that religious people — or, even more ominously, some favored religious people — are more easily injured than others, that their free-exercise rights trump those of their employees.” Mr. Epps does not explain what he means by “favored” religious people, but he falsely asserts that Hobby Lobby is seeking to control its employees’ choices. The Greens are not preventing their employees from obtaining the contraceptives at issue; they are merely saying: “Don’t make us violate our consciences by forcing us to use our company as the conduit for their delivery.” The Greens, like many Americans, simply want to remain free to live and work according to their beliefs. They don’t want to be forced to choose between paying crippling fines, shutting down their business, or dropping healthcare for their employees in order to avoid violating their consciences.

It remains unclear what “free exercise rights … of … employees” Mr. Epps is talking about. The reader hopes he is not suggesting that an individual’s religion requires their employer to pay for their contraception — indeed, such an idea is nonsensical. In any event, such musings are merely a distraction from reality, as Hobby Lobby’s employees have suffered no violation of their constitutional rights — they retain full access to all the contraceptives available under the employer mandate.

Furthermore, Hobby Lobby is willing to pay for 16 of the 20 contraceptives required by the mandate. The Green family only objects to 4 drugs that destroy human embryos, and does not want to be compelled to pay for the destruction of human life. In addition, Hobby Lobby is not objecting to employee access to these 4 life-destroying drugs, but merely saying it should not be compelled to cover them.

Mr. Epps’ claim that “[a]ll consciences are equal; but some are thus more equal than others” might sound catchy, but it twists the truth and clouds a proper understanding of the issue at hand. There is no conscience right to demand that others subsidize one’s birth control methods. And contrary to his assertions, RFRA does “elevate” religious claims when it forces the government to justify itself under strict scrutiny in free exercise matters. It does not merely “balance” free exercise claims against whatever law the government puts in place.

In an odd conclusion to his piece, Mr. Epps attempts to cite the Gospel of Luke for support of his anti-religious position. The parable he cites is actually in the Gospel of Matthew. But more importantly, the passage does not even support his argument. Examining the story in its full context, the laborers were actually complaining to their master about the size of their respective paychecks. The generous master (God) says he has the right to do what he wants with his own resources. This parable hardly supports the notion that Hobby Lobby’s employees should coerce it to subsidize their wages (which for beginning employees starts at 90% above the federal minimum wage) with birth control.

Hobby Lobby is not seeking to “dictate” anything to its employees. Hobby Lobby is not preventing its employees from using birth control methods. Hobby Lobby is merely saying: “Don’t force me to cover them!” The Greens are not trying to control employee choices; they simply object to being forced to subsidize acts that go against their religion.

In the end, the members of the Green family are merely seeking to exercise their religion as they run their company. Such a demand is not beyond the bounds of reasonable free exercise interpretation. RFRA makes that secure. The Court has supported even bolder free exercise claims in the past. It should support the Greens’ rather modest claim in this case.

Last month, FRC filed an amicus brief with the Supreme Court in the Hobby Lobby case that can be read here.

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