ACLU IN NEVADA

At Southern Appeal, Steve is upset that the ACLU is considering challenging an exemption provision similar to the one that the California Supreme Court looked at in the Catholic Charities case. Given the paucity of information in the news article he refers to, I'm not quite sure what the ACLU's challenge would be. If courts are going to continue in a Smith vein and relay Scalia's message to religious groups that they should petition the state legislature for exemptions from generally applicable laws, then the realm within which those exemptions are permitted by the courts is significant. The devil is in the details, of course.

I am curious how my conservative friends defend their criticisms of Smith, though, if not on moral or policy grounds. My basic understanding of Smith is that Scalia was primarily attempting to restore the founding era "secular regulation rule," which he thought had been abandoned by a Court overly enamoured with its own ability to secure amorphous rights to ignore generally applicable laws. I realize that there are lots of fun ways to "distinguish" Smith -- it should only apply to individuals, not groups; it should only apply to criminal laws, etc. -- and the best approach to the question will delve into such details, but the search for such ways of narrowing Smith is not informed by a dispassionate understanding of original intent, plain meaning, or a general theory of judicial restraint. Instead, the broad perspective informing such an investigation is partly a moral one, and it draws sustenance from such thoroughly modern cases as West Virginia v. Barnette and Sherbert v. Verner. I'm fine with that, but it seems to me that you need to throw the conservative modalities of constitutional interpretation out the window, or, at the very least, you need to admit that they are by no means your starting point for the analysis. The starting point is the outcome: Catholic organizations shouldn't have to pay for employee health care that they consider immoral. I'm fine with a result-oriented approach, of course -- and, more fundamentally, I don't know enough of the conservative literature on free exercise to make an informed judgment on the interpretive issues at stake.

So, I'm curious. How can conservatives defend their attack on Smith and retain their general approaches to constitutional interpretation? Why should we agree that Catholics have something called a "free exercise" right to refuse to pay for employee health plans that include contraception?

PS: Just skimmed Michael McConnell's 1990 Harvard Law Review article on the history of the free exercise clause. It seems to me that his argument illustrates a common problem with any original intent approach: it is indeed plausible to form sentences that combine "original intent" and "judicially enforced, constitutionally mandated free exercise exemptions," but only if you're willing to telescope out to a very broad view of the meaning of original intent itself. A consistent application of such a broad view of original intent would not provide the kind of restrictions on judicial options that conservatives seem to be looking for when they defend original intent; the choice of level of abstraction leaves a great deal up to the individual judge. So other considerations are likely to come into play, both in the choice of levels of abstraction and in the attempts to defend results in any given case.

THE PROBLEM WITH VIOLENCE

The problem with violence in TV and movies is not that it leads to leads to violent behavior, in my view; the problem with violence is that it leads to bad public policy. We are inundated with a media culture of violence, and, consequently, we are willing to listen to politicians who play on our worst fears and propose punitive policies such as "three strikes" laws and mandatory minimum sentencing.

Depictions of sex have no similar public policy implications. Imagine if every violent act you had ever seen on television had instead been an act of love. You'd probably be a happier person, perhaps even a little too happy. . .

QUOTE OF THE DAY

From the Poor Man:

You were expecting, what, exactly? Commercials featuring the smoldering remains of the Clinton budget surplus?

When you're done with that one, check out "White House to Seek Ban on Gay Sex on the Moon."

WOW

Wow. [Median income isn't relevant for everything, of course -- it would be nice to know what the median income is worth -- but the charts are still striking.]

BEWARE BEING WRONG

This is one of the dumbest things I've read in a while. Ranks along with Representative Tom Clark's recent silliness on the same lines. I wrote about something similar here; let me amend that post by saying that if Eisenhower could run on a platform against the Truman administration's war policies in North Korea, at the beginning of the Cold war -- and yes, that's the ex-Supreme Allied Commander, highest ranking military member to serve as President in recent memory, Republican Eisenhower -- then surely Democrats can oppose this administration's war on terrorism and still remain within the realms of responsible politics. Every responsible person thinks that international terrorism is a serious security problem. Not everyone thinks that the best way to fight international terrorism is to invade and occupy a country without direct links to the particular international terrorist group you're most worried about. The jury is still out, at any rate.

If Osama bin Laden thinks that Kerry will prove more congenial to him, then bin Laden is a moron, pure and simple. And in my humble estimation, James Lileks is letting his partisan affinities get the best of him when he argues otherwise.

BEWARE ONE OF THE OLDEST TRICKS IN THE BOOK

From Kathleen Hall Jamieson and Paul Waldman, The Press Effect:

The move in [Bush's 2000 presidential primary ad attacking McCain for "opposing breast cancer research"] is one familiar to campaign watchers. After presenting a statement, vote, or action an opponent has taken, an ad argues inductively that the particular instance proves a general disposition. A single vote to reduce certain prison sentences proves that the candidate is 'soft on crime.' An inconsistent statement proves that the candidate 'can't be trusted.' A vote against a pork-barrell bill proves that the candidate 'doesn't care about our district.' In order to warrant such conclusions, a reasonable person would have to know why the candidate cast the vote and whether the instances cited are representative of the positions the candidate has taken most of the time. . . .Reporters should insist that when candidates move from the specific claim to the general attack on their opponents, the conclusions they draw are warranted by the facts. (p. 176).

The book has been collecting dust on my shelf since last year (when I received a free copy; thanks!). Now, since the media war has been joined in the presidential race, I'm going to read it.

REMEMBER GUINN?

Tim Sandefur points to some briefs in the ongoing legal battle over Guinn, here. See also the San Francisco Chronicle article, "Antitax lawmakers take Nevada tax fight to U.S. Supreme Court." My rambling, incoherent, and poorly argued thoughts on the case can be found starting here, if you're interested.

ON COURT ACTION AND LEGISLATIVE ACTION

I've read with interest the negative reaction to the California Supreme Court's Catholic Charities case. One argument has been repeated several times and is worth some thought. Shawn McComber writes in the American Spectator (via Southern Appeal) that the "court ruled that Catholic Charities was not a religious organization because it hired non-Catholics and offered such 'secular services' as counseling, low-income housing and immigration services to people, regardless of their faith." Not exactly. Instead, what the court did was note that the organization didn't fit the statutory definition of "religious organization" -- and, more importantly, that Catholic Charities itself admitted that point. Catholic Charities asked the courts to strike down the statutory definition; the court declined to do so, in part, it seems, precisely because it didn't want to have to decide what counts as a religious organization as such -- which is precisely what critics of the ruling are criticizing the court for having done. Figure that one out.

Professor Rick Garnett writes an eloquent attack on the opinion here (and Professor Bainbridge quotes from it approvingly, I think, here). Here is a key paragraph:

Given recent decisions and developments, the court's ruling in Catholic Charities of Sacramento, Inc., v. Superior Court of Sacramento County comes as no surprise. It is no less regrettable, though, and should be no less troubling, for being predictable. Indeed, Professor Douglas Laycock — one of the nation's leading constitutional-law scholars — has observed that the decision is a "shocking interference with internal church affairs." It presents, in the words of Justice Janice Rogers Brown, the court's lone dissenter, "an intentional, purposeful intrusion into a religious organization's expression of its religious tenets and sense of mission." The Catholic Charities case is not just another effort to navigate what Justice Brown called the "whimsical and somewhat erratic path" of religious-freedom jurisprudence. Rather, it involves an effort by government to define — and, thereby, to confine — the nature and scope of religious belief, obligation, and faith. (emphasis added)

Now I'm not really sure how "the decision" itself is an interference in internal church affairs, since the root of the problem here is the statutory definition of a "religious organization." The court didn't create the definition; it just upheld it. One of the purposes of the approach to free exercise embodied in Smith was to fob the question of exemptions off on the legislature; here, it seems to me, the CA court has taken that purpose seriously and refused to create an exemption to an otherwise valid law, and one that the court argues serves a compelling interest at any rate. The creation of an exemption could be called "activist" -- and in other contexts would -- for interfering with a statutory scheme and striking down a law written by democratically accountable legislatures and replacing it with a rule created by elitist folks in black robes. Indeed, the rule that folks like Prof. Garnett would like to see the courts announce here is a reinvigoration of a Warren-court era rule that rests on judicial power to strike down the actions of democratically accountable legislators.

Now you could say that judge Brown just wants to protect "rights." That's fine. Unfortunately, there are unavoidable moral judgments to be made about what rights are actually protected under "free exercise," and what level of government should be relied upon to protect them. Scalia's Smith opinion takes one position on these issues, judge Brown's Catholic Charities dissent takes another position. You're not going to help future judges decide between these approaches by telling them that they should look at text, the intent of the framers, plain meaning, or any of the other mechanical approaches that conservatives advance in order to criticize judicial opinions that they don't like. It's just not going to work, folks. There's a tough call to be made here, and it's an unavoidably moral call.

MORE: Genuflections tells Catholic Charities to complain to the legislature, vote Republicans because they don't want to force employers to provide health care, but also to scare off non-catholic employees by hinting that non-Catholics won't be welcome and by increasing religious symbols in the work environment. Sebastian Holsclaw calls the court's reasoning "silly" and then blames "leftists" for what he predicts will be a catholic pull back from charity work in California. Behold the political danger of Smith, at least when large religious groups ask for exemptions. Still, just as Scalia told the peyote users in Smith: if you want an exemption, go back to Sacramento, folks. Recall that Scalia is quite hard-hearted about the effects on minority religious groups:

It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs. (full text of the opinion here)

THANKS, KATE

For the link!

HA

I love this. Here are more. Brilliant.

ANOTHER CURMUDGEON

This is funny, but I'm afraid that Jack will tell me I'm being a partisan hack again, so take it with a grain of salt, please.

CONGRATS

To Robert and Davey, whom I don't know, but whose post I wanted to link to anyway.

MIXED PRESS SIGNALS ON BUNDESVERFASSUNGSGERICHT

Compare:

German Eavesdropping Law Unconstitutional (Deutsche Welle)

German Court Backs Eavesdropping Law, Seeks to Protect Privacy

If you want to clear up the discrepancy (the court took a nuanced approach to the law in question), go here (press release) and here (case), in German. I'll have more to say about this later.

BARAN ON DHAFIR

Take a look at Madeleine Baran's article on Rafil Dhafir, "The Terrorism Case that Wasn't."

TERRORIST BOMBING IN ARIZONA

And why haven't you heard about it? David Neiwert has some thoughts on the subject. The administration seems to believe that racist domestic terrorist groups should be fought using the criminal justice system. I'm fine with that, but I hope that they're serious about enforcement, since it is still the case that the only verified WMD threats in recent years have come from domestic terrorists of the white racial supremacist kind.

COURTS, MORALS, AND JUDGE BROWN

Judges cannot avoid letting their own moral judgments influence some of their decisions, and we don't really want them to try to eliminate the influence of their own moral judgments, either. That's not to say that judges should be free-wheeling in their invocations of moral principles; rather, I don't think that they would be doing a good job at "judging" if they didn't at least listen to what can reasonably be described as morality. A while back I tried to make this rather banal point and got some heat (see here, my response here). But I think that a recent decision from the CA Supreme Court proves my point.

The CA court refused to create an exemption from an otherwise valid state law requiring employers to cover contraception in health plans that they provide to their employees. Groups that qualify as a religious organizations (defined in the statute) can get exemptions, but Catholic Charities didn't make the cut. Employers can refuse to provide health plans if they choose, but if they provide plans, it is the state's policy that they must cover contraception. You can read the opinion in Catholic Charities of Sacramento v. Superior Court of Sacramento County here (PDF file, link via Howard Bashman).

Read judge Brown's dissenting opinion, starting on p. 54 of the PDF file. I haven't studied the opinion in detail -- and judge Brown has previously argued that judges shouldn't be afraid of being "activist" in a conservative direction, if I remember correctly -- so I only want to make a minor point about the opinion and about reactions to the opinion. Both majority and dissent have attempted to do justice to the complexities of the case, including the restrictive ruling in Employment Division v. Smith (essentially, arguing that the Free Exercise clause does not require judges to employ strict scrutiny against generally applicable state laws that burden religious conduct). The majority sees the principle from Smith -- and its progeny -- as allowing for a relatively straightforward application in the present case, but judge Brown is troubled, partly because it is, after all, religion that is burdened by California's law. Here is the relevant passage from judge Brown's dissent (citations omitted):

Our ability to create a space for religious perspectives is both instrumental and regenerative for democracy. Religious institutions enhance individual autonomy "by challenging the sovereign power of the liberal state" and by articulating alternative visions -- "counter-cultural visions that challenge and push the larger community in . . . directions unimagined by prevailing beliefs." By protecting religious groups from gratuitous state interference, we convey broad benefits on individuals and society. By underestimating the transformative potential of religious organizations, we impoverish our political discourse and imperil the foundations of liberal democracy.

Kudos to judge Brown for making her moral argument explicit: religion is really important. That's a moral claim. And kudos to her for being explicit about the fact that her moral claim here is in tension with what Smith might seem to mandate, at least on the surface of things.

In fact, Brown goes on to say that "Smith is not an easy case to understand or apply." Surely, as a phenomenological matter, part of the reason why Smith is difficult is that it seems to conflict with the moral perspective that religion is important (in Brown's view, important enough to require judicially mandated religious exemptions for religious organizations). Brown has made some moral choices here and she has told us that she is doing so. Good for her. I disagree with the outcome in the case [or, rather, with her preferred outcome; sorry!], but if I'm as honest with myself as Brown is with us, my disagreement stems partly from my belief that catholics are just morally wrong on contraception -- contraception is good, and state policies that attempt to give working families access to it are also good. That just happens to be California's legislative judgment here as well; the judgment that access contraception is good is part of the reason that legislators voted for the bill in question, I would imagine.

One of the things that is interesting about Smith is that a lot of people don't like its potential to burden religious individuals and organizations. Congress didn't like Smith, but its initial attempt to tell the Court to implement its (Congress's) moral judgments on the significance of religion were shot down by the Court when it decided Boerne v. Flores, the Religious Freedom Restoration Act case. Congress tried again, though, with the Religious Land Use and Institutionalized Persons Act (see here, for example). So far, the law has fared rather well, much to the worry of people who like local and state control over land use. And so it goes.

But just as it was good for judge Brown to state, straight up, her moral judgment that religion is important (and to imply that this judgment deserves weight while one is interpreting both this case and Smith as a precedent), so it is not surprising that many people who are critical of the CA court's ruling in Catholic Charities don't like Smith as a precedent. See, especially, Southern Appeal's post, "A real outrage against faith organizations" (and comments, one from yours truly). Judge Brown does a real service in sending a signal to folks critical of the ruling that they can and should attempt to evaluate the moral implications of the opinion and the moral judgments that are inevitably bound up with them. Brown's dissenting opinion also gives them a nice citation and arguments that they can use in judicial and non-judicial forums. Again, I disagree with her, but I think that on this point she has done something good.

An attempt to make judges morally empty, by browbeating them (or, perhaps, "blogbeating" them, as Professor Bainbridge does) when they appear to listen to their moral judgments, will impoverish both the decisionmaking process and the discourse that follows.

MORE: Tim Graham writes the following about the decision:

The outrageous California Catholic-charities decision yesterday ought to suggest that despite what so-called "gay marriage" advocates say about leaving church marriage alone, the left will take their vision of "human rights" directly into trampling over the rights of worship and the separation of church and state. The churches will be dictated to support the social-liberal agenda.

Graham is off the mark, because the statute allows for religious organizations to be exempt from the requirement that their health plans cover contraception; this particular group just didn't qualify for the exemption. It's usually better to engage moral argument when you have the relevant information -- and the best judges convince you that they have attempted to acquire that information. It's a good rule of thumb to follow, I'd say. Moreover, as Graham's post shows, public reaction to judicial rulings is not always a reaction to the rulings themselves. See also here, here, here, here, here, here, here, and here. [and for more, go here]

I DON'T WANT TO HEAR IT!

My good friend Parley thinks that this excuse is just fine for not voting, but I'm not so sure! Get out and vote tomorrow, folks!

ENVIRONMENT NEWS

Take a look at Environment News, a sister site to Earth-info.net.

POSTS

Jacob Remes has been on fire recently. Check out his posts. I'll try to give some brief reactions later this week!

And Thomas Nephew is also writing a lot, which is good.

LETTERS IV: SCALIA SHOULD RECUSE HIMSELF

Finally for now, Charles Goodsill has been writing me for the past few weeks in an attempt to get me to post something on Scalia, duck-hunting, and recusal. Charles is for recusal. He points to this LA Times story about another hunting trip, and this NYT editorial.

I'm undecided on the issue, to be honest, but I think that Justice Scalia would have an easier time arguing that his impartiality can't "reasonably be questioned" if he didn't revel in creating a contentious public persona for himself.

I can imagine very well what would happen if I attempted to answer student complaints about my grading procedures by saying, "hey, my grading procedures are beyond reproach, D, D, F, F, good night."

LETTERS III: KERRY'S TACTICS?

Last week, in reaction to this post, Josh Chafetz (Oxblog) wrote me to reiterate his criticism of Kerry's campaign appearance with Max Cleland last week:

You write, "As far as I can tell, none of the candidates are refraining from discussing policy altogether. We know pretty much what any of the Democratic candidates would do with respect to Iraq..." Sure, but I would argue that someone's political record is at least as important as campaign promises they make on the stump. What I think is slimy about what Kerry did is that he tried to frame the debate in such a way as to claim that (perfectly legitimate) questions about his record were actually (illegitimate) questions about his patriotism or his Vietnam service. Sure, every candidate tries to frame the issues in the way that makes him look best, and that, in itself, is neither surprising nor slimy. But trying to take an issue off the table entirely by associating any discussion of it with a discussion of something inappropriate ... well, that, it seems to me, is slimy.

LETTERS II: ON DAVEY'S DEGREE

In reaction to these posts, Matthew Cowper wrote to defend neutrality as a valid free exercise approach:

[C]oncern[ing] "religious contentiousness" [as a justification for] the exclusion of funding for pastoral training, I'd say that just as religious viewpoints articulated by ministers, priests, etc. can be socially contentious, so too are the secular viewpoints of say, Harvard-educated deconstructionists, Berkeley-educated english profs and so forth; not that these views are invalid, but I do not think you can attribute social contention solely to the religious sphere. It's perhaps a difficult phraseology, but the secular priesthood is no less contentious than the religious priesthood. . . .

Underlying all this . . . would be my view that, in a democracy, strict neutrality ought to be demanded of the government's actions; but not of its words.

For more pro-neutrality arguments, see Owen at Southern Appeal here, Ken Masugi here (who had a brief exchange with Prof. West, most recently, here), and see also the essay at NRO by lawyer Susanna Dokupil, here.

On the contentiousness part: let me just say that whatever we academics would like to believe, my bet would be that our views are less interesting to most people than the views of their religious leaders. I'm not just being modest.

On the appeal of neutrality: let's remember something that Justice Scalia said in 1998, in the case of NEA v. Finley, in which he wrote separately to argue that the NEA can constitutionally engage in viewpoint discrimination in handing out federal arts funding:

Section 954(d)(1) is no more discriminatory, and no less constitutional, than virtually every other piece of funding legislation enacted by Congress. "The Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program . . . ." Rust v. Sullivan, 500 U.S. 173, 193 (1991). As we noted in Rust, when Congress chose to establish the National Endowment for Democracy it was not constitutionally required to fund programs encouraging competing philosophies of government -- an example of funding discrimination that cuts much closer than this one to the core of political speech which is the primary concern of the First Amendment. See id., at 194. It takes a particularly high degree of chutzpah for the NEA to contradict this proposition, since the agency itself discriminates -- and is required by law to discriminate -- in favor of artistic (as opposed to scientific, or political, or theological) expression. Not all the common folk, or even all great minds, for that matter, think that is a good idea. In 1800, when John Marshall told John Adams that a recent immigration of Frenchmen would include talented artists, "Adams denounced all Frenchmen, but most especially 'schoolmasters, painters, poets, &C.' He warned Marshall that the fine arts were like germs that infected healthy constitutions." J. Ellis, After the Revolution: Profiles of Early American Culture 36 (1979). Surely the NEA itself is nothing less than an institutionalized discrimination against that point of view. Nonetheless it is constitutional, as is the congressional determination to favor decency and respect for beliefs and values over the opposite. Because such favoritism does not "abridge" anyone's freedom of speech.

Given Washington state's constitution, given the concerns about religious funding that permeate the establishment clause context, and given the fact that in other contexts, government may engage in viewpoint discrimination when it hands out funds, I think that Scalia has overreached in emphasizing the supposed requirement of neutrality in the area of free exercise. Neutrality is a judicial standard, developed in large part by Thomas, Scalia and Rehnquist to deal with both establishment clause and free exercise cases, in a way that allows for that court to dismantle the vestiges of the "high wall of separation" built by the Court after WWII in establishment cases as well as the respect for minority religions developed in free exercise cases. Neutrality is but one approach to religion cases, then, and it has a particular polemical aim. It also has the predictable effect of creating rights to government funding of religious activities. At the end of the day, however, I don't see why the idea of "neutrality" should swallow up all other concerns.

LETTERS I: PROF. TOM WEST

Prof. Tom West wrote me a kind reaction to my post on his article claiming that speech is now less free than it was in the late 18th century. Here's the bulk of his e-mail:

You are right to zero in on the problem of sedition laws and state-level restrictions on speech and press in the founding. I have an answer to that, but it is part of a long (75-page) article: "Freedom of Speech in the American Founding and in Modern Liberalism." To be published in Social Philosophy and Policy 21 (Winter 2004), 310-384. Also to be published in Ellen Frankel Paul, Fred D. Miller, Jr., and Jeffrey Paul, eds., Freedom of Speech. New York: Cambridge University Press, forthcoming 2004.

This article goes into much greater depth than I was able to do in the Hillsdale talk.

I thought you misunderstood my meaning regarding the impact of campaign finance laws. I didn't mean that their impact is altogether anti-Republican. There are lots of liberal and partially liberal, partially conservative Republicans. What I meant is that these laws are designed, broadly speaking, to limit the conservative press (understanding "press" to mean any means of duplicating words or pictures). It is not quite incumbent protection (Scalia), because the overall direction of today's government is moderate to liberal. True, most conservatives are Republicans, but many Republicans are not particularly conservative. These Republicans don't mind campaign finance regulation. E.g., a number of Republican senators and reps voted for it, and Bush signed it. The quotations from liberals in the debate over the BCRA were often attacks on the National Rifle Association and other conservative groups who put out campaign ads that are much harder hitting than the Republican Party is generally willing to be. The NRA is far more openly and firmly in favor of the right of individuals to keep and bear arms than the mainstream of the Republican Party is.

I look forward to reading the longer version of the argument.