Mirror of Justice

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Wednesday, November 12, 2014

The South Carolina same-sex marriage order, limits on judicial power, and judicial supremacy

A federal district court in South Carolina issued a decision today that applied binding Fourth Circuit precedent to require same-sex marriage in South Carolina. (HT: Howard Wasserman at Prawfsblawg.) The district court refused to issue a stay pending appeal but did issue a temporary stay to give state officials time to seek a stay from the Fourth Circuit or the Supreme Court. In doing so, the court noted that a stay request in a similarly situated case from Kansas is pending at the Supreme Court right now.

On one level, this was a super-easy case, as easy as they come. A federal district court must follow binding circuit-court precedent. But there are some tough issues in the case as well. Consider the juxtaposition of the decision on the merits (plaintiffs win and should get their marriage license) with the practical effect (plaintiffs cannot get their marriage license while the ruling remains  stayed). Consider, further, the district court's acknowledgment that the temporary stay was unwarranted under the normal test for a stay:

The Court is mindful that the strict application of the four part test for the granting of a stay would result in the denial of even this one-week temporary stay. However, sometimes the rigid application of legal doctrines must give way to practicalities that promote the interest of justice. Providing this Court's colleagues on the Fourth Circuit a reasonable opportunity to receive and consider Defendant Wilson's anticipated petition for an appeal stay justifies this brief stay of the Court's injunctive relief in this matter.

Part of the problem here is that nationwide constitutional change is a messy process when carried out via federal courts of limited jurisdiction. Even if one thinks the Constitution is what the courts say that it is, the Constitution today means something different in Columbus than it does in Charleston until the Supreme Court promulgates a ruling from its perch in the District of Columbia. (And even that assumes we know what the Constitution means in Charleston while the ruling effectuating same-sex marriage there is stayed.)

There are many problems with judicial supremacy, but one of its touted benefits is a settlement function of sorts to eliminate messy disputes about constitutional meaning once the court of supremacy has spoken. This settlement function is not always successful; some Supreme Court rulings exacerbate constitutional conflict, as with Roe v. Wade. But in theory, at least, judicial supremacy provides a solution to problems presented by constitutional change.

By providing, roughly speaking, that our country's supreme law is what the Supreme Court declares the Constitution to mean, judicial supremacy serves the functions served by all three kinds of secondary rules identified by H.L.A. Hart as necessary for a well-working legal system. These are rules of recognition, rules of change, and rules of adjudication. Judicial supremacy looks like a rule of recognition. You know what the law is by looking to what the Supreme Court says that it is. But it operates via rules of adjudication. These govern how and when the Supreme Court can declare what the law is. And it functions as a rule of change. Constitutional law changes as the Supreme Court, following rules of adjudication, authoritatively declares it to change (rule of recognition). 

November 12, 2014 in Walsh, Kevin | Permalink

Tuesday, November 11, 2014

Section 5 Modus Tollens and Same-Sex Marriage via Federal Legislation

Suppose we assume that Congress lacks the constitutional authority to require states to redefine marriage to include same-sex unions. From this assumption, it can be shown rather easily that the Supreme Court lacks the same authority, at least insofar as such authority depends on interpretation of Section 1 of the Fourteenth Amendment. We can call the way of showing this Section 5 modus tollens. The same-sex marriage version of it goes something like this:

(1) If Section 1 of the Fourteenth Amendment provides a constitutional right to marry a person of the same sex, then Congress has authority under Section 5 of the Fourteenth Amendment to require states to redefine marriage to include same-sex unions.

(2) Congress possesses no such authority.


(3) Section 1 of the Fourteenth Amendment does not provide a constitutional right to marry a person of the same sex. 

This is a valid form of argument: (1) if P, then Q; (2) not Q; (3) therefore, not P. If the argument is unsound, it must be that one of the premises is wrong.

Perhaps one might question the connection between the existence of a Section 1 right and the existence of Section 5 enforcement authority. But premise (1) seems pretty solid. Even those Justices who insist on a pretty tight connection between Section 5 enforcement legislation and the existence of constitutional violations under Section 1 would recognize the validity of federal legislation that prohibits states from defining marriage in a way that causes widespread and recurring constitutional violations stemming from the regular denial of marriage to same-sex couples possessing a constitutional right to enter into marriage.  

The pressure point for the argument must be premise (2). Even if Congress generally lacks the power to insist on a particular definition of marriage, it possesses authority to enact legislation ensuring that state definitions do not cause constitutional violations. Just as Congress could have enacted a valid federal statute requiring the provision and recognition of interracial marriage, for example, Congress can enact a valid federal statute requiring the provision and recognition of same-sex marriage. That's how the argument would go, anyhow.

The interdependence of Section 1 and Section 5 of the Fourteenth Amendment provides some reason for caution relating to the judicial recognition of new rights under the Fourteenth Amendment. The stakes are higher because individual rights and the growth of federal legislative authority go hand in hand. Judicial expansion of individual rights under Section 1 increases federal legislative authority under Section 5. As far as I am aware, however, the only federal circuit court opinion thus far addressing a version of this Section 5 argument in connection with a right to same-sex marriage is Judge Sutton's opinion for the Sixth Circuit in DeBoer v. Snyder.

Judge Sutton's discussion of Section 5 came in the portion of his opinion addressing why United States v. Windsor did not support the application of heightened scrutiny: "A decision premised on heightened scrutiny under the Fourteenth Amendment that redefined marriage nationally to include same-sex couples not only would divest the States of their traditional authority over this issue, but it also would authorize Congress to do something no one would have thought possible a few years ago--to use its Section 5 enforcement powers to add new definitions and extensions of marriage rights in the years ahead. That would leave the States with little authority to resolve ever-changing debates about how to define marriage (and the benefits and burdens that come with it) outside the beck and call of Congress and the Court. How odd that one branch of the National Government (Congress) would be reprimanded for entering the fray in 2013 and two branches of the same Government (the Court and Congress) would take control of the issue a short time later."

Given the convoluted mess of Section 5 doctrine at present, Judge Sutton may have overstated the expansion of Section 5 legislative authority that would actually result from adoption of heightened scrutiny to analyze the constitutionality of state laws defining marriage as the legal union of one man and one woman. Fresh off of recognizing a new constitutional right to same-sex marriage, Justice Kennedy could try to contain the federalism logic of that expansion, I suppose. But the linkage between Section 5 federal legislative enforcement authority and Section 1 individual rights recognition is undeniable and important. It has also been largely unappreciated up to this point.

November 11, 2014 in Walsh, Kevin | Permalink

Monday, November 10, 2014

Three steps toward coming to understand why the Sixth Circuit's marriage decision was right

The Sixth Circuit's recent split-panel ruling on the constitutionality of four states' legal definition of marriage as the union of one man and one woman has unleashed a wave of commentary. Most of the commentary I've come across has been critical of Judge Sutton's opinion for the panel majority. 

Generally speaking, criticism by legal scholars has been more measured than popular criticism in both substance and tone; some academic critics have even acknowledged that Judge Sutton's opinion contains some respectable (or at least competent) legal arguments. My impression, nevertheless, is that most law professors (a substantial supermajority) have an opinion that resembles in substance and tone some of the more popular criticism. That may be one reason why it is hard to find commentary by law professors expressing agreement with Judge Sutton's opinion. 

Another reason is the nature of the issues. One of the biggest challenges confronting the judges deciding these appeals was figuring out the best doctrinal framework for analyzing the legal claims. The Supreme Court (at least those in a Supreme Court majority) can determine this by fiat. But lower-court judges do not have that power. Judge Sutton addressed this challenge by looking at the core Fourteenth Amendment claims through seven different lenses, all in an admirably concise twenty-six pages (part II of the opinion, sections A-G, pp. 13-38). These were: (1) the perspective of an intermediate court [II.A, pp. 13-17]; (2) original meaning [II.B, pp. 17-18]; (3) rational basis review [II.C, pp. 19-24]; (4) animus [II.D, pp. 24-28]; (5) fundamental right to marry [II.E, pp. 28-31]; (6) discrete and insular class without political power [II.F, pp. 31-35]; and (7) evolving meaning [II.G, pp. 35-38].

Given the challenges posed by the variety of analytical frameworks, and in light of the range of sub-issues presented by each, my overall assessment of Judge Sutton's opinion is very positive. (No surprise there, of course for anyone familiar with my previous assessments of the constitutional issues and of Judge Sutton.) Judge Sutton's discussions of Baker v. Nelson [II.A] and of rational basis review [II.C] are particularly praiseworthy.  

I had originally titled this post "in defense of the Sixth Circuit's marriage decision." But I abandoned that title because a post with such a title would have to be much longer or just part one of a series. Instead, I offer here three steps in a chain of reasoning designed to explain to critics of the Sixth Circuit's marriage decision where at least some of us who believe it to be constitutionally correct are coming from.

First, "[t]his [really, actually, truly] is a case about change--and how best to handle it under the Constitution." If the federal Constitution provides a right to marry a person of the same sex, then federal courts obviously must enforce that right regardless of what popular majorities think. But if the federal Constitution does not provide such a right, then federal courts have no authority to act as if it does. In resolving the legal questions surrounding the existence of such a right, Judge Sutton's consideration of the broader constitutional structure of which the Fourteenth Amendment is just one part was entirely appropriate.   

Second, the relatively new belief that the federal Constitution provides a right to marry a person of the same sex is most readily understood as resulting from a change in public opinion rather than a change in the content of constitutional law.  

Third, it is unlikely that the federal Constitution provided a right to marry a person of the same sex prior to the relatively recent changes in public opinion. It is possible, of course, but not likely.

There is more that one can say with respect to each of these three claims and how they relate. For example, a change in public opinion may have enabled judges finally to see that the Constitution has always (or at least since 1868) provided a right that prior generations have been unable to see. Or maybe the Constitution does and should change in response to changes in public opinion. But recognizing the centrality of change to the issues decided in the Sixth Circuit appeal should take critics a long way toward recognizing the reasonableness of Judge Sutton's disposition even if they are ultimately unmoved on the outcome.

November 10, 2014 in Walsh, Kevin | Permalink

Another post on Yates v. United States

In light of press reports from last week's oral arguments in Yates v. United States, my prediction that petitioner would lose unanimously seems unsustainable. Be that as it may, I remain puzzled about the legal grounds on which various Justices on the Supreme Court might vote to reverse petitioner's conviction.

As briefed, Yates is largely a statutory interpretation case: Does the criminal statutory prohibition of intentional destruction of evidence to impede a federal investigation apply to the disposal of the best evidence of the underlying civil violation? The most straightforward way to answer no, I think, is through Bond-style statutory interpretation. This is an approach to statutory interpretation that places very heavy reliance on statutory context in interpreting the text. Here that context is the surrounding language, the nature of the specific problems that motivated Congress to act, and an already bloated federal criminal code. Reliance on context in some form or another is always important for interpretation, of course. The weight of that context relative to the text, and what counts as relevant context, though, often divides interpreters, as it did in Bond. Concurring in the judgment in that case, Justice Scalia viewed the majority's statutory interpretation to be more in the nature of MacGyver-style interpretation. And that is my impression of petitioner's interpretation in Yates: "As sweeping and unsettling as the [evidence destruction statute] may be, it is clear beyond doubt that it covers what [Yates] did; and [the Supreme Court] has no authority to amend it." 

There was some suggestion in the questioning at oral argument that constitutional concerns about fair notice were motivating some of the Justices' skepticism about the broad reach of the evidence-destruction statute at issue. This picked up on petitioner's arguments about constitutional avoidance and the rule of lenity. Standing alone, such arguments might not be enough for the Court as currently constituted. But these were only the last of petitioner's arguments in his opening brief. The lead arguments were about statutory context and the application of noscitur a sociis and ejusdem generis. Based on oral argument, these arguments apparently have more traction with the Court than I previously appreciated. In any event, those looking for new arguments in Yates will have read up to this point in vain. But this is where it ends. We will see soon enough if the government's arguments were good enough. In the meantime, the criminal law professors' arguments are also looking to be stronger than I believed they would be. If those arguments end up being adopted in an opinion for the Court (as they were by various Justices at oral argument), kudos to Rick Garnett and Greg Sisk for being on the right side of interpretive history on this intra-MOJ split.

November 10, 2014 in Walsh, Kevin | Permalink

Friday, November 7, 2014

Becket Fund Hiring

A job announcement from the Becket Fund:

Legal Counsel


The Becket Fund for Religious Liberty seeks an attorney to join its team of legal counsel advocating for religious liberty for people of all faiths. The ideal candidate will have the following qualifications: (a) one to three years of active litigation experience, preferably in federal court; (b) excellent research, writing, and oral advocacy skills; and (c) a federal or state appellate clerkship. 


Applicants should send a cover letter, resume, and two writing samples to Elizabeth Dobak at edobak@becketfund.org.

November 7, 2014 in Berg, Thomas | Permalink

Colombo, "The First Amendment and the Business Corporation"

I thought many MOJ readers would be interested in this new book, "The First Amendment and the Business Corporation," by Ron Colombo (Hofstra).  From the OUP:

The role of the business corporation in modern society is a controversial one. Some fear and object to corporate power and influence over governments and culture. Others embrace the corporation as a counterweight to the State and as a vehicle to advance important private objectives. A flashpoint in this controversy has been the First Amendment to the U.S. Constitution, which enshrines the fundamental rights of freedom to speech, religion, and association. The extent to which a corporation can avail itself of these rights goes a long way in defining the corporation's role. Those who fear the corporation wish to see these rights restricted, while those who embrace it wish to see these rights recognized. 

The First Amendment and the Business Corporation explores the means by which the debate over the First Amendment rights of business corporations can be resolved. By recognizing that corporations possess constitutionally relevant differences, we discover a principled basis by which to afford some corporations the rights and protections of the First Amendment but not others. This is critically important, because a "one-size-fits-all" approach to corporate constitutional rights seriously threatens either democratic government or individual liberty. Recognizing rights where they should not be recognized unnecessarily augments the already considerable power and influence that corporations have in our society. However, denying rights where they are due undermines the liberty of human beings to create, patronize, work for, and invest in companies that share their most cherished values and beliefs.


November 7, 2014 in Garnett, Rick | Permalink

What is past is prologue… the Synod on the Family


Many of the Mirror of Justice community, amongst others, have been following the work of and reports about the 2014 Synod on the Family. While the pace of the Synod’s work and observations about the Synod may let up a bit over the coming year, it won’t disappear as the work of the Synod will continue. In addition, the Philadelphia Archdiocese’s World Meeting of Families scheduled for next year will or should intensify the labors of the Synod.

I was surprised that there was little if any public discussion about the 1983 Charter of the Rights of the Family in the 2014 Synod. From my perspective, the Charter, while a document from the past, is surely related to the purpose of the Synod on the family. The relevance and significance of the Charter to the work of the Synod are critical. Yet, not much, if any, mention and discussion of this important document occurred during the Synod. Thus, this posting is designed to alert the members of the Mirror of Justice community to the role the Charter should have in the continuing work of the Synod.

First of all, a few general remarks about the 2014 Synod are in order. I share with many the view that texts, even ambiguously drafted ones, are important because the meaning of words and the ideas they represent are significant. We lawyers and others interested in the law and (Catholic) legal theory should agree with this point. Hence, the documents that have been generated by and that will be further produced by the Synod are critical to the legal, political, social, economic, and cultural issues concerning marriage and family life.

In addition, when documents are drafted in one language, it is imperative that their translation into other languages be faithful to the original text, the intent of that text, and the objectives of that text. While my Italian language skills are imperfect, I think my command of that language is sufficient to state here that some of the English translations of various documents of 2014 Synod were flawed and thus misrepresented the gist of the original documents. I hope that the misrepresentations of the past caused by faulty translations not be repeated in the future work of the Synod for the texts that it will produce cannot afford mistranslations especially when the critical meaning of the original documents is at stake.

Second, I return to the important role of the 1983 Charter on the work of the Synod on the Family. The three-decades old deliberations behind and the preparation of the Charter were and remain significant. While the Charter was completed and promulgated a generation ago, its relevance to the present age and its concerns about the family have not been altered by the passage of time. So what does the Charter say? For those interested, its full text is HERE. For the convenience of Mirror of Justice contributors and readers, I will present some of its salient points here that are worth pondering as the work of the Synod continues.

The first point is that this document was produced by the Universal Church, that it, it is the work of the Holy See, the 1980 Synod of Bishops, and the bishops’ conferences around the world. Next, it was not prepared solely for the Church and her members; it is also addressed to all States, international organizations, institutions, and persons in order “to promote respect” for the rights of the family “and to secure their effective recognition...” In short, the Charter was prepared for all people of good will.

A second point about the text is its definition of family as being based on the institution of marriage which is “that intimate union of life in complementarity between a man and a woman which is constituted in the freely contracted and publicly expressed indissoluble bond of matrimony and is open to the transmission of life.”

A third point is the Charter’s accord with international documents such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights in the contexts of their definitions of marriage and the family—the basic cell or unit of society. The Charter further declares that as a natural society, the family pre-exists the State and all other communities and possesses rights that are inherent and inalienable.

A further point of concordance with international documents is the Charter’s reminder that States and international organizations have the affirmative responsibility of protecting the family through political, economic, social, and juridical measures.

The twelve substantive articles of the Charter elaborate upon its preambular principles I have just presented. These articles, moreover, are also in harmony with parallel principles found in international juridical and declaratory texts. However, one of these principles needs emphasis here, and that is that there is a natural complementarity that exists between man and woman that is essential to the relationship of spouses and the spouses’ dignity and rights. It appears that some of the participants at the 2014 overlooked this vital tenet; but it cannot be neglected without also ignoring the comprehendible reality of human nature.

A second principle from the substantive articles follows, and it is one that is frequently absent from many contemporary discussions or considerations of authentic human rights. This principle is the clear statement that human life is non-negotiable and must be respected and protected, absolutely, from the moment of conception onward. In this context, the Charter anticipates those who wish to make abortion access a “human right” by its stating that intentional abortion “is a direct violation of the fundamental right to life of the human being.”

As I have previously mentioned, the Charter deserves our careful reading and appreciation. Equally important is that the Charter demands the careful understanding and appreciation of the participants of the ongoing Synod on the Family. In its entirety, the Charter is also a pastoral document which enables Catholics and all people of good will to ensure the protection of the legitimate rights and responsibilities of families and each of their members.


As a number of folks have been asking me recently how I am doing on the health front, allow me to end today’s posting with this brief personal note containg some general information that is intended for the many wonderful people who have been praying for me. By the way, your prayers are deeply appreciated! I am now in my tenth chemotherapy; the first nine (including one clinical trial) have all ended in failure for one reason or another. The current therapy does not seem to be going well, but the doctors and I have agreed that a few more cycles are in order to ascertain whether I am receiving any benefit from this cocktail or not. Furthermore, another brain MRI done previously this week indicates that the lesion detected in my brain earlier this summer has grown considerably since its first detection; moreover, it appears that blood vessels in the vicinity of the lesion have also become enlarged and may be supplying the lesion with oxygen and nutrition that should be going elsewhere. I will have some more MRI work done this coming week along with another lumbar puncture to assess these developments in my central nervous system and to determine whether any cancerous B cells are present in my spinal fluid or not. These B cells have sometimes been detected in past lumbar punctures, but other punctures have been negative. Again, the point of this personal note is to thank all of you for your prayers for they are and remain vital to my wellbeing notwithstanding the challenges that I presently face. I can assure you of my own prayers for you in return. Let us also pray for our Church and for the ongoing work of the Synod.


RJA sj

November 7, 2014 in Araujo, Robert | Permalink

Amendment One in Alabama

As Paul Horwitz discusses here, and Michael Helfand does here, a wrongheaded and unnecessary initiative was adopted in Alabama on Tuesday.  Read Paul's and Michael's posts for yourselves, but this, from Paul's, seemed worth highlighting:

There is very little good news about the passage of this amendment. But there are two glimmers of hope. The first is that the measure was loudly and clearly opposed by a variety of faith groups--predominantly black and predominantly white, evangelical and non-evangelical, and politically conservative and liberal. I was hoping that the opposition of the Christian Coalition, for example, would be enough to fracture the reflexively conservative vote in this state and kill the amendment. It was not to be. But it is a positive thing that these groups opposed the amendment. They understood full well that the intended target of the measure was Islamic law, and still opposed it.

In that sense, as I wrote in this paper, this is an important effect of decisions like Larson v. Valente, which erects a bar against sectarian preferences in laws burdening religion, and which was relied on by the Tenth Circuit in striking down the first-generation anti-sharia amendment in Oklahoma. A legislature that cannot aim its laws at a particular sect is faced with the choice to either drop the measure or to apply it to everyone, regardless of which sect they belong to. That creates political coalitions among the faithful, so that, say, the Christian majority is willing and eager to band together with the Muslim minority to oppose the generally applicable law. That's what happened in Alabama. Although it wasn't enough, it was still a pleasure to see.

November 7, 2014 in Garnett, Rick | Permalink

Horwitz on "the Hobby Lobby moment"

Paul Horwitz's Harvard Law Review comment on "the Hobby Lobby moment" is must- (if sobering) reading.  Here is the abstract:

American religious liberty is in state of flux and uncertainty. The controversy surrounding Burwell v. Hobby Lobby Stores, Inc. is both a cause and a symptom of this condition. It suggests the unsettled nature of one of the central elements of the church-state settlement: the accommodation of religion. Beyond that, Hobby Lobby -- both the Supreme Court decision itself, and the public controversy that has surrounded the contraception mandate litigation -- raises a host of other issues: the interpretation of the Religious Freedom Restoration Act, the status of reproductive rights, the disputed relationship between religious liberty and LGBT rights, and the changing nature of the commercial marketplace. More broadly, the Hobby Lobby controversy says much about the relationship between law and social change. 

This article explores these issues. Although it analyzes the opinions in the case, its primary focus is on Hobby Lobby as a "moment": as a stage in the life-cycle of both church-state law and the social and legal meaning of equality. An analysis of the "Hobby Lobby moment" suggests that the legal and social factors that turned a "simple" statutory case into the blockbuster of the Term lay largely outside the four corners of the opinion itself. The Hobby Lobby decision speaks to these larger controversies but does not resolve them. 

After examining the legal dispute and the decision in Hobby Lobby, this article discusses the legal and social sources of the controversy that surrounded it. Legally, it finds a rapid dissolution of consensus around a key aspect of church-state law: the accommodation of religion, which has become a foregrounded subject of legal and social contestation. This contestation has been driven or accompanied by significant social change of various kinds. The article focuses on two areas of social change that figure prominently in the Hobby Lobby moment. First, although the Hobby Lobby decision itself involved an important social issue -- women's reproductive rights -- I argue that the larger controversy surrounding the case had much to do with the rise of LGBT rights and same-sex marriage and their relationship to religious accommodation. Second, I argue that the controversy involved changing views concerning the nature of the commercial marketplace itself. The paper concludes with some observations about what the "Hobby Lobby moment" teaches us about the relationship between law and social change.

November 7, 2014 in Garnett, Rick | Permalink

Thursday, November 6, 2014

Religious Accommodation in the Welfare State: Establishment Clause Issues

(from Tom Berg) Increasingly, opponents of religious-freedom exemptions or accommodations  have focused on the argument that it's impermissible to exempt religious conduct when it causes anything that the government has defined as a legal harm to others. And increasingly opponents  argue that such exemptions are not only inappropriate to mandate under a religious-freedom provision, but are actually unconstitutional even when the legislature itself adopted the exemption. A prime example is Fred Gedicks' and Rebecca Van Tassell's argument that ruling for employers in the contraceptive-mandate cases would violate the Establishment Clause if it meant the employees lost their legal claim to contraception coverage that the HHS regulation gave them (even if the government could provide access some other way).

The premise of this argument is that, as Gedicks and Van Tassell put it, “permissive accommodations that require unbelievers and nonadherents to bear the costs of someone else’s religious practices constitute a classic Establishment Clause violation.” They analogize it to the "classic" 18th-century cases of tax support for the favored church and disabilities on dissenters.

I agree that effects on others may be a good reason to deny a religious exemption. But I think that when the legislature has reasonably determined an exemption is warranted, to impose strict Establishment Clause limits preventing such exemptions is misguided: it rests on weak theoretical premises and an inapt historical analogy. In my new article on religious accommodation in the welfare state (full text here), I develop this argument. An excerpt:

But those [classic] establishments pressured dissenters to attend the favored church and required them to pay taxes for its support. Such requirements differ from regulatory exemptions in the very ways that are at issue. Compulsion to attend a church is indeed compulsion to engage in a religious practice, something that no regulatory exemption requires. Required tax support for the favored religion removes no legal burden on that faith and thus serves no free exercise interest. Accommodations from regulation serve those interests. To cite forced worship or tax support as the analogies that condemn accommodations is to beg the very questions at issue.


A more pertinent historical case for religious exemptions is the original “benefit of clergy,” the arrangement by which clerics in the medieval church were free from civil jurisdiction—triable and punishable only in church courts—for any felonies they committed. King Henry II’s attempt to constrict this privilege and prosecute “criminous clerks” in royal courts for rapes, murders, and thefts lay at the core of his confrontation with Archbishop Thomas Becket from 1163–1170. Unlike compelled worship or tax support, benefit of clergy actually involved the feature relevant to accommodations: exemption of religious actors from secular regulation when they had caused harm to others....


But rejecting benefit of clergy as an incident of establishment does not mean rejecting most modern accommodations, for there are multiple differences between the two. First, benefit of clergy was for the favored church (in medieval Europe, the Catholic Church). Second, it shielded wrongdoers from state jurisdiction even when there was no particularized conflict between the law in question and the demands of faith....


Finally, benefit of clergy allowed serious, direct harms to the person and property of other individuals: murder, rape, theft. No one argues today that religious freedom blocks the government from acting against such basic harms. The issues concern laws that reflect the far more extensive aims of the post-New Deal state. Thus, any analogy to benefit of clergy merely returns to the question to what extent religious accommodation sets limits on the regulatory-welfare state when it affects the countervailing interest in free exercise of religion. Again, the proper balance between these two means recognizing government’s expanded power—but not simply deferring to whatever the government defines or asserts as a harm.

Tom B.

November 6, 2014 in Berg, Thomas | Permalink