A recent issue of Time magazine, for example, included an article on Mr. Tebow, his faith, and the Tebowing phenomenon, with pictures of people in different locations “Tebowing Round the World.” Fox Sports’ website similarly offers a gallery of athletes and celebrities Tebowing in various settings. And last month, the Wall Street Journal ran an article entitled “Tim Tebow: God’s Quarterback,” observing that his “combination of candid piety and improbable success on the field has made Mr. Tebow the most-discussed phenomenon of the National Football League season.”

So, what is the possible relationship between Tebow-like conduct and the Constitution? As long as the faith expressions of Tim Tebow and his imitators don’t implicate the government, then the Constitution, which generally concerns only the government’s actions, is not triggered. Whether non-governmental entities such as the NFL or the Broncos wish to place limits on Tebowing—e.g., as “excessive celebration” prohibited by NFL Rule 12 § 3 art. 1(d)—is a matter that could potentially infringe players’ rights under federal or state civil rights statutes. But neither the First Amendment to the Constitution’s ban on religious establishments nor its guarantee of religious free exercise would come into play.

The conduct of Tim Tebow, alas, has not been confined either to Tim Tebow or to non-governmental settings. At least two public school students in New York, for instance, were suspended last month after Tebowing in a school hallway, allegedly for causing an obstruction. Whether or not their First Amendment speech and religion rights were violated is unknown—have all hallway obstructions led to such punishments?—but there can be no doubt that Constitution applies to the school’s actions.

Nor has Tebow-related conduct been confined to students. In Columbia, South Carolina, a high school coach seemingly encourages his athletes to be religious in the manner of Tim Tebow. That is entirely fine as a sentiment, but if it translates to pre- or post-game prayers led or promoted by the coach, then the Establishment Clause would almost certainly make such conduct unconstitutional. The same might even be true of Tebow-like touchdown prayers by players if encouraged, let alone directed, by the coaching staff.

To be sure, it was in the context of a public high school football game that even student-initiated and student-led prayer, when using the school’s public address system on school property and under school faculty supervision, was held by the U.S. Supreme Court to be unconstitutional under the Establishment Clause. Although the Court noted that “nothing in the Constitution . . . prohibits any public school student from voluntarily praying at any time before, during, or after the schoolday,” it further remarked “the religious liberty protected by the Constitution is abridged when the State affirmatively sponsors the particular religious practice of prayer.”

In summary, Tebowing or other Tebow-like conduct may in some instances be protected by the Constitution’s First Amendment, while in others it may be circumscribed if not absolutely prohibited. Such calls, of course, will ultimately be made not by zebra-striped referees on the field of play but by black-robed judges in a court of law, with no set limit on either challenges or the use of instant replay footage.

In the United States, zoning according to race had been found unconstitutional in the early twentieth century, but segregationists turned instead to private restrictive covenants to keep African Americans and members of other minority groups out of white towns and neighborhoods. Fortunately, the United States Supreme Court ruled in Shelley v. Kraemer (1948) that a court enforcing such a restrictive covenant was denying equal protection of the laws and therefore acting unconstitutionally. Would-be segregationists then attempted to sue private parties for breaching the covenants when they sold or rented properties to African Americans, but the United States Supreme Court said that any court entertaining these suits was also acting unconstitutionally.

In Israel, starting in the 1970s, Jewish nationalists began settling in the sprawling exurbs of northern Israel, where membership committees often decide who can buy local homes. When Jewish-only communities emerged in the Negev and in Gallilee, Arab citizens sued, arguing they were being excluded. The Israeli Supreme Court barred the exclusion, asserting that “equality is one of the foundational principles of the State of Israel.” However, just this year the Knesset in effect overruled the judiciary by enacting a law that allows local membership communities to reject potential residents who did not fit the “social-cultural fabric.”

Both extended controversies suggest that equality is impossible if citizens of different races and religions are not free to live where they want. One’s home and one’s ability to choose it are a base for one’s sense of equality, not in the Blackstonian sense of each man’s home is his castle but rather as a starting point for civic self-actualization. How can one understand oneself as equal without the same freedom as others to decide where to live?

In June 2004, however, Perich developed symptoms of a medical disorder, eventually diagnosed as narcolepsy. Despite obtaining in February 2005 a doctor’s certification of her ability to return to work, the school had already made alternative arrangements and proposed that she resign her call. After she threatened legal action for alleged disability discrimination, the congregation then rescinded her call and she was duly terminated from her teaching position at the school.

Immediately she filed a charge of discrimination and retaliation with the EEOC, which eventually initiated a federal district court action against the school. Though the school prevailed at the district court level, it then lost before the Sixth Circuit Court of Appeals.

Underlying the district court’s ruling, and rejected by the Court of Appeals, is a doctrine called the “ministerial exception.” Her case—and indeed the fate of the ministerial exception—are now before the U.S. Supreme Court, which granted review of the Sixth Circuit’s decision last spring and is scheduled to hear oral arguments on October 5.

What, then, is this “ministerial exception” and why is her case potentially of great significance? In essence the ministerial exception is a judge-made exemption from several federal civil rights statutes, such as Title VII and the Americans with Disabilities Act, that the courts believe is compelled by the Constitution’s religion clauses. The exemption extends to religious organizations’ employment decisions where the employee, regardless of his or her title, serves functions comparable to those of traditional clergy. Importantly, it is a categorical exemption, potentially barring suits alleging discrimination on any statutorily protected basis, including race and gender.

From the petitioner’s initial standpoint, as evidenced in its principal brief on the merits, the issue was simply the Sixth Circuit’s application (or, in its view, misapplication) of the exception. The respondent, however, has effectively challenged the validity of the exception itself, capitalizing on two critical realities: first, that the Supreme Court itself has never adopted the exception, even though every federal circuit court (beginning in the 1970s) has done so, and second, that the exception is seemingly at odds with the Supreme Court’s free exercise doctrine, which it substantially reworked in 1990. It thus comes as no surprise that the bulk of the petitioner’s reply brief only cursorily dwells on Cheryl Perich’s actual circumstances and instead spends most of its pages vigorously defending the exception itself.

Thus, all of a sudden, though not entirely unpredictably, the case has now become a vehicle for potentially abrogating over thirty years of lower court rulings. Will the Court view the exception as a misapplication of the Free Exercise Clause, which in 1990 it held does not ordinarily shield religious conduct from the application of neutral and generally applicable laws? Or will the Court view the exception as a viable component of the Establishment Clause insofar as the government is unduly entangling itself in the internal affairs of religious bodies? The fact that the lower courts have unanimously adopted the exception in one form or another is, to be frank, not necessarily the Court’s problem or concern, and the fact that the lower courts have grounded and conceptualized the doctrine in several ways only works against the supposed significance of their unanimity.

The October 5th oral arguments will ideally shed light on the Court’s inclinations, but given the stakes and the multi-tiered nature of the case, not to mention the very able counsel on both sides and a literal deluge of amicus briefs, the likelihood of such illumination is not great. The only definite aspect of the case, it seems, is that Cheryl Perich and her disability-related claims—the very genesis of the litigation—have become merely a secondary story in what is now a major contest over the First Amendment.

Yes and no, the Seventh Circuit answered last week in Vinning-El v. Evans (No. 10-1681). 

Here’s the factual background:

While he was confined at Pinckneyville Correctional Center, Mondrea Vinning-El asked for a vegan diet. He told the prison’s chaplain, Rick Sutton, that he adheres to the Moorish Science Temple of America. Sutton turned Vinning-El down, observing that the tenets of Moorish Science require a non-pork diet, which can include dairy products and many kinds of meat and fish. Vinning-El, who contends that his religious beliefs require a vegan diet no matter what other members of his sect believe, then filed this suit against Sutton [and warden John Evans] . . . . (1-2)

Although Vinning-El initially made claims based on both the Free Exercise Clause and RLUIPA, the latter statutory claim was eliminated by the fact that Vinning-El was later moved to another prison and given a vegan diet there; money damages (the sole remedy still on the table) were not available for the RLUIPA claim.

The defendants partially lost a summary judgment motion in district court and took an interlocutory appeal.

In deciding the appeal, the Seventh Circuit indicated that, at least in principle, idiosyncratic religious beliefs are fully protected by O’Lone and the Free Exercise Clause:

A personal religious faith is entitled to as much protection as one espoused by an organized group. Frazee v. Illinois Department of Employment Security, 489 U.S. 829, 834 (1989); see also Hernandez v. CIR, 490 U.S. 680, 699 (1989). Hierarchical religions, such as the Roman Catholic Church, believe that only the group’s leaders can establish and articulate the group’s tenets on central issues of faith. But non-hierarchical religions, such as most Protestant and Islamic sects, believe that every worshipper has a direct connection to God. This doctrine of the “priesthood of believers” was one of the major reasons for the Protestant schism from the Catholic Church. No state is entitled to insist that the Catholic Church is right and that adherents to every faith therefore must espouse all, and only, those beliefs that have the support of a sect’s leadership. If chaplain Sutton refused to approve religious diets for inmates who differ on dietary questions from their church’s leaders, he violated clearly established rules of constitutional law . . . . (4-5)

This seems a strong endorsement of protection for idiosyncratic beliefs, but then the court identified a subtle way that an inmate’s orthodoxy might actually count in the constitutional analysis:

Sincere religious beliefs must be accommodated (at least when failure to accommodate a particular belief would amount to discrimination against one sect, or a personal faith), but non-religious beliefs need not be. See, e.g., Thomas v. Review Board, 450 U.S. 707, 713 (1981); United States v. Seeger, 380 U.S. 163, 185 (1965); Kaufman v. McCaughtry, 419 F.3d 678, 681 (7th Cir. 2005); Fifth Avenue Presbyterian Church v. New York City, 293 F.3d 570, 574 (2d Cir. 2002). A prison is entitled to ensure that a given claim reflects a sincere religious belief, rather than a preference for the way a given diet tastes, a belief that the preferred diet is less painful for animals, or a prisoner’s desire to make a pest of himself and cause trouble for his captors. And although sincerity rather than orthodoxy is the touchstone, a prison still is entitled to give some consideration to an organization’s tenets. For the more a given person’s professed beliefs differ from the orthodox beliefs of his faith, the less likely they are to be sincerely held. Very few people who identify themselves as Baptists sincerely believe that a halal or vegan diet is obligatory on religious grounds. Such a belief isn’t impossible, but it is sufficiently rare that a prison’s chaplain could be skeptical and conduct an inquiry to determine whether the claim was nonetheless sincere. (5-6)

Is it really true that “the more a given person’s professed beliefs differ from the orthodox beliefs of his faith, the less likely they are to be sincerely held”? Could be, I suppose, but I’m not sure how one would prove it.

In any event, the court decided that the key to Chaplain Sutton’s qualified immunity defense was whether he had refused to accommodate Vinning-El’s dietary request purely because of the inmate’s lack of orthodoxy, or because he saw in the lack of orthodoxy evidence of insincerity. This was not how the district judge had framed the issue, so the Seventh Circuit remanded the case for a hearing on Sutton’s true motivations.

Cross posted at Life Sentences Blog.

Recently I assisted in a case of a 15-year-old Jehovah’s Witness rushed into the emergency department “bleeding out.” Jehovah’s Witnesses (JWs) regard blood transfusions as a violation that has profound spiritual implications, and accordingly, refuse such transfusions even when such treatments can be life-saving. Supporting JWs in their refusal is an early-learned bioethics lesson as students explore issues of patient autonomy and respecting cultural values. Competent individuals have the right to refuse unwanted medical treatments, even when refusal will lead to death. But this was a 15-year-old.

The patient’s stats were very low and emergent surgery was needed. The patient’s mother didn’t want the teen to receive a transfusion. Moreover, the teen didn’t want to be given one either. There are cases when adolescents can show themselves to possess the decisional capacity and maturity to give informed consent and choose not to receive life-sustaining treatment. This is known as the “mature minor” exception. Proving oneself to be mature often requires a frank discussion with a judge or a hospital ethics committee. Just as in any other case of informed consent, minors must possess understanding of the diagnoses and prognoses, the ability to communicate their values (and apply them to the medical situation), and so forth. Given the life-and-death nature of the decision, time for deliberation is often crucial — including time to provide the minors with support from family, religious leaders (for cases such as JW refusals), and health care providers. Chronically ill children often have a very mature and nuanced understanding of their disease processes and an ability to weigh values and the benefits and burdens of treatment. However, in my case, the 15-year-old was extremely distressed given the emergent situation and unable to have any real conversation. The mature minor route was not available.

But I started to wonder about ways to improve how we respond to these situations. We talk about advance directives and the importance of declaring one’s wishes and discussing with family members about how to respond to health-care situations when one is unable to speak for oneself.

Can there be a system put into place in the JW Church to designate minors as mature to provide evidence for possible and unanticipated medical scenarios?

Yes, I realize that non-adults can’t create true directives. I’m not trying to create a legally binding and dispositive document that will “solve all JW conflicts around children between ages 13 and 17 and 364 days,” but rather a proactive discussion that will inform the ethical decision-making process. Minors can, for instance, express their organ donation preferences on their licenses: sure mom and dad can override what it says, but it still allows a discussion of “what the patient would want” to occur.

I’m writing this off-the-cuff. I’m not sure if this idea has already been explored (if so, post a link in the comments). But if it is somewhat original, I wonder how it can work. Perhaps an administrative body can be created or perhaps a friendly judge can make himself or herself available. Perhaps a hospital system can make itself available to have these conversations with perfectly healthy minors and document the discussions so future narratives can have context.

Respecting patient autonomy is generally an easy thing to do. Making decisions for minors muddies the waters, and emergency situations further complicate the matter. I welcome comments on this idea of mature minor advance directives — are they feasible? Will they complicate more than clarify?

Recently, the U.S. Supreme Court accepted cert in Hosanna-Tabor Lutheran Church & School v. EEOC. The case presents the same basic question as Coulee: does the ministerial exception include “a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship”?  

The case is up on appeal from a Sixth Circuit ruling against the church, and the Becket Fund for Religious Liberty and Doug Laycock from UVA are counsel for the petitioners.

Coulee Catholic Schools features in several of the briefs filed at the cert stage, including the petition, the brief in opposition, and several amici filings. Doubtless it will continue to feature prominently in the briefs and arguments, as the opinion provides a scholarly and recent exposition of the state of the case law (which is a mess – granting cert here was a good idea) and a good case for the test the justices used to determine whether an employee fit the ministerial exception. (It should be noted that Coulee Schools will stand regardless of what SCOTUS decides because it was independently and explicitly decided on state constitutional grounds as well).

In his volume The Wisconsin Constitution: A Reference Guide, Jack Stark relates an anecdote from Wisconsin legal history:

Justice William O. Douglas, speaking in Milwaukee during the revolution in federal constitutional law that the Warren Court caused, responded to an introduction that pointed out that Court’s stalwart protection of individual liberties by remarking, “[w]e are just trying to catch up with the Wisconsin Supreme Court. We are at the point where it was thirty years ago.”

Hopefully in this instance, the U.S. Supreme Court will choose stalwart protection for religious freedom by following the path laid out by the Wisconsin Supreme Court.

Because religious beliefs inform much of the stem-cell debate, Ed’s paper raises difficult and important questions regarding the proper role of religion in shaping federal science policy.  Ed argues that elected officials, not scientists, should ultimately make the decisions.  In order to guide the decisionmaking, he proposes two principles: “1) the federal government should be the preferred source of funding for basic medical research and 2) government funding decisions should not favor one religious perspective over another.”  Although not everyone will agree with the second principle, Ed argues that it is more consistent with the design of our constitutional system.  He writes:

The Madisonian separation of church and state is an integral part of the limited government created under the United States Constitution, and maintaining that separation is an ethical good that our elected officials must weigh along with other ethical goods such as the protection of vulnerable populations and the promotion of justice.

 Having undertaken, for the glory of God and advancement of the Christian faith and honor of our King and country, a voyage to plant the first colony in the northern parts of Virginia, do these present solemnly and mutually in the presence of God and one of another, covenant and combine ourselves together into a civil body politic, for our better ordering and preservation, and furtherance of the ends aforesaid; and by virtue hereof to enact, constitute and frame just and equal laws, ordinances, acts, constitutions and offices, from time to time, as shall be thought most meet and convenient for the general good of the colony, until which we promise all due submission and obedience.

 The Pilgrims fashioned this secular covenant to have an agreement for governance when they disembarked from the Mayflower. 

 The passengers onboard the Mayflower originally intended to go to the Hudson River in New York, but bad storms set them off course.  William Bradford recorded that the ship also “’fell amongst dangerous shoals and roaring breakers.’”  On that basis, the captain decided to back to New England, instead of going moving on to the Hudson. 

On board were two groups of passengers other than the crew:  the Leideners, who were the Pilgrims who had lived in Holland, and the Separatists, who had been recruited by merchants to travel to the new land.         

 The passengers were in an “uproar” when they heard that the Mayflower was heading to New England.  Some Strangers said that “’when they came ashore they would use their own liberty, for none had power to command them.’”  The future settlement was “in serious peril,” according to Philbrick.  The Strangers “had little holding them together except, in some cases, a growing reluctance to live in a community dominated by religious radicals.”  The Leideners were a tight group, sharing a common faith and background from having lived together in Holland.  Some of the Strangers and the Leideners realized that the only way to secure the settlement was to “sign a formal and binding agreement of some sort.” 

In the Mayflower Compact, the Strangers and the Leideners agreed “to submit to the laws drawn up by their duly elected officials.”  Philbrick writes that this “civil covenant would provide the basis for a secular government in America.”  All men who were healthy enough to set foot on land had to sign the Mayflower Compact and must do so before leaving the ship.  Forty-one men signed the Mayflower Compact on November 11.

 The passengers who drafted the Mayflower Compact had tremendous foresight.  The compact guided the actions of the two very different groups of people who came together to form the Plymouth settlement, especially in light of the hardship they endured in the coming months as they tried to survive the winter and establish their new home in the wilderness. 

Happy Thanksgiving.

But today I want to talk about Law & Theology (10 am on Friday mornings in 204 for anyone who wants to add a seminar) and Glen Beck. Newton argues that law schools overemphasize “theoretical, increasingly interdisciplinary scholarship” and courses. But Glen Beck has put law (0r at least politics) and theology smack into the middle of the public debate. In this fallen world, we may have to take that where we can find it.

I am not a Beck fan and I don’t watch his show, but he does have this penchant for raising interesting issues, even as he oversimplifies and often misstates them. (Kind of like a student who spots the issue but, even if she gets the result right, flubs it.) For example, President Obama’s roots in, and return to, classical Progressivism and the impact that it has had – or would have – on our public life is an important issue (although Beck’s characterization of Woodrow Wilson as the worst person of all time is loopy). I even wrote about in a recent symposium in the University of St. Thomas Law Journal.

Lately, Beck’s into liberation theology – something that he attributes to President Obama and thinks is a bad – even an evil – thing.  (For another view, look here.)

I don’t know what the President thinks about liberation theology, but I think its narrative of Christ as a liberator and its emphasis on the unmistakable solicitude for the poor in the Gospels raises important challenges, including challenges for conservative Christians. I would argue that liberation as a narrative has its weaknesses and dangers and I might even agree that some of the uses of liberation theology have been gruesomel, but the questions it raises are important – even if I don’t expect them to be discussed well on the Glen Beck show.

The Establishment Clause has been a hot topic, especially in the last half-century. Professor Esenberg has written about the ambitious nature of Establishment Clause jurisprudence. I agree: it is very difficult to achieve the apparent goal of religious neutrality. Instead, we should look to the meaning behind religious displays (or a National Day of Prayer) that are religious in nature rather than simply look at the fact that they are symbols of a certain religion.

The meaning of religious displays should be the important factor rather than the fact that they are religious in nature.

For example there are several cases, such as Glassroth v. Moore, Van Orden v. Perry, and McCreary County v. ACLU of Kentucky, that deal with the public display of the Ten Commandments. On their face, these displays are clearly religious in nature and are on state property. No argument there. In Van Orden, a 5-4 Court held that the display was legal because of the monument’s secular purpose. However, in McCreary County, the Court found the display illegal (5-4) because it was not clearly integrated with a secular display. This seems to be where courts draw the line.

Now let’s look at the meaning of the displays. The Ten Commandments include such ideas as loving your father and mother, refraining from murder or theft, and not bearing false witness against your neighbor. It would be hard to imagine a person who is offended by these ideas regardless of religion. [Full disclosure: I am Catholic.] Sure, there are references to God and worship of God, and some will argue that the state is trying to establish a religion. However, if there was a Buddhist display promoting love and decrying evil, while still being pro-Buddhist, I would not be offended and cannot see why anyone else would. It in no way impedes the practice of my religion of choice. It is hardly the government “endorsing” Buddhism. Rather, the display simply shows values that nearly everyone finds good and desirable.

Historically, the Establishment Clause was established to help ensure that the citizens of the United States are free to practice whatever religion they want without the government favoring the practice of one religion over another. These displays hardly demonstrate the government’s stance on a preferred religion. They simply show ideals that are viewed positively by society as a whole. Some may say that this is just the first step leading to a “slippery slope.” I disagree. So long as everyone is free to practice the religion of their choice, who can be truly harmed by the display of positive values?

At Public Discourse, Rob Vischer considers the Supreme Court’s recent decision in Christian Legal Society v. Martinez upholding a requirement at Hastings Law School that recognized student organizations may not exclude students based upon their refusal to accept the organization’s objectives or beliefs. Rob concludes:

The next challenge is clear: we must think seriously about how to help deepen our public discourse about discrimination and diversity to include recognition that associational diversity is a key component of religious and moral liberty, and that even if a university now has the right to make all groups accept everyone, it is a right best left unexercised.

At Ballkinization, Jack Balkin expresses concern over a decision Thursday by a district judge in Massachusetts v. HHS finding that the Defense of Marriage Act violates the Tenth Amendment. 

Jack supports same sex marriage and opposes DOMA, but the view of the Tenth Amendment adopted by Judge Tauro would, in his view, severely restrict the authority of Congress and “undermine the constitutionality of wide swaths of federal regulatory programs and seriously constrict federal regulatory power.” He writes:

The modern state depends heavily on the federal government’s taxing and spending powers for many of the benefits that citizens hold dear, including Medicare, Medicaid, Social Security, and the newly passed provisions of the Affordable Care Act. These programs have regulatory effects on state family policies just as much as DOMA does. If DOMA’s direct interference with state prerogatives is beyond federal power, then perhaps any or all of these programs are vulnerable– and unconstitutional– to the extent they interfere with state policies regarding family formation as well. Put differently, Judge Tauro has offered a road map to attack a wide range of federal welfare programs, including health care reform. No matter how much they might like the result in this particular case, this is not a road that liberals want to travel.

I should note that Judge Tauro issued another decision on Thursday striking DOMA on equal protection grounds.

At the Volokh Conspiracy, Randy Barnett comments on Tom Wood’s recent book, Nullification. The book argues that states have the power to nullify laws that Congress lacks the authority to enact. Professor Barnett is unsympathetic, observing that “[p]olitical activists should not waste their precious energies on sketchy constitutional theories such as the assertion of a state power to nullify unconstitutional laws . . . .”

An interesting aspect of Woods book, at least for us here in Wisconsin, is its discussion of the Wisconsin Supreme Court’s refusal to acknowledge the validity of the Fugitive Slave Act and the decision of the United States Supreme Court in Ableman v. Booth, 62 U.S. 506 (1859). The case grew out of the incarceration in Milwaukee of a fugitive slave named Joshua Glover in 1854. Sherman Booth, who was then editor of the  Milwaukee Free Democrat (later to become the Waukesha Freeman), rode through the streets of the city, announcing ”Freemen! To the rescue! Slave catchers are in our midst! Be at the courthouse at two o’clock!”" A group of citizens answered the call and forcibly removed Glover from the  jail in the Milwaukee County courthouse, then located on what is now Cathedral Square. Glover was spirited away to Canada. The incident is memorialized today by a mural on the McKinley Avenue underpass.

Booth was prosecuted by federal authorities  for violation of the Act, but the Wisconsin Supreme Court twice orderd his release. Although the United States Supreme Court reversed these orders, the Wisconsin Supreme Court ultimately declined to accept the mandate.  The Wisconsin Court, which then sat three, split one to one with one recusal (Booth’s lawyer, Byron Paine, had rode abolitionist sentiment to  seat on the court). Thus, deadlock and impasse has a long history here.  The  state legislature promulgated a “Declaration of Defiance” stating that the United States Supreme Court’s decision was void, without authority and of no effect.

Nevertheless, Booth was ultimately rearrested by federal authorities and, like Joshua Glover, forcibly removed from custody by a group of supporters. He was ultimately recaptured but then pardoned by President James Buchanan shortly before the inauguration of Abraham Lincoln.  He was later involved in the case of Gillespie v. Palmer, which held — sixteen years after the fact — that a referendum conducted shortly after statehood granted the vote to African-American males.

But Booth may not have been quite the saint he might seem to be. As his conviction for violation of the Fugitive Slave Act was being considered by the United States Supreme Court, he was tried for the seduction of a fourteen-year-old girl, Caroline Cook. The trial ended in a hung jury.  Booth died in Chicago just before his 92nd birthday but is buried here at the Forest Home Cemetery.

Fox was born in Milwaukee on January 3, 1891.  Both of his parents had deep ties to the legal and political history of Wisconsin.  His father, Dr. William Fox, was a surgeon and the grandnephew of William Fox, one of the signers of the 1848 Wisconsin Constitution.  His mother, Narcissa McDill, was the daughter of Alexander McDill, a former Wisconsin congressman. 

Fox was initially educated in public schools in Milwaukee, but at age nine, he was sent away to enroll in the preparatory department at Notre Dame University in South Bend, Indiana.  At age 14, he moved up to the college and graduated with a bachelor of arts degree in 1909.  After graduating, he accepted a position as a teacher at St. Edward’s College, a small Roman Catholic institution in Austin, Texas.  Even by the standards of the early twentieth century, becoming a college professor at age 18 was quite precocious, although it is likely that Fox taught primarily in the school’s college preparatory division.

In the fall of 1910, he enrolled at Harvard Law School where he was a member of the John Marshall Law Club (an organization that sponsored moot court competitions but was essentially social) and one of the founders of the Harvard University Wisconsin Club.  He graduated in 1913, and was admitted to the bar in Massachusetts.  He began practice in Boston, initially as a lawyer in the offices of the firm of Whipple, Sears, and Ogden, a prominent local law firm.  However, after a year there, he began his own practice, specializing in admiralty law.  In 1914, he married Elsa Sonnenmann, the daughter of a Neenah, Wisconsin tobacconist who had emigrated to Wisconsin from Germany after the turn of the century.

In 1916, the Foxes returned to Milwaukee, and after securing admission to the Wisconsin bar in June, Fox established his own admiralty law practice in the city.  In the spring of 1919, Fox was hired to teach a course in maritime law at the Marquette Law School.  That same year, new Association of American Law School rules required all member schools to have at least three full-time faculty.  Because Marquette had previously relied upon a full-time dean (in 1919, Max Schoetz) and part-time faculty, it was necessary to appoint two new full-time faculty members.  One of the appointments went to Fox. (The other went to the little remembered Willis Lang.)

From 1919 to 1930, Fox taught a variety of courses at the law school.  He also served as faculty adviser to the law review for many years, and regularly published book reviews for that publication.  He also contributed a number of articles to the journal on topics ranging from trusts to chattel mortgages, and from bar admissions to the role of law review articles in litigation.  In the 1920’s, Fox and his colleague Carl Zollman developed the field of aviation law as a serious academic discipline (although most of the scholarly writing was done by Zollman).

Fox was also the teacher of a popular bar review course in an era when the diploma privilege had not been extended to Marquette (and, in fact, both Fox and Marquette Dean Max Schoetz wanted the diploma privilege abolished).  It appears that in the fall of 1923, Fox also tutored the famous athlete, performer, civil rights activist, and then law student Paul Robeson, who was on leave from Columbia Law School so that he could play football for the Milwaukee Badgers, then a member of the National Football League. 

Although Mrs. Fox was a Lutheran, Fox himself was a devout Roman Catholic, a member of the Knights of Columbus, and a frequent speaker on Catholic subjects.  While he did not publish his views on the topic during his time at Marquette, Fox had strong views on the subject of Catholic legal education.  An advocate of a distinctive Catholic approach to law study, this position placed him somewhat at odds with his colleagues Schoetz and Zollman.  Although a Catholic himself, Schoetz regularly pointed to the non-denominational character of the law school, emphasizing that while Marquette University was a Catholic institution, the law school was not.  (Zollman, the author of several works on the law of religious institutions, was also an ordained Lutheran minister.)  When Schoetz was killed in a collision with a railroad train on his way the 1927, apparently no thought was given to replacing him with a Roman Catholic, and the position instead went to Schoetz’s law partner, Clifton Williams, who was a Quaker.

In 1930, the Catholic University of Washington, D.C., which was committed to the idea of a distinctive Roman Catholic form of legal education, had an opening for a dean, and Fox was offered the position.  The June 19, 1930 article in the Milwaukee Journal reporting that Fox had accepted the position also noted that Fox planned to retain his house in Milwaukee where he would spend the summers.

Catholic University had spent the previous two years searching for an appropriate dean, and the university’s rector, Bishop James H. Ryan, was initially delighted with the choice of Fox, reporting to the university trustees “that the Law School has again been put on the road originally outlined by the late Dean Robinson, to produce a learned, scholarly, and cultured Catholic bar.”  At the time of his appointment the law school at Catholic University was on life support.  It was clearly the least successful school in the District of Columbia, and in the year prior to Fox’s appointment, it had neither admitted a new student nor graduated an existing one.

As dean, Fox dramatically raised the law school’s standards.  He instituted a requirement that all entering students have a baccalaureate degree, at a time when only seven other law schools had such a requirement.  (Marquette, like most law schools in 1930, required two years of college work for entering students.)  He also increased the requirements for graduation and required all students to spend at least 18 hours a week in the law library.  He abolished the moot court, but replaced it with a law club and a legal aid society.

In regard to making the law school more scholarly and more distinctively Roman Catholic, he incorporated the Washington-based Riccobono Seminar of Roman Law into the law school.  He also placed a new emphasis on the development of what he called “theophilosophical” jurisprudence as the underpinning of the law course at Catholic University. 

Writing to one of his former professors, Harvard Law School’s Joseph Beale, shortly after assuming the office of dean, Fox observed: “This being a Catholic University, we are stressing wherever possible Scholastic Philosophy and Neo scholasticism. We feel that there has been no attempt on the part of the Catholic law schools to do anything in this regard heretofore, except possibly by certain selected courses in what is usually called “natural law,” or “Jurisprudence.” Our plan is to integrate what we can into the various courses, rather than segregate the subject matter.”  Although he did not mention Marquette in his letter to Beale, he was clearly describing his former university which did in most years offer a course on national law taught by a priest from the Marquette Theology Department.

Fox’s activities at Catholic University were not limited to religious matters.  He established an aviation law institute at Catholic and served on the Aeronautical Law Committee of the American Bar Association.  Additionally, in 1932, he was one of the founders of the Academy of World Economics in Washington, D.C., and he later served on the National Council on Naturalization and Citizenship

Unfortunately, Fox’s effort to turn his new law school into a Roman Catholic Harvard fell victim to his problems with alcohol which apparently plagued him throughout his adult life.  In 1934, he was placed on probation by the University because of issues related to excessive drinking, and when the problems persisted, he was asked to resign in 1935.   When he failed to do so, he was discharged, and the locks were changed on his office door at the order of the same university rector who had praised his appointment five years earlier.  To the embarrassment of both Fox and the university, the “locking out of his office” incident was widely publicized by newspapers throughout the region.

After his discharge as dean, Fox remained in Washington and went to work as a trial examiner for the Food and Drug Administration.  He issued a number of important rulings in that capacity, and was still in that position when he died unexpectedly on April 18, 1940, at the age of 49.  He was survived by his wife and three daughters.

By the time of his death, he appeared to be largely forgotten at Marquette, although the Marquette Law School had actually taken a “Catholic turn” in 1934 with the appointment as dean of Francis Xavier Swietlik, who held undergraduate, graduate, and law degrees from Marquette.

Rachel thus argues that the law should recognize a religious exception to the brain-death standard.  Indeed, she contends that such an exception may be required by the Free Exercise Clause.

Rachel’s article is entitled “Defining Death: Why All Fifty States Should Adopt the Uniform Definition of Death Act with a Religious Exception.”  The abstract appears after the jump. 

This article addresses the tension between the secular, American definition of death and the Jewish law definition of death. While the definition of death has been debated separately in both Jewish and American legal scholarship, the secular and Jewish law definitions of death have not been thoroughly analyzed in relation to one another. The secular definition of death — irreversible cessation of all functions of the entire brain — conflicts with the Jewish law definition of death — irreversible cessation of respiration. The conflict presents a First Amendment Free Exercise Clause challenge because state laws with strict secular definitions of death preclude Orthodox Jews from practicing Judaism in their final stages of life. This article argues that each state should adopt a definition of death statute that acknowledges the competing goals at issue in the legal definition of death — the recognition of the personal and private nature of death versus the accomplishment of secular and state objectives. New York State offers such a law by including a religious exception to the secular definition of death. Not only does the religious exception provide comfort to families in sad and serious times, but the exception is required by the First Amendment Free Exercise Clause and the right to privacy, and the exception does not significantly interfere with state interests.

The article, entitled “Must God Be Dead or Irrelevant: Drawing a Circle that Lets Me In,” appeared at 18 Wm. & Mary Bill Rts. J. 1.  The abstract appears after the jump. 

Some scholars claim that current Establishment Clause doctrine can increasingly be explained in terms of substantive neutrality — that is, the idea that government ought to treat religion and irreligion (or comparable secular activities) in the same way. Whether a product of the Court’s commitment to the idea or an artifact of the positions of the “swing” Justices, this proposition has considerable explanatory power. The Supreme Court has, in recent years, permitted the government to make financial support equally available for religious uses, as long as it is done on a neutral basis and through the private choice of the recipients. It has required the government, in its superintendence of general and limited purpose public forums, to treat comparable religious and secular speakers identically.

But the Court has continued to insist upon a substantial degree of secularity with respect to government speech. Some have argued that this is consistent with substantive neutrality as well. Government has but one voice and, while money and facilities can be made available in a way that respects individual choice, prayers and messages concerning religion cannot. Substantive neutrality, the argument continues, requires government silence on religious matters.

The problem is that modern government is not — and probably cannot be — silent on such matters. In addition, current doctrine is ambitious. It seeks to prevent even very subtle injury to dissidents. As a consequence, it cannot protect religious objectors to secular speech with religious implication in the same way it seeks to protect even secular objectors from even the most bland of religious speech.

I argue that this asymmetry is not substantively neutral. Drawing, in part, on the insights of post-liberal theology, I suggest that it permits the precise expressive harm that Establishment Clause doctrine claims to seek to prevent — that is, permits religious dissidents to feel they are disfavored members of the political community and allows the state to influence religious formation. Drawing on theories regarding the value of mediating institutions, including the Catholic notion of subsidiarity and the Calvinist idea of sphere sovereignty, I maintain that this asymmetry is undesirable and offer a less ambitious paradigm. Because we cannot protect the religious and secular from subtle expressive injury in the same way, we ought not to try.

She is, I think, wrong and may have been well served to have given more attention to a principle of legal analysis that has served me over the years: The law can be an ass, but it doesn’t always have to be. Invalidating the National Day of Prayer seems intrinsically wrong and that sense, while not dispositive, needs to be given attention.

But Judge Crabb’s decision rehearses the doctrine and the various arguments for and against the constitutionality of the matter. She did not mail it in. She did not ignore the obvious arguments against her decision, even if I don’t think she handled them in the right way.

It would be hard for me to conclude otherwise. I have argued — here and here — that there is a trail in our Establishment Clause jurisprudence (and various trails, rather than structure, is all we have in this area of the law) that is overly ambitious. It seeks to protect against relatively small religious insult and utterly fails to deliver it because, to be consistent, would paralyze the government.

In particular, it is simply not possible to protect everyone from religious insult stemming from a government communication. The government will inevitably do things – teach sex education, values clarification or promote patriotism – that could cause religious dissidents to “feel like outsiders.” The only way that you can avoid recognizing this is to declare certain forms of insult nonreligious, even if they are religiously based. This requires a truncated view of what constitutes religion and betrays the neutrality that the whole undertaking was designed to protect. An atheist can feel comfortable that his suppositions will not be accosted in a public school. A fundamentalist Christian may find hers challenged (or minimized) on a regular basis.

My suggested solution is to give up the game and realize that establishment requires something more than mere endorsement.

But – again - there is a trail of cases that prompts my criticism and Judge Crabb follows it to find the National Day of Prayer to be unconstitutional – notwithstanding that it does not establish religion in any intuitive sense of the term. In doing so, she rejects (although she acknowledges and strives to distinguish) another line of cases in which noncoercive and generalized state affirmations of religion have been permitted – particularly if they are have a long pedigree.

The decision is one that almost has to move up to the Supreme Court (unless the Seventh Circuit reverses.) The Supreme Court can hardly let invalidation of the National Day of Prayer to rest with a district judge in Madison. I think Judge Crabb’s position gets three votes. Justice Breyer, I think, will reprise his performance in Van Orden and conclude that striking down the National Day of Prayer would result in the complete abandonment of doctrine (the Lemon and endorsement tests -the ambitious Establishment Clause that I have criticized) that he would like to preserve.

Cross posted at Shark and Shepherd

I was on the ground for less than 24 hours, but San Diego is beautiful (although I think I picked the one day in the last ten years when the weather in Milwaukee in April was just as nice) and the USD campus is exquisite. My opponent (Professor Shaun Martin), the moderator (Dean Michael Kelley) and the student hosts were gracious. The lunch at La Gran Terraza was very good. What about the debate?

The case involves the refusal of Hastings College of Law (a public school that is part of the University of California system) to recognize the Christian Legal Society as a student organization because, although its events are open to everyone, voting members must affirm a statement of creedal Christianity and resolve to strive to live in accordance with certain moral standards, including to refrain from sexual conduct outside of marriage between one man and one woman.

No way, says Hastings. This constitutes discrimination on the basis of religion and sexual orientation and violates the Law School’s unwritten policy which requires (or, so Hastings says, although it has heretofore not insisted) that all student organizations take all comers without regard to whether those comers support the organization’s beliefs or ideals. The CLS can exist. Hastings might even allow it to use University facilities. (It has said that it will but there is some dispute over whether it has kept that promise.) But it can’t be a recognized student organization.

Two things are clear. The CLS has an associational right to exclude those who don’t buy into its mission. Hastings has no obligation to subsidize its speech or the exercise of its associational right.

But there is a complication.

In deciding to recognize student organizations who engage in expressive conduct, Hastings has created what has come to be known as a limited purpose public forum. Case law says that, when such a forum is created, participants may not be excluded on the basis of the viewpoint expressed, including, the Supreme Court has made clear, religious viewpoints.

Hastings says that they have not engaged in viewpoint discrimination. No organization can exclude anyone. Cats must live with dogs, Democrats must admit Republicans, the Sierra Club must welcome global warming deniers and the gay & lesbian student organization must allow its message to be voted on by congregants of the Westboro Baptist Church. Hastings says that the educational purpose of their forum requires, not only diversity among groups, but within groups.

I don’t believe the latter. Hastings student groups often have charters that require voting members to adhere to the ideals of organizations. (One, La Raza, even had racial requirements.) Although the parties have stipulated that this is Hastings policy, it seems clearly to have been an expedience contrived for litigation, suggesting that it is hardly essential to the law school’s educational mission.

The former is belied by the fact that the policy discriminates against groups organized to advance a particular point of view (one might call them “creedal groups”). It seems weak tea to say that Hastings permits student groups to express all manners of views but won’t allow them to exercise associational freedom in the task of advancing those viewpoints.

The right of free association has been found to be implicit in, and essential to, the right to speak. The freedom of associate has also been found to include the freedom to exclude those who do not share or, in the judgment of the group, would impair the group’s expressive measure.  But we need not explore the scope of the latter interest here. The CLS does not seek to exclude on the basis of status (they will admit gay and lesbian students who affirm their statement of beliefs) but on the basis of belief and in a way which is intended to further its expressive activities.

In the end, it seems to me that Hastings policy will burden the expression of unpopular views whose message can be silenced by the requirement that they admit into their organization those who would silence it. It will, I think, result in a narrower rather than broader range of discourse. It tells religious organizations that they must become debating societies – effectively excluding them from the university’s forum unless they change their very nature. This seems inconsistent with the Courts’ prior decisions on the exclusion of religious groups from limited purpose public fora.
 
Professor Martin argued ably against this view. The one thing that he and I agreed on is this is likely a 5-4 case. You can guess who the swing vote will be.

Cross posted at Shark and Shepherd

McPhail asks “whether or not the church autonomy doctrine has survived Smith.” He acknowledges that courts which have considered the matter, including five federal circuit courts, have held that it did so. However, he questions whether “Smith ended religious organizations’ unique associational rights, leaving only the protections for expressive associations and any limitations to them, upon which all other organizations must rely.”   He believes that “the survival of this latter doctrine is debatable in light of one of the most important Free Exercise cases of the recent Court: Employment Division v. Smith.”

Missing from his discussion, however, is a key excerpt from the majority’s opinion in Smith itself. In an early paragraph, Justice Scalia specifically cites three key church autonomy cases, indicating their continuing vitality:

Thus, the First Amendment obviously excludes all “governmental regulation of religious beliefs as such.” Sherbert v. Verner, supra, 374 U.S. at 402. The government may not . . . lend its power to one or the other side in controversies over religious authority or dogma, see Presbyterian Church v. Hull Church, 393 U.S. 440, 445-452 (1969); Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 95-119 (1952); Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 708-725 (1976).

The cases that Justice Scalia cited provide for a robust church autonomy, guaranteeing a “spirit of freedom for religious organizations, an independence from secular control or manipulation — in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine,” Kedroff, 344 U.S. at 115.

In short, I think there can be no doubt that the church autonomy doctrine survived Smith, McPhail’s concerns notwithstanding. Though he has other interesting points to make in the course of his essay, his suggestion that Smith killed the church autonomy doctrine should not be allowed to pass unchallenged.

That is the question that motivates Scott Idleman’s newest paper on SSRN, entitled “A Legal Perspective on Conflicts Involving Religious Communities.”  More specifically, Scott is interested in the ways that the legal culture of the United States has helped to “prevent conflicts involving religious and other communities and even foster healthy relations among these communities.”  Here is the abstract:

Within any given state or society, numerous factors can influence both relations among religious communities and relations between these communities and other institutions or value systems, including scientific communities, schools of economic or legal thought, and various ideological or political movements. Though some of these factors obviously arise from within the beliefs and structures of the religions themselves, many arise from the history, political culture, and legal framework of the state or society in which a given religious community is situated. This paper discusses the potential role of law and the legal system in influencing these relations and addressing conflicts among these communities and institutions. After explaining in general terms the relevance of a legal perspective to the assessment and resolution of such disagreements, the paper specifically examines characteristics of the constitutional framework and political culture of the United States that appear to prevent or minimize conflicts involving religious communities.

Listecki said he wants to show personal warmth and good humor in carrying out his duties as head of the ten-county archdiocese, and the most effective way to deal with people is in a caring, one-on-one manner.

But when it comes to advocating policies, he made it clear he will come down on what is generally labeled the conservative side of church issues, and he will not be reluctant to speak out when he feels it is necessary.  

Listecki told Mike Gousha, host of the “On the Issues” series at the Law School, and an audience of about 150 that he was “kind of shocked that someone had termed me a political bishop” because he had taken public positions emphasizing the church’s strong opposition to abortion.

He also defended his actions as Bishop of the La Crosse Diocese regarding cases of alleged sexual abuse by priests and indicated he felt that a recent statement by the police chief of Eau Claire that Listecki had been untruthful in statements to legislators bordered on libel. The police chief, Jerry Matysik, said recently that Listecki either misunderstood a question at a legislative hearing or misled the committee on practices in the La Crosse diocese on such complaints.

“We followed Wisconsin law,” which requires that suspected instances be reported to civil authorities, Listecki said. He said he wanted complaints from people who said they were victims of such assaults to be reported to him because that was required by church rules and he needed to know if he should take action to remove a priest from his duties. Critics have said the La Crosse diocese was slow to report cases to civil authorities.

Listecki told the Law School audience his goal in response to sexual abuse involving priests is “making sure that never, ever happens again.”

But the archbishop said he would not agree to meet with representatives of SNAP, an organization that has sharply criticized him and many church leaders for their handling of issues related to sexual abuse in the church. Listecki said he would meet personally with any victim, but would not meet with the organization.

“I do not believe in politicizing the issue,” he said. He said that with SNAP leaders, there is “an extra agenda that’s involved beyond victim advocacy.”

He said the “political” label was applied to him because of two situations, one in which he criticized Nancy Pelosi, the speaker of the U.S. House of Representatives, for what he said was wrongly stating Catholic positions on abortion, and one in which he criticized Notre Dame University for not consulting with the bishop of the diocese that includes Notre Dame before deciding to award President Barack Obama an honorary degree.

Listecki said he would continue to speak out in cases such as those, especially if someone misstates the church’s position, but in general would prefer to deal with people who disagree with Catholic teachings on a private basis and not publicly.

But he said if someone wants to describe him as a person who would “bully your opinion around, that’s certainly not my intention.”

Asked by Gousha whether a Catholic institution should ever honor someone who had, for example, an outstanding record of helping the poor, but who disagreed with the church on abortion, Listecki did not suggest circumstances where he would favor that.

Listecki said his main focal points as archbishop would be similar to those of his peers elsewhere: Personnel, school, and finances.

The archbishop said there had been an upward turn in the number of men being ordained or seeking ordination as priests in the Milwaukee area, although the numbers are small. He said there are plans to make sure all parishes are served by qualified religious leaders as a shortage of priests continues.

Asked about schools, he said, ‘We have to try to do our best to make sure Catholic education is accessible and affordable.” He said he hopes more Catholic parents can be convinced of the value of choosing church schools over public schools, and schools should aim to show those parents not only what they have that matches public schools but what they offer that is unique, such as development of Catholic identity. “Highlight the worth,” he said.

And asked what message he would have for Catholic lawyers, Listecki, who has a law degree from DePaul University, said they should keep in mind that it is “a noble pursuit.” They should stand for the ethics of the profession and understand that “your spirituality literally ignites you.” Your job is a way to serve God, he said.

The case involved the desire of a man referred to only as E to have his son, M, admitted to London’s prestigious Jewish Free School. There are many more applicants than spaces in the school and it gives preference to children who are recognized as Jewish either by the rule of matrilineal descent derived from Deuteronmomy 7:3-4 (“… neither shall his daughter take on to thy son/For  they shall turn thy son away from following me”) or by an Orthodox conversion (i.e., one recognized by the Office of Chief Rabbi of the United Hebrew Congregation of the Commonwealth). 

E is Jewish but M’s mother is a former Roman Catholic whose conversion was supervised by a Reform rabbi, so was not recognized by the OCR.

M was denied admission and E sued, arguing that the preference violated the Racial Relations Act of 1976 which forbids discrimination on the basis of ethnicity. Is that what happened?

A 5-4 majority of the Justices (formerly the Law Lords) said that it was.  The matrilineal test is, the majority said, a test based on ethnicity and, therefore, unlawful.

The opinion has drawn a great deal of criticism. Some of it is related to the sensitivity of a court decision that would provide fodder for the old canard that “Zionism is racism” although the Court – particularly in a concurrence by Lady Hale - went to some length to say that they were not accusing JFS of racism. This aspect was emphasized by those  who see an increase in anti-semitism in the UK and its foreign policy drifting away from support of Israel. While perhaps (unintentionally) demonstrating Godwin’s Law, the Telegraph chillingly paraphrased (maybe)Hermann Göring in observing that a modern liberal democracy has now announced “We decide who is a Jew.”

But most of the criticism focuses on whether the  Court had improperly taken upon itself to resolve a religious question. There are parallels with American constitutional practice. Putting aside statutory exemptions, our basic free exercise doctrine upholds neutral laws of general applicability even if they burden religious practice. (I should note that not all state constitutional doctrine is this forgiving and there have been both federal and state statutory protection of free exercise that call for more exacting scrutiny.)

Part of the rationale for such a rule is that it avoids the need for judicial scrutiny of every state law claimed to burden some claimed religious practice or obligation – claims that, depending on your point of view, are limited only (or either) by the human imagination or the inscrutability of God. In other words, not limited at all.

Courts generally seek to avoid examining the authenticity and legitimacy of a claimed religious practice. Although it is not the categorical prohibition that is sometimes claimed to be, the notion is that courts ought not to settle religious controversies and ought not to to be in the business of  evaluating religious doctrine.

The JFS decision could be seen as consistent with that regime. The Court did not resolve controversies within Judaism about Jewish identity. It simply said that whatever test is chosen cannot be an ethnic or racial test. This undoubtedly burdens religious practice but maybe that is the price we have to pay for keeping the free exercise clause from turning into a license for unbounded claims of constitutional liberty.

That view has plenty of critics (I’m one of them) but here its application is not so easy. Was this an ethnic test? To say it is arguably ignores not only its religious provenance but it religious, rather than racial, rationale. If the rule of matrilineal descent is truly drawn from Deuteronomy, the idea seems to be a religiously based counsel against marrying outside of the faith not because of concerns for racial purity or ethnic identity, but for religious reasons – “they shall turn thy son away from following me.”

That this is a religious concern is demonstrated by the fact that is has a religious exception. Thy son can take on to his daughter if his daughter undergoes a proper conversion. What constitutes a proper conversion seems to be a matter of religious controversy and doctrine. It suffices to say, that in the eyes of the JFS, the former Mrs. E did not have one. Given the notion – traditionally accepted by Christians as well as Jews – that God’s covenant with the Jews was with the Jewish nation rather than individuals who may or may not choose to accept it, the need for some definition of identity seems obvious. 

I understand that someone may spin a hypothetical regarding some Aryan religion used to exclude nonwhites from a school. That’s what makes this a hard case. It’s what may illustrate the way in which the idea that religious controversies and precepts ought to be entirely free from judicial scrutiny is limited.

But was this a hard case that made bad law? Or was bad law avoided with an unsavory result?

Cross posted at Shark and Shepherd

You’re looking at it the way President Barack Obama does – which is “almost entirely inside out and upside down,” Weigel said in a lecture sponsored by the student chapters of the Federalist Society and St. Thomas More Society.

Weigel, a distinguished senior fellow of the Ethics and Public Policy Center in Washington, D.C., is author of a widely read biography of Pope John Paul II and other books and a commentator on NBC on Catholic news.

He gave Obama credit for using Nobel Peace Prize speech recently to discuss the need to go to war against evil that exists in the world, but he said the underpinning of Obama’s justification of war was built too heavily on factors that were of lower priority than the main pillars of the subject in thought going back to St. Augustine. 

Those factors include regarding military action as a last resort or something that should only be used to respond to aggression.

As Weigel put it, Obama and others view the concept of just war as a way of setting up hurdles before a war can be launched. He said traditional thinking views the concept of just war as a theory of governance under which a legitimate authority has an obligation to build and defend a society based on justice, freedom, security, civil unity, and peace.

Weigel said the first question to be considered in determining whether a war is just is whether the government involved has the moral authority to use force. For example, he said, the president of the United States has such authority while Osama bin Laden does not.

The second question is whether such an authority is pursuing a just cause.

And the third question is whether the war is being pursued with the right intentions, including the furtherance of a moral, secure peace.

Weigel urged his audience to “ramp up our thinking about those three questions” in deciding whether military action is just. Other factors, such as using war as a last resort, are also part of the picture, but should play a lesser role, he said. He said this approach might serve well in making decisions about what to do about nuclear threats from Iran or North Korea.

Did Obama’s Nobel Price speech revive moral reasoning about just wars or harm the development of such thinking? Weigel said, “The answer tilts toward the second possibility.” He gave Obama credit for startling “appeasement-minded elites” in Europe with the notion that there is evil that needs to be fought, but the president’s concept of just wars was not anchored in the key questions Weigel listed.

Despite complaints from other employees, the [religious group, the] Centurions, made presentations during 16 roll calls between May 9 and May 16, 2006, during which they distributed the flyers and books featured at the leadership conference.

The union argued that the employer’s actions, allowing the religious group to make religious presentations during mandatory employee meetings to Sheriff deputies, had the purpose or effect of advancing religion.The union sued the Milwaukee County Sheriff under Section 1983, alleging that the religious meeting violated their rights under the Establishment Clause of the First Amendment.

The Seventh Circuit affirmed the district court and unanimously held:

Because the group’s presentations during mandatory employee gatherings gave, at the least, the appearance of endorsement by the Sheriff’s Department, we conclude that the defendants violated the Establishment Clause . . .

In this case, the Centurions gave a heavily Christian-focused presentation at a mandatory
conference for government employees, and the Sheriff subsequently invited them to present at mandatory roll calls during work hours, granting them unfiltered access to a captive audience of subordinates. At each roll call, they were personally introduced by the Sheriff’s command staff and were permitted to distribute additional Christian-focused literature. Even more telling was the Sheriff’s refusal to cease the presentations after some of the deputies complained of the Centurions’ proselytizing. He took no steps to disentangle himself or the Department from any of the religious message . . . and his actions, at the least, appeared to place the Centurions’ in the same category as the other “partnering” organizations, like Johnson’s Bike Company—all of whom presumably received the Department’s approval.

I agree with the court that, “it would be difficult to interpret the Sheriff’s actions as anything other than endorsement.”

One last point. The court also considered the free speech rights of the religious group to speak to the Deputies under a First Amendment free speech forum analysis.  On this ground, the court concluded:

The Sheriff is mistaken that the department has created a forum of any kind and so, the Centurion’s desire to access the deputies present at the leadership conference and roll calls does not trigger a Free Speech forum analysis.  The Supreme Court recognizes a distinction between claims asserting access to a forum and claims asserting access to a captive audience. Minn. State Bd. for Cmty Coll. v. Knight, 465 U.S. 271, 286 (1984).

In all, this case is a welcome reminder that public places of employment may not purposefully expose their employees to religious proselytizing, no matter how benign the purposes.

The difficulty with strong free exercise protection is not simply how to cabin the freedom (by saying that the state may restrict it only if necessary to serve a compelling state interest) but how to define what constitutes a religious claim and to assess the strength of the religious claim asserted. The problem is that the notion of religious freedom cuts against the evaluation of the strength or reasonableness of religious claims and that leaves us with a potential universe of claims that is limited only by Revelation or imagination. That is no limit at all.

This is, I think, one of the reasons that the United States Supreme Court  has not afforded generous protection to free exercise, holding that neutral laws of general applicability not aimed at suppressing religious exercise are not subject to heightened scrutiny. But Wisconsin interprets the protection of religious belief and freedom of conscience included in its Constitution differently.

In an opinion written by our own Janine Geske, it  has chosen to afford strict scrutiny to the substantial burdens on the free exercise of religion.

State law prohibits charges of child neglect based solely on healing by prayer. But it provides no such exemption for more serious charges such as reckless homicide. There are, I think, two principal questions.

First, must the state permit parents to heal by prayer? My own view is that the state has a compelling interest in protecting life and that interest can justify interfering in parental prerogatives.

Second, does a more robust protection for religious free exercise require any – or a broader – exemption from criminal prosecution? It is, after all, one thing to say that one has no right to deny medical treatment for one’s child and another to say that, if one does so, one should be prosecuted. Not everything that can be prohibited (or prevented) ought to be criminalized.

Perhaps Wisconsin has it right. Maybe the state’s interest in prosecuting such conduct does not become compelling until it inflicts the more substantial injuries that support a charge other than child abuse, such as reckless homicide or the infliction of substantial bodily injury.

Cross posted at Shark and Shepherd.

Writing at Mirror of Justice, Rob Vischer responds, arguing that health care is different, perhaps falling into that category – identified by John Paul II in Centesimus Annus - of the “needs and common goods that cannot be satisfied by the market system.”

I am in partical agreement. There is nothing about health care that, in and of itself, frustrates the operation of markets. It is not a natural monopoly and there are no intrinsic externalities or “tragedies” of the commons.

The problem, it seems to me, is that health care is like food. There are many goods that people can do without, but some are necessary for survival. We are reluctant to allow people to starve and we don’t want to simply allow those who get sick to die.

This does, I think, require public and private intervention in the market. My suggestion is that considerations of subsidiarity suggest that increases in subsidies may be preferable to increases in centralized control of the provision of services.

Subsidiarity tells us that a “higher order” of authority should not do what individuals or a “lesser order” can do for themselves. Thus, the argument might proceed, the federal government should not do what a state goverment could do. Government should not do what voluntary mediating institutions can do.

Conservatives often advance subsidiarity as a justification for limited government and it often is. But it’s not that simple either. 

The reasons are that subsidiarity is not simply a jurisdictional principle but reflects a judgment about — or at least emphasis of a particular perspective on — anthropology. It rests on a set of assumptions about the subjectivity of human persons. It is not only that granting freedom to individuals and the voluntary associations that they form will release human creativity, but that the release of creativity is itself an instrinsic good. True development of the human person requires his or her participation.

This suggests a limit on subsidiarity as a jurisdictional principle strictly defining the role of the state and the spheres of higher and lower levels of government. Catholic social thought also emphasizes solidarity. People are connected to one another and each should be committed to the common good of all. It emphasizes the human dignity of all persons and the duty of charity towards all. Every  individual ought to be able to exercise his or her subjectivity and government (or even larger private institutions) are not the only obstacle.

Sometimes intervention of a higher order may be required to make the exercise of subjectivity possible. This may threaten to mire us in indeterminancy. What do we do when the irresistable force of subsidiarity meets the immovable object of solidarity? 

I think that we can do many things. But it seems to me that some guidance is provided by the notion that policy must make space for human creativity and freedom. Although not every social outcome produced by human freedom is acceptable, it is not for the state to impose its view of the best of all possible worlds. Once it has done what it can (and that may be far from a guarantee) to ensure the conditions for human flourishing, it ought to step back and allow human beings to flourish.

I don’t know that this resolves many of the political disputes we have in the U.S., but perhaps it is a useful way to think about them. 

Cross posted at PrawfsBlawg.